Karnataka High Court
Bajaj Allianz General Insurance Co. Ltd vs G.V.Vijaykumar S/O G.M. Veeraiah on 15 April, 2013
Author: N.Ananda
Bench: N.Ananda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 15TH DAY OF APRIL 2013
BEFORE
THE HON'BLE MR.JUSTICE N.ANANDA
M.F.A.No.5331/2009 C/W M.F.A.No.1484/2010 (MV)
MFA No.5331/2009
BETWEEN:
BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.
415/5, 8TH MAIN, P.J. EXTENSION
DAVANGERE BY
BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.
TBR TOWERS, NEW MISSION ROAD
BANGALORE 560027
BY ITS MANAGER. ... APPELLANT
(BY SRI O MAHESH, ADV.)
AND :
1. G.V.VIJAYKUMAR
S/O G.M. VEERAIAH, 25 YEARS
R/O 2ND MAIN, 4TH CROSS
VINOBHA NAGAR, DAVANAGERE
2. VEERESH
S/O MARULASIDDAIAH, MAJOR
R/O 4TH CROSS, VIDYA NAGAR
DAVANAGERE. ... RESPONDENTS
(BY SRI MAHESH R UPPIN, ADV. FOR R1; R2 - SERVICE HELD
SUFFICIENT V.C.O. DATED 12.09.2011)
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THIS APPEAL IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED: 28.04.2009 PASSED IN
MVC NO. 604/2006 ON THE FILE OF PRINCIPAL CIVIL JUDGE
(SR.DN.) & ADDITIONAL MACT AT DAVANGERE, AWARDING
COMPENSATION WITH INTEREST & ETC.
MFA No.1484/2010
BETWEEN:
G V VIJAY KUMAR
S/O G M VEERAIAH, 26 YEARS
R/O 2ND MAIN, 4TH CROSS
VINOBHA NAGAR
DAVANGERE. ... APPELLANT
(BY SRI MAHESH R UPPIN, ADV.)
AND :
1. N B PRASHANTH KUMAR
S/O N M BASAVARAJAIAH
RIDER OF NEW MOTOR CYCLE
BEARING REG. NO.KA-17/S-6751
SOFTWARE ENGINEER
R/O NO.2009/246, "ANAGHA NILAYA"
RANGANATHA EXTN., HADADI ROAD
DAVANGERE
2. VEERESH
S/O MARULASIDDAIAH
OWNER OF NEW MOTOR CYCLE
BEARING REG. NO.KA-17/S-6751
R/O 4TH CROSS, VIDYA NAGAR
DAVANGERE.
3. THE MANAGER
BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.
ALLIED INSURANCE, 415/5
8TH MAIN, P J EXTENSION
DAVANGERE. ... RESPONDENTS
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(BY SRI O MAHESH, ADV. FOR R3; R1 & R2 - NOTICE
DISPENSED WITH V.C.O.DATED 24.02.2012)
THIS APPEAL IS FILED U/S 173(1) OF MV ACT TO MODIFY
THE JUDGMENT AND AWARD DATED:28.04.2009 PASSED IN
MVC NO.604/2006(OLD NO.325/2006) ON THE FILE OF
PRINCIPAL CIVIL JUDGE (SR. DN) AND ADDITIONAL MACT AT
DAVANGERE, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
***
THESE APPEALS COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
MFA No.5331/2009 is filed by Insurance Company to set aside the impugned award.
MFA No.1484/2010 is filed by claimant for enhancement of compensation.
2. I have heard Sri O.Mahesh, learned counsel for Insurance Company and Sri Mahesh R.Uppin, learned counsel for claimant.
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3. The claim petition was filed under section 163A of the Motor Vehicles Act, 1988 (for short, 'the Act'). The claimant has shown his income as Rs.5,000/- per month. The Tribunal ignoring the income of claimant, proceeded under section 163A of the Act to decide issue No.1. The Tribunal while deciding issue No.2 regarding quantum of compensation has invoked section 166 of the Act.
4. Sri O.Mahesh, learned counsel for Insurance Company would submit that respondent-Insurance Company has led evidence to prove that accident was due to rash and negligence of motorcycle ridden by claimant. The Tribunal should not have ignored documents filed by respondent- Insurance Company, in particular, chargesheet filed against claimant and admission of guilt by claimant in C.C.No.2588/2004 before criminal court and judgment made in MVC No.961/2005 filed by I-respondent against claimant, wherein compensation has been awarded to I-respondent and liability to pay compensation has been saddled on claimant.
