Karnataka High Court
The Regional Manager vs Sri Y Chandrappa on 5 July, 2019
Bench: B.V.Nagarathna, K.Natarajan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JULY, 2019
PRESENT
THE HON'BLE MRS. JUSTICE B. V. NAGARATHNA
AND
THE HON'BLE MR. JUSTICE K. NATARAJAN
Miscellaneous First Appeal No.7077 of 2015 (MV-D)
BETWEEN:
THE REGIONAL MANAGER
NATIONAL INSURANCE CO., LTD .,
MOTOR CLAIMS HUB., NO.144,
2ND FLOOR, SHUBARAM COMPLEX,
M.G. ROAD, BANGALORE - 560 001. ... APPELLANT
(BY SRI O. MAHESH, ADVOCATE)
AND:
1. SRI Y. CHANDRAPPA S/O. YARRAPPA,
AGED ABOUT 46 YEARS.
2. SMT R. PREMA W/O. Y. CHANDRAPPA,
AGE 41 YEARS.
3. KUMARI C. ASHWINI
D/O. LATE Y. CHANDRAPPA,
AGED ABOUT 21 YEARS.
ALL ARE RESIDING AT NO.577/1,
SWAMY VIVEKANANDA STREET,
VIDYA NAGAR, DOMMASANDRA,
BANGALORE URBAN DISTRICT - 560 076.
4. SRI L. HANUMANTH S/O. LAKSHMAN ,
MAJOR, RESIDING AT NO.93,
MUNIYAPPA BUILDING,
1ST FLOOR, TEMPLE ROAD,
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NEAR WATER TANK,
NAGAVARAPALYA,
C.V. RAMAN NAGAR,
BANGALORE - 560 093. ... RESPONDENTS
(BY SRI N. GOPALAKRISHNA, ADVOCATE FOR R1-R3;
R4 - NOTICE HELD SUFFICIENT VIDE ORDER DATED
28.07.2017)
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT, 1988 AGAINST THE JUDGMENT AND
AWARD DATED 03.07.2015 PASSED IN M.V.C. NO.2219/2014
ON THE FILE OF THE XVI ADDITIONAL JUDGE, COURT OF
SMALL CAUSES, MEMBER, MACT, BANGALORE CITY, SCCH-14,
AWARDING COMPENSATION OF RS.19,08,000/- WITH
INTEREST @ 9% PER ANNUM FROM THE DATE OF PETITION
TILL THE DATE OF PAYMENT.
THIS M.F.A. COMING ON FOR DICTATING JUDGMENT
THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:
JUDGMENT
The insurance company has preferred this appeal assailing the judgment and award passed by the Motor Accident Claims Tribunal, Bengaluru city (hereinafter referred to as 'Tribunal', for the sake of brevity) in M.V.C. No.2219 of 2014 dated 03.07.2015 on the question of liability to satisfy the award and on the question of contributory negligence.
2. For the sake of convenience, the parties shall be referred to in terms of their status before the Tribunal. 3
3. The parents and sister of C. Krishna Kumar @ Manjunath filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as the "M.V. Act 1988" for the sake of brevity) seeking compensation on account of the death of their son, Krishna Kumar in a road traffic accident that occurred on 20.02.2014 at about 12.30 p.m. According to the claimants, Krishna Kumar was riding his motor cycle bearing Reg. No.KA-51/EG-9093 towards Muthanallur cross from Dommasandra Circle cautiously on Sarjapura - Bengaluru main road. When he was near Sangeetha Motor and Services, at that time an Indica car bearing Reg. No.KA-03-AA-1088 came from the opposite direction in a high speed, rash and negligent manner and dashed against the motor cycle, as a result of the impact, Krishna Kumar was knocked down. He sustained grievous injuries and he was shifted to St. John's Medical College Hospital, but during the course of treatment, he died at 7.15 p.m. on the same day.
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4. According to the claimants, deceased Krishna Kumar was working as an Executive in TIME SOL Facility Management Pvt. Ltd., earning Rs.15,000/- p.m. ; that the family was dependant upon his income; that Krishna Kumar had a stable job and was entitled for promotions and increments; that as a result of the death of Krishna Kumar, the family had been put to a lot of mental agony and untold misery. Therefore, they filed the claim petition seeking compensation on various heads. Sarjapur Police had registered Crime No.45/2014 against the driver of Indica car for the offence punishable under Sections 279 and 304A of I.P.C. According to the claimants, the owner and insurer of the Indica car were liable to pay the compensation and they had sought for compensation of Rs.30,00,000/- with interest and costs.
