Karnataka High Court
The New India Assurance Co Ltd vs Smt. Manjula on 19 January, 2024
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NC: 2024:KHC:2581
MFA No. 1706 of 2014
C/W MFA No. 9034 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
MISCELLANEOUS FIRST APPEAL NO.1706 OF 2014(MV-D)
C/W
MISCELLANEOUS FIRST APPEAL NO.9034 OF 2013(MV)
IN MFA NO.1706/2014
BETWEEN:
1. SMT. MANJULA
W/O SHIVA RAJU,
AGED ABOUT 46 YEARS.
2. SRI. SHIVA RAJU
S/O GANGAPPA,
AGED ABOUT 52 YEARS.
3. S. RAKESHA
Digitally
signed by
BHARATHI S
S/O SHIVA RAJU
Location: AGED ABOUAT 19 YEARS.
HIGH COURT
OF
KARNATAKA
4. S. BINDU,
D/O SHIVA RAJU,
AGED ABOUT 17 YEARS.
THE APPELLANT NO.4 SINCE MINOR BEING
REPRESENTED BY HER FATHER-CUM-NATURAL
GUARDIAN SRI. SHIVA RAJU.
ALL ARE R/AT NO. PUTTA HANUMANTHA
BUILDINGS, PETE BEEDHI,
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MFA No. 1706 of 2014
C/W MFA No. 9034 of 2013
KADEPETE, KYATHASANDRA,
TUMKUR CITY & DISTRICT - 572 104.
...APPELLANTS
(BY SRI. SUGUNA R REDDY., ADVOCATE)
AND:
1. SRI. V. GURUMURTHY,
S/O VELUSWAMY,
MAJOR IN AGE,
R/AT NO.96,
NELSON MANICKAM ROAD,
AMINJIKERAI,
CHENNAI - 600 029.
2. THE BRANCH MANAGER,
NEW INDIA ASSURANCE CO. LTD.,
REGIONAL OFFICE,
UNITY BUILDING ANNEXE,
LALBAGH MANSION ROAD,
BANGALORE - 560 004.
...RESPONDENTS
(BY SRI. P.S. JAGADISH, ADVOCATE FOR
SRI. P.B. RAJU, ADVOCATE FOR R2;
VIDE ORDER DATED 14.01.2015, NOTICE TO R1 IS
DISPENSED WITH)
THIS MFA IS FILED U/S.173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 4.7.2013 PASSED IN MVC
NO.5086/2011 ON THE FILE OF THE MEMBER, PRL.MACT,
BANGALORE PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
IN MFA NO.9034/2013
BETWEEN:
THE NEW INDIA ASSURANCE CO LTD .,
REGIONAL OFFICE
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NC: 2024:KHC:2581
MFA No. 1706 of 2014
C/W MFA No. 9034 of 2013
UNITY BUILDING ANNEXE,
LALBAGH MISSION ROAD,
BANGALORE.
REP. BY ITS REGIONAL OFFICE
THE NEW INDIA ASSURANCE CO. LIMITED,
REGIONAL OFFICE,
"MAHALAKSHMI CHAMBERS"
2ND FLOOR, 9/2, M.G. ROAD,
BANGALORE - 560 001,
VIDE POLICY NO.72170131100100001929
VALID FROM 8.1.2011 UP TO 7.1.2012
...APPELLANT
(BY SRI. P.S. JAGADISH, ADVOCATE FOR
SRI. P.B. RAJU, ADVOCATE)
AND:
1. SMT. MANJULA
W/O SHIVA RAJU,
AGED ABOUT 46 YEARS.
2. SRI. SHIVA RAJU
S/O GANGAPPA,
AGED ABOUT 52 YEARS.
3. S. RAKESHA
S/O SHIVA RAJU
AGED ABOUT 19 YEARS.
4. S. BINDU,
D/O SHIVARAJU,
AGED ABOUT 17 YEARS.
THE PETITIONER NO.4 SINCE MINOR BEING
REPRESENTED BY HER FATHER-CUM-NATURAL
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MFA No. 1706 of 2014
C/W MFA No. 9034 of 2013
GUARDIAN-CUM- SECOND PETITIOINER
SRI. SHIVA RAJU.
ALL ARE R/AT NO. PUTTA HANUMANTHA
BUILDINGS, PETE BEEDHI,
KADEPETE,
KYATHASANDRA,
TUMKUR CITY & DISTRICT - 572 104.
