Karnataka High Court
Uday Achuta Kodiya Yane Mahale, vs United Insurance Co. Ltd., on 20 September, 2021
Equivalent citations: AIRONLINE 2021 KAR 3006
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 20TH DAY OF SEPTEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
MFA NO.24171/2011 (MV)
Between:
Uday Achuta Kodiya Yane Mahale,
Age:29 years,
Occ:now nil, formerly barber & private service
R/o Duggumane, Tq:Sirsi
Dist:Karwar.
...Appellant
(By Sri.Vishwanath Hegde, Advocate)
AND:
1. United Insurance Co., Ltd.,
General Manager, Branch Office,
Modi Complex, Hospet road,
Sirsi, Dist:Karwar.
2. Manjunath R Naik,
Owner of Bajaj CT 100,
Occ:Business R/o Hulekal,
Tq:Sirsi, Dist:Karwar.
...Respondents
(By Sri.S.S.Joshi, Advocate for R1,
R2 served)
This Appeal is filed under Section 173(1) of M.V.Act,1988,
against the judgment and award dated 14.10.2010 passed in
MVC No.91/2007, on the file of the Presiding Officer, Fast Track
Court, Sirsi, dismissing the petition filed under Section 163A of
MV Act.
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This appeal having been heard and reserved for judgment
on 13.09.2021 coming on for pronouncement of judgment this
day, the Court delivered the following:
JUDGMENT
This appeal is filed by the claimant under Section 173(1) of MV Act challenging the judgment and award passed in MVC No.91/2007 dated 14.10.2010 on the file of the Fast Track Court, Sirsi (hereinafter referred to as 'the Tribunal' for short) whereby the Tribunal has rejected the claim by dismissing the appeal and prayed for allowing the MFA by awarding the compensation.
2. The parties herein are referred with the ranks occupied by them before the trial Court.
3. The factual matrix leading to the case are that, the appellant is a barber by profession and was also working under respondent No.2. On 05.11.2006, at about 11.30 a.m., in Ganasin kani village road 3 while he was proceeding on a Bajaj CT 100 vehicle bearing No.KA-31/K-3971 it met with accident and he sustained grievous injuries over the head and other parts of the body. Then he has taken treatment in Government Hospital and later on shifted to Kasturba Hospital, Manipal and he was inpatient till 14.12.2006 and spent Rs.86,000/- towards treatment and medical bills. That he has filed the claim petition claiming compensation and he has got examined himself as Pw.1 and placed reliance on Ex.P1 to P57. The vehicle was insured with respondent No.1. Though the petition was initially filed under Section 166 of MV Act, subsequently, it was converted under 163A of MV Act by way of amendment. However, the tribunal has rejected the claim petition on the ground that petitioner himself was rash and negligent and further his income does not fit within the parameters. Being 4 aggrieved by this judgment the appellant has filed this appeal.
4. Heard the arguments advanced by learned counsel for the appellant and the learned counsel for the respondent No.1. Respondent No.2 is unrepresented.
5. Learned counsel for the appellant would contend that when the Court has allowed the amendment and when he scaled down his income by bringing his annual income of Rs.40,000/-, the tribunal was not justified in rejecting his claim by making observation that it is impermissible. He would also contend that scaling down of the income and conversion of the petition under Section 166 to 163A of MV Act is permissible and it is a social beneficial act and hence, strict proof is not required. Hence, he would contend that the impugned judgment may be 5 set aside and sought for allowing the petition by awarding the compensation.
6. Per contra the learned counsel appearing for respondent-insurer has opposed the petition on the ground that though the petition was got amended by scaling down the income and by converting it under Section 163A of MV Act, however, the evidence itself disclose that annual income of the petitioner is more than Rs.40,000/- and hence, the petition is not maintainable and he would contend that the admissions given by the claimant cannot be taken away and though he technically scaled down which is not permissible but the evidence again disclose his higher income and as such the petition is liable to be dismissed. Hence, he would contend that trial Court is justified in rejecting the claim petition and sought for dismissal of the appeal.
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7. Having heard the arguments and perusing the records, it is undisputed fact that the petitioner has initially filed the petition under Section 166 of MV Act, but after examination and cross examination of Pw.1 he has got it amended under Section 163A of MV Act by reducing the monthly income from Rs.4,000/- p.m., to Rs.3,200/-. Whether rightly or wrongly the said amendment was allowed. The petitioner has disclosed his profession as Barber and private service under respondent No.2. Interestingly on perusal of the petition, it is evident that he did not specifically admit that accident is because of his actionable negligence and he never assert that he was the rider but simply asserts that the vehicle met with accident and he suffered injury. However, during the cross examination it is elicited that he himself was the rider of the motorbike and the accident was because of his actionable negligence. Apart from that the records 7 also disclose that the present claimant/appellant himself was charge sheeted by the investigating agency. The said charge sheet is not challenged or set aside. Hence, it is evident that prima-facie there is material evidence to show that accident is because of the actionable negligence on the part of the present petitioner.