5. In response to the claim petition, the respondents appeared before the Court through their respective counsel and filed their separate statement of objections. The first respondent, owner of the Indica car denied the averments in the claim petition as false and it 5 contended that the deceased was responsible for the accident, but the car was duly insured with the second respondent; that the claim made by the petitioners was exorbitant, huge, excessive and that he was not liable to pay any compensation. First respondent sought dismissal of the claim petition.
6. The second respondent insurance company also denied as false the averments in the claim petition and contended that the liability to pay compensation was subject to the terms and conditions of the policy and that the claim made was excessive. The insurance company also sought for dismissal of the claim petition.
7. On the basis of the rival pleadings, the Tribunal framed the following points for its consideration :
"1. Whether the petitioners prove that C.Krishna Kumar @ Manjunath died due to injuries sustained by him on 20.02.2014 at about 12.30 p.m., near Sangeetha Motors and Service, Sarjapur
- Bengaluru Main road, Anekal Taluk, Bengaluru District in an accident arising 6 due to rash and negligent driving of driver of Indica car bearing No.KA-08- AA-1088 (Sic! KA-03/AA - 1088)?
2. Whether the petitioners are entitled to compensation? If so, how much and from whom?
3. What order or award?"
8. In support of their case, Y. Chandrappa the father of the deceased examined himself as P.W.1. One Puttaraju, eye-witness was examined as P.W.2 and Angelina, the HR Manager in the Company in which the deceased was working was examined as P.W.3. The claimants produced 26 documents which were marked as Exs.P-1 to P-26, while D. K. Madhusudhan, Branch Manager of ESIC, Adugodi Branch, Bengaluru, was examined as R.W.1. He produced one document which was marked as Ex.R-1. On the basis of the evidence on record, the Tribunal answered issue Nos.1 and 2 in the affirmative and awarded compensation of Rs.19,08,000/- with interest at the rate of 9% per annum from the date of the claim petition till realization and directed the owner and insurer of the Indica car to jointly and severally satisfy 7 the award. Being aggrieved by the liability being fastened on the insurer, this appeal has been preferred.
9. We have heard learned counsel for the insurance company, Shri O. Mahesh and learned counsel for the claimants - respondent Nos.1 to 3, Shri N. Gopal Krishna and perused the material on record as well as the original record.
10. Learned counsel for the insurance company, at the outset, contended that the claim petition was not at all maintainable since the deceased was covered under the Employees' State Insurance Act, 1948 (hereinafter referred to as 'ESI Act', for the sake of brevity) and that the accident had occurred during the course of his employment and on account of Section 53 of the ESI Act and there was a complete bar to file the claim petition before the Tribunal. He submitted that the Tribunal ought to have dismissed the claim petition rather than awarding compensation to the tune of Rs.19,08,000/- with interest at the rate of 9% per annum. In support of this submission, he drew our attention to the oral evidence on 8 record. In support of his submissions, he placed reliance on the following judgments of the Hon'ble Supreme Court :
i. Mr. A. Trehan vs. M/s. Associated [AIR 1996 SC 1990] (A. Trehan) ii. Bharagath Engineering vs. R. Ranganayaki And Another [2003 ACJ 393] (Bharagath Engineering) iii. National Insurance Co. Ltd. vs. Hamida Khatoon & Ors. [(2009) INSC 910] (Hamida Khatoon)
11. He next contended that there was contributory negligence on the part of the deceased Krishna Kumar, who was riding the motor cycle at the time of the accident; that Ex.P-4, the sketch would clearly indicate that there was a head-on collision between the Indica car and motor cycle, but the Tribunal has fastened the entire negligence on the owner and insurer of the driver of Indica car. He submitted that the question of contributory negligence has not been considered by the Tribunal, but the same may be determined in the instant case.
12. He also submitted that the Tribunal was not right in awarding interest at the rate of 9% per annum, as 9 normally this Court would award only 6% per annum, as interest.
