Bangalore District Court
Smt. Pankaja P.M vs Sri A. Prasanna Kumar on 26 November, 2021
BEFORE THE COURT OF SMALL CAUSES AND MOTOR
ACCIDENT CLAIMS TRIBUNAL, AT BENGALURU
(SCCH-16)
Present: Sri. Sudeen Kumar D.J.,
B.A., LL.B.,
X Addl. Judge, Court of Small Causes
Bengaluru.
MVC No.5133/2018
Dated: 26th November 2021
Petitioners 1. Smt. Pankaja P.M.,
W/o Late Vijayakumar,
Aged about 25 years,
2. Sri Narasimhaiah L.,
S/o Lakshmi Narasimhaiah,
Aged about 52 years,
3. Smt. Jayalakshmamma,
W/o Narasimhaiah L.,
Aged about 47 years,
4. Baby Lakshmi Devi,
D/o Late Vijayakumar,
Aged about 3 years,
5. Master V. Nachith Gowda,
S/o Late Vijayakumar,
Aged about 3 months,
(Since the petitioner No.4 & 5 are
minors they are duly represented
by their mother & natural guardian
the 1st petitioner)
2 (SCCH-16) MVC 5133/2018
All are residing at No.05,
Madapatna, Tavarekere Hobli,
Bengaluru South Taluk,
Bengaluru - 562 130.
(Sri K.N. Harish Babu, Advocate)
Vs.
Respondents 1. Sri A. Prasanna Kumar,
S/o Annaiah,
No.72, 1st Main Road,
BFW Layout, Ganapathinagar,
Peenya 3rd Stage,
Bengaluru - 560 058.
(RC owner of the car bearing
Reg. No.KA-41-Z-3906)
(Exparte)
2. The Branch Manager,
Royal Sundaram General Insurance
Co. Ltd., Rajaram Mohan Roy
Road, Opp: to Kanteerava Stadium,
Off: Richmond Road,
Bengaluru - 560 027.
(I.P. No.VPC0675251000102 valid
from 29-08-2017 to 03-02-2018)
(Sri V. Shrihari Naidu, Advocate)
JUDGMENT
This petition is filed under Section 163A of M.V. Act, seeking compensation of Rs.20,00,000/- from the respondents on account of death of Vijayakumar, who is husband of petitioner No.1, son of petitioner No.2 and 3 and father of petitioner No.4 and 5, in Road Traffic Accident. 3 (SCCH-16) MVC 5133/2018
2. The brief facts of the petition are that, on 14-01-2018 at about 11.00 p.m., Vijayakumar was driving the car, bearing No.KA-41-Z-3906, proceeding from Puttanarasammanapalya to his house on Magadi-Bengaluru main road, when came near Devamachohalli, Tavarekere Hobli, Bengaluru, while trying to overtake some vehicle, he taken his vehicle to right side suddenly, lost the control of the vehicle and the said car dashed against the stones and light pillar and met with the accident. Due to the said accident, he sustained severe head injuries and died on the spot. Earlier to the accident, the deceased was working as driver and earning Rs.40,000/- per annum. But, on account of his untimely death the petitioners lost the dependency and love and affection. Therefore, the petitioners prayed for compensation.
3. Despite service of notice, the first respondent remained absent and hence, he was placed exparte.
3(a). The second respondent appeared through its advocate and filed written statement of objections, denied the petition averments generally, but admitted having issued the insurance policy in respect of car, bearing No.KA-41-Z-3906. Further, it contended that first respondent has to prove that the vehicular documents like registration certificate, fitness certificate, permit, tax etc. in respect of the said car were valid and the person who was driving the car had valid and effective 4 (SCCH-16) MVC 5133/2018 driving licence to drive the same on the date of accident. Further, it contended that no other person sustained injuries in the said alleged accident, hence, it is clear that deceased himself was driving the car, hit against road side ditch and sustained injuries due to his own fault and it is self accident of the deceased and no other vehicle was involved in the alleged accident and the present claim is not a claim in respect of death/injury of any third party. The deceased himself being driver steps into shoes of owner of the said vehicle and insured and indemnified under the policy cannot be said to be a third party within the meaning of M.V. Act and was in fact not covered by this respondent under the policy of insurance and tort-feasor can not claim/make benefit out of his own negligence. It prayed for the dismissal of the petition.
