Bangalore District Court
(By Sri R.Chandrashekar vs No.2 By Sri K.Prakash on 5 October, 2016
BEFORE THE MEMBER PRL.M.A.C.T. & CHIEF JUDGE COURT
OF SMALL CAUSES, BANGALORE
PRESENT:SRI H.P.SANDESH, B.A.L., LL.B.,
MEMBER, PRL.M.A.C.T
& CHIEF JUDGE
M.V.C.No.2781/2014
DATED: 5th Day of October'2016
BETWEEN:-
1) Sri Mudigeraiah,
S/o.Late Kencharangaiah,
Aged 60 years,
2) Smt.Jayamma,
W/o.Mudigeraiah,
Aged about 46 years,
Both are residents of Kalari,
Kalari Post, Kasaba Hobli,
Magadi Taluk, Ramanagara District.
Petitioner
(By Sri R.Chandrashekar, Advocate)
AND:-
1) The Managing Director,
KSRTC, Shanthinagar,
K.H.Road, Bangalore.
2) Bajaj Allianz General Insurance Co., Ltd.,
Ground Floor, No.31, TBR Tower,
1st Cross, New Mission Road,
Near Bangalore Stock Exchange,
Bangalore.
(Policy No.OG014-1701-1802-00015468)
3) Nagaraju C.,
No.10, Kalari, Kasaba Hobli,
Magadi Taluk,
Ramanagara District,
Magadi 562 120.
(R.C.Owner of two wheeler
Bajaj Pulsar 150 DTSI-KA.41/Y.2867)
(Respondent No.1 by Ms.S.Nirmala, Advocate
Respondent No.2 by Sri K.Prakash, Advocate
Respondent No.3 - Exparte)
JUDGMENT
The petitioners have filed this petition claiming compensation of Rs.10 lakhs from the respondents on account of the death of their son Santhosh Kumar in a motor vehicle accident that occurred on 20.05.2014 at about 06.30 pm on NH 48 near Madigondanahalli, Nelamangala Taluk.
2. It is averred that on 20.05.2014, at about 06.30 pm., the deceased Santhosh Kumar @ Bhogesh was riding motorcycle No.KA.41/Y.2867 on NH-4 and while proceeding so, when came near Madigondanahalli, Nelamangala Taluk, a KSRTC bus No.KA.18/F.0631 which was going on the same road in the same direction in front of the motorcycle of the said Santhoshkumar, was stopped abruptly on the road without giving any signal, as a result of which, the motorcycle on which the said Santhosh Kumar was traveling, came in contact with the bus at its rear side and there occurred an accident and in the accident, the Santhoshkumar suffered injuries and succumbed to the same at the spot. Immediately, the body was shifted to Government Hospital, Nelamangala wherein Post Mortem was conducted and then handed over to the petitioners. The petitioners spent substantial amount for transportation of dead body and obsequies.
3. It is averred that, prior to the accident, the deceased was working as coolie under different employers and getting an income of Rs.3,300/- per month and maintaining the family of the petitioners and he was the sole earning member in the family. The petitioners have lost the earning member in the family and also suffered mental shock and agony and their life has become dark. For these reasons, the petitioners have prayed the Court to allow the petition under Section 163-A of the MV Act and to award Rs.10 lakhs as compensation from the respondents.
4. In response to the notice of the petition, the respondent No.1 and 2 appeared before the Court through their respective Counsel and filed separate statement of objections, whereas, the respondent No.3 has remained absent and hence, he was placed exparte.
5. The respondent No.1, in its reply, has denied all the material averments made out in the petition and contended that the petition is not maintainable either in law or on facts and hence, deserves to be dismissed. The respondent has denied the averments of the petition with regard to the personal information of the deceased, such as, age, avocation and income, so also the date of accident as stated in column No.1 to 6 of the petition and put the petitioners to strict proof of the same. It is contended that the Kudur Police have filed a case against the deceased Santhosh Kumar in Crime No.178/2014 and hence, the respondent No.1 is not liable to pay any compensation to the petitioners.
6. It is contended that the claimants are not entitled to receive any compensation from the respondent No.1 since no such accident has occurred on that day on account of the negligence by the driver of the bus, owned by respondent No.1.
7. It is contended that the respondent No.1 being the owner of the KSRTC Bus No.KA.18/F.631, on 20.05.2014, the said vehicle was on its scheduled trip No.73/74 from Chikmagalur to Chennai, via Bangalore and the driver of the said vehicle was driving the same consciously observing the traffic rules and regulations on NH 48 and when the said bus was moving near Madigondanahalli, the deceased, who was riding the Bajaj Pulsar motorcycle No.KA.41/Y.2867 dashed against the rear side of the bus, on account of high speed and rash and negligent driving and therefore, the jurisdictional Police have registered a case against the deceased himself and also filed charge sheet against him and thereby, the respondent No.1 has denied the averments which are contrary to the same and hence, the petitioners are not entitled for any compensation from the respondent No.1 and hence, the respondent No.1 prays the Court to dismiss the petition.