13. Per contra, learned counsel for the respondent claimants submitted that the contention that claim petition was not maintainable before the Tribunal, has not been raised by the insurance company in the written statement. The said contention has only been indirectly adverted during the course of cross-examination and there is no material on record to establish that the deceased was covered under the provisions of the ESI Act or that he had died during the course of his employment or for that matter the claimants had received any relief under the provisions of the ESI Act so as to bar the filing of the claim petition.
14. In support of his case, learned counsel for the respondent claimants relied on a decision of the Hon'ble Supreme Court in the case of Regional Director, ESI Corporation And Another v. Francis De Costa (Francis De Costa) reported in (1996)6 SCC 1. He further submitted that even on a close perusal of Ex.P-4, 10 which is the sketch, would indicate that the Indica car had proceeded on the wrong side of the road, while Krishna Kumar was proceeding on the left side of the road and the car hit the motor cycle on which Krishna Kumar was proceeding, and therefore, the Tribunal has rightly fastened the liability on the driver of the car as he was completely negligent in causing the accident. He contended that there is no contributory negligence on the part of the deceased Krishna Kumar and such a question would not arise for determination in this appeal.
15. Learned counsel further submitted that the award of interest at the rate of 9% per annum is at the discretion of the Tribunal and the same may not be disturbed. He contended that there is no merit in the appeal and the same may be dismissed.
16. Having heard learned counsel for the respective parties, the following points would arise for our consideration :
1. Whether the claim petition filed by the claimants under Section 166 of the M.V. 11 Act was not maintainable, in view of Section 53 of the ESI Act?
2. Whether there was contributory negligence on the part of the deceased or whether the Tribunal was right in fastening the entire negligence on the part of the driver of the car?
3. Whether the award of interest at the rate of 9% by the Tribunal is justified?
4. What order?
17. The fact that Krishna Kumar died in a road traffic accident that occurred on 20.02.2014 at about 12.30 p.m. when he was proceeding on Sarjapur - Bengaluru main road when there was a collision between the Indica car bearing Reg. No.KA-03-AA-1088, which was coming from the opposite direction and the motor cycle, has been established by the claimants. It has also been established that on account of the said accident Krishna Kumar died on the same day during the course of treatment at St. John's Medical College Hospital at 7.15 p.m. 12
18. The main controversy, in the instant case, is with regard to the maintainability of the claim petition. In this regard, learned counsel for the insurance company has adverted to Section 53 of the ESI Act. The same reads as under:
"53. Bar against receiving or recovery of compensation or damages under any other law. - An insured person or his dependants shall not be entitled to receive or recover, whether from the employer of the insured person or from any other person, any compensation or damages under the Workmen's Compensation Act, 1923 (8 of 1923), or any other law for the time being in force or otherwise, in respect of an employment injury sustained by the insured person as an employee under this Act."
19. On a reading of the same, the significant expressions which need to be considered in the instant case are that "an insured person or his dependants shall not be entitled to receive or recover, whether from the employer of the insured person or from any other person, any compensation or damages under the Workmen's Compensation Act, 1923, or any other law for the time being in force or otherwise, in respect of an employment 13 injury sustained by the insured person as an employee under this Act." The requirement for the applicability of the Section are that the person must be insured under the provisions of the ESI Act and there must be an employment injury sustained by such an insured person. Thus, the said employment injury must be sustained by him as an employee, who is covered under the ESI Act. Therefore, any coverage of a person as an insured under the provisions of the ESI Act would define such a person as an insured person such an insured person should sustain an injury or die on account of an employment injury i.e., which occurs during the course of his employment. Such a person or his legal representatives are entitled to relief under the provisions of the ESI Act itself. Such an insured person or his dependants cannot then maintain any claim petition under the provisions of the Workmen's Compensation Act, 1923 (hereinafter referred to as 'W.C. Act', for the sake of brevity) or any other law for the time being in force, which would also include the M.V. Act, 1988. It is only when the ingredients mentioned in Section 53 of the ESI Act are satisfied that there would be a bar 14 against receiving compensation under any other law. Therefore, in order to establish the fact that the claim petition is not maintainable, it is necessary that there should be sufficient evidence in that regard.
