Karnataka High Court
Farzana Begum And Ors vs Shivaputra And Anr on 6 August, 2024
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NC: 2024:KHC-K:5852
MFA No. 202256 of 2017
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 6TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR. JUSTICE LALITHA KANNEGANTI
MISCL. FIRST APPEAL NO. 202256 OF 2017 (MV-D)
BETWEEN:
1. FARZANA BEGUM
W/O LATE MD. AYUB,
AGE: 33 YEARS,
OCC: HOUSEHOLD,
R/O HUMNABAD,
TQ: HUMNABAD,
DIST: BIDAR.
2. MD.ZUBER AHMMED
S/O LATE MD AYUB KHURAISHI
AGE: 16 YEARS,
(MINOR U/G OF REAL NATURAL
MOTHER APPELLANT NO.1)
3. FARHANA BEGUM
Digitally signed D/O LATE MD. AYUB KHURAISHI
by SUMITRA AGE: 14 YEARS,
SHERIGAR
MINOR U/G OF REAL NATURAL
Location: HIGH
COURT OF MOTHER APPELLANT NO.1
KARNATAKA
4. AMEEN BEGUM
D/O LATE MD. AYUB KHURAISHI
AGE: 10 YEARS,
MINOR U/G OF REAL NATURAL
MOTHER APPELLANT NO.1
5. MD. OMERAHMMED
S/O LATE MD. AYUB KHURAISHI,
AGE: 8 YEARS,
MINOR U/G OF REAL NATURAL
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MFA No. 202256 of 2017
MOTHER APPELLANT NO.1
6. TAHURAN BEGUM
D/O LATE MD. AYUB KHURAISHI
AGE: 8 YEARS,
MINOR U/G OF REA NATURAL
MOTHER APPELLANT NO.1
ALL R/O HUMNABAD,
TQ: HUMNABAD,
DIST: BIDAR
PIN CODE NO: 584101.
...APPELLANTS
(BY SRI. BABU H METAGUDDA, ADVOCATE)
AND:
1. SHIVAPUTRA
S/O KASHAPPA KORKE,
AGE: 51 YEARS,
OCC: BUSINESS
R/O BUDHAWAR PETH BASAVKALYAN,
TQ: BASAVKALYAN, BIDAR
PIN CODE NO.584101.
2. THE MANAGER,
NATIONAL INSURANCE CO. LTD.
THROUGH ITS DIVISIONAL MANAGER,
OPP: MINI VIDHAN SOUDHA,
KALABURAGI
PIN CODE NO. 585101
...RESPONDENTS
(BY SMT. SANGEETA BHADRASHETTY, ADVOCATE FOR R-2;
R-1 - SERVED)
***
THIS MFA IS FILED U/S. 173(1) OF MOTOR VEHICLES
ACT, 1988, PRAYING TO CALL FOR RECORDS IN MVC
NO.121/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
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NC: 2024:KHC-K:5852
MFA No. 202256 of 2017
MACT AT HUMNABAD; ALLOW THIS APPEAL AND SET ASIDE
THE JUDGMENT AND AWARD DATED 22.02.2017 PASSED IN
MVC NO.121/2011 BY THE SENIOR CIVIL JUDGE AND MACT AT
HUMNABAD AND AWARD THE COMPENSATION OF
RS.15,00,000/- WITH 12% INTEREST; GRANT SUCH OTHER
AND FURTHER RELIEFS AS THIS COURT DEEMS FIT, IN THE
CIRCUMSTANCES OF THE CASE, IN THE INTEREST OF JUSTICE
AND EQUITY.
THIS MFA, HAVING BEEN RESERVED AT KALABURAGI BENCH
AND COMING ON FOR PRONOUNCEMENT BEFORE THE PRINCIPAL
BENCH AT BENGALURU THROUGH VIDEO CONFERENCE, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE LALITHA KANNEGANTI
CAV JUDGMENT
(PER: HON'BLE MR. JUSTICE LALITHA KANNEGANTI) Aggrieved by the dismissal order passed by the Court of the Senior Civil Judge and MACT, at Humnabad (hereinafter for brevity referred to as "the Tribunal") in M.V.C.No.121/2011 dated 22.02.2017, the claimants are before this Court.
