Bangalore District Court
Smt.Pachamma vs The Manager on 16 May, 2016
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL
COURT OF SMALL CAUSES AT BENGALURU
(SCCH:15)
DATED: THIS THE 16th DAY OF MAY, 2016
PRESENT : Smt.K.Katyayini, B.Com., LL.B.,
XIII Addl.Small Cause Judge
& Member, MACT, Bengaluru.
MVC.1856/20008 c/w MVC.1857/2008 & MVC.1858/2008
Petitioner/s 1.Smt.Pachamma
in MVC.1856/2008 W/o Late Subramani,
Aged about 46 years,
2.Sri.Saravana
S/o Late Subramani,
Aged about 29 years,
3.Sri.Srinivasa
S/o Late Subramani,
Aged about 25 years,
All are residing at No.6,
1st Main,
Udayashankara Road,
Bengaluru - 16.
Petitioner/s Smt.Pachamma
in MVC.1857/2008 W/o Late Subramani,
Aged about 46 years,
Residing at No.6,
1st Main, Udayashankar Road,
Jayanagar,
Bengaluru - 16.
Petitioner/s Sri.Saravana,
in MVC.1858/2008 D/o Late Subramani,
Aged about 29 years,
1st Main, Udayashankar Road,
(SCCH-15) 2 MVC.5563/2014
Jayanagar,
Bengaluru - 16.
(By Pleader - Sri.B.K.Kumara.)
V/s
Respondent/s 1.The Manager,
in all the petitions United India Insurance Co. Ltd.,
Regional Office, No.25,
Shankaranarayana Building,
M.G.Road, Bengaluru - 560 001.
(Insurer of Lorry No.TN.28 P-1418)
(By Pleader - Sri.Janardhana Reddy.)
2.M/s VKS Transports, No.234,
Salem Road, Namakal Taluk
and District. Namakal,
Tamilnadu State.
(RC Owner of Lorry No.TN-28 P-1418)
(By Pleader - Exparte.)
3.Smt.Pachamma
W/o Late Subramani,
Aged about 46 years,
4.Sri.Saravana
S/o Late Subramani,
No.6, 1st Main,
3rd and 4th respondents
are residing at
Udayashankar Road,
Bengaluru - 560 016.
(By Pleader - Exparte.)
(SCCH-15) 3 MVC.5563/2014
COMMON JUDGMENT
Petitioners have filed these petitions under Section
163A of MV Act seeking grant of compensation in
MVC.1856/2008 on account of death of the deceased
Subramani, the husband of 1st petitioner and father of
the rest of the petitioners and in rest of the petitions on
account of injuries they have sustained in RTA.
2. The brief case of petitioners is that on 03.12.2007
at about 1:00 a.m. the deceased being the driver and the
petitioners being the inmates of Maruthi Van bearing
No.KA-01 P-3058 were proceeding on NH-48 near Marur
hand post near Kudur along with other family members.
At that time, the lorry bearing No.TN-28 P-1418 came
with high speed in a rash and negligent manner from the
opposite direction i.e. from Bengaluru side and dashed to
the van.
b) Due to the impact, the deceased succumbed to
the injuries sustained at the spot itself and the
petitioners have suffered severe injuries all over the body.
Accident took place due to the rash and negligent driving
of the lorry driver. Therefore, 2nd respondent being the RC
(SCCH-15) 4 MVC.5563/2014
owner and 1st respondent being the insurer of the lorry
are jointly and severally liable to pay the compensation.
Therefore, prayed to allow all the petitions as sought for.
3. In response to the due service of notice, 2nd
respondent remained exparte. However, 1st respondent
has put its appearance through its counsel and filed its
statement of objections denying the petition averments
denying the petition averments.
b) It has specifically contended that the present
petition is bad for non joinder of necessary parties since
the RC owner and the insurer of the van are not made as
parties to these proceedings.
c) However, it has admitted the policy and its force
as on the date of accident, but has contended that its
liability if any is subject to the terms and conditions of
the policy. It has specifically contended that the 2nd
respondent insured RC owner has willfully entrusted the
vehicle to the person who had no valid and effective
driving licence to drive the class of lorry.
d) It is also its defence that the there was no specific
badge to drive HGV nor specific endorsement in the
(SCCH-15) 5 MVC.5563/2014
driving licence by the concerned authority authorizing
the driver to drive the class of the insured lorry. Hence, it
is not liable to indemnify the insured RC owner 2nd
respondent.
e) It has also contended that the accident took place
solely due to the negligent driving of the van by the
deceased and if the deceased drove the van carefully
observing the opposite vehicle, the accident would have
been avoided. Hence, prayed to dismiss the petition
against it with costs.
4. During the course of trail, 1st respondent got
impleaded the 1st and 2nd petitioners in MVC.1856/2008
who are respectively the petitioners in MVC.1857/2008
and MVC.1858/2008 as 3rd and 4th respondents in the
capacity of the RC owners/LRs of the RC owner of the
van.
5. In the course of trial, 1st respondent has also got
amended its pleading by getting inserted paras Nos.2 and
2(A) to the effect that accident took place on the
negligence of the deceased and the Kudur Police after
investigation have filed the charge sheet against the
(SCCH-15) 6 MVC.5563/2014
deceased himself. Despite of that, the petitioners
suppressing the facts have come with these petitions only
in order to get compensation from it even though there is
no negligence on the part of its insured lorry driver.
Hence, prayed to dismiss all the petitions against it with
costs.
6. On the above said pleadings of the parties, my
learned predecessor in office was pleaded to frame the
following common issues in all the petitions.
1. Whether petitioner/s is/are
entitled for compensation? If so, at
what rate and from whom?
2. What order or decree?
7. To prove the above said issues and to
substantiate their respective contentions, 1st petitioner in
MVC.1856/2008 who is petitioner in MVC.1857/2008
has entered into witness box in those petitions as PWs-1
and 2 respectively. Petitioner in MVC.1858/2008 has put
his appearance in the witness box as PW-3. Totally got
exhibited 26 documents and closed their side. Per contra,
1st respondent got examined its assistant manager as
RW-1. Got exhibited 2 documents and closed its side.