20. Of course in support of the contentions that there is a bar under Section 53 of the ESI Act, in the instant case learned counsel for the appellant - insurer has relied upon the following three decisions referred to above:
(a) In the case of Trehan, the injury occurred while the employee was repairing a television set and a component of it burst which caused injury to his face. As a result thereof, he lost vision in his left eye. The said person had approached the ESI Corporation and the Corporation had granted the benefit available to him under the ESI Act. Thereafter, he also filed a claim petition under the Workmen's Compensation Act, 1923. The Hon'ble Supreme Court compared the provisions of the ESI Act with the W.C. Act and held that on a comparison of the relevant provisions of the two Acts, it was clear that both the Acts provide for compensation to a workman or an 15 employee for the personal injury caused to him during the course of employment. The ESI Act is a latter Act and has a wider coverage and is more comprehensive. It provides a higher compensation than what a workman would get under the W.C. Act. The benefits under ESI Act are more substantial than under the W.C. Act. The only disadvantage under the ESI Act, is that the compensation is payable by way of periodical payments and not in a lumpsum as under the W.C. Act. While enacting the ESI Act, the intention of the Parliament was not to have another remedy and a forum for claiming compensation for an injury sustained by an employee by accident arising out of and in the course of employment. In other words, the Hon'ble Supreme Court held that there cannot be a duplication of claims under two separate enactments for the very same injury which has occurred during the course of or out of employment. That the bar under Section 53 of the ESI Act is absolute as the expression of words therein are clear and unequivocal. Consequently, the Hon'ble Supreme Court held that the High Court was right in holding that in view of the bar created by Section 53 of the 16 Act, the claim petition under W.C. Act was not maintainable.
(b) In the case of Bharagath Engineering also, the employee who was employed with the appellant therein lost his life in an accident which was claimed to be arising out of and in the course of his employment with the employer. The claim petition was filed under the provisions of the W.C. Act. It was held that the employee was covered under the provisions of the ESI Act. It was contended by the employer that the claim petition was barred under Section 53 of the ESI Act as the employee was an insured person, as contemplated under Section 2(14) of the ESI Act. The said contention was accepted by commissioner for Workmen's Compensation. The matter was carried in appeal before the High Court which held that Section 53 of the ESI Act had no application and direction was given to the authorities to consider the case under the W.C. Act. The Hon'ble Supreme Court held that what is of significance is to ascertain as to whether the employee was covered as an insured person under the 17 provisions of the ESI Act and if so, there would be a bar under Section 53 of the Act. It was held in the said case that the bar applied, and therefore, the claim petition under the provisions of the W.C. Act was not maintainable and a direction was issued to extend the benefits to the legal representatives of the deceased employee therein under the provisions of the ESI Act.
(c). In the case of Hamida Khatoon, a claim petition was filed before the Motor Accident Claims Tribunal seeking compensation for the death of Abdul Hamid in a road traffic accident. The insurance company contested the claim petition and contended that the same was not maintainable, in view of Section 53 of the ESI Act.
The High Court did not accept the stand primarily on the ground that such a plea was not taken specifically in the written statement and that for establishing the said plea certain factual aspects had to be reconsidered, and dismissed the appeal filed by the insurance company therein. Before the Hon'ble Supreme Court, a direction was issued to the Motor Accident Claims Tribunal to 18 dispose of the claim petition taking note of Section 53 of the ESI Act.
21. In the case of Trehan, there is a reference to Francis De Costa which has been relied upon by learned counsel for the respondent claimants herein. The said case also arose under the ESI Act. The facts in the said case were that Francis De Costa met with an accident while he was on his way to his place of employment, a factory at Koratty and the accident had occurred at a place which was about one kilometer away to the north of the factory at 4.15 p.m. That duty-shift of the Francis De Costa was to commence at 4.30 p.m. and he was proceeding to his place of work on bicycle, when he was hit by a lorry belonging to his employers, M/s. J and P Coats (P) Ltd. As a result, Francis De Costa suffered injuries. In the said case, the Hon'ble Supreme Court considered the meaning of the expression, 'in the course of his employment' appearing in Section 3(1) of the W.C. Act, in light of what is stated under the provisions of the ESI Act and ultimately, the Hon'ble Supreme Court held on the 19 facts of the said case that it could not be said that the injury suffered by the workman one kilometer away from the factory, while he was on his way to factory was caused by an accident arising out of and in the course of his employment. In other words, there must be a casual connection with the work the employee was doing and the injury sustained therein.
