Karnataka High Court
Sri. Shrirang And Anr vs Sri. Neelakanth And Ors on 16 January, 2024
Author: B.M.Shyam Prasad
Bench: B.M.Shyam Prasad
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MFA No.200752 of 2019
C/W MFA No.200751 of 2019
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 16TH DAY OF JANUARY, 2024
PRESENT
THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD
AND
THE HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA
MISCL. FIRST APPEAL NO.200752 OF 2019 (MV-D)
C/W
MISCL. FIRST APPEAL NO.200751 OF 2019 (MV-D)
IN M.F.A.NO.200752 OF 2019:
BETWEEN:
1. SMT. SWATI
W/O PANDARINATH AMUNE
AGED ABOUT 28 YEARS
OCC: HOUSEHOLD WORK
2. SRI. ANWESH
S/O PANDARINATH AMUNE
Digitally signed
by SWETA AGED ABOUT 8 YEARS
KULKARNI
OCC: NIL
Location: HIGH
COURT OF APPELLANT-2 IS MINOR
KARNATAKA
REP BY HIS MOTHER
APPELLANT-1 AS M/G
3. SRI. ANANTH
S/O PANDURANG AMUNE
AGED ABOUT 71 YEARS
OCC: NIL
4. SMT. SHAKUNTALA
W/O ANANTH AMUNE
AGED ABOUT 66 YEARS
OCC: NIL
ALL ARE R/O NIMAJ
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MFA No.200752 of 2019
C/W MFA No.200751 of 2019
TQ: KAVATEMAHANKAL
DIST: SANGLI, NOW R/O TIKOTA
TQ & DIST: VIJAYPUR.
...APPELLANTS
(BY SRI S. S. MAMADAPUR, ADVOCATE)
AND:
1. SRI. NEELAKANTH
S/O MARUTI BHOSALE
AGED ABOUT 46 YEARS
OCC: BUSINESS
R/O AGRAN DHULGAON
KAVATEMAHANKAL
DIST: SANGLI - 416 416.
2. THE BRANCH MANAGER
ORIENTAL INSURANCE CO. LTD.,
S.S. FRONT ROAD
BIDARI COMPLEX
VIJAYAPUR - 586 101.
3. SRI. BABAN
S/O NAGATHAN SITAPHALE
AGE: MAJOR, OCC: BUSINESS
R/O TARAGAON, TQ: NORTH SOLAPUR
DIST: SOLAPUR - 41300, MAHARASHTRA
...RESPONDENTS
(BY SRI MOHD. ABDUL QAYUM FOR
SRI J. AUGUSTIN, ADVOCATE FOR R2;
SRI S.G.PATIL, ADVOCATE FOR R3;
R1 IS SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLE ACT, PRAYING TO SET ASIDE THE JUDGMENT AND
AWARD DATED 13.11.2018 PASSED BY THE LEARNED III
ADDL. SENIOR CIVIL JUDGE AND MEMBER M.A.C.T-XII,
VIJAYPUR IN M.V.C.NO.497/2013 AND CONSEQUENTLY ALLOW
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MFA No.200752 of 2019
C/W MFA No.200751 of 2019
THE SAID PETITION AS PRAYED FOR IN THE INTEREST OF
JUSTICE AND EQUITY.
IN M.F.A.NO.200751 OF 2019:
BETWEEN:
1. SRI SHRIRANG
S/O AKARAM GHAGARE
AGED ABOUT 51 YEARS
OCC: AGRICULTURE
2. SMT. VIMAL
W/O SHRIRANG GHAGARE
AGED ABOUT 46 YEARS
OCC: HOUSEHOLD WORK
BOTH ARE R/O GHAGAREVASTI DHALGAON
TQ. KAVATEMAHANKAL, DIST.SANGLI
NOW R/O TIKOTA
TQ. & DIST. VIJAYAPURA.