4. Based on the pleadings the following issues came to be framed:
1. Whether the petitioners prove that deceased Sri Vijayakumar succumbed to the injuries sustained in vehicular accident alleged to have occurred on 14-01-2018 due to the rash and negligent driving of the driver of car, bearing No.KA-41-Z-3906?
2. Whether the petitioners are entitled to compensation? If so, what is the quantum and from whom?
3. What order or Award?
5 (SCCH-16) MVC 5133/2018
5. In proof of the petition averments, the first petitioner got herself examined as PW1 and marked 12 documents. The second respondent examined its official as RW1 and marked 2 documents.
6. Heard the counsel for petitioners and second respondent. The petitioners and the second respondent have relied on judgments of Hon'ble High Court of Karnataka and Hon'ble the Apex Court. Perused the pleadings, evidences and observations of the judgments, on the basis findings on the issues are as under:
Issue No.1 : In the Affirmative Issue No.2 : In the negative Issue No.3 : As per final order REASONS ISSUE Nos.1 & 2:
7. Under the facts and circumstances of the present case for the sake of convenience and also as to avoid repetition of discussion theses issues are taken up for common discussion. Petitioners have led evidence by examining the first petitioner as PW1. The first respondent came to be exparte. The second respondent has led its evidence by examining its officer as RW1. This is being a summary proceedings sum and substance of the pleadings and evidences are only emphasized. The present petition is filed under Section 163A of the M.V. Act which came to be amended as Section 164 with effect from 01- 09-2019. The case of the petitioners is that on 14-01-2018 at 6 (SCCH-16) MVC 5133/2018 about 11.00 p.m., husband of the first petitioner, son of the second and third petitioners and father of the fourth and fifth petitioners by name Vijayakumar succumbed to the injuries, sustained in the accident, while he was driving car, bearing No.KA-41-Z-3906, while proceeding from Puttanarasammana palya to his house at Magadi-Bengaluru road, near Devamachohalli of Tavarekere Hobli of Bengaluru, as he hit the car against the stones and light pillar.
8. The second respondent specifically objected the petition as the accident was self accident due to the rash and negligent driving of the car the said Vijayakumar by loosing control over the car dashed against road side stones and light pillar, due to the impact, he succumbed to the injuries. The incident was due to own fault of the said Vijayakumar and the accident was self accident. No other vehicle is involved in the accident. The deceased is not a third party. The deceased himself stepped into shoes of owner of the said car. So, the second respondent cannot indemnify the petitioners as the deceased being tortfeasor cannot claim for his own negligence.
9. In this case, according to provision under Section 164(2) of the M.V. Act the claimants/petitioners are not required to plead or establish any wrongful act or neglect or default of the owner of the vehicle or of the vehicle concerned 7 (SCCH-16) MVC 5133/2018 or of any other person the provision does mean that the claimants need not to prove rash and negligence in this case.
10. The petitioners claiming the compensation under such provision of law, which allows for fixed compensation of Rs.5,00,000/- as it is a case of death. But, in the petition the petitioners sought for Rs.20,00,000/- as compensation which is not permissible.
11. In the present case as rash and negligence are not required to be pleaded and proved the issue for consideration should only be with respect to accident, sustaining injuries or causing death and involvement of the vehicle. But, in the present case issue No.1 came to be cast as usual as in the other case, for the sake of this petition the same is inclined to be rectified as under and proceeded to be determined.
Issue No.1:
Whether the petitioners prove that deceased Sri Vijayakumar succumbed to the injuries sustained in the accident occurred on 14-01-2018 while he was driving car, bearing No.KA-41-Z-3906?
However, neither petitioners nor the second respondent brought this to the notice. It is noticed at the time of judgment and hence it has been considered. As the matter has reached its finality it is found that no need of according a fresh 8 (SCCH-16) MVC 5133/2018 opportunity to the parties on recast issue. Although it is not necessary for such opportunity as this petition is under Section 164 (Old Section 163A) of the M.V. Act.
