Karnataka High Court
M/S National Insurance Company Limited vs Smt Rekha V S W/O Late Sathish Kumar on 21 April, 2017
Author: B.Manohar
Bench: B.Manohar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF APRIL, 2017
BEFORE:
THE HON'BLE MR. JUSTICE B.MANOHAR
MFA.NO.5403/2012 (MV)
BETWEEN:
M/S NATIONAL INSURANCE
COMPANY LIMITED,
MANNA BUILDING,
VIRAJPET,
NOW REPRESENTED BY
ITS REGIONAL OFFICE,
NO. 144, SHUBHARAM COMPLEX,
M.G.ROAD, BANGALORE-01
REPRESENTED BY ITS
ADMINISTRATIVE OFFICER. ... APPELLANT
(BY SRI.A.M.VENKATESH, ADV.)
AND:
1. SMT REKHA.V.S
W/O LATE SATHISH KUMAR
AGED 24 YEARS,
R/O. VISHWANATH COLONY,
BALEGOWDARA BADAVANE,
H.D.KOTE TALUK,
MYSORE DISTRICT.
2. SMT.CHIKKARATHNAMMA,
W/O LATE N.KAVERI,
AGED 50 YEARS, HAND POST,
2
YERAHALLY TANK ROAD,
H.D.KOTE TALUK.
3. SRI.T.P.NANAIAH
S/O PONNAPPA
AGED 38 YEARS,
R/O KANTHOOR, MURNAD,
(DRIVER OF BUS BEARING
REG. NO. KA-12/8999)
4. SRI.N.S.PRADEEP @ PRAHALAD
S/O LATE SHIVA RAO,
AGED ABOUT 65 YEARS,
BUSINESS MAN,
RAJATHADRI NIVAS,
SUNNADA BEEDHI, VIRAJPET.
(OWNER OF BUS BEARING
REG. NO. KA-12/8999). ... RESPONDENTS
(BY SRI.K.PRASANNA SHETTY, ADV. FOR R1 & R2,
SRI.K.S.BHARATH KUMAR, ADV. FOR R.3,
VIDE ORDER DATED: 30.6.2016 OFFICE OBJECTIONS ARE
OVERRULED TO BRING LRS OF R.4 ON RECORD)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED: 28.11.2011 PASSED
IN MVC NO.181/2009 ON THE FILE OF CIVIL JUDGE
(SR.DN.) & MACT, VIRAJPET, AWARDING A COMPENSATION
OF RS.13,25,000/- WITH INTEREST @ 6% P.A. FROM THE
DATE OF PETITION TILL REALISATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING: -
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JUDGMENT
The National Insurance Company Limited has filed this appeal challenging the legality and correctness of the judgment and award dated 28-11-2011 made in MVC No.181/2009 passed by the Motor Accident Claims Tribunal, Virajpet (hereinafter referred to as "the Tribunal" for short).
2. Respondent Nos.1 and 2 herein filed a claim petition under Section 163-A of the Motor Vehicles Act (hereinafter referred to as 'the Act') seeking compensation of Rs.25,00,000/-. In the claim petition it was contended that husband of the first claimant and son of the second claimant, deceased Sathish Kumar was working as a Guard at Nagarahole Forest. On 01-09-2009, as per the instructions of the Range Forest Officer to collect information regarding hunting of the animals in the site area at Kutta and Srimangala Range Forest area, the deceased Sathish Kumar went to the spot in a motorcycle bearing Registration No. KA-09/G-382. On the way, he met with an accident due to 4 the rash and negligent driving of the bus bearing Registration No.KA-12/8999 near Srimangala and Sathish Kumar died on the spot, due to the fatal injuries he had sustained in the accident. In the claim petition, it was further contended that the time of death, the deceased was aged about 25 years, getting salary of Rs.8,930/- p.m., as a Guard. In view of death of the deceased, the family has lost the bread earner and hence sought for compensation of Rs.25,00,000/-.
3. In response to the notice issued by the Tribunal, respondents 1 and 3 entered appearance. However, 2nd respondent owner of the vehicle was reported to be dead. Respondent No.1 filed written statement denying the entire averments made in the claim petition and also denied the rash and negligent driving of the bus. Further, as on the date of accident, the insurance policy was in force. Hence, the insurance company is liable to compensate the claimants. The 3rd respondent-insurance company filed written statement contending that the claim petition is bad for non- 5 joinder of necessary parties i.e., the owner as well as the insurer of the motorcycle. Further, the rider of the motorcycle was not possessing valid and effective driving license as on the date of accident. The compensation claimed by the claimants is exorbitant and sought for dismissal of the claim petition.
4. On the basis of pleadings of the parties, the Tribunal framed necessary issues.
5. The first claimant got herself examined as P.W.1, mother of the deceased was examined as P.W.2 and got marked the documents as Ex.P1 to Ex.P4. On behalf of the respondents, none of the witnesses were examined, however, the insurance policy and the extract of the driving license were marked as Ex.R1 and Ex.R2.