(SCCH-15) 7 MVC.5563/2014
8. After hearing both the sides on merits of the case
and on going through the evidence on record, my learned
predecessor in office was pleased to pass the common
judgment on 09.04.2010 by dismissing all the above
three petitions.
9. Being aggrieved by the said judgment and award,
petitioners went in appeal before the Hon'ble High Court
of Karnataka, Bengaluru in MFA.74/2011 c/w
MFA.52/2011 & MFA.45/2011 which came to be allowed
as per the common judgment passed in those appeals
dated 08.02.2016 and the matter is remanded back for
fresh disposal in accordance with law.
10. After remand, an opportunity is given to both
the parties to adduce their further/additional evidence if
any. But none of the parties have let in any
further/additional evidence. Heard further both the sides
on merits of the case.
b) In support of his oral arguments, counsel for
petitioner has filed memo with the xerox copies of the
decisions reported in;
(SCCH-15) 8 MVC.5563/2014
1) 2014 ACJ 2235,
2) 2012 ACJ 1335,
3) 2012 ACJ 1,
4) 2012 ACJ 21,
5) 2014 ACJ 653,
6) 2015 ACJ 1441,
7) 2010 ACJ 145,
8) ILR 2010 Karn. 3975 and
9) Judgment passed in MVC.7875/2012.
c) Per contra, in support of his oral arguments,
counsel for 1st respondent has filed memo with the xerox
copies of the decisions reported in;
1) ILR 2003 KAR 493,
2) ILR 2004 KAR 3731,
3) AIR 1988 SC 2154,
4) AIR 1998 SC 2154 and
5) 2002 ACJ 1564.
d) This Tribunal has carefully gone through kthe
above noted decisions and perused the record.
11. Now the findings of this Tribunal on the above
said issues are answered in the;
1. Issue No.1: Petitioners in MVC.1856/2008
are entitled for compensation
of Rs.00,000/-, Rs.00,000/-
and Rs.00,000/- totally
Rs.00,000/-; petitioner in
MVC.1857/2008 and
MVC.1858/2008 are
respectively entitled for
compensation of Rs.00,000/-
(SCCH-15) 9 MVC.5563/2014
and Rs.00,000/- together with
interest at 6% p.a. from the
date of petition till the
realization of the compensation
amount in its entirety from 1st
respondent.
2. Issue No.2: As per final order for the
following reasons.
REASONS
12. ISSUE No.1:- If the above observed pleadings of
the parties are taken note off, it is clear that there is no
dispute between the parties with regard to the alleged
accident; the date, time and place of accident; the drivers
of the respective vehicles; the fact that the deceased was
the driver of the van; rest of the petitioners are the wife
and sons of the deceased and also the inmates of the van
at the time of the accident.
13. The only dispute raised on behalf of 1st
respondent is that the accident took place because of the
negligent driving of the van by the deceased and despite
of that to get some compensation somehow from it,
petitioners have come up with these petitions under
Section 163A of MV Act.
(SCCH-15) 10 MVC.5563/2014
14. Since, admittedly the present petitions are filed
under Section 163A of MV Act, there is no question of
considering the negligent aspect. To entertain the
petitions under Section 163A of MV Act, this Tribunal is
required to consider the fact that whether the accident
took place out of the use of the vehicle and so far the
present petitions as per the pleadings of the parties,
particularly the petitioners, out of the use of the lorry.
15. To establish their respective contentions, as
observed above, petitioners i.e. 1st petitioner in
MVC.1856/2008 and the petitioners in the rest of the
petitions are themselves put their appearance in the
witness box as PWs-1 to 3. They have filed their affidavit
evidence wherein they have reiterated the petition
averments. Strangely they have deposed in their cross-
examination that the accident is because of the sole
negligence of the lorry driver.
16. Per contra, 1st respondent got examined its
assistant manager as RW-1 who has filed his affidavit
evidence wherein he has reiterated the statement of
objections averments of the 1st respondent and
(SCCH-15) 11 MVC.5563/2014
specifically deposed that the accident is because of the
negligent driving of the van by the deceased.
17. As observed above, there is no dispute between
the parties with regard to the accident and the
involvement of the lorry in the accident. But it is evident
on record that the jurisdictional police have charge
sheeted the deceased for the present accident. However,
in view of the present petitions are filed under Section
163A of MV Act, there is no question of considering the
negligent aspect.
18. But, petitioners have failed to establish that the
present accident is arisen out of the use of the lorry since
admittedly, the petitioners were neither the inmates nor
the third parties victimized by the use of the lorry. It is
evident on record that too by the police papers which are
admittedly produced by the petitioners themselves that
the lorry was proceeding on its way and it is the deceased
being the van driver proceeded and hit the lorry. So, in
fact, so far the present accident, the lorry was not in use
at the time of accident in terms of the definition of "use of
motor vehicle" as envisaged in Section 163A of MV Act.
(SCCH-15) 12 MVC.5563/2014
19. However, it is the arguments of the counsel for
petitioners that even the accident took place on the
negligence of the deceased, it cannot be said that these
petitions are not maintainable against the other vehicle
considering that the deceased himself is the tortfeasor
and petitioners are not third parties.
20. In support of his said arguments, he has placed
his reliance on the decision reported in 2014 ACJ 2235
(National Insurance Co. Ltd. V. Gracy and others)
wherein the Hon'ble High Court of Kerala at Ernakulam
has held that;
"Motor Vehicles Act, 1988, Section 163A - Claim
Application - Maintainability of - Negligence of
victim - Collusion between a car and truck coming
from opposite directions resulting in death of car
driver - Accident occurred solely due to the
negligence of the deceased who came on to the
wrong side of his road - whether Tribunal was
justified in awarding compensation to the legal
heirs of the deceased under Section 163A against
insurance company of truck - Held: yes; two
vehicles were involved in the accident and deceased
was a third party with regard to the truck. (2004
ACJ 934 (SC) followed)"
In the above decision in para No.15, it is observed
that;
(SCCH-15) 13 MVC.5563/2014
"15. In the decision reported in Deepal Girishbhai
Soni v. United India Insurance Co. Ltd. (2004) 5
SCC 385: 2004 ACJ 934 (SC), a three-Judge Bench
of the Apex Court held:
"Section 163A was introduced in the Act by
way of social security scheme. It is a code by
itself. Section 140 of the Act dealt with interim
compensation but by inserting Section 163A,
parliament intended to provide for the making
of an award consisting of a predetermined sum
without insisting on a long-drawn-out trial or
without proof of negligence in causing the
accident. Section 163A of the Act covers cases
where even negligence is on the part of the
victim. The amendment was, thus, a deviation
from the common law liability under the law of
torts and was also in derogation of the
provisions of the Fatal Accidents Act. The Act
and Rules framed by the State in no uncertain
terms suggest that a new device was sought to
be evolved so as to grant a quick and
efficacious relief to the victims falling within
the specified category. The heirs of the
deceased or the victim in terms of the said
provisions were assured of a speedy and
effective remedy which was not available to the
claims under Section 166 of the Act. It is by
way of an exception to Section 166 and the
concept of social justice has been duly taken
care of."