...APPELLANTS
(BY SRI S. S. MAMADAPUR, ADVOCATE)
AND:
1. SRI. NEELAKANTH
S/O MARUTI BHOSALE
AGED ABOUT 46 YEARS
OCC: BUSINESS
R/O AGRAN DHULGAON
KAVATEMAHANKAL
DIST: SANGLI - 416 416.
2. THE BRANCH MANAGER
ORIENTAL INSURANCE CO. LTD.,
S.S. FRONT ROAD
BIDARI COMPLEX
VIJAYAPUR - 586 101.
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MFA No.200752 of 2019
C/W MFA No.200751 of 2019
3. SRI. BABAN
S/O NAGATHAN SITAPHALE
AGE: MAJOR, OCC: BUSINESS
R/O TARAGAON, TQ: NORTH SOLAPUR
DIST: SOLAPUR - 41300, MAHARASHTRA
...RESPONDENTS
(BY SRI MOHD. ABDUL QAYUM FOR
SRI J. AUGUSTIN, ADVOCATE FOR R2;
SRI V.S.KHARAT, ADVOCATE FOR R3;
R1 IS SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLE ACT, PRAYING TO SET ASIDE THE JUDGMENT AND
AWARD DATED 13.11.2018 PASSED BY THE LEARNED III
ADDL. SENIOR CIVIL JUDGE AND M.A.C.T-XII, VIJAYPUR IN
M.V.C.NO.496/2013 AND CONSEQUENTLY ALLOW THE SAID
PETITION AS PRAYED FOR IN THE INTEREST OF JUSTICE AND
EQUITY.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY,
B.M.SHYAM PRASAD J., DELIVERED THE FOLLOWING:
JUDGMENT
These appeals are by the claimants in MVC No.496/2013 and MVC No.497/2013 on the file of the III Addl. Senior Civil Judge & MACT-XII, Vijayapura [for short, the 'the Tribunal']. The said claim petitions are rejected by the impugned common judgment and award dated 13.11.2018. The appellants in MFA No.200751/2019 are -5- NC: 2024:KHC-K:572-DB MFA No.200752 of 2019 C/W MFA No.200751 of 2019 the claimants in MVC No.496/2013, and the appellants in MFA No.200752/2019 are the claimants in MVC No.497/2013. The appellants in MFA No.200751/2019 are the parents of Sri Dhanaji Ghagare, and the appellants in MFA No.200752/2019 are the wife, parents and a minor child of Sri Pandarinath Amune. The appellants, for reasons of convenience, are referred to as the claimants in the course of the order, and the Insurer of one of the vehicles involved in the accident [Mahindra Bolero bearing Reg.No.MH-45/A- 3601] is referred to as the Insurer.
2. It is undisputed that Sri Dhanaji Ghagare and Sri Pandarinath Amune on 08.02.2013 were traveling in Mahindra Bolero bearing Reg.No.MH-45/A-3601 from Dhalagaon to Solapur when there was a collision between this vehicle and an Eicher Tempo bearing Reg.No.MH- 13/AX-2256. Sri Dhanaji Ghagare and Sri Pandarinath Amune got seriously injured in the accident. Sri Dhanaji Ghagare and Sri Pandarinath Amune were shifted to a hospital for treatment but they have breathed their last in the hospital, and they were aged 22 and 30 years -6- NC: 2024:KHC-K:572-DB MFA No.200752 of 2019 C/W MFA No.200751 of 2019 respectively. The claimants have filed these claim petitions under Section 163A of the Motor Vehicles Act, 1989 [for short, 'the MV Act'] against the owner of Mahindra Bolero/its Insurer and the owner of the Eicher Tempo. Obviously, the Eicher Tempo was not insured as of the date of the accident.
3. The Tribunal has rejected these claim petitions observing that no evidence is brought on record to show that the accident was as a result of the negligent driving by the driver of Eicher Tempo. The Tribunal has concluded that the claim petitions cannot be sustained because FIR is registered against the driver of Mahindra Bolero for the offences punishable under Section 286 of Indian Penal Code, 1860 and under the provisions of Section 9B of the Explosives Act, 1884 and that the Insurer of Mahindra Bolero has proved violation of the policy conditions inasmuch as certain explosives were being carried in Mahindra Bolero at the time of the accident. Further, the Tribunal has concluded that the claim petitions will not be maintainable for non-joinder of a necessary party viz., the Insurer of the Eicher Tempo.