12. In the petitioners' side evidence, in cross-examination of PW1, it is categorically admitted by PW1 that her husband himself was driving car, bearing No.KA-41-Z-3906 which was taken from his friend by name Prasanna Kumar and her husband hit the car to the road side stones and the concerned police had charge sheeted against him. In the second respondent's evidence, the petitioners' counsel elicited that the second respondent's contention is as only the car involved in the accident and it was self accident which does mean that even the petitioners' counsel had notice of such things.
13. FIR, first information statement/complaint, final report which are Ex.P1, Ex.P2 and Ex.P7 speak about self accident by the deceased on his own negligence. A finality reached by the Investigating Officer is extracted as under:
"¢£ÁAPÀ 14-01-2018 gÀAzÀÄ gÁwæ 11.00 UÀAmÉ ¸ÀªÀÄAiÀÄzÀ°è ªÀiÁ£Àå UËgÀªÁ¤évÀ ªÀiÁUÀr vÁ®ÆèPÀÄ ¹eÉ ªÀÄvÀÄÛ eÉJAJ¥sï¹ £ÁåAiÀiÁ®AiÀÄzÀ ªÁå¦Û vÁªÀgÉPÉgÉ ¥Éǰøï oÁuÁ ¸ÀgÀºÀzÀÄÝ zÉêÀªÀiÁZÉÆúÀ½î §½ F zÉÆõÁgÉÆÃ¥ÀuÁ ¥ÀnÖAiÀÄ CAPÀt 12gÀ°è PÀAqÀ DgÉÆæAiÀiÁzÀ PÉJ-41-eÉqï-3906 ªÀiÁgÀÄw ¸ÀÄdÄQ JnðUÁ PÁj£À ZÁ®PÀ «dAiÀÄPÀĪÀiÁgï PÁgÀ£ÀÄß ZÁ®£É ªÀiÁrPÉÆAqÀÄ vÁªÀgÉPÉgÉ ªÀiÁUÀðªÁV §gÀÄwÛgÀĪÁUÉÎ ªÀiÁUÀr-¨ÉAUÀ¼ÀÆgÀÄ ªÀÄÄRågÀ¸ÉÛ PÁgÀ£ÀÄß CwªÉÃUÀ ªÀÄvÀÄÛ CeÁUÀgÀÆPÀvɬÄazÀ ZÁ®£ÀÉ ªÀiÁrPÉÆAqÀÄ §AzÀÄ vÀ£Àß ªÀÄÄAzÉ ºÉÆÃUÀÄwÛzÀÝ AiÀiÁªÀÅzÉÆà MAzÀÄ ªÁºÀ£ÀªÀ£ÀÄß NªÀgï mÉPï ªÀiÁqÀ®Ä gÀ¸ÉÛAiÀÄ ¥ÀÇgÁ 9 (SCCH-16) MVC 5133/2018 §®¨sÁUÀPÉÌ ºÉÆÃV gÀ¸ÉÛAiÀÄ §®¨sÁUÀzÀ°èzÀÝ PÀ®Äè PÀA§PÉÌ rQØ ºÉÆqÉzÀÄ PÁgÀÄ GgÀĽ ©zÀÝ ¥ÀjuÁªÀÄ PÁgÀÄ ¥ÀÇgÁ dRAUÉÆAqÀÄ PÁgÀ£ÀÄß ZÁ®£É ªÀiÁqÀÄwÛzÀÝ «dAiÀiï PÀĪÀiÁgïgÀªÀjUÉ ªÉÄÊ-PÉÊUÀ½UÉ wêÀævÀgÀªÁzÀ KlÄUÀ¼ÀÄ ©zÀÄÝ gÀPÀÛUÁAiÀÄUÀ¼ÁVzÀÄÝ ¸ÀܼÀzÀ°èAiÉÄà ªÀÄÈvÀ¥n À ÖgÀÄvÁÛgÉAzÀÄ vÀ¤SɬÄAzÀ zÀÈqÀ¥ÀlÖ ªÉÄÃgÉUÉ F C¥ÀWÁvÀPÉÌ PÁgÀt£ÁzÀ PÉJ-41-eÉqï-3906 ªÀiÁgÀÄw ¸ÀÄdÄQ JnðUÁ PÁj£À DgÉÆæ ZÁ®PÀ£À ªÉÄÃ¯É PÀ®A 279, 304(J) L¦¹ jÃvÁå ºÉÆj¸À®àlÖ zÉÆõÁgÉÆÃ¥ÀuÁ ¥ÀnÖ".