In the present case, two vehicles are involved in the
accident. The deceased was third party as regards
to the other vehicle. In view of the principles laid
down in the above mentioned three-Judge Bench
decision of the Supreme Court, we are of the view
that the Claims Tribunal is justified in awarding
compensation under Section 163A of the Act to the
petitioners in the original petition even though
negligence was on the part of the deceased."
(SCCH-15) 14 MVC.5563/2014
21. The counsel for petitioner has also relied on the
decision reported in 2012 ACJ 1335 (United India
Insurance Co. Ltd. V. Mohanan and others) wherein the
Hon'ble High Court of Kerala at Ernakulam has held
that;
"Motor Vehicles Act, 1988, Section 163A - Claim
Application - Maintainability of - Negligence of
Victim - Collusion between two motor cycles
resulting in injuries to pillion rider and death of one
of the motor cyclists - Tribunal awarded
compensation under Section 163A - Contention was
that deceased was responsible for the accident and
claim application under Section 163A is not
maintainable - Negligence is irrelevant in a claim
under Section 163A and when negligence is
irrelevant contributory negligence will also be
irrelevant - Liability under Section 163A does not
depend on negligence or fault - If two vehicles are
involved in accident and driver of one vehicle suffers
injury/death due to his own negligence then the
claimant/heirs cannot claim against the insurer of
the vehicle which he was driving but they can stake
claim against the owner and insurer of the other
vehicle involved in the accident - Whether the
claimants are entitled to compensation under
Section 163A from the owner and insurance
company of the vehicle - Held: yes. (2003 ACJ 2033
(Kerala) relied)"
In paras Nos.6 to 9 of the said decision it is
observed that;
"6. It is well settled by now that in a claim under
Section 163A negligence or fault is irrelevant. It is
(SCCH-15) 15 MVC.5563/2014
unnecessary to search for precedents on this
aspect. The decision of the Full Bench of this Court
in National Insurance Co. Ltd. v. Malathi C. Salian,
2003 ACJ 2033 (Kerala), establishes that
proposition beyond the pale of controversy. It is true
that in a subsequent decision another Devision
Bench has doubted the correctness of the
proposition laid down by the Full Bench and has
referred the same for consideration by another Full
Bench. That order of reference is seen reported in
Suresh V. Vasantha Shetty, 2010 ACJ 1068
(Kerala). Notwithstanding the fact that the said
decision has been reported by the journals that
decision can in no way affect the dictum laid down
by the Full Bench in Malathi C. Salian (supra). We
are bound by the decision in Malathi C. Salian and
we have got to follow the same implicitly.
7. We must in this context assert that we find no
reason to doubt the dictum in Malthi C. Salian,
2003 ACJ 2033 (Kerala). Express language of
Section 163A makes it crystal clear that negligence
is irrelevant in a claim under Section 163A. If
negligence is irrelevant, contributory negligence
must also definitely be held to be irrelevant. A plain
reading of Section 163A must make it clear that the
liability under Section 163A does not at all depend
on negligence or fault. The doubt expressed in
Suresh V. Vasantha Sehtty, 2010 ACJ 1068
(Kerala), notwithstanding, we are of the opinion that
we are bound by Malathi C. Salian and have to
follow that decision.
8. The learned counsel for the appellant then
contends that another Division Bench of this Court
in United India Insurance Co. Ltd. V. Vijayarajan,
2010 ACJ 280 (Kerala), has already chosen to take
the view that the dictum in Malathi is no more valid
law in the light of the subsequent pronouncement of
the Supreme Court in Ningamma v. United
Insurance Co. Ltd. 2009 ACJ 2020 (SC). We have
(SCCH-15) 16 MVC.5563/2014
been taken through the decision in Nigagmma and
decision in Vijayarajan (supra) Nignagmma as well
as Vijayarajan were cases in which claim was made
by a rider/passenger in a vehicle/his legal heirs
against the owner/authorized legal heirs against the
owner/authorized insurer of that very vehicle. It
was in that situation that Ningamma took the view
that deceased was not a third party and he steps
into the shoes of the owner. Owner cannot claim
any relief against himself under Section 163A and
therefore, the one who has stepped into the shoes of
the owner cannot also claim against the owner or
the insurance company. This alone is the dictum in
Ningamma. The Division Bench in Vijayarajan has
not specifically adverted to the question as to what
dictum in Malathi is opposed to the dictum in
Nignamma. In Vijayarajan also it was a case of a
person who was riding his motor cycle which hit
accidentally on a concrete electric post resulting in
injuries to the rider to which injury he succumbed.
The legal heirs of such rider had claim
compensation against the owner/authorized insurer
of the vehicle which deceased was rider. It was in
that context that the dictum in Viajayarajan was
rendered that such a claimant cannot claim under
Section 163A against the authorized insurer of the
vehicle which he was riding. Accordingly to us
neither Ningamma nor Vijayarajan can have any
application to the facts of the case. This is a case
where the deceased was riding one motor cycle; it
was involved an accident with another motor cycle
and the legal heirs of the deceased have staked
claims against the owner/authorized insurer of the
other vehicle involved in the accident. The claim
was not against the owner and/or the authorized
insurer of the vehicle which the deceased was
riding. That makes the crucial distinction and
because of that crucial distinction the dictum in
Ningamma or Vijayarajn can have no application to
the facts of the case.