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4. Sri S.S. Mamadapur, the learned counsel for the claimants, submits that the Tribunal has failed to consider that upon a reference to a Larger Bench, the answer by the Hon'ble Supreme Court in the case of United Insurance Company Limited Vs. Sunil Kumar1 is that in proceedings under Section 163A of the MV Act it is not open to the Insurer to raise any defense of negligence as against third party, and Sri S.S. Mamadapur also relies upon the decision of the Hon'ble Supreme Court in the case of Shivaji vs. Divisional Manager, United India Insurance Company Limited2. Sri Mohd. Quayum, the learned counsel for Sri J. Augustin who is on record for the Insurer of the Mahindra Bolero, submits that the question of negligence by Sri Dhanaji Ghagare and Sri Pandarinath Amune may not be relevant, but the claim petitions are rightly rejected because the explosives were being carried in Mahindra Bolero in violation of the policy terms. 1 AIR 2018 SC (CIVIL) 1934 2 AIR Online 2018 SC 105 -8- NC: 2024:KHC-K:572-DB MFA No.200752 of 2019 C/W MFA No.200751 of 2019
5. Sri. Mohd. Quayum also argues that the breach of the policy is established in the claimants themselves asserting that Sri Dhanaji Ghagare and Sri Pandarinath Amune had hired a private vehicle, and if this private vehicle is used on hire, it would be in violation of the terms of the policy. In rejoinder, Sri S. S. Mamadapur submits that the accident is because of rash and negligent driving of the offending vehicle and not because of explosions and that the evidence, which is not rebutted, is that Sri Dhanaji Ghagare and Sri Pandarinath Amune died because of head injuries suffered in the accident and that there was no explosion at the time of the accident.
6. The points that are to be considered in these appeals are as follows:
Whether the Tribunal, in the present proceedings under Section 163A of the MV Act, could have entered into the controversy on the reason for the subject accident to decide on the question of negligence, and whether the Tribunal could have rejected the claim petitions on the ground that there was breach of policy either because -9- NC: 2024:KHC-K:572-DB MFA No.200752 of 2019 C/W MFA No.200751 of 2019 Sri Dhanaji Ghagare and Sri Pandarinath Amune were carrying explosives in the vehicle or because they had hired Mahindra Bolero.
7. The enquiry under Section 163A of the MV Act is rather confined, and this is seen in the following enunciation by the Hon'ble Supreme Court in the case of United Insurance Company Limited Vs. Sunil Kumar (Supra).
"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
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NC: 2024:KHC-K:572-DB MFA No.200752 of 2019 C/W MFA No.200751 of 2019 an unduly long time. In fact, to understand 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."
8. The exposition in this decision is that when a third person dies [or is injured] in a road accident, this person would be entitled to statutory compensation under Section 163A of the MV Act, and the question of fault or negligence will not be germane. In the present case, admittedly, Sri Dhanaji Ghagare and Sri Pandarinath Amune were traveling in a Mahindra Bolero, and they were not driving the vehicle. This Court is of the considered view that it would be immaterial, in the facts of this case, whether the subject accident is because of the rash and negligent driving of the Eicher Tempo or the Mahindra Bolero, and the Tribunal, therefore, need not have laboured on whether the driver of Mahindra Bolero or the driver of the Eicher Tempo was negligent.