14. While arguing on the matter the petitioners' counsel brought to the notice regarding the observations made by Hon'ble Apex Court in Civil Appeal No. 9694/2013, AIR 2017 SC 5710, observations made by Hon'ble High Court of Karnataka, in Division Bench, in MFA No.3889/2011, MFA No.3941/2013, MFA No.9626/2012 regarding awarding of compensation under Section 163A of the M.V. Act and its consideration.
15. The second respondent has filed written arguments, emphasizing his objections on the petition by bringing to the notice of this Court the observations made by Hon'ble Apex Court reported in 2009 ACJ 2020 and 2004 ACJ 1289.
16. In the case of United India Insurance Company Ltd. vs. Sunil Kumar and another, in Civil Appeal No. 9694/2013, there was reference order by the Hon'ble Apex Court, wherein ordered to be pleased to place the matter before hon'ble the larger bench for correct interpretation of scope of Section 163A 10 (SCCH-16) MVC 5133/2018 of the M.V. Act with points No.(iii) to (v) referred to in United India Insurance Company Limited Vs. Shila Datta and others. The hon'ble larger bench decided the issue "whether in a claim proceeding under Section 163A of the Motor Vehicles Act, 1988 it is open for the insurer to raise the defence/plea of negligence?" it was answered to be held that "in a proceeding under Section 163A of the Act it is not open for the insurer to raise any defence of negligence on the part of the victim. It is held that grant of compensation under Section 163A of the M.V. Act on the basis of the structured formula is in the nature of a final award and the adjudication where under 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 such 163A of the Act, namely, final compensation within a limited time frame on the basis of the structured formula to overcome situations where the claims of compensation on the basis of fault liability was taking an unduly long time. In fact, to understand Section 163A of the Act to permit the insurer to raise the defense 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 11 (SCCH-16) MVC 5133/2018 self contradictory but also defeat the very legislative intention". It is reported in AIR 2017 SC 5710.
17. Prior to the final disposal by the larger bench of Hon'ble Apex Court, the Division Bench of Hon'ble High Court of Karnataka in Smt. Priya and others vs. Armugam and another case, in MFA No.3889/2011, pleased to apply the observations made through reference order in United India Insurance Company Ltd. vs. Sunil Kumar and another, in Civil Appeal No. 9694/2013, which held that 'the principle of strict liability has been incorporation under Section 163A of the Act. Therefore, even in a case where there is no tortfeasor and no negligence caused by any tortfeasor, but on account of the use of the motor vehicle in a public place, an injury or death is caused, in such a situation under Section 163A of the Act read with Second Schedule, on structure formula basis, the claim petition would have to be considered dehors the aspect of negligence'. This observation came to be considered by Single Bench of Hon'ble High Court of Karnataka in Nethravathi and others vs. Dakana Chary and another case, in MFA No.9626/2012.
18. In the case of Ningamma and another vs. United India Insurance Company Limited, reported in 2009 ACJ 2020, the Hon'ble Apex Court observed that 'in application of Section 163A of M.V. Act 1988, owner cannot himself be a recipient of compensation as liability to pay the same is on him, as borrower steps 12 (SCCH-16) MVC 5133/2018 into the shoes of the owner; on the question of whether legal representatives of the person driving the vehicle, after borrowing it from the owner, meets with accident without involving any other vehicle would be entitled to claim compensation under Section 163A of M.V. Act'.