5. SHRI V. GURUMURTHY,
S/O VELU CHAMY,
LORRY OWNER,
NO.96, NELSON MANICKAM ROAD,
AMINJIKERAI,
CHENNAI - 600 029,
RC HOLDER OF THE LORRY BEARING
REG. NO.TN.02/W.0754
...RESPONDENTS
(BY SMT. SUGUNA R REDDY, ADVOCATE FOR R1 AND R2;
R4 MINOR REPRESENTED BY R2;
R3 AND R5 SERVED AND UNREPRESENTED)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:4.7.2013 PASSED IN MVC
NO.5086/2011 ON THE FILE OF THE MEMBER, PRINCIPAL
MACT, CHIEF JUDGE, COURT OF SMALL CAUSES, BANGALORE,
AWARDING A COMPENSATION OF RS.1,39,500/- WITH
INTEREST @ 6% P.A FROM THE DATE OF PETITION
THESE APPEALS, COMING ON FOR HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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MFA No. 1706 of 2014
C/W MFA No. 9034 of 2013
JUDGMENT
The MFA No.1706/2014 is filed by the claimant and MFA No.9034/2013 is filed by the insurer. Both the appeals are filed challenging the judgment and award dated 04.07.2013 passed in MVC No. 5086/2011 on the file of the Member Prl.Motor Accident Claims Tribunal and Chief Judge, Court of Small Causes at Bangalore1. Hence, both the appeals are taken up together for consideration.
2. For the sake of convenience, the parties herein are referred as per their rank before the Tribunal.
3. It is the case of the claimant that on 16.05.2011 at about 7.30 pm when he was traveling as a pillion rider in a motorcycle bearing Registration No.KA-06/EE-8280, when they reached near Government Hospital, Kyathasandra, Tumkur City, a lorry bearing Registration No.TN-02/W-0754 was stopped on the road without any parking lights and without any indication, in the middle of the road and the same was not visible. As a result of the same, the rider of 1 Hereinafter referred to as the 'Tribunal' -6- NC: 2024:KHC:2581 MFA No. 1706 of 2014 C/W MFA No. 9034 of 2013 the motorcycle hit the lorry resulting in the accident in question wherein both the rider and pillion rider falling down and sustaining grievous injuries. The pillion rider succumbed to the injuries on the way to the hospital.
4. Claiming compensation for the death of the deceased, his parents, brother and sister filed a claim petition before the Tribunal under Section 163A of the Motors Vehicles Act, 19892 arraying the owner and insurer of the lorry as respondents No.1 and 2. The insurer entered appearance before the Tribunal and contested the case of the claimants.
5. The claimant No.2 examined himself as PW.1 and a witness was examined as PW.2. Exs.P.1 to P.10 were marked in evidence. The representative of the insurer was examined as RW.1. Ex.R.1 was marked in evidence. The Tribunal by its judgment and award dated 04.07.2013 has partly allowed the claim petition and held that respondent Nos.1 and 2 are jointly and severally liable to pay the compensation awarded and further directed the second 2 (hereinafter referred to as the Act) -7- NC: 2024:KHC:2581 MFA No. 1706 of 2014 C/W MFA No. 9034 of 2013 respondent/Insurer to pay the compensation in a sum of `1,39,500/- with interest at 6% per annum. Being aggrieved, the present appeals are filed.
6. Learned counsel appearing for the insurer assailing the judgment of the Tribunal submits that the accident having occurred due to the fault of the rider of the motorcycle, the claimants are not entitled for any compensation since the rider of the motorcycle himself is the tortfeasor and is responsible for causing the accident. Hence, seeks for allowing the appeal and exonerating the insurer from payment of the compensation awarded.
7. Learned counsel appearing for the claimants contends that the claim petition has been filed under Section 163A of the Act and having regard to the judgment of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd V/s Sunil Kumar and Another3 and in the case of Shivaji and another v Divisional Manager, United India Insurance Co.Ltd and others4 the claimants 3 AIR 2017 SC 5710 4 AKR 2018(4) SC 562 -8- NC: 2024:KHC:2581 MFA No. 1706 of 2014 C/W MFA No. 9034 of 2013 are not required to plead or prove the aspect regarding negligence. She further submitted that, despite the claim petition having been filed under Section 163A of the Act, the claimants have proved the negligence of the lorry by examining the witnesses to the accident which aspect has been adequately appreciated by the Tribunal while awarding the compensation. She further submits that the quantum of compensation awarded by the Tribunal is on the lower side and seeks for enhancing the compensation awarded by the Tribunal and allowing the appeal filed by the claimants and dismissing the appeal filed by the insurer.
8. The submissions of both the learned counsels have been considered and the material on record has been perused including the records of the Tribunal. The questions that arise for consideration are:
(i)."Whether the Tribunal was justified in entertaining the claim petition and awarding compensation having regard to the fact that the claim petition was filed under Section 163A of the Motor Vehicles Act?-9-
NC: 2024:KHC:2581 MFA No. 1706 of 2014 C/W MFA No. 9034 of 2013
(ii). Whether the quantum of compensation awarded is just and proper?"