22. A cumulative reading of the aforesaid judgments must act as a guide for considering the case of the respondent claimants in the instant case so as to determine as to whether there was a bar in filing of the claim petition under Section 53 of the ESI Act.
23. We have considered the evidence let-in by the parties. Y. Chandrappa was examined as P.W.1. He is the father of deceased Krishna Kumar. He has stated that on 20.02.2014 his son was proceeding towards Muthanallur cross from Dommasandra circle on his motor cycle on Sarjapura-Bengaluru road at about 12.30 p.m. and when he was near Sangeetha Motor and Services, at that time, Indica car bearing No.KA-03-AA-1088 came from the 20 opposite direction and dashed against the motor cycle, as a result Krishna Kumar was knocked down, sustained grievous injuries and died in the hospital. In the cross- examination, he has stated that his son was having ESI coverage and that his son was on duty on the date of the accident, but he had not applied for the benefits under the ESI Act.
24. P.W.2 is the eye-witness to the accident, while P.W.3 Angelina was working in the HR Department of the employer of the deceased Krishna Kumar. She has stated that Krishna Kumar was their permanent employee and as on the date of the accident he was drawing gross monthly salary of Rs.11,569/- and he was entitled to time-bound promotions and increments. In her cross-examination, she has stated as true that at the time of accident the deceased was on duty, that the employees are covered under the ESI; that the legal representatives of the deceased have benefits under the ESI Act; but she is not aware of the benefits that are payable to the claimants. That they may have received Rs.10,000/- only from ESI 21 towards funeral expenses. R.W.1 is the Branch Manager of ESI Corporation Branch, Bengaluru. He has stated that a sum of Rs.10,000/- was paid to the legal representatives of deceased Krishna Kumar. He has further stated that he cannot say what amount is going to be paid to them.
25. Further, on a close reading of the aforesaid evidence, it is noted that though the representative of the employer of the deceased Krishna Kumar has stated that at the time of the accident the deceased was on duty and that he was covered under the ESI Act, no further material or facts are elicited from him. By merely stating that the deceased was on duty on the fateful day, it cannot be established that he died on account of an employment injury and that the said injury and consequent death occurred to an employee are covered under the Act. It may also be noted that the deceased was covered under the provisions of the ESI Act. But, what is required under Section 53 of the ESI Act is that the injury or the death must be an employment injury sustained by an insured person as an employee under the ESI Act. Therefore, the 22 death or injury must have occurred during the course of employment. It is not sufficient to merely state that the deceased was on duty at the time of the accident. There are no further facts established as to what was the purpose of his proceeding on Bengaluru - Sarjapur road on the fateful day. Whether he was proceeding to attend to a customer as he was in the customer care division of his employer or he was proceeding elsewhere or he was proceeding from his house to his place of work is not established. In the absence of there being any cogent evidence on record as to what was the purpose of deceased Krishna Kumar proceeding on the fateful day at that time, it cannot be simply assumed that he was on duty when he was proceeding on the motor cycle at 12.30 p.m. on the fateful day. As already noted, there is lack of evidence and details as to what was the nature of the duty he was performing at the time of the accident and other such details. According to the complaint at Ex.P-1, it is stated that the deceased was proceeding from his house towards his work place. That cannot be construed to be a part of the duty. Therefore, even it is elicited in the cross- 23 examination of P.W.3 and R.W.1 that the deceased was on duty at the time of accident, there is a glaring lack of further evidence or material so as to establish the fact that the death occurred during the course of his employment or duty and hence the deceased being an insured person under the provisions of the ESI Act, a claim petition under Section 166 of the M.V. Act was not maintainable.
26. Further, the bar under Section 53 of ESI Act is with regard to maintaining a claim petition against the employer in respect of an employment injury or death resulting from such injury or during the course of employment. In such an event, there cannot be a duplication of claims; one under ESI Act and another under any other law.