8. In his examination in chief Pw.1 initially on 07.10.2009 stated that his income is Rs.4,000/- p.m., He was subjected to cross examination in this regard. He has also admitted that he was working under 2nd respondent. He has given further evidence wherein he has scaled down his income from Rs.4,000/- to Rs.3,200/- p.m., But though he has scaled down is monthly income from Rs.4,000/- to Rs.3,200/- p.m., his cross examination completely falsify this defence. In his cross examination he admitted that he is getting salary from the 2nd respondent to the tune of 8 Rs.3,000/- and he is earning Rs.120/- per day from the profession of barber. This part of the cross examination reads as under:
£À£Àß PËëjPÀ ªÀÈwÛ¬ÄAzÀ £À£ÀUÉ ¥Àæw¢£À gÀÆ.200 C®è DzÀgÉ gÀÆ.120-00 DzÁAiÀÄ EzÉ. 2£Éà JzÀÄgÀÄzÁgÀ £À£ÀUÉ wAUÀ½UÉ CAzÁdÄ gÀÆ.3,000-00 PÉÆqÀÄwÛzÀÝ. ¥ÀjºÁgÀ ¥ÀqÉAiÀÄ®Ä £Á£ÀÄ wAUÀ½UÉ gÀÆ.3,200-00 DzÁAiÀÄ«vÀÄÛ CAvÁ ¸ÀÄ:¼ÀÄî ºÉüÀÄwÛzÉÝÃ£É CAzÀgÉ ¸ÀjAiÀÄ®è. If this version is taken in to consideration, monthly income of the claimant-Pw.1 would be Rs.3000+3600(120*30) = 6600*12 = 79,200/-. Hence, his annual income will be Rs.79,200/- as per his own admission.
9. The petition under Section 163A of the MV Act is maintainable only if the annual income is less than Rs.40,000/-. The learned counsel for the appellant would contend that in view of the escalation in the prices, Court should consider this aspect, but 9 that ground cannot be accepted as it is a statutory limitation fixed by the statute.
10. Learned counsel for the appellant has placed reliance on the decision reported in 2002 3 ACC 350 in the case of Guruanna Vadi vs. General Manager, Karnataka State Road Transport Corporation and argued that as per the principles enunciated in the said decision in a case the person who with higher income notionally brings down his income to Rs.40,000/- in order to present his claim petition under Section 163A of MV Act, same is permissible. However, in paragraph No. 38 of the judgment while answering question No.6, the Hon'ble Apex Court has held that a claimant during the pendency of the proceedings at the original or appellate stage can amend his claim petition made under Section 166 of MV Act to a petition under Section 163A of MV Act provided he satisfies other 10 conditions such as income factor etc., If this is taken in to consideration, it is evident that though the petition under Section 166 of MV Act can be amended to petition under Section 163A of MV Act, it depends on the income which is a material factor to be proved on the basis of the evidence. In the instant case, admittedly, the cross examination of Pw.1 after amendment itself disclose that he was getting daily income of Rs.120/- from the profession of Barber and further he was being paid Rs.3,000/- p.m., by respondent No.2. Hence, the annual income is more than Rs.40,000/- as per his own admission and though he has notionally brought it for conversion, he did not withstand the cross examination in this regard and he failed to satisfy the condition regarding the income factor as observed while answering question No.6 by the Hon'ble High Court in the above cited decision. Infact the principles enunciated in the above 11 sited decision does not help the appellant and it would on the contrary help the respondent No.1.
11. Learned counsel for the appellant has further placed reliance on the decision reported in ILR 2007 Kar 28 in the case of United India Insurance Co. Ltd. and Others vs. Anitha and Others. But the facts and circumstances are entirely different and it is clearly observed in the said decision that tribunal could not have allowed the petition as if it was under
Section 163A of MV Act by scaling down the annual income of Rs.1,20,000/- to Rs.40,000/- so as to bring the case within the purview of Section 163A of MV Act.
12. He has further placed reliance on the decision reported on AIR 2019 SC 994 in the case of Sunita and Ors. Vs. Rajasthan State Road Transport Corporation and Ors. It is argued that 12 standard of proof is based on preponderance of probability. He has invited the attention of this Court to paragraph No.20 in this regard. But the said facts are entirely different. There is no dispute in the civil case, the standing proof is based on preponderance of probability and in case of criminal cases, it is beyond all reasonable doubt. The admission given by Pw.1 in his cross examination cannot be ignored and if they are ignored then virtually there is no need for cross examination.
13. The learned counsel has further placed reliance in MFA No.4493/2015 in the case of The Claim Manager, Future General India Insurance Co. Ltd., vs. Future General India Insurance Co.
Ltd., But in the said case the income of the deceased was taken at Rs.3,300/- p.m., and hence, the annual income was Rs.39,600/- and hence, the petition under Section 163A of the MV Act was entertained and 13 petition was allowed. But in the instant case, though the income was scaled down to Rs.36,000/-, the evidence and admission given by Pw.1 itself disclose that his income is more than Rs.50,000/- p.a., Hence, it is evident that only for the purpose of petition he has scaled down his income but there is no reduction of the income. Even he has not scaled down is day today income in this regard. Hence, the principles enunciated in the above cited decision does not come to the aid of the appellant in any way.