(SCCH-15) 17 MVC.5563/2014
9. It is important to ascertain the rationale and logic
underlying Section 163A of the Motor Vehicles Act.
Groomed in the tradition of Law of Torts it may be
difficult to understand the foundation of liability.
The foundation of liability is certainly not fault. The
liability under Section 163A is not the liability
recognized under the Law of tort. It is a different,
distinct, absolute statutory liability and the
language of Section 163A makes the position crystal
clear. Search for negligence is not necessary and is
not permitted under Section 163A. The shift in
emphasis under Section 163A is from fault to
suffering. It is the suffering endured in an accident
involving a motor vehicle that gives rise to the
liability under Section 163A. The modern
jurisprudence recognizes such no fault liability. In
these circumstances we are unable to accept the
contention that in view of the findings in the
impugned award, though unnecessary for the
purpose of deciding the claim under Section 163A,
that the deceased was negligent and such
negligence had resulted in the accident, the claim of
the legal heirs of the deceased under Section 163A
has to be repelled. Netiher Ningamma nor
Vijayarajan would justify the rejection of the claim
of the claimant as legal heirs of the deceased rider."
22. He has also relied on the decision reported in
2012 ACJ 1 (National Insurance Co. Ltd. v. Sinithat and
others) wherein the Hon'ble Apex Court has held that;
"Motor Vehicles Act, 1988 Section 163A - claim
Application - Maintainability of - Negligence of
victim - Motor cyclist hit a large stone lying on tar
road and sustained fatal injuries - Claimants filed
claim under Section 166 and later got it converted
as under Section 163A - Tribunal found that
deceased was 'responsible' for the accident and
allowed compensation which was confirmed in
(SCCH-15) 18 MVC.5563/2014
appeal but the award was modified - Insurance
company contended that claimants are not entitled
to any compensation as the accident occurred solely
due to negligence of the deceased, deceased being
rider of motor cycle would step into the shoes of
owner, cannot be treated as a third party and claim
under Section 163A can only be raised at the behest
of a third party - Section 163A is founded on fault
liability principle and has an overriding effect on all
other provisions of the Act - None of the provisions
of the Act which is in conflict with Section 163A will
negate the mandate contained therein - In a claim
raised under Section 163A, claimants have neither
to plead nor to establish negligence - Claimants
produced a witness who deposed that deceased
motor cyclist in order to avoid a head on collision
with a bus coming from opposite direction gave way
to the bus but hit a large stone lying on tar road -
Insurance company led no evidence to contradict
this factual position - Whether a claim for
compensation made under Section 163A can be
defeated either by owner or by insurance company
by pleading and establishing that accident was
based on the wrongful act, neglect or default of the
victim of accident - Held: yes; but in this case
deceased was driving the motor cycle which hit the
stone but insurance company failed to establish
that he was negligent; insurance company also led
no evidence to establish the relationship between
the deceased and the owner of vehicle or that
deceased represented the owner and was not a third
party; insurance company is liable."
23. In the present cases on hand, admittedly,
petitioners have made the claim against the RC owner
and insurer of the other vehicle i.e. the lorry. Moreover,
the judgment of the Hon'ble Supreme Court of India
(SCCH-15) 19 MVC.5563/2014
passed in Civil Appeal No.9694/2013 wherein it is held
that;
"8. We are therefore, of the view that liability to
make compensation under Section 163-A is on the
principle of no fault, and therefore, the question as
to who is at fault is immaterial and foreign to an
enquiry under Section 163-A. Section 163-A does
not make any provision for apportionment of the
liability. If the owner of the vehicle or the insurance
company is permitted to prove contributory
negligence or default or wrongful act on the part of
the victim or claimant, naturally it would defeat the
very object and purpose of Section 163-A of the Act.
Legislature never wanted the claimant to plead or
establish negligence on the part of the owner or the
driver. Once it is established that death or
permanent disablement occurred during the course
or the user of the vehicle and the vehicle is insured,
the insurance company or the owner, as the case
may be, shall be liable to pay the compensation,
which is a statutory obligation."
24. So, as per the dictum laid down by the Apex
Court in the above first decision, the claim petition under
Section 163A can be defeated either by owner or by
insurance company by pleading and establishing that
accident was based on the wrongful act, neglect or
default of the victim of accident, but as per the dictum
laid down in the second decision which is recent one, if
the owner of the vehicle or the insurance company is
(SCCH-15) 20 MVC.5563/2014
permitted to prove contributory negligence or default or
wrongful act on the part of the victim or claimant, it
would defeat the very object and purpose of Section 163A
of the Act. So, neither the owner nor the insurance
company be permitted to prove the contributory
negligence or default or wrongful act on the part of the
victim or claimant.
25. Counsel for petitioner has also relied on the
decision reported in 2013 ACJ 1492 (Sanaulla and
another V. Divisional Manger, Bengaluru Metropolitan
Transport Corporation) wherein the Hon'ble High Court
of Karnataka at Bengaluru has held that;
"Motor Vehicles Act, 1988, Section 163A - Claim
Application - Negligence - Accident with
Corporation bus resulting in death of motorcyclist
and pillion rider - Claimants filed claim against
Corporation under Section 163A contending that
accident occurred due to rash and negligent driving
of bus - Claimants further contended that they need
not prove negligence of bus driver - Specific case of
Corporation is that motorcyclist at high speed lost
control over motor cycle, dashed against road
median divider, both riders on motor cycle fell on
other side of the road while bus was coming from
opposite direction and its driver could not anticipate
that both riders would fall on other side of the road
- Corporation is in no way responsible for the
accident and claim application is not maintainable -
Tribunal found that claimants proved the accident,
(SCCH-15) 21 MVC.5563/2014
they need not prove negligence of the bus driver and
awarded compensation - Tribunal's finding upheld."
26. So the sum and substance of the above
decisions is that the claim petition under Section 163A of
the Act is maintainable even by the victim tort feasor/Lrs
of the victim tort feasor against the owner and insurer of
the other vehicle involved in the accident.