8. The respondent No.2, in its Statement of Objections, contended that the petition is not maintainable either in law or on facts and hence, liable to be dismissed in limine.
9. It is contended that the 2nd respondent has issued an Insurance Policy covering the risk of motorcycle bearing registration No.KA.41/Y.2867 and the liability if any is subject to terms and conditions of the policy. However, it is contended that the said policy does not cover the risk of rider of the motorcycle, since he is not a third party.
10. It is contended that the petition is not maintainable against the respondent No.2 since the accident occurred due to the sole negligence of the deceased and the Police have filed charge sheet against the deceased and Section 163-A implies to two basic components/ingredients ie., the VICTIM (the injured) and the user of the vehicle ie., the VICTIMISER (the injurer). The "Injurer" and the "Injured" ie., the VICTIMISER and the VICTIM cannot be the same person and therefore, the injured-Victim has to have a fixed amount of compensation without proving the fault of the use of the vehicle. In this case, since the Injured-Victim and the Injurer- Victimiser/user of the vehicle being one and the same person, granting of compensation for one's own fault/negligent act is not warranted and hence, the petition is liable to be dismissed on this ground alone.
11. The respondent No.2 seeks permission of the Court to avail all or any of the defence available to the insured under Section 170 of the MV Act.
12. The respondent No.2 is not aware of the relationship of the petitioners with the deceased and thus, denies the same.
13. Without prejudice to the above contentions, the respondent No.2 has denied the averments in columns No.1 to 6, 8 to 19 and 21, regarding the personal information of the deceased, age, avocation, income of the deceased and it is contended that even if the said facts are proved by the petitioners, then it is contended that amount of compensation claimed is exaggerated, baseless and irrational.
14. The respondent No.2 has taken the general defence such as non compliance of provision of Section 158(6) of the MV Act by the concerned Police, non compliance of the provisions of Section 134(c) of the MV Act by the insured. It is further contended that the insurance policy is issued subject to the terms and conditions ie., in as much as, the insured is obligated to satisfy the conditions and act in accordance with Section 3, 66 of MV Act and Rule 3 of the Central Motlor Vehicles Rules and also subject to limits and defence under Section 147 and 149 of the said Act. For all these, the respondent No.2 seeks dismissal of the petition against it.
15. On the basis of the pleadings the following issues came to be framed:
1) Whether the petitioners proves that the deceased succumbed to the injuries in a motor vehicle accident that occurred on 20.05.2014 at about 06.30 pm., at NH 48 near Madigondanahalli within the jurisdiction of Kudur Police Station on account of rash and negligent driving of the KSRTC Bus bearing registration No.KA.18/F.631 by its driver?
2) Whether the respondent proves that the accident occurred on account of negligent act of the deceased?
3) Whether the petitioners are entitled for compensation? If so, how much and from whom?
4) What order?
16. In order to prove the claim, the petitioner No.2 got examined herself as PW.1 and through her evidence, Exhibits P.1 to P.13 are marked. The respondents have examined 3 witnesses as RW 1 to 3 and through their evidence, Exhibits R.1 to 6 are marked.
17. Heard the arguments. The Counsel for the respondent No.2 has also filed written arguments along with the following citations:
1) 2004 ACJ 1289
2) MANU/SC/0374/2013
3) 2008 ACJ 1158
4) MANU/SC/8479/2008
5) Unreported Judgment in MFA No.8960/09 & 9169/2005 c/w MFA 1115/2005.
6) 2014 AIR SCW 5065
18. I have gone through the principles laid down in the above judgments.
19. It is seen from the pleadings of the petition that though the petition is filed under Section 163-A of the Motor Vehicles Act, 1988, which is made clear at the fag end of the petition before prayer column, but while mentioning the provision after the cause title of the petition, it can be seen that instead of Section 163-A, Section 166 is mentioned and even issues are framed, as if the petition is filed under Section 166 of the MV Act. Therefore, considering the pleadings made in the petition, it has to be deemed that the petition is filed under Section 163-A and the issues have to be recasted and accordingly, issues are recasted as under:-
1) Whether the petitioners prove that a road traffic accident has occurred on 20.05.2014 at about 06.30 pm., on NH 48 near Madigondanahalli within the jurisdiction of Kudur Police Station, between KSRTC Bus No.KA.18/F.631 and motorcycle No.KA.41/Y.2867 and in the accident, motorcycle rider Santhosh Kumar, the son of the petitioners, having sustained injuries, died on the spot?