14. He has further placed reliance on the decision reported in 2009(3) ALL MR (JOURNAL) 53 (KARNATAKA HIGH COURT) in the case of New India Assurance Co. Ltd. Vs.Abdul Bhasheer Alias Basheer & Ors., wherein it is held scaling down is permissible.
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15. He has further placed reliance on the decision of the Karnataka High Court reported in 2004 2 ACC 534 in the case of Sulochana vs.Karnataka State Road Transport Corporation. But the facts of the said cases are entirely different in the said case, the evidence itself establish that income was less than Rs.40,000/- p.a., and hence, the scaling down of the income was allowed and evidence was appreciated. But in the instant case, no such evidence is forthcoming.
16. On the contrary, the learned counsel for respondent No.1 has placed reliance on the decision of the Division Bench of this Court reported in ILR 2007 Kar 4488 in the case of Bangalore Metro Transport Corporation vs. Lakshmamma and Others, wherein the Division Bench of this Court has observed as under:
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1. BMTC has filed this appeal challenging the Judgment and award passed by the MACT, Bangalore dated:
10-6-2002 in MVC 2110/1999.
Respondents were the claimants before the tribunal. Originally claim petition was lodged by them under Section 166 of MV Act claiming compensation on account of the death of Hanumanna alias Ramanna who died in road traffic accident on 28-
10-1998 at about 7-30 a.m. near Corporation Bus-stand, deceased was 51 years and drawing salary of Rs. 4090/-.
Appellant-BMTC contested the case denying the accident. Later on
amendment was sought by the claimants seeking permission of the court to convert claim petition from provisions of Section 166 of MV Act to Section 163-A of the MV Act restricting the income at Rs. 40,000/- per annum. The tribunal though held that deceased was annually getting Rs.
51,804/- restricting the income to Rs. 40,000/- awarded compensation of Rs. 3,02,833/-. This judgment and award is called in question in this appeal.
2. We have heard the counsel for both the parties.
3. It is not in dispute that deceased was a sweeper by profession and was an employee of the corporation of City of Bangalore and his gross salary was Rs. 4342/- and not salary was Rs. 4179/-. Ex.P-6 is the salary certificate. By looking 16 into Ex.P-6, considering the pleadings of the claimants, we are of the opinion that claim petition under Section 163-A of the MV Act was not maintainable. Claim petition under Section 163-A is applicable to the person whose income is less than Rs. 40,000/- per annum. Tribunal has no power to restrict the income of the claimant or deceased as the case may be to Rs. 40,000/- to bring the petition within the purview of Section 163-A of the MV Act. Section 163-A of the MV Act is enacted to give benefit to particular class of people whose income is less than Rs. 40,000/- per annum. Therefore, when a person is having income of more than Rs. 40,000/- in order to get benefit under Section 163-A of the MV Act, cannot maintain a petition by restricting his income to Rs. 40,000/- per annum.
Therefore, we are of the opinion that judgment and award of the tribunal has to be set aside and we have to direct the tribunal to consider the case of the claimants under Section 166 of the MV Act.
4. In the result, this appeal is allowed. Judgment and award of the tribunal are hereby set aside. Matter is remanded to the tribunal for fresh consideration and dispose of the claim petition treating it under Section 166 of the MV Act. Amount in deposit is ordered to be sent to the tribunal. If any amount is drawn by the claimants, same shall be 17 subject to fresh outcome by the tribunal and out of the amount deposited by the BMTC if any amount is lying with the tribunal, same shall be invested in any nationalized bank in fixed deposit for a period of one year and the same shall be released subject to the outcome of the decision of the tribunal.
17. He has also placed reliance on the Division Bench decision reported in 2010 ACJ 977 in the case of Oriental Insurance Co. Ltd., vs. Sharada G. and others. In view of the decisions, it is evident that when a person is having income more than Rs.40,000/- p.a., he cannot maintain a petition under Section 163A of MV Act. Though the income can be scaled down but as per the decision reported in Guruanna Vadi of this Court, it is permissible in case the claimant satisfies the other conditions such as the income factor etc., But in the instant case, the evidence itself disclose that the income of the claimant is more than Rs.50,000/- and though he has 18 technically scaled down the income by making amendment, in his cross examination he has admitted that his income is more than Rs.40,000/-. That admission cannot be ignored. Admittedly when his income is more than Rs.40,000/- he cannot maintain the petition under Section 163 of MV Act. The accident is because of his negligence and he was rash and negligent as per the charge sheet submitted against him. Further the evidence on record disclose that his income is more than Rs.40,000/-. As such question of he maintaining any petition under Section 163A of MV Act does not arise at all. Hence, the appeal is devoid of any merits and needs to be rejected. The tribunal has considered this aspect and considering the admissions given by the appellant has rightly dismissed the appeal holding that the petition is not maintainable under Section 163A of MV Act, in view of the fact that annual income is more than Rs.40,000/-. 19 As such the appeal is devoid of any merits and needs to be rejected.
Accordingly, I proceed to pass the following:
ORDER The appeal is rejected.
Sd/-
JUDGE NS