27. Even the counsel for 1st respondent has
produced the xerox copies of the decisions noted above
and placed his reliance on those decisions they are all on
the no strict applicability of the Evidence Act in the claim
petitions.
28. Of course he has relied on the decision reported
in ILR 2004 KAR 3731 (M.N.Rajan and Others vs Konnali
Khalid Haji and Another) wherein the Hon'ble High Court
of Karnataka has held that;
(A) MOTOR VEHICLES ACT, 1988 (ACT 59 OF 1988)
- SECTION 169 - PROCEDURE AND POWER OF
CLIAMS TRIBUNAL - Tort - actionable negligence -
Driver of Lorry causing death of a pillion rider fallen
on High way - Duty of Courts - HELD - In tort
negligence, breach of 'duty' is the Chief ingredient of
the tort. It is not for every careless act that a man
may be held responsible in law, nor even for every
careless act that cause damage. He will only be
(SCCH-15) 22 MVC.5563/2014
liable in negligence, if he is under legal duty to take
care. Therefore, it becomes imperative for the Court
to determine whether the crucial element of tort
exists in this case or not. In deciding whether there
is duty of care, the Court, should first ask itself
whether there is sufficient 'proximity' between
plaintiff and defendant. If the answer to this is in
affirmative then the Court will find a duty of care
unless it is satisfied that there are consideration
which out to negative, or reduce or to limit that
duty."
29. But in view of the dictum laid down in the above
noted decisions on which the counsel for petitioners
relied on that even the victim who is tort feasor can stake
claim against the owner and insurer of the vehicle
involved in the accident, the above noted decision on
which the counsel for 1st respondent placed reliance is
not helpful to substantiate his arguments that since the
accident took place on the negligence of the deceased
who was the van driver, these petitions are not
maintainable.
30. To overcome the dictum laid down in those
decisions, counsel for 1st respondent has not placed any
other reported decisions. Hence, petitioners have
successfully established that these petitions are
(SCCH-15) 23 MVC.5563/2014
maintainable against the 2nd and 1st respondents who are
respectively the RC owner and insurer of the other
vehicle involved in the accident i.e. the lorry.
31. The counsel for petitioner has also placed his
reliance on the decision reported in ILR 2010 KAR 3975
(New India Assurance Co.Ltd, Rep. by Divisional Manager
vs. Sri.G.Nargaraju and others) wherein the Hon'ble High
Court of Karnataka has held that;
"MOTOR VEHICLES ACT, 1988 - SECTION 163A -
Accident claim under - Judgment and Award -
Deceased was pillion rider - Fastening liability on
the Insurance Company to satisfy the Award -
Appealed against by the Insurance Company -
Grievance of the Insurance Company was that the
deceased was not a third party; she being the wife of
the insured, and the claimants being their children,
no liability could be fastened on the
appellant/Insurance Company. - HELD, There is no
dispute that the motor cycle involved in the accident
had valid insurance cover as on the date of
accident. It is not the case of the Insurance
company that the policy did not cover the risk of
pillion rider or that its liability is limited. The
Insurance Company is also not relying on any of the
statutory defences available under the Act to avoid
the liability. The deceased was neither the owner of
the motor cycle not was riding the motor cycle; she
was only a pllion rider. On the facts of the case, the
deceased though was the wife of the owner insured,
cannot be treated as the insured or his
representative; hence she would become a third
party. Accordingly, there is no legal infirmity in the
(SCCH-15) 24 MVC.5563/2014
impugned judgment in making the Insurance
Company liable for the award."
32. But in the present case on hand, 1st and 2nd
petitioners in MVC.1856/2008 who are respectively the
petitioners in the rest of the petitions are made as 3rd and
4th respondents in the capacity of the owner/Lrs of the
owner of the van and the said petitioners do not chose to
take any defence in that regard. Hence, except the 3rd
petitioner in MVC.1856/2008, the above decision is not
applicable to the rest of the petitioners therein and the
petitioners in the rest of the petitions.
33. He has also relied on the decision reported in
2012 ACJ 2206 (United India Insurance Co. Ltd. V.
Ratheesh and others) of the Hon'ble High Court of Kerala
at Enakulam. But the said decision is on right of the
claimant to claim the compensation on either or both the
vehicles when there are joint tort-feasors and on the
composite negligence as well as apportionment of the
compensation on joint tort-feasors which is not
applicable to the facts of the case since in the present
case on hand, it is evident on record that the accident is
(SCCH-15) 25 MVC.5563/2014
because of the negligence of the van driver i.e. the
deceased.
34. He has also relied on the decision reported in
(2004) 5 Supreme Court Cases 385 (Deepal Girishbhai
Soni and others Versus United India Insurance Co. Ltd.
Baroda) of the Hon'ble Apex Court. But the said decision
is about the maintainability of claim petitions under
Sections 166 and 163A of the Act simultaneously which
is not applicable to the facts and circumstances of the
cases on hand since it is the case of none that there are
other claim petitions under Section 166 of MV Act on the
same cause of action.
35. The counsel for petitioner has also relied on the
decision reported in ILR 1999 KAR 403 ((GAnesh vs. Syed
Munned Ahamed and others) of the Hon'ble High Court of
Karnataka; 2015 ACJ 1441 (Khenyei V. New India
Assurance Co. Ltd. and others) of the Hon'ble Apex Court
and 2010 ACJ 145 (Gajanand and others V. Virendra
Singh and others) of the Hon'ble High Court of Madhya
Pradesh, Indore Bench; ILR 1999 KAR. But the said
(SCCH-15) 26 MVC.5563/2014
decisions are on composite negligence which is not
matter for consideration in these cases.
36. Since the petitioners have proved that these
petitions are maintainable under Section 163A of the Act
against 1st and 2nd respondents, they are entitled for
compensation. Now in respect of quantum.
37. In MVC.1856/2008, it is the case of petitioners
that they are respectively the wife and children of the
deceased which is not disputed by the other side. On the
other hand, as noted above, during the course of trail, 1st
respondent made 1st and 2nd petitioners as 3rd and 4th
respondent in the capacity of the owner /Lrs of owner of
the van.
