Karnataka High Court
Smt B V Deepthi vs Shri Sanwar Lal Choudhry on 28 March, 2018
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28th DAY OF MARCH 2018
BEFORE
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
MISCELLANEOUS FIRST APPEAL No.6913/2009(MV-D)
BETWEEN:
1. SMT.B.V.DEEPTHI
W/O.LATE K.SURESH
AGED ABOUT 22 YEARS
2. KUM.NAVYA
D/O.LATE K.SURESH
AGED ABOUT 3 YEARS
3. SHRI M.KRISHNAPPA
S/O.LATE MUNISWAMAPPA
AGED ABOUT 60 YEARS
4. SMT.A.MUNILAKSHMI
W/O.M.KRISHNAPPA
AGED ABOUT 55 YEARS
2ND MINOR APPELLANT IS REPRESENTED
BY 1ST APPELLANT BEING THE NATURAL
GUARDIAN/MOTHER.
ALL ARE RESIDINTG AT NO.350, 7TH CROSS
MADDURAMMA TEMPLE STREET
YAMALUR POST
BANGALORE 560 037. ....APPELLANTS
(BY SRI J.G.KUMBAR, ADV. )
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AND:
1. SHRI SANWAR LAL CHOUDHRY
S/O.SHRI RARJI RAM
MAJOR IN AGE
RESIDING AT GURGOAN
SIRABAD DISTRICT
AJMEER
RAJASTHAN.
2. NATIONAL INSURANCE
COMPANY LTD.,
REGIONAL OFFICE
SUBHRAM COMPLEX
M.G.ROAD
BANGALORE 560 001
REP. BY ITS MANAGER. ....RESPONDENTS
(By Ms.ANANDITA SRINIVASAN, ADV. FOR
SRI C.M.POONACHA, ADV. FOR R-2
NOTICE TO R1 DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED
20.07.2009 PASSED IN MVC NO.6298/2007 ON THE FILE
OF THE XII ADDL.SMALL CAUSES JUDGE AND MEMBER,
MACT, BANGALORE, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR HEARING THIS DAY,
THE COURT MADE THE FOLLOWING:
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JUDGEMENT
Aggrieved by the Judgment and Award dated 20.7.2009 passed by the Additional Small Causes Judge and Member, MACT, Bangalore in MVC No.6298/2007, the claimants are before this Court in the above appeal.
2. Heard Sri J.G.Kumbar, learned counsel for the appellant and Ms.Anandita Srinivasan, Adv. for Sri C.M.Poonacha, learned counsel for the respondent-Insurance Company.
3. The claimants are the wife, daughter and parents of one K.Suresh. On 1.8.2007, at 5 a.m., the deceased Suresh was driving car bearing Regn.No.KA-03-C-3982 from Tirupathi to Bangalore near Bangarupalyam Reliance Petrol Bunk. At that time, there was collision between the said car and lorry bearing No.HR-55/A-1271.
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4. Regarding the accident, Bangarpalyam Police of Chittoor District (Andhra Pradesh) registered the case in Crime No.99/07 against deceased Suresh himself for the offences punishable under Section 304A, 337 and 279 IPC. There is no dispute that Police have filed charge sheet against Suresh himself and an endorsement is also made to the effect that he is not alive therefore the case abates.
5. The wife, daughter and parents of deceased Suresh who will be called hereafter as `claimants' filed MVC 6298/07 under Section 163A of the MV Act before the Tribunal against the owner and insurer of Lorry bearing registration NO.HR- 55/A-1271.
6. The claimants claimed compensation of Rs.10 lakhs on structured formula basis. The respondent-Insurance Company filed its statement of objection and contested the matter on the ground that the deceased himself was responsible for accident due to rash and negligent driving, therefore, claimants are not entitled for any compensation. 5
7. On behalf of the claimants, the first claimant (the wife of deceased) was examined as PW.1 and documents were marked as Exs.P1 to P8. On behalf of the Insurance Company, the Officer of the Insurance Company was examined as RW.1 and Exhibits R1 and R2 were marked.
8. The Tribunal, after hearing both the sides, by the impugned award, held that the deceased Suresh himself was negligent in driving of the vehicle and therefore, Section 163- A of the MV Act is not applicable. However, the Tribunal applying Section 140 of the MV Act awarded the compensation of Rs.50,000/-.
9. Sri J.G.Kumar, learned counsel for the claimants contends that under Section 163A of MV Act, the claimants need not plead and prove the negligence on the part of the other vehicle. He further contends that if at all the claimants are called upon to prove the negligence on the part of other vehicle, it amounts to converting the claim under Section 6 163A to claim under Section 166 of MV Act which is not the intention and purport in legislating Section 163A. He contends that therefore, the Tribunal has committed error in holding that Section 163A is not applicable to claimants.