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5. The learned counsel for Insurance Company would submit that claimant having pleaded guilty before criminal court in C.C.No.2588/2004 and having suffered judgment dated 03.02.2007 in MVC No.961/2005 had deliberately invoked the provisions of section 163A of the Act. The Tribunal without noticing the conduct of claimant and also income of claimant has determined claim under section 163A of the Act only while deciding issue of negligence. However, Tribunal while deciding issue No.2 has invoked the provisions of section 166 of the Act.
6. Sri Mahesh R.Uppin, learned counsel for claimant would submit that claimant has pleaded that his income is Rs.5,000/- per month. The Tribunal has taken income of claimant at Rs.3,000/- per month. The claim petition was filed under section 163A of the Act, the Tribunal did not rightly call upon claimant to establish negligence of I- respondent. The Tribunal has awarded just and reasonable compensation.
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7. On hearing learned counsel for parties and after going through evidence and the impugned judgment, I find that Tribunal has ignored the provisions of section 163A of the Act and also section 166 of the Act. The Tribunal has ignored the contents of claim petition wherein claimant has shown his income as Rs.5,000/- per month. Therefore, claim petition should have been dealt under section 166 of the Act. The Tribunal notwithstanding the fact that claimant had invoked the provisions of section 163A of the Act should have considered documents filed by Insurance Company to find out as to whether I-respondent had established negligence on the part of claimant.
8. In a decision reported in 2012 ACJ 1 (in the case of National Insurance Co. Ltd. Vs. Sinitha & others), the Supreme Court has held:-
"On the conjoint reading of Sections 140 and 163-A of the Motor Vehicles Act, 1988, the legislative intent is clear, namely, that a claim for compensation raised under Section 163-A of 7 the Act, need not be based on pleadings or proof at the hands of the claimants showing absence of 'wrongful act', being 'neglect' or 'default'. But that is not sufficient to determine that the provision falls under the 'fault' liability principle. To decide whether a provision is governed by the 'fault' liability principle, the converse has also to be established, i.e., whether a claim raised thereunder can be defeated by the concerned party (owner or insurance company) by pleading and proving 'wrongful act', 'neglect' or 'default'... we have no hesitation in concluding that it is open to the owner or insurance company, as the case may be, to defeat a claim under section 163-A of the Act by pleading and establishing through cogent evidence a 'fault' ground ('wrongful act' or 'neglect' or 'default'). It is, therefore, doubtless that section 163-A of the Act is founded under the 'fault' liability principle."
9. The Tribunal has proceeded on assumption that claim petition is filed under section 163A of the Act. The I- respondent cannot be permitted to plead and prove that 8 claimant himself was guilty of rash and negligent riding of motorcycle. The claim petition has to be dealt under the principle of no fault liability.
10. In a decision reported in 2012 ACJ 1 (in the case of National Insurance Co. Ltd. Vs. Sinitha & others), the Supreme Court has held that claim petition filed under section 163A of the Act is founded under the "fault liability principle". The Tribunal while awarding compensation has ignored II-Schedule to the Act.
11. Sri O.Mahesh, learned counsel for Insurance Company would submit that impugned award has to be set aside.
12. In a claim petition filed either under section 163A or 166 of the Act, Tribunal has right to decide claim petition either under section 163A or 166 of the Act as situation warrants. The Tribunal cannot decide a part of claim under section 163A of the Act and other part of claim under section 166 of the Act. The approach of Tribunal is erroneous. The 9 claimant should not suffer for errors committed by Tribunal. Therefore, I am of the opinion that matter requires reconsideration.
13. In the result, I pass the following:-
ORDER MFA No.5331/2009 filed by Insurance Company is accepted. The impugned award is set aside. The matter is remanded to Tribunal for reconsideration in the light of observations made herein and in accordance with law. The finding of Tribunal on quantum of compensation is not disturbed. In view of remand order made in MFA No.5331/2009, MFA No.1484/2010 filed by claimant for enhancement of compensation does not survive for consideration for the present. After fresh award is passed, aggrieved parties are at liberty to challenge the impugned award as they deem fit. The 10 amount deposited by Insurance Company shall be refunded to Insurance Company.
Sd/-
JUDGE SNN