38. Moreover, in the cross-examination of 1st
petitioner/PW-1, the deceased is referred as her husband
and the rest of the petitioners as her sons. It is also
elicited that they have one more daughter by name Jyothi
who is given in marriage and has been residing with her
husband.
39. In addition, in the police papers it is stated that
the petitioners are the wife and children of the deceased.
(SCCH-15) 27 MVC.5563/2014
They have also produced the notarized copy of the ration
card at Ex.P-7 wherein the deceased is shown as the
head of the family and the petitioners as his wife and
children and one Jyothi is the daughter.
40. They have also produced the notarized copy of
the recent ration card at Ex.P-8 wherein the 1st petitioner
is shown as the head of the family and rest of the
petitioners as her sons and the one Jyothi is the
daughter. Hence, petitioners have successfully
established their relationship with the deceased.
41. It is also the case of petitioners that the deceased
was aged 53 years; was contractor and had income of
Rs.3,300/- p.m. To establish the age of the deceased,
petitioners have not produced any specific age proof
document.
42. However, in the ration card at Ex.P-7, his age is
shown as 45 years and the date of issue of the said ration
card as 31.12.2006. The date of accident is 03.12.2007.
So, as on the date of accident, as per Ex.P-7, the
deceased was aged 46 years.
(SCCH-15) 28 MVC.5563/2014
43. In the police papers, his age is shown as 50
years. There is no cross-examination by the other side
about the age of the deceased. So, as per the evidence on
record, the age pleaded by the petitioners is at the higher
end. Hence, nothing is there to accept the age of the
deceased as pleaded. Accordingly, it is accepted as 53
years for which the proper multiplier applicable is 11.
44. To prove the avocation and income of the
deceased, petitioners except the oral evidence of 1st
petitioner have let in nothing. Of course, nothing has
been elicited in her cross-examination to discard her oral
evidence in that regard. On the other hand, in her cross-
examination also, she has deposed that her husband was
doing building contract work and had income of
Rs.3,300/- per month.
45. In the police papers i.e. the inquest mahazar it is
stated that the deceased was a mason. However, even for
the sake of arguments it is accepted that the deceased
was a mason. Then also if the age of the deceased and
the cost of living as on the date of accident is taken note
off, nothing is there to discard the quantum of income
(SCCH-15) 29 MVC.5563/2014
pleaded. Hence, the income of the deceased is accepted
as Rs.3,300/- p.m.
46. It is the case of the petitioners that they were
depending on the income of the deceased. However, it is
elicited in the cross-examination of the 1st petitioner that
2nd petitioner is married and the same is supported by
the statement of the witness by name Hanumesh Rao
and also the statement of 3rd petitioner in the inquest
mahazar.
47. So, 2nd petitioner required to have his own
income to maintain his immediate family i.e. his wife and
children. Moreover, the 2nd petitioner herein who is the
petitioner in MVC.1858/2008 in that petition as pleaded
that he is worker in a private company and had income
of Rs.3,300/- p.m. Therefore, in the circumstances of the
case, it is not safe to hold that 2nd petitioner was also
depending on the income of the deceased.
48. So far 3rd petitioner it is in the cross-examination
of 1st petitioner that he is a student of BA. In the
statement of 3rd petitioner in the inquest mahazar, it is
noted that he is BE student. Of course it is suggested to
(SCCH-15) 30 MVC.5563/2014
1st petitioner that 3rd petitioner is also working. But to
substantiate that, 1st respondent has not let in any
supportive evidence. Therefore, nothing is there to
discard the case of petitioners that 3rd petitioner was also
depending on the income of the deceased.
49. Since the deceased died at his age of 53 leaving
behind his wife and a son totally 2 members as
dependents, 1/3rd of his income should be deducted
towards his personal expenses and petitioners are
entitled for 15% of future prospectus.
50. In the result, petitioners are entitled for the
compensation under the heads mentioned below and the
amount stated against them.
Loss of Dependency Rs. 2,90,400/-
(3,300 x 12 x 2/3 x 11)
15% Future Prospectus Rs. 43,560/-
Loss of Consortium to P-1 Rs. 5,000/-
Loss of Estate Rs. 2,500/-
Funeral Expenses Rs. 2,000/-
Total Rs.3,43,460/-
51. In MVC.1857/2008, it is the case of the
petitioner that she is aged 46 years; doing handicrafts
and had income of Rs.3,300/- p.m. To establish her age,
(SCCH-15) 31 MVC.5563/2014
petitioner has not produced any specific age proof
documents.
52. However, in the ration cards at Ex.P-7 and 8, her
age is shown as 30 and 46 years respectively and the
date of issue of those ration cards are shown as
14.10.2001 and 31.12.2008. The date of accident is
03.12.2007. So, as on the date of accident as per Ex.P-7
and 8, she was aged 47 and 36 years respectively.
53. In the notarized copy of the voters' ID of the
petitioner at Ex.P-9, her age is shown as 40 years as on
01.01.2002. So, as per Ex.P-9, as on the date of accident,
she was aged 45 years. In Ex.P-10, the true copy of the
wound certificate her age is shown as 46 years.
54. There is no cross-examination by the other side
about the age of the petitioner. However, considering the
contradictory evidence on record, it is thought just and
proper to take the age of the petitioner at the higher end
i.e. at 47 years for which the proper multiplier applicable
is 13.
55. To prove her avocation and income also petitioner
has not produced any supportive evidence. Of course,
(SCCH-15) 32 MVC.5563/2014
there is no cross-examination in that regard, but, there
no supportive evidence on record in support of the
avocation and income of the petitioner.
56. However, if the age of the petitioner and the cost
of living as on the date of accident is taken note off, even
it is taken that petitioner is a house wife, then also
considering her service as house wife, there is nothing
which prevents this Tribunal from taking her notional
income at Rs.3,000/- p.m. Accordingly, her income is
accepted.
57. It is the case of petitioner that in the accident she
has suffered satareal wound over left forehead; fracture
of right pubic ramus; fracture of nasal bone and other
injures all over the body; took treatment in Victoria
hospital, NIMHANS hospital and Vijay hospital; still
under treatment and became permanently disabled.