2. The claimants who are the legal representatives of the deceased Mohammed Ayub had filed a claim petition under Section 163A of the Motor Vehicles Act, 1988 (hereinafter for brevity referred to as "the M.V. Act"), claiming compensation. -4-
NC: 2024:KHC-K:5852 MFA No. 202256 of 2017
3. It is the case of the claimants that, on 28.10.2009, at about 5:30 a.m., the deceased Mohammed Ayub was proceeding from Bombay to Hyderabad in vehicle bearing registration No.KA-39/5382 as a Cleaner and when the said vehicle reached the village limits of Turori in front of a Petrol Pump, at that time, a Trailer came from the opposite direction in high speed and overtook sharp cut, dashed and scratched the cabin of the said vehicle. Resultantly, the deceased Mohammed Ayub sustained injuries all over his body and died on the spot and one Rajappa sustained injuries such as fracture of left leg, fracture of stomach, little finger and other parts of the body.
4. This appeal is preferred by the Legal Representatives of the deceased Mohammed Ayub, who is allegedly working as a Cleaner in the vehicle bearing registration No.KA-39/5382. According to them, the deceased Mohammed Ayub was aged 27 years, earning an amount of `40,000/- per month and due to his death, the family is deprived of his entire income.
5. On behalf of the claimants, the Legal Representative and wife of the deceased Mohammed Ayub was examined as -5- NC: 2024:KHC-K:5852 MFA No. 202256 of 2017 PW-1 and also produced documentary evidence, wherein, she has admitted that she does not know how many vehicles were involved in the present case and that the Police have not recorded her statement. She further stated that her husband was illiterate and she does not know the details of his employer. The Tribunal observed that the driver of the Lorry (Rajappa) who was the best witness has not come forward and led his evidence and after his death also, his legal heirs have not come forward and given evidence in support of their case, which also clearly goes to show that, the legal representatives of the deceased Mohammed Ayub and also the injured Rajappa, who later died, have not led their evidence corroborating the averments made in their claim petitions. Whereas the deceased Mohammed Ayub is shown as the Cleaner in the claim petition, but no where in the Police papers from Exs.P-1 and P-9, it is mentioned that he was travelling in the said vehicle as a Cleaner. Further, it also goes to show that even in the document at Ex.P-1 - FIR also, it is not mentioned that the deceased Mohd. Ayub was traveling in the said Lorry as a Cleaner, however, the name of the driver of the said Lorry is shown as one Kashanna Baswanappa, R/o. Hallikhed, Taluk -6- NC: 2024:KHC-K:5852 MFA No. 202256 of 2017 Humnabad and only it is mentioned that the said Rajappa has sustained injuries, which also raises a suspicion in the mind of the Court. Further, the averments made in the claim petition are also not as per the recitals mentioned in the Police papers produced by the petitioners such as Ex.P-1 - FIR, complaint as well as Ex.P-9 charge sheet.
The Tribunal has further observed that though the petition is filed under Section 163A of the M.V. Act, it clearly goes to show that as per the document at Ex.P-9 charge sheet, it is not filed against the driver of the Lorry bearing registration No.KA-39/5382 against whom the present claim petition is filed by the petitioners before the Tribunal. In fact the charge sheet is filed against the driver of the unknown Trailer and in such a case when there is no offence made out against the driver of the Lorry in question, then the claim petition against the respondent No.1 - owner of the Lorry and respondent No.2 Insurer of the said Lorry is not maintainable as per Section 163A of the M.V. Act.
The Tribunal has also held that the petitioners (legal representatives of deceased Mohammed Ayub) could not make -7- NC: 2024:KHC-K:5852 MFA No. 202256 of 2017 out a case that they are entitled for compensation under Section 163A of the M.V. Act and accordingly, dismissed the claim petition.