2) Whether the petitioners are entitled for compensation, if so, from whom?
3) What order?
20. My findings are as follows Issue No.1 : Does not survive for consideration, Issue No.2 : Does not survive for consideration, Issue No.3 :As per final order, for the following:-
REASONS
21. Issue No.1 & 2 :- The petition is filed under Section 163-A of the Motor Vehicles Act, 1988. The Counsel for the petitioners though argued vehemently that when a petition is filed under Section 163-A of the Motor Vehicles Act, 1988, the petitioners need not prove the negligence, it suffice, if the occurrence of the accident, involving the vehicles are proved. But, the Counsel for the respondents No.1 and 2, in their arguments strongly opposed the said assertion of the petitioners' Counsel and contended that since in this victim and the victimizer being one and the same, complaint as well as charge sheet is filed against the deceased and for one's own fault/negligent act granting of compensation is not permitted, heavily relying upon the principles laid down in the judgments reported in 2004 ACJ 1289 and 2008 ACJ 1158, prayed the Court to reject the petition.
22. In the back ground of the above contentions urged by both sides, on perusal of the respective pleadings, it can be seen that on
20.05.2014, at about 06.30 pm., the deceased Santhosh Kumar @ Bhogesh was riding motorcycle No.KA.41/Y.2867 on NH-4 and while proceeding so, when came near Madigondanahalli, Nelamangala Taluk, a KSRTC bus No.KA.18/F.631 which was going on the same road in the same direction in front of the motorcycle of the said Santhoshkumar, was stopped abruptly on the road without giving any signal, as a result of which, the motorcycle on which the said Santhoshkumar was traveling, came in contact with the bus at its rear side and there occurred an accident and in the accident, the Santhoshkumar suffered injuries and succumbed to the same at the spot and thus, the petitioners' seek to award compensation for the death of said Santhoshkumar in the accident.
23. The respondents No.1 and 2, in their reply, have denied the averments of the petition with regard to the personal information of the deceased, such as age, avocation and income, relationship of the petitioners with the deceased and also the manner in which the accident occurred and the consequent death of the rider of the motorcycle. The respondent No.1 further denied the negligence attributed to the driver of the KSRTC Bus No.KA.18/F.631. It is contended that the accident occurred due to the negligence of the deceased himself, since the deceased who was riding the motorcycle rashly and negligently in over speed, having failed to control the same, the motorcycle rammed against the hind portion of the bus and therefore, no negligence can be attributed to the driver of the KSRTC bus. Further contended that the complaint as well as charge sheet has been filed against the deceased himself and therefore, the petition is not maintainable.
24. On behalf of the petitioners, the second petitioner, who is the mother of the deceased, has been examined as PW 1. In her evidence, PW 1 while reiterating the averments made in the petition, has got marked FIR, letter addressed to JMFC Court, Mahazar, IMV Report, Sketch and Charge Sheet as Ex.P.1 to P.5 and P.8.
25. On the other hand, the respondent No.1 has examined one of its Officers as RW 1 and on behalf of the respondent No.2, the conductor of the bus has been examined as RW 2 and they in all, got marked Exhibits R.1 to R.4.
26. A perusal of the record of the case, it can be seen that the complaint is lodged by the driver of the KSRTC Bus. It is stated in the complaint that while he was driving the KSRTC bus No.KA.18/F.0631 on the relevant date, time and place, deceased Santhoshkumar driven the motorcycle in the same direction and due to high speed and negligent driving, the motorcycle came in contact with the bus at its rear side and caused the accident and thus, it is alleged that the accident has occurred due to the rash and negligent riding of the motorcycle by the deceased himself. The jurisdictional Police, after investigation, having found the deceased guilty of causing the accident, filed charge sheet against him as per Ex.P.8. In this case, there is no dispute that the complaint is lodged against the deceased and the charge sheet is filed against him by the police after investigation.