58. Petitioner has reiterated the above petition
averments in her affidavit evidence. In her cross-
examination her chief evidence is denied by way of
suggestions which are in turn denied by her.
(SCCH-15) 33 MVC.5563/2014
59. It is also suggested that she has suffered simple
injuries. Of course, the said suggestion is denied by
petitioner, but it indicates that 1st respondent has not
disputed the fact of petitioner suffering injuries in the
accident.
60. However, in support of her oral evidence
petitioner has produced the true copy of the wound
certificate at Ex.P-10 issued by Vijai hospital wherein it is
stated that petitioner was brought to the said hospital
with the history of RTA.
61. It is also there that petitioner was diagnosed for
sutareal wound over fore head; non displaced fracture of
right superior pubic ramus and fracture of nasal bone
which are grievous injuries. Ex.P-16 is the OPD book of
Victoria hospital.
62. To prove the medical expenses, petitioner apart
from her oral evidence has produced the medical bills at
Ex.P-11 to 15. Ex.P-11 is the inpatient bill of Vijai
hospital for Rs.8,945/-. She has also produced the IP
advance receipt at Ex.P-15 for Rs.2,000/-.
(SCCH-15) 34 MVC.5563/2014
63. The bill at Ex.P-12 is for Rs.2,750/- of scan
centre and Ex.P-13 is the bill for Rs.500/- which is
pharmacy bills. If the nature of injuries suffered by the
petitioner is taken into consideration, there is nothing on
record to discard the medical expenses at Ex.P-11 to 14
amounting to Rs.12,315/-.
64. On the other hand, it appears that she has
incurred expenses more than that. Therefore, it is
thought just and proper to award Rs.15,000/- towards
medical expenses including the bills at Ex.P-11 to 14.
65. Even petitioner has contended that she became
permanently disabled, she has not let in any supportive
doctor's evidence. However, considering the nature of
injuries, it is thought just and proper to award some
reasonable compensation for loss of amenities and
comfort.
66. In the result, petitioner is entitled for the
compensation under the head mentioned below and the
amount stated against them.
(SCCH-15) 35 MVC.5563/2014
Pain and Sufferings Rs. 5,000/-
Loss of income during Rs.10,000/-
laid up period, food and
nourishment
For attendant charges, Rs.10,000/-
conveyance and other
incidental expenses
Medical Expenses Rs.15,000/-
Loss of Amenities Rs.10,000/-
and Comforts Total Rs.50,000/-
67. In MVC.1858/2008, it is the case of the
petitioner that he is aged 29 years; working in a private
company and had income of Rs.3,300/- p.m. To establish
his age, petitioner has not produced any specific age
proof documents.
68. However, in the true copy of the wound certificate
at Ex.P-17, his age is shown as 27 years. There is no
cross-examination by the other side about the age of the
petitioner. Moreover, the age pleaded is at the higher end.
Hence, nothing is there to discard the age of the
petitioner. Accordingly, it is accepted as pleaded i.e. 29
years for which the proper multiplier applicable is 18.
69. To prove his avocation and income also petitioner
has not produced any supportive evidence and the same
is admitted by petitioner in his cross-examination.
(SCCH-15) 36 MVC.5563/2014
However, if the age of the petitioner and the cost of living
as on the date of accident is taken note off, there is
nothing which prevents this Tribunal from taking his
notional income at Rs.3,000/- p.m. Accordingly, his
income is accepted.
70. It is the case of petitioner that in the accident he
has suffered head injury; injury to right side of the neck
and other injures all over the body; took treatment in
Victoria hospital, NIMHANS hospital and Vijay hospital;
still under treatment and became permanently disabled.
71. Petitioner has reiterated the above petition
averments in his affidavit evidence. In his cross-
examination his chief evidence is denied by way of
suggestions which are in turn denied by him.
72. It is also suggested that he has suffered simple
injuries. Of course, the said suggestion is denied by
petitioner, but it indicates that 1st respondent has not
disputed the fact of petitioner suffering injuries in the
accident.
73. However, in support of his oral evidence
petitioner has produced the true copy of the wound
(SCCH-15) 37 MVC.5563/2014
certificate at Ex.P-17 issued by Vijai hospital wherein it is
stated that petitioner was brought to the said hospital
with the history of RTA.
74. It is also there that petitioner was diagnosed for
mild cerebral odema; sutareal wound over fore head;
lacerated would over right side neck; dry dark blue
abrasion over upper and lower bowls wherein head injury
is grievous and other injuries are simple.
75. To prove the medical expenses, petitioner apart
from his oral evidence has produced the medical bills at
Ex.P-18 to 26. Ex.P-18 is the inpatient bill of Vijai
hospital for Rs.12,220/-. He has also produced the IP
advance receipt at Ex.P-21 for Rs.2,000/-.
76. The bill at Ex.P-19 and 20 are for Rs.2,750/- and
Rs.2,400/- of scan centre; Ex.P-22 is the NIMHANS
hospital bill for Rs.300/-; Ex.P-23 is the bill for Rs.320/-
which is the OP cash bill and Ex.P-24 to 26 are the
consultation and dressing bills for Rs.200/-, Rs.140/-
and Rs.120/- issued by Vijai hospital.
77. If the nature of injuries suffered by the petitioner
is taken into consideration, there is nothing on record to
(SCCH-15) 38 MVC.5563/2014
discard the medical expenses at Ex.P-18 to 24 amounting
to Rs.18,450/-. On the other hand, it appears that she
has incurred expenses more than that. Therefore, it is
thought just and proper to award Rs.20,000/- towards
medical expenses including the bills at Ex.P-18 to 26.
78. Even petitioner has contended that she became
permanently disabled, she has not let in any supportive
doctor's evidence. However, considering the nature of
injuries, it is thought just and proper to award some
reasonable compensation for loss of amenities and
comfort.
79. In the result, petitioner is entitled for the
compensation under the head mentioned below and the
amount stated against them.
Pain and Sufferings Rs. 5,000/-
Loss of income during Rs.10,000/-
laid up period, food and
nourishment
For attendant charges, Rs.10,000/-
conveyance and other
incidental expenses
Medical Expenses Rs.20,000/-
Loss of Amenities Rs.10,000/-
and Comforts Total Rs.55,000/-
(SCCH-15) 39 MVC.5563/2014
80. Petitioners have sought interest at the rate of
12% p.a. Considering the cost of living as on the date of
accident, it is thought just and proper to award the
interest at the rate of 6% p.a.