27. It is observed that when there is a bar regarding maintainability of a petition under Section 53 of ESI Act, it has to be construed strictly and not in a liberal manner, as the bar results in shutting out of a remedy to a claimant and hence, such a bar cannot be applied in a light manner, but a strict interpretation must be given to the 24 provisions of Section 53 of the ESI Act so as to foreclose the remedy under the provisions of the M.V. Act for the injured claimant or the legal representatives of the deceased who may be covered under the provisions of the ESI Act from also seeking a claim under Section 166 of the M.V. Act or any other provision of the M.V. Act against a stranger.
28. In this regard, it would be useful to refer to a judgment of the Division Bench of the Kerala High Court in K.P.Kuriakose vs. G. Santhosh Kumar reported in 2010 ACJ 662 , wherein it has been observed that the use of the words "any person" in Section 53 of the ESI Act cannot take within its sweep the claim in tort against the stranger/tort feasor under Section 166 of the M.V. Act for compensation for the loss suffered in a motor accident caused by negligence. That the expression "any other person" in Section 53 of the ESI Act can take within its sweep only such other person who is sought to be made liable, under or on the basis of the contract of employment, to compensate the employee for the 25 'employment injury' suffered by him. If an injury is suffered in a motor accident and such injury is an employment injury also, Section 53 of the ESI Act does not bar the claim in tort under Section 166 of the M.V. Act against any stranger tort feasor, but bars the claim against the employer under any other law. That the insurance coverage under the ESI Act is in addition to and not in substitution of other remedies against the stranger. In the aforesaid case, reference has also been made to the judgment of the Hon'ble Supreme Court in the case of Francis De Costa and it has been held that a claim for compensation in tort against a stranger can co-exist with a claim for benefits against the employer under the ESI Act. Hence, the contention of learned counsel for the insurance company that the claim petition under Section 166 of the M.V. Act was not maintainable in the instant case, is without substance and hence is rejected. Point No.1 is accordingly answered against the insurance company.
29. This takes us to the next point for consideration which is on the aspect of contributory 26 negligence. The same should not detain us long, for the Tribunal has already given a finding that the driver of the Indica car was negligent in driving the vehicle. On a perusal of Ex.P-1 copy of the F.I.R., Ex.P-2 copy of the charge sheet, Ex.P-3 copy of the panchanama, Ex.P-4 copy of the sketch, Ex.P-5 copy of the I.M.V. report and on a cumulative consideration of the same, it becomes clear that the Indica car went on the wrong side of the road and collided with the motor cycle rode by Krishna Kumar. That Krishna Kumar was proceeding on his left side of the road. But there is no reason as to why the Indica car went on to the wrong side of the road i.e., to the right side of the road and collided with the motor cycle. The finding given by the Tribunal in this regard, in our view, is just and proper and there is no reason to differ with the said finding. Consequently, we hold that there is no contributory negligence on the part of the deceased Krishna Kumar in causing the accident. Hence, point No.2 is also answered against the insurance company.
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30. The next contention raised by learned counsel for the insurer is with regard to the award of interest at the rate of 9% per annum on compensation of Rs.19,08,000/- which has been determined by the Tribunal. Of course, learned counsel for the insurance company was fair enough to submit that the grounds raised in the memorandum of appeal were prior to the latest dicta of the Hon'ble Supreme Court in the case of National Insurance Company Limited v. Pranay Sethi, reported in (2017)16 SCC 680 and Magma General Insurance Company Limited v. Nanu Ram, reported in 2018 ACJ 2782, and therefore, the insurance company may not have any grievance with regard to the quantum of compensation awarded by the Tribunal.
31. He, however, contended that the award of interest may be restricted to 6% per annum in the present case. Of course, learned counsel for the respondent claimants supported interest at 9% per annum being awarded by the Tribunal, but we find that normally this Court, in cases of death, would award only 6% per annum 28 of interest. Hence, in this case also the award of interest would be only 6% per annum instead of 9% per annum, as awarded by the Tribunal. Therefore, point No.3 is answered in favour of the insurance company.
32. In the result, the appeal filed by the insurance company is allowed in part. The award of compensation of Rs.19,08,000/- is with interest at the rate of 6% per annum from the date of the claim petition till realization.
Parties to bear their respective costs.
The amount in deposit to be transmitted to the Tribunal forthwith.
Sd/-
JUDGE Sd/-
JUDGE hnm