19. In the case of Appaji and another vs. M. Krishna and another, the Hon'ble High Court of Karnataka observed that 'Section 163A of M.V. Act was never intended to provide relief to those who suffered in a road accident not because of the negligence of another person making use of a motor vehicle, but only on account of their own rash, negligent or imprudent act resulting in death or personal injury to them. The non obstante class in Section 163A simply dispenses with proof of fault by the claimants against the driver or the owner of the vehicle involved in the accident. The claimant under Section 163A, therefore, need not prove that the driver or the owner of the vehicle was at fault in the sense that the accident had occurred on account of any negligence or rashness on its part. That does not, however, mean that the claimant can maintain a claim on the basis of his own fault or negligence and argue that even when he himself may have caused the accident on account of his own rash and negligent driving, he can nevertheless make the insurance company pay for the same'.
20. The observations made in the above cases are also observed by Hon'ble High Court of Karnataka in the case of 13 (SCCH-16) MVC 5133/2018 Smt. Sangeetha and others vs. Sri Krishna Chari and another, in MFA No.5537/2011, wherein, it had taken
i) Appaji (since deceased) and others vs. M. Krishna and others ((2004) ACJ 1289 (DB-Kar))
ii) Dhanraj vs. New India Assurance Company Limited (2004) 8 SCC 553
iii) Deepal Girishbhai Soni vs. United India Insurance Company Ltd. (2004) 5 SCC 385
iv) National Insurance Company Limited vs. Laxmi Narain Dhut (2007) 3 SCC 700
v) Oriental Insurance Company Limited vs. Jhuma Saha ((2007) 9 SCC 263)
vi) Oriental Insurance Company Limited vs. Meena Variyal and others ((2007) 5 SCC 428)
vii) Oriental Insurance Company Limited vs. Rajni Devi and others ((2008) 5 SCC 736)
viii) New India Assurance Company Limited vs. Sadanand Mukhi ((2009) 2 SCC 417)
ix) Ningamma and another vs. United India Insurance Company Limited ((2009) 13 SCC 710)
x) United India Insurance Company Limited vs. Sunil Kumar and another (AIR 2017 SC 5710) cases to be considered on their observations. Hon'ble the Court opined to be held that 'a claim petition seeking payment of compensation in a road accident, by the owner of the vehicle or by any other person driving the vehicle and not being an employee, is not maintainable under Section 163A or Section 166 of the M.V. Act, before MACT. This position holds good even where the vehicle is insured for own damages and premium is paid to cover the risk of owner-cum-driver under comprehensive policy or contract policy. The 14 (SCCH-16) MVC 5133/2018 basis for maintaining a petition, both under Sections 163A and 166 of the M.V. Act is provided under Section 147 of the M.V. Act. The difference between Sections 163A and 166 is, the need to prove negligence under Section 166 and non requirement of proving negligence under Section 163A. The other difference is unlimited liability on the insurer under Section 166 and payment of compensation on structured formula basis as indicated in the second schedule of M.V. Act in case of claim made under Section 163A. The only exception in Section 163A is that a claim petition could be maintained by an employee (or his legal heirs) being a driver/rider having to plead and prove that the motor vehicle accident was caused during the course of employment'.
21. Herein, in the case on hand, it is not the case of the petitioners that the deceased was employee under the first respondent. It is not pleaded in the petition. But, it is the case that the deceased had borrowed the car from his friend Prasanna Kumar and drove the same and met with the accident and succumbed to the injuries. Such being the case, as the deceased was not the employee, the present petition is not maintainable under Section 163A (or under amended Section
164) of the M.V. Act.