6. Learned counsel appearing for the petitioners/ claimants submits that the Tribunal, without taking into consideration the fact that the petition is filed under Section 163A of the M.V. Act, where the involvement of the motor vehicle itself is sufficient to claim compensation, has proceeded to dismiss the claim petition. It is submitted that the Tribunal failed to appreciate the facts in the proper perspective and dismissed the claim petition. It is also submitted that the Tribunal has failed to appreciate the evidence led on behalf of the claimants and the documentary evidence at Ex.P-9 charge sheet in its proper perspective and the order passed by the Tribunal is liable to be set aside.
In support of his case, learned counsel for the petitioners/claimants relied upon a judgment of the Hon'ble Apex Court in the case of SHIVAJI AND ANOTHER VS. DIVISONAL MANAGER, UNITED INDIA INSURANCE -8- NC: 2024:KHC-K:5852 MFA No. 202256 of 2017 CO.LTD. AND ORS.1. Paragraphs 4 and 5 of the said judgment reads as below:
"4. The insurer preferred an appeal before the High Court of Karnataka. The appellants also filed an appeal before the High Court seeking enhancement of compensation awarded by the Tribunal. The High Court, by its impugned judgment, allowed the insurer's appeal and set aside the order of the Tribunal. The High Court opined that the idea behind enacting Section 163A is to ensure that even in the absence of any mistake on the part of the driver of the offending vehicle, the injured person or the legal heirs of the deceased person are compensated by the owner and the insurer. As a result, under this provision, since the victim has been contemplated to be an innocent third party, protection is extended only to the injured person or to the legal heirs of the deceased victim, and not to the driver who is responsible for causing the said accident. Since the deceased driver in this case was the tort feasor and responsible for causing the accident, the High Court held that compensation could not have been awarded to the appellants.
5. The issue which arises before us is no longer res integra and is covered by a recent judgment of three judges of this Court in United 1 AIR 2018 SC 3705 -9- NC: 2024:KHC-K:5852 MFA No. 202256 of 2017 India Insurance Co. Ltd. v. Sunil Kumar & Anr.,[AIR 2017 SC 5710] wherein it was held that to permit a defence of negligence of the claimant by the insurer and/or to understand Section 163A of the Act as contemplating such a situation, would be inconsistent with the legislative object behind introduction of this provision, which is "final compensation within a limited time frame on the basis of the structured formula to overcome situations where the claims of compensation on the basis of fault liability was taking an unduly long time". The Court observed that if an insurer was permitted to raise a defence of negligence under Section 163A of the Act, it would "bring a proceeding under Section 163A of the Act at par with the proceeding under Section 166 of the Act which would not only be self-contradictory but also defeat the very legislative intention".
Consequently, it was held that in a proceeding under Section 163A of the Act, the insurer cannot raise any defence of negligence on the part of the victim to counter a claim for compensation." Learned counsel also relied upon an un-reported judgment of the co-ordinate Bench of this Court in the case of THE BRANCH MANAGER, UNITED INDIA INSURANCE COMPANY LTD., VS. SMT. LALITABAI AND OTHERS dated 30.08.2012 in M.F.A.No.31626/2009 (MV) the attention of
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NC: 2024:KHC-K:5852 MFA No. 202256 of 2017 this Court is drawn to paragraphs 15, 16 and 17 of the said judgment, which read as below:
"15. Having regard to the language of Section 163A of the Act, this is a non issue for awarding compensation under Section 163A of the Act. The requirements are only as to whether an accident involving motor vehicle took place resulting in death or bodily injury of the nature mentioned in the Schedule which entitles one for compensation irrespective of who contributed or who was negligent for causing the accident.
16. While examining the scope of a statutory provision like this Courts should keep in mind the intention of the legislature to provide compensation to the dependents of the person who dies in an accident without making the question of negligence an issue and that is why Section 163A of the Act has been introduced in the statute book by way of amendment and as an exception to the normal claim petition that can be preferred under Section 166 of the Act.
17. On the aspect of the accident and Tata 407 vehicle bearing registration No.MH-11/A-3486 also being involved in the accident there is not much dispute and therefore the claim petition under Section 163A is required to be ordered. Quantification regarding loss of dependency is not
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NC: 2024:KHC-K:5852 MFA No. 202256 of 2017 much in dispute but what is pointed out is only quantification under the other heads."