6. The Tribunal, after appreciating the oral and documentary evidence let in by the parties held that due to the actionable negligence on the part of driver of the offending 6 bus, the accident had occurred and the deceased died. The claimants are dependants of the deceased, hence they are entitled for compensation.
7. Though the claim petition has been filed under Section 163-A of the Act, the Tribunal taking the income of the deceased as Rs.7,264/- p.m., adding 1/3rd towards future prospects and deducting 1/3rd towards his personal expenditure, awarded a sum of Rs.12,80,000/- towards loss of dependency and a sum of Rs.5,000/- towards funeral expenses, Rs.20,000/- towards loss of consortium; Rs.20,000/- towards loss of love and affection. In all, the Tribunal has awarded a sum of Rs.13,25,000/- with interest at the rate of 6% p.a. The liability was fastened on the insurance company to compensate the claimants. The insurance company being aggrieved by the said judgment and award, awarding exorbitant compensation has filed this appeal.
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8. Sri.A.M.Venkatesh, learned counsel appearing for the appellant contended that the judgment and award passed by the Tribunal is contrary to law. Though the claimants had filed the claim petition under Section 163-A of the Act, the Tribunal passed the judgment and award as if the claim petition filed under Section 166 of the Act, which is contrary to law. Under Section 163-A of the Act, there will be ceiling limit in the income of the deceased. The person having income less than Rs.40,000/- p.a., alone can file a claim petition under Section 163-A of the Act. In the instant case, the records produced by the claimants clearly disclose that the deceased was getting salary of Rs.8,930/- p.m. Hence, the claim petition filed by the claimants itself is not maintainable. Further, though notice was issued to the owner of the bus, it was returned unserved with an endorsement that he is dead. Without bringing the legal representatives of the owner of the bus, the Tribunal has fastened the liability on the insurance company. In the absence of owner of the offending bus, the liability cannot be 8 fastened on the insurance company. Hence, the judgment and award passed by the Tribunal cannot be sustained. He also relied upon the judgment reported in ILR 2007 KAR 28 in the case of UNITED INDIA INSURANCE COMPANY LIMTIED AND OTHERS v/s ANITHA AND OTHERS. Hence, sought for allowing the appeal.
9. On the other hand, Sri.K.Prasanna Shetty, learned counsel appearing for Respondent Nos.1 and 2 argued in support of the judgment and award passed by the Tribunal, wherein the Tribunal has awarded just and fair compensation and sought for dismissal of the appeal.
10. I have carefully considered the arguments addressed by Sri.A.M.Venkatesh, learned counsel appearing for the appellant and Sri.K.Prasanna Shetty learned counsel appearing for Respondent Nos.1 and 2. Perused the judgment and award, oral and documentary evidence adduced by the parties.
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11. The records clearly disclose that the claim petition has been filed under Section 163-A of the Act. If the income of the deceased is more than Rs.40,000/- per annum, the claim petition under Section 163-A of the Act is not maintainable. However, the Tribunal without noticing the ingredients of Section 163-A of the Act allowed the claim petition as if it was filed under Section 166 of the Act had awarded a sum of Rs.12,80,000/- towards loss of dependency; Rs.20,000/- towards funeral expenses and Rs.20,000/- towards loss of consortium which is contrary to Section 163-A of the Act. Further, the owner of the offending bus is dead and notice issued to him returned unserved. Without bringing the legal representatives of the deceased second respondent, the Tribunal proceeded to pass the judgment and award and fastened the liability on the insurance company. In the absence of owner of the offending vehicle, liability cannot be fastened on the insurance company. Hence, the judgment and award passed by the Tribunal cannot be sustained. 10
12. Further, this Court in a judgment referred to above has clearly held that "only the persons whose annual income is upto Rs.40,000/- can take the benefit of Section 163-A of the Act and no other persons and all other clients are required to be dealt with in terms of Chapter XII of the Act." In view of the judgment passed by the division bench of this Court, the claim petition filed by the claimants itself is not maintainable. Admittedly, the deceased was working as a Forest Guard and getting salary of Rs.8,930/- p.m. Further, the division bench of this Court in paragraph 15 of the said judgment held that liberty has been given to the claimant to file a petition under Section 166 of the Act afresh. In view of judgment of this Court, liberty is given to the claimants to file a claim petition under Section 166 of the Act and if it is filed, the Tribunal shall consider and dispose of the same, in accordance with law. Accordingly, I pass the following:
ORDER The appeal is allowed. The judgment and award dated 28-11-2011 made in MVC No.181/2009 passed by the Motor 11 Accident Claims Tribunal, Virajpet is set aside. The claim petition is dismissed. However, liberty is given to the claimants to file a claim petition under Section 166 of the Act afresh and if such a petition is filed, the Tribunal shall consider the same afresh and pass orders in accordance with law, as expeditiously as possible.
The amount in deposit before this Court is directed to be refunded to the appellant.
Sd/-
JUDGE mpk/-*