27. The Counsel for the 2nd respondent, pointing to the above facts and stressing upon the principle that victim and victimizer cannot be one and the same and for one's own fault/negligence, compensation cannot be awarded, vehemently argued that since the accident occurred due to sole negligence of the deceased and the Police have filed charge sheet against the deceased and Section 163-A implies to two basic components/ingredients ie., the VICTIM (the injured) and the user of the vehicle ie., the VICTIMISER (the injurer), the "Injurer" and the "Injured" ie., the VICTIMISER and the VICTIM cannot be the same person and therefore, the injured- Victim has to have a fixed amount of compensation without proving the fault of the use of the vehicle and in this case, since the Injured-Victim and the Injurer-Victimiser/user of the vehicle being one and the same person, granting of compensation for one's own fault/negligent act is not warranted and hence, the petition is liable to be dismissed on this ground alone. In support of his contentions, he has relied upon the principles laid down in the following judgments:
(i) 2004 ACJ 1289 (DB) (Appaji (since deceased) and another Vs M.Krishna and another), wherein, it is held as under:
"Motor Vehicles Act, 1988, Section 163-A - Structured formula - Claim application - Negligence - Death of owner due to his own negligence - Compensation - Scooterist met with accident due to his own negligence and sustained fatal injuries - Parents of the deceased filed claim under Section 163-A - Contention that non obstante clause in Section 163-A would neutralize and render ineffective any provision in Motor Vehicles Act or any other law disentitling the claimants from payment of compensation where death was caused on account of rash and negligent act of the deceased himself - Whether claim for death of a person who himself is responsible for the accident is maintainable under Section 163-A
- Held: no; Parliament did not intend to provide compensation to the person responsible for the accident on structured formula basis; neither the provisions nor the background in which the same were introduced disclose any such intention; Section 163-A does not alter the legal basis on which a liability arises under Section 147".
(ii) 2008 ACJ 1158 ( Oriental Insurance Co. Ltd., Vs. Mahabunni and another), wherein it is held as under:
"Motor Vehicles Act, 1988 - Sections 147(1) and 163- A - Motor Insurance - Death of brother of insured - Liability of insurance company - claim for death of brother of insured owner of motorcycle when motor cycle was hit by an unknown truck - claimants contended that negligence of person using the vehicle would not arise for consideration in a petition under Section 163-A as payment of compensation under this Section is under no fault liability - Insurance Company of motor cycle seeks to avoid its liability on the ground that Section 147 does not require coverage of rider of motorcycle nor the policy provide for the same, younger brother of the insured who was using the motorcycle for his own purpose does not become a third party - Whether insurance company is liable for death of rider of insured motorcycle in a claim under Section 163-A - Held: no."
28. I have perused the principles laid down in the above judgments. In the judgment reported in 2004 ACJ 1289, the Division Bench of the High Court of Karnataka, specifically held that "Parliament did not intend to provide compensation to the person responsible for the accident on structured formula basis; neither the provisions nor the background in which the same were introduced disclose any such intention. Section 163-A does not alter the legal basis on which a liability arises under Section 147. Thus, the principle laid down in the above judgment, makes it amply clear that no compensation can be awarded to the person responsible for the accident. In the case on hand also, as discussed above, complaint is filed against the deceased and even the Police after investigation filed charge sheet against him, holding him responsible for the accident. As against the case made out by the respondents 1 and 2 as above, the petitioners' have not lead any rebuttal evidence, nor placed on record, any material which makes the contentions taken by the respondents unbelievable or unacceptable. Under such circumstances, even though the petition is filed under Section 163-A of the Motor Vehicles Act, 1988, in view of the principles laid down in the above judgments, it has to be held that since the victim and victimizer is the same person, the petitioners have not made out a case to award compensation to them for the death of their son in the above accident. Hence, issue No.1 and 2 does not survive for consideration.
29. Issue No.3:- In view of my findings on issues No.1 and 2 as above, I pass the following:-
ORDER Petition is dismissed as not maintainable (Dictated to the Judgment Writer directly on computer, typed by him, corrected & then pronounced in Open Court on 05.10.2016) (H.P.SANDESH) MEMBER, PRL.MACT ANNEXURE Witnesses examined on behalf of the petitioner:
P.W.1 : Smt.Jayamma Witnesses examined on behalf of the respondent :
R.W.1 : Shwetha
R.W.2 : Khaleed Pasha
Documents marked on behalf of the petitioners:
Ex.P.1 : Certified copy of FIR
Ex.P.2 : Letter sent to JMFC Court
Ex.P.3 : Mahazar
Ex.P.4 : IMV Report
Ex.P.5 : Sketch
Ex.P.6 : Inquest Report
Ex.P.7 : PM Report
Ex.P.8 : Charge Sheet
Ex.P.9 : Copy of Election ID Card
Ex.P.10 : Copy of Ration Card
Ex.P.11 : Copy of Election ID Card
Ex.P.12 : Copy of Aadhaar Card
Ex.P.13 : Copy of Election ID card
Documents marked on behalf of the respondent:
Ex.R.1 : Authorisation Letter
Ex.R.2 : Policy Copy
Ex.R.3 : Photographs with CONTENDED
Ex.R.4 : Statement made before the Depot
Manager
Ex.R.5 : Section 133 Notice
Ex.R.6 : Reply Notice
Ex.R.7 : Coy of Cheque
Ex.R.8 : Copy of Photographs
(H.P.SANDESH)
MEMBER, PRL.MACT