22. In the present case, as per the petition averments no other vehicle is involved, the deceased was not the third party, admittedly the accident was on own negligence of the 15 (SCCH-16) MVC 5133/2018 deceased, the deceased was not the employee under the first respondent and the deceased had borrowed the car from his friend and he himself was driving the car are significant to note here. As the deceased had borrowed the car from his friend and he himself drove the same does mean that he himself stepped into the shoes of the owner. Owner or owner-cum-driver is only entitled to the compensation under Personal Accident Claim if such claim was included under the insurance policy by paying the applicable premium. But, here in the case, the petition averments are silent regarding this aspect. As earlier noted the petition shows the claimants are claiming for compensation of Rs.20,00,000/- but the present petition came to be filed under Section 163A of the M.V. Act shows the petitioners are not certain in their claim. It is also clear that the present petition is not on the averments that the deceased was the employee under the first respondent. Hon'ble the Apex Court in Ramkiladi and another vs. The United India Insurance Company and another, reported in (2020) 2 SCC 550, observed that the claimant and recipient cannot be both. The observations are extracted as under:
"5.9 Now, so far as the submission made on behalf of the claimants that in a claim under Section 163A of the Act mere use of the vehicle is enough and despite the compensation claimed by the heirs of the owner of the motorcycle which was involved in the accident resulting in his death, the claim under Section 163A of the Act would be
16 (SCCH-16) MVC 5133/2018 maintainable is concerned, in view of the decision of this Court in Rajni Devi (supra), the aforesaid cannot be accepted. In Rajni Devi (supra), it has been specifically observed and held that the provisions of Section 163A of the Act cannot be said to have any applicaton with regard to an accident wherein the owner of the motor vehicle himself is involved. After considering the decisions of this Court in the cases of Oriental Insurance Co. Ltd. vs. Jhuma Saha (2007) 9 SCC 263; Dhanraj (supra); National Insurance Co. Ltd., vs. Laxmi Narain Dhut (2007) 3 SCC 700 and Premkumari vs. Prahlad Dev (2008) 3 SCC 193, it is ultimately concluded by this Court that the liability under Section 163A of the Act is on the owner of the vehicle as a person cannot be both, a claimant as also a recipient and, therefore, the heirs of the owner could not have maintained the claim in terms of Section 163A of the Act. It is further observed that, for the said purpose, only the terms of the contract of insurance could be taken recourse to. In the recent decision of this Court in the case of Ashalata Bhowmik (supra), it is specifically held by this Court that the parties shall be governed by the terms and conditions of the contract of insurance. Therefore, as per the contract of insurance, the insurance company shall be liable to pay the compensation to a third party and not to the owner, except to the extent of Rs.1 lakh as observed hereinabove".
Accordingly, resultantly, in view of the aforementioned reasons issue No.1 stood established as the deceased 17 (SCCH-16) MVC 5133/2018 succumbed to the injuries sustained in the accident, occurred on 14-01-2018 while he was driving car, bearing No.KA-41-Z- 3906. But, though issue No.1 stood answered affirmative petitioners are not entitled to compensation as this petition is not maintainable in view of the aforesaid discussions as well as the observations made in Sangeetha's case by Hon'ble High Court of Karnataka and recent decision of Hon'ble the Apex Court in Ramkiladi's case, the present petition is not maintainable under Section 163A or under amended Section 164 of the M.V. Act, as, as per the facts of the present case the deceased stepped into the shoes of the owner of the car. It is therefore, issue No.2 is answered in the negative.
ISSUE No.3 :
23. In view of the discussions on issue Nos.1 and 2 the following order is passed:
ORDER The petition is dismissed with costs. Draw award accordingly.
(Dictated to the stenographer, transcribed by him, corrected and then pronounced in the open court this the 26th day of November 2021) (Sudeen Kumar D.J.) Member, MACT, Bengaluru.
18 (SCCH-16) MVC 5133/2018 ANNEXURE Witnesses examined on behalf of petitioners:
PW1 Smt. Pankaja P.M. Documents marked on behalf of petitioners:
Ex.P1 FIR Ex.P2 Complaint Ex.P3 Sketch Ex.P4 IMV Report Ex.P5 Inquest Ex.P6 Postmortem Report Ex.P7 Charge Sheet Ex.P8 Death Certificate Ex.P9 Notarized copies of 4 Aadhar Cards Ex.P10 Notarized copy of the Birth Certificate Ex.P11 Spot Mahazar Ex.P12 Notarized copy of the Identity Card
Witnesses examined on behalf of respondents:
RW1 Sri Sudhakar Documents marked on behalf of the respondents:
Ex.R1 Authorization Letter
Ex.R2 Insurance Policy
(Sudeen Kumar D.J.)
Member, MACT, Bengaluru.