Regarding question No.1:
9. With regard to the claim petition filed under Section 163A of the Act the Hon'ble Supreme Court in the case of Sunil Kumar and Another3 has held as follows;
"8. From the above discussion, it is clear that grant of compensation under Section 163-A of the Act on the basis of the structured formula is in the nature of a final award and the adjudication thereunder is required to be made without any requirement of any proof of negligence of the driver/owner of the vehicle(s) involved in the accident. This is made explicit by Section 163A(2). Though the aforesaid section of the Act does not specifically exclude a possible defence of the Insurer based on the negligence of the claimant as contemplated by Section 140(4), to permit such defence to be introduced by the Insurer and/or to understand the provisions of Section 163A of the Act to be contemplating any such situation would go contrary to the very legislative object behind introduction of Section 163A of the Act, namely, 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. In fact, to understand
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NC: 2024:KHC:2581 MFA No. 1706 of 2014 C/W MFA No. 9034 of 2013 Section 163A of the Act to permit the Insurer to raise the defence of negligence would be to 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.
9. For the aforesaid reasons, we answer the question arising by holding that in a proceeding under Section 163A of the Act it is not open for the Insurer to raise any defence of negligence on the part of the victim."
(emphasis supplied)
10. The Hon'ble Supreme Court in the case of Shivaji and another4 has held as follows;
"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 India Insurance Co. Ltd. v. Sunil Kumar & Anr., 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
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NC: 2024:KHC:2581 MFA No. 1706 of 2014 C/W MFA No. 9034 of 2013 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."
(emphasis supplied)
11. Having regard to the aforementioned, it is clear that in both the cases that were under consideration before the Hon'ble Supreme Court, the accident arose between two vehicles and the Hon'ble Supreme Court has interpreted the ambit of a claim petition under Section 163A of the Act and has held that the insurer cannot raised any defence regarding negligence on the part of the victim in a proceeding under Section 163A of the Act. Hence, the Tribunal was justified in entertaining the claim petition filed by the claimant and awarding compensation. Hence, question No.(i) is answered in the affirmative.
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NC: 2024:KHC:2581 MFA No. 1706 of 2014 C/W MFA No. 9034 of 2013 Regarding question No.2:
12. It is forthcoming that the deceased was aged about 28 years as on the date of the accident. The income of the deceased was taken as `15,000/- per annum by the Tribunal.
13. In the present case, the claimants have pleaded that the deceased was working as a coolie and doing watch repair work and earning `110/- per day. If the same is taken into account, the income of the deceased exceeds `40,000/- per annum. Hence, for the purpose of assessment of loss of dependency, having regard to the present claim petition being under Section 163A of the Act, the income of the deceased has to be taken at `40,000/-. The Hon'ble Supreme Court in the case of Kumari Jyothi and Others Vs Mohd.Usman Ali and Others5 while awarding compensation under Section 163A of the Motor Vehicles Act has deducted 1/3rd of the compensation in the case where the deceased is a bachelor. Hence, 1/3rd was required to be 5 ILR 2002 KAR 893
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NC: 2024:KHC:2581 MFA No. 1706 of 2014 C/W MFA No. 9034 of 2013 deducted towards personal expenses. Hence, the loss of dependency is reassessed as (40,000/- less 1/3rd = 30,000/- X 18 = 5,40,000/-).
14. A sum of `2,000/- awarded towards funeral expenses and an amount of `2,500/- awarded towards loss of estate as provided under schedule to the Act.
15. Accordingly, the total compensation under various heads is re-assessed as follows:
Sl.No. Heads Amount awarded Amount awarded by the Tribunal (` `) by this Court (` `)
1. Loss of 1,35,000.00 5,40,000.00 dependency
2. Funeral 2,000.00 2,000.00 Expenses
3. Loss of Estate 2,500.00 2,500.00 Total 1,39,500.00 5,44,500.00
16. Hence, the claimant is entitled for enhanced compensation of `4,05,000/- (`5,44,500 - `1,39,500) together with interest at 6% p.a.
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NC: 2024:KHC:2581 MFA No. 1706 of 2014 C/W MFA No. 9034 of 2013
17. In view of the aforementioned, the following:
ORDER
i) MFA No.9034/2013 is dismissed and MFA No.1706/2014 is allowed in part;
ii) The judgment and award dated 04.07.2013 passed in MVC No.5086/2011 on the file of Member Prl.Motor Accident Claims Tribunal and Chief Judge, Court of Small Causes, Bangalore, is modified to the extent stated herein. In all other respects, the judgment and award of the Tribunal remain unaltered;
iii) The Appellants in MFA No.1706/2014/claimants are entitled to enhanced compensation of `4,05,000/- with interest at 6% per annum from the date of petition till its realization in addition to the compensation awarded by the Tribunal.
iv) The Appellant in MFA No.9034/2013/Insurer is liable to pay the entire compensation of `5,44,500/- with interest at 6% till date of petition till the date of realization.
v) Amount deposited by the Insurance Company in MFA No.9034/2013 be transmitted to the Tribunal. The balance amount of compensation
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NC: 2024:KHC:2581 MFA No. 1706 of 2014 C/W MFA No. 9034 of 2013 shall be deposited by the insurer within six weeks from the date of receipt of a copy of this judgment;
vi) The disbursement of compensation shall be in terms of the award of the Tribunal;
vi) The Registry to draw the modified award accordingly.
vii) No costs.
Sd/-
JUDGE KBM List No.: 1 Sl No.: 62