Learned counsel appearing for the claimants further submits that the appeal is liable to be allowed and they are entitled for the compensation on account of the death of the deceased Mohammed Ayub.
7. Per contra, learned counsel appearing for the respondent No.2 - Insurance Company submits that, the Tribunal had rightly dismissed the claim petition of the appellants. When the claimants have failed to prove the involvement of the vehicle itself and also of the fact that the deceased Mohammed Ayub was traveling as a Cleaner in the vehicle in question, the petition under Section 163A of the M.V. Act is not maintainable. She specifically submitted that, once a claim petition is filed under Section 163A of the M.V. Act, the claimants are supposed to prove the involvement or use of the vehicle. It is submitted that in this case, the charge sheet is not filed against the Lorry but against the driver of an unknown Trailer. Therefore, she submits that they being the Insurer of the Lorry, they need not pay the compensation. Further it is
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NC: 2024:KHC-K:5852 MFA No. 202256 of 2017 stated that the Tribunal has rightly dismissed the claim petition and no grounds are made out to allow the appeal.
8. Having heard the learned counsels on either side, perused the entire material on record. The specific case of the claimants in their claim petition is that the deceased was working as a Cleaner in the Lorry belonging to the first respondent-owner. The manner in which the accident has taken place is that, on 28.10.2019 at about 5:30 a.m., the deceased Mohammed Ayub was proceeding in a vehicle Lorry bearing registration No.KA-39/5382 as a Cleaner and because of the negligence of the driver of the Trailer coming from the opposite direction, the accident had occurred. There is no dispute about the fact that the charge sheet is filed against the driver of an unknown Trailer.
9. In this case, the present claim petition is filed seeking compensation under Section 163A of the M.V. Act, where under the involvement of the vehicle itself is sufficient and it is not necessary that the claimants have to prove any wrongful act, negligence or default of the owner of the vehicle concerned or of any other person. The Tribunal has given a finding that when
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NC: 2024:KHC-K:5852 MFA No. 202256 of 2017 there is no offence made out against the driver of the Lorry, the very claim of the petitioners against the owner of the said Lorry is not maintainable under Section 163A of the M.V. Act. It is stated in the claim petition that the deceased Mohammed Ayub was a Cleaner. When he died in the accident and when there is use of the vehicle in question, that itself is sufficient to claim the compensation under Section 163A of the M.V. Act. But the important aspect that assumes significance is as to whether the deceased was travelling in the vehicle as a Cleaner or not. Whether he was hired by the first respondent or not. On going through the observation that is made by the Tribunal, it is not forthcoming from any of the documents. The Tribunal has specifically observed that no where in the Police records at Exs.P-1 to P-5 and Ex.P-9, it is mentioned that the deceased was traveling in the Lorry as a Cleaner. Even in the FIR also, it is not mentioned that the deceased Mohammed Ayub was traveling as a Cleaner.
10. Considering all these discrepancies and also in view of the above discussion, this Court is of the view that the matter has to be remanded back to the Tribunal, giving an opportunity to the claimants to establish the fact as to whether
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NC: 2024:KHC-K:5852 MFA No. 202256 of 2017 in the vehicle in question, the deceased Mohammed Ayub was travelling as a Cleaner.
11. Accordingly, the appeal is allowed, by setting aside the judgment and award passed by the Tribunal in M.V.C.No.121/2011 dated 22.02.2017 and the matter is remanded back to the Court of the Senior Civil Judge and MACT, at Humnabad, for fresh consideration, in accordance with law;
i. Both parties shall appear before the Tribunal on 02.09.2024.
ii. Both the parties are at liberty to adduce evidence with regard to the fact whether the deceased Mohammed Ayub was traveling in the vehicle in question as a Cleaner.
iii. Based on the evidence led by both sides, the Tribunal shall dispose of the matter within eight months from the date of receipt of a copy of this judgment.
iv. The Registry is directed to return the records to the concerned Tribunal along with a certified copy of this order forthwith, without any delay.
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NC: 2024:KHC-K:5852 MFA No. 202256 of 2017 v. No Costs.
All miscellaneous petitions, if any, shall stand closed.
Sd/-
JUSTICE LALITHA KANNEGANTI BMV*