Karnataka High Court
Mr. B Makbul Pasha vs S. R. Bhakthavathsalam on 13 April, 2023
Author: N S Sanjay Gowda
Bench: N S Sanjay Gowda
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MFA No. 3172 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF APRIL, 2023
BEFORE
THE HON'BLE MR JUSTICE N S SANJAY GOWDA
MISCELLANEOUS FIRST APPEAL NO. 3172 OF 2019
(MV-D)
BETWEEN:
1. MR. B MAKBUL PASHA
S/O LATE B BABA JHAN,
AGED ABOUT 57 YEARS,
2. SMT GULAB JHON
W/O B MAKBUL PASHA
AGED ABOUT 50 YEARS,
3. KUMARI MAMATAJ
D/O B MAKBUL PASHA,
AGED ABOUT 24 YEARS,
ALL APPELLANTS R/AT NO 982,
4TH CROSS, 6TH MAIN ROAD,
Digitally
signed by KAMALANAGARA, BANGALORE-560 079.
PANKAJA S
Location: ...APPELLANTS
HIGH
COURT OF (BY SRI. RAJU S., ADVOCATE)
KARNATAKA
AND:
1. S. R. BHAKTHAVATHSALAM
S/O S. RAMAIAH MAJOR
(AGE NOT KNOWN TO APPELLANTS)
R/AT: NO.504, 13TH MAIN ROAD,
3RD STAGE, MANJUNATHA NAGARA,
BANGALORE-560 010.
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MFA No. 3172 of 2019
2. HDFC-ERGO GENERAL
ASSURANCE COMPANY LTD.,
2ND FLOOR, SHANKARNARAYANA BUILDING,
M.G.ROAD, BANGALORE-560 001,
BY ITS MANAGER
...RESPONDENTS
(BY SRI. H.S.LINGARAJ., ADVOCATE FOR R-2 (VC);
VIDE ORDER DATED:02.08.2022, NOTICE TO R-1 IS
DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 29/06/2018,
PASSED IN MVC NO.362/2014, ON THE FILE OF THE
ADDITIONAL SENIOR CIVIL JUDGE AND MACT, RAMANAGARA,
DISMISSING THE CLAIM PETITION FOR COMPENSATION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. This appeal arises out of proceeding initiated under Section 163A of the Motor Vehicles Act, 1988 (for short, 'the Act').
2. The Tribunal has dismissed the claim petition on the ground that the deceased had borrowed the motor vehicle in which he was travelling in which the accident occurred. This Court in M.F.A. No.22199 of 2012 has taken the view that the status of the victim vis-a-vis the vehicle would be irrelevant and whether the victim was an occupant of the -3- MFA No. 3172 of 2019 vehicle or outside the vehicle also would be of no consequence. This Court has taken the view that for a claim under Section 163A of the Act all that was required to establish that victim should have suffered in an accident which has resulted in permanent disablement and this was relatable to the motor vehicle.
3. This Court in the said judgment also considered and relied upon the Three Judge Bench judgment of Hon'ble Supreme Court in the case of CHANDRAKANTA TIWARI vs. NEW INDIA ASSURANCE COMPANY LTD., AND ANOTHER - (2020)7 SCC 386 and also the decision rendered by another Three Judge Bench in the case of SHIVAJI & OTHERS vs. DIVISIONAL MANAGER, UNITED INDIA INSURANCE COMPANY LIMITED - AIR 2018 SC 3705 and also in the case of UNITED INDIA INSURANCE COMPANY LIMITED vs. SUNIL KUMAR AND ANOTHER - AIR 2017 SC 5710. This Court also considered the effect of the judgment rendered by the two judgments of the Apex Court and thereafter came to the said conclusion. In that -4- MFA No. 3172 of 2019 view of the matter, the finding of the Tribunal cannot be accepted.
4. However, learned counsel for the insurer sought to rely upon the decision rendered by the Division Bench of this Court in M.F.A. No.101420 of 2019, in which, in respect of a claim under Section 163A of the Motor Vehicles Act, the Court has held that the rider of the vehicle would step into the shoes of the owner of the vehicle and would thus only he be entitled to only personal accident cover. Since this Court has considered the decision of Apex Court and also considered the decision of RAMKHILADI AND ANOTHER vs. UNITED INDIA INSURANCE COMPANY LIMITED AND ANOTHER - 2020 ACJ 627 and distinguished the same, the said judgment would be inapplicable to the facts of this case. Consequently, the impugned order is set aside and the claim petition is allowed.
5. Considering the annual income of the deceased at Rs.40,000/- per annum and considering the age of the -5- MFA No. 3172 of 2019 deceased as 40 years, as per II Schedule, the claimants would be entitled to Rs.4,26,667/- (Rs.40,000/- x '16' multiplier - 1/3rd) towards 'loss of dependency' after deducting 1/3rd towards personal expenses.
6. The claimants being the parents and sister, they would each be entitled to a sum of Rs.44,000/- towards 'loss of consortium' i.e., in all Rs.1,32,000/- and they would also be entitled to a sum of Rs.33,000/- under 'conventional heads'.
Sl. Particulars Award by
No. this Court
(Rs.)
1. Loss of dependency 4,26,667/-
2. Loss of consortium 1,32,000/-
3. Conventional heads 33,000/-
Total 5,91,667/-
7. Thus, the claimant is held entitled to the total compensation of Rs.5,91,700/- (rounded off) along with interest at the rate of 6% per annum from the date of petition till its realization.
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8. The Insurance Company is directed to deposit the amount of compensation awarded within two months from the date of receipt of a certified copy of this judgment.
9. Upon deposit, Rs.2,00,000/- each in the name of claimants - parents and Rs.1,00,000/- in the name of claimant - sister is ordered to be invested in fixed deposit in any Nationalised or Scheduled Bank of their choice for a period of five years and renewable with liberty to withdraw the interest accrued thereon periodically. After maturity, the Bank shall release the amount in favour of claimants without any further proceedings. The remaining amount shall be released in favour of claimants - parents through account payee cheque after proper identification.
The appeal is accordingly allowed in part.
Sd/-
JUDGE HNM List No.: 1 Sl No.: 40