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9. It is contended that there is breach of policy condition because explosives were being carried in Mahindra Bolero. The owner of this vehicle is also charge-sheeted for carrying explosives under the Explosives Act, 1884, but it is undisputed that there was no explosion at the time of accident and Sri Dhanaji Ghagare and Sri Pandarinath Amune have died because of head injuries suffered. These circumstances would be decisive insofar as the appellants who claim under Sri Dhanaji Ghagare and Sri Pandarinath Amune. As such, the Insurer of the Mahindra Bolero cannot avoid liability to pay the statutory compensation under Schedule-II of MV Act to the appellants but, if it can really establish that this vehicle was lent on hire in breach of policy conditions, it will be entitled to recover the same from the owner of this vehicle. This aspect is not examined in these proceedings under Section 163A of the MV Act.
10. In the light of afore, this Court must allow the appeals and determine compensation payable to the claimants but calling upon the Insurer to pay such amount and recover the same from the owner of Mahindra Bolero if it
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NC: 2024:KHC-K:572-DB MFA No.200752 of 2019 C/W MFA No.200751 of 2019 can establish breach of the policy condition in the appropriate proceeding. The claimants in MVC No.496/2013 [the appellants in MFA No.200751/2019], who are the parents of Sri Dhanaji Ghagare, who was aged 22 years as of the date of the accident, would be entitled to compensation, as detailed below:
The Computation of Loss of Dependency:
Description By the Tribunal
Annual Income Rs.40,000.00
1/3rd deduction towards
Rs.13,333.33
personal expenses
Therefore, annual income
after deduction towards Rs.26,666.67
personal expenses
Multiplier 17
Total Rs.4,53,333.39
Rounded off to Rs.4,53,334.00
The Computation of compensation:
Heads Amount
Loss of dependency Rs.4,53,334.00
Funeral expenses Rs.2,000.00
Loss of consortium Rs.5,000.00
Loss of estate Rs.2,500.00
Total Rs.4,62,834/-
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MFA No.200752 of 2019
C/W MFA No.200751 of 2019
There is no evidence on the medical expenses incurred, and therefore no award is passed under such head.
11. The claimants in MVC No.497/2013 [the appellants in MFA No.200752/2019] who are the wife, minor son and parents of Sri Pandarinath Amune, who was aged about 30 years, would be entitled to compensation as detailed below:
The Computation of Loss of Dependency:
Description By the Tribunal
Annual Income Rs.40,000.00
1/4th deduction towards
Rs.10,000.00
personal expenses
Therefore, annual income
after deduction towards Rs.30,000.00
personal expenses
Multiplier 17
Total Rs.5,10,000.00
The Computation of compensation:
Heads Amount
Loss of dependency Rs.5,10,000.00
Funeral expenses Rs.2,000.00
Loss of consortium Rs.5,000.00
Loss of estate Rs.2,500.00
Total Rs.5,19,500.00
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MFA No.200752 of 2019
C/W MFA No.200751 of 2019
There is no evidence on the medical expenses incurred, and therefore no award is passed under such head. For the foregoing, the following:
ORDER [i] The appeals are allowed. [ii] The second respondent - the Insurer is called upon to deposit sum of Rs.5,19,500/- in MFA No.200752/2019 and Rs.4,62,834/- in MFA No.200751/2019 payable respectively to the appellants - claimants along with interest at the rate of 6% per annum from the date of petition till the date of deposit but with liberty to recover the same from first respondent - the owner of the Mahindra Bolero Reg No.MH- 45/A-3601.
[iii] The amount of compensation as now awarded shall be deposited with the Tribunal within eight weeks [8] from the date of receipt of certified copy of this order.
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NC: 2024:KHC-K:572-DB MFA No.200752 of 2019 C/W MFA No.200751 of 2019 [iv] The compensation awarded in MFA No.200751/2019 shall be apportioned equally amongst the parents of Sri Dhanaji Ghagare. [v] The compensation awarded in MFA No.200752/2019 is apportioned amongst the appellants in the ratio of 40:40:10:10. [vi] The claimants - appellants, except the minor appellants, shall be entitled to withdraw the amount deposited and the amount apportioned to the minor claimants - appellants shall be deposited for the term until they attain the age of majority.
Sd/-
JUDGE Sd/-
JUDGE BL,SDU List No.: 2 Sl No.: 9 Ct;Vk