81. Now in respect of liability. It is the case of
petitioners that 2nd respondent is the RC owner and 1st
respondent is the insurer of the lorry. Of course, 2nd
respondent remained exparte. However, 1st respondent
has not disputed the policy and its force as on the date of
accident.
82. Of course, it has contended that its liability if any
is subject to the terms and conditions of the policy such
as driving licence and the vehicular documents. If has
specifically contended that the 2nd respondent insured
willfully entrusted the lorry to the person who had no
valid and effective driving licence with necessary
endorsement drive the commercial transport vehicle i.e.
the class of the lorry.
83. But, even it has got examined its assistant
manager as RW-1 and got produced 2 documents, it has
not let in any evidence with regard to its defence of
(SCCH-15) 40 MVC.5563/2014
breach of policy conditions. During the course of
evidence, it has concentrated only with regard to the
maintainability of the present petitions.
84. Hence, nothing is there on record in support of
the defence of 1st respondent about the violation of policy
conditions. Accordingly, 2nd respondent being the RC
owner is liable to pay the compensation and 1st
respondent being the insurer is liable to indemnify the
said liability.
85. As noted above in MVC.1856/2008, it is held that
2nd petitioner was not depending on the income of the
deceased. The compensation awarded under the other
heads are meager one. Therefore, considering the fact
that 2nd petitioner is also the son of the deceased, it is
thought just and proper to award Rs.30,000/- to 2nd
petitioner and to apportion the remaining compensation
amount of Rs.4,13,460/- amongst 1st and 2nd petitioner
at the rate of 75:25.
86. Hence, petitioners in MVC.1856/2008 are
entitled for compensation of Rs.3,10,000/-, Rs.30,000/-
and Rs.1,03,460/- totally Rs.4,43,460/- and petitioners
(SCCH-15) 41 MVC.5563/2014
in MVC.1857/2008 and MVC.1858/2008 are respectively
entitled for compensation of Rs.50,000/- and
Rs.55,000/- together with interest at 6% p.a. from the
date of petition till the realization in its entirety from 1st
respondent. Accordingly, issue No.1 is answered in all
the petitions.
87. ISSUE No.2:- In the result, this Tribunal
proceeds to pass the following order.
ORDER
The present petitions filed by the petitioners under Section 163A of MV Act is hereby allowed in part with costs.
In the result, petitioners in MVC.1856/2008 are entitled for compensation of Rs.3,10,000/-, Rs.30,000/- and Rs.1,03,460/- totally Rs.4,43,460/- and petitioners in MVC.1857/2008 and MVC.1858/2008 are respectively entitled for compensation of Rs.50,000/- and Rs.55,000/- together with interest at 6% p.a. from the date of petition till the realization in its entirety from 1st respondent.
On deposit of compensation amount, in MVC.1856/2008, 1st petitioner shall deposit Rs.1,00,000/- in Karnataka Bank, City Civil Court Branch, Bengaluru for a period of 3 years and the remaining share of her compensation amount together with proportionate interest and cost is ordered to (SCCH-15) 42 MVC.5563/2014 be released in her favour on proper identification without awaiting further orders.
Since, the share of compensation amount of the rest of the petitioners in MVC.1856/2008 and the petitioners in MVC.1857/2008 and MVC.1858/2008 are meager, it is ordered that the entire share of the their respective compensation amount together with proportionate interest and cost is ordered to be released in their favour on proper identification without awaiting further orders.
Advocate fee is fixed at Rs.1,000/- in MVC.1856/2008 and Rs.500/- each in MVC.1857/2008 and MVC.1858/2008.
Draw an award accordingly.
Office is directed to keep the original copy of the judgment in MVC.1856/2008 and the copy thereof in MVC.1857/2008 and 1858/2008.
(Dictated to the stenographer, transcribed by him, corrected and then pronounced in the open Court by me on this 16th day of May, 2016.) (K.KATYAYINI), XIII Addl. Judge & Member MACT Court of Small Causes, Bengaluru.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PETITIONER:
PW1: Smt.Pachamma PW2: Smt.Pachamma PW3: Sri.Saravana (SCCH-15) 43 MVC.5563/2014 LIST OF WITNESSES EXAMINED ON BEHALF OF RESPONDENTS:
RW1: Sri.Chandrashekar LIST OF DOCUMENTS EXHIBITED ON BEHALF OF PETITIONER:
Ex.P1 : True copy of FIR with Complaint, Ex.P2 : True copy of Spot Mahazar, Ex.P3 : True copy of Spot Sketch, Ex.P4 : True copy of MV report, Ex.P5 : True copy of Inquest mahazar, Ex.P6 : True copy of PM report, Ex.P7 : Notarized copy of Ration Card, Ex.P8 : Notarized copy of Ration Card, Ex.P9 : Notarized copy of Voters' ID, Ex.P10 : True copy of Wound Certificate, Ex.P11 : Hospital/Medical Bill, Ex.P12 : Hospital/Medical Bill, Ex.P13 : Hospital/Medical Bill, Ex.P14 : Hospital/Medical Bill, Ex.P15 : Hospital/Medical Bill, Ex.P16 : OP Card, Ex.P17 : True copy of Wound Certificate, Ex.P18 : Hospital/Medical Bill, Ex.P19 : Hospital/Medical Bill, Ex.P20 : Hospital/Medical Bill, Ex.P21 : Hospital/Medical Bill, Ex.P22 : Hospital/Medical Bill, Ex.P23 : Hospital/Medical Bill, Ex.P24 : Hospital/Medical Bill, Ex.P25 : Hospital/Medical Bill, Ex.P26 : Hospital/Medical Bill.
LIST OF DOCUMENTS EXHIBITED ON BEHALF OF RESPONDENTS:
Ex.R1 : Certified copy of the Policy, Ex.R2 : FIR with Complaint.
(K.KATYAYINI), XIII Addl. Judge & Member MACT Court of Small Causes, Bengaluru.