Karnataka High Court
Bajaj Allianz General Insurance Co Ltd vs Smt Renuka @ Renukamma on 5 October, 2023
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NC: 2023:KHC:36136
MFA No. 826 of 2012
C/W MFA No. 6251 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
MISCELLANEOUS FIRST APPEAL NO. 826 OF 2012 (MV-D)
C/W
MISCELLANEOUS FIRST APPEAL NO. 6251 OF 2012 (MV-D)
IN MFA NO.826/2