10. In support of his contention, he relies upon the Judgment of the Hon'ble Supreme Court in United India Insurance Co.Ltd., vs. Sunil Kumar and another 2017 SCC Online SC 1443.
11. Ms.Anandita Srinivasan, Adv. appearing for Sri C.M.Poonacha, learned counsel for respondent no.2- Insurance Company submits that, the evidence on record clearly points out that the deceased himself drove the vehicle in a rash and negligent manner and he himself is the cause for his death. She further submits that the grant of compensation under Section 163-A of the Act on the basis of structured formula is in the nature of a final award and once if Insurance Company is permitted to contest the claim by filing statement of objections, the adjudication thereunder is 7 required to be made regarding proof of negligence of the driver/owner of the vehicle(s) involved in the accident. If once the Insurance Company is permitted to prove the matter on the ground of rashness and negligence, the Tribunal has to consider the evidence adduced on that aspect.
12. Having regard to the rival contentions of the parties, the question that arises for consideration is, "Whether, the Tribunal committed error in holding that the death of Suresh is due to his own negligence, therefore, the claimants are not entitled to invoke Section 163A of the Act?"
13. There is no dispute that on investigation it was the deceased Suresh who was charge sheeted stating that he is guilty of rash and negligent driving which caused his death. The same is evidenced from Ex.P3 as well as the evidence of witnesses PW1 and RW.1. But, still the question is, whether, a claim under Section 163A of MV Act, can be made by the heirs of a person whose death is caused due to his own rash and negligent driving of a vehicle, against the owner and 8 insurer of the other vehicle which was involved in the accident.
14. Section 163A of the MV Act reads as follows:
"163A. Special provisions as to payment of compensation on structured formula basis
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(1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorized insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be.
15. In National Insurance Co. Ltd. vs. Sinitha 2012 (2) SCC 356, the matter was referred to a larger Bench on the issue. On such reference, the larger Bench of Supreme Court in United India Insurance Co.Ltd., Vs. Sunil Kumar and another reported in 2017 SCC Online SC 1443 on that issue has held as follows:
"8. From the above discussion, it is clear that grant of compensation under Section 9 163-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 an unduly long time. In fact, to understand Section 163A of the Act to permit the Insurer to raise the defence of 10 negligence would be to bring a proceedings 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.
9. For the aforesaid reasons, we answer the question arising by holding 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."
16. The reading of the above judgment makes it clear that in a claim under section 163A of MV Act, it is not open to the insurer to raise the plea of negligence on the part of victim. Therefore, the Tribunal has committed error in holding that claimants are not entitled to invoke Section 163A of the MV Act.
17. Then the only question would be the what is the compensation payable to the claimants. Post Mortem report shows, at the time of accident, deceased was aged 27 years. 11 Though there is nothing on record to prove the income, there is no dispute that he was driver by profession. Therefore, his notional income has to be considered as Rs.40,000/- p.a. having regard to the II Schedule of the Act. After deducting 1/3rd, his annual income comes to Rs.26,600/-. The multiplier applicable is `18'. Therefore, the claimants are entitled for the compensation as follows:
HEADS Rs.
1. Loss of dependency 4,80,000/-
2. Funeral expenses 2,000/-
3. Loss of consortium 5,000/-
4. Loss of Estate 2,500/-
TOTAL 4,89,500/-
18. Out of Rs.4,89,500/-, respondent no.2 -Insurance Company has already satisfied Rs.50,000/- awarded by theTribunal. Therefore, respondent no.2 is liable to pay Rs.4,39,500/- to the claimants with interest at 6% p.a. from the date of petition till realization.
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The appeal is allowed accordingly.
Respondent no.2 shall deposit Rs.4,39,500/- within one month from the date of receipt of a copy of this order with interest at the rate of 6% p.a. from the date of petition till its realization. On deposit of said compensation amount awarded by this Court, the same shall be disbursed to the claimants in the ratio of 40% each to claimant nos. 1 and 2 and 10% each to claimant nos. 3 and 4.
The compensation payable to the second claimant shall be deposited in any nationalized Bank till she attains the age of majority with liberty to the first claimant to draw the interest accrued on that from time to time. Out of the compensation to be disbursed to claimant no.1, 50% shall be deposited in any Nationalized Bank for a period of 3 years and remaining 50% shall be disbursed to claimant no.1 on proper identification.
Sd/-
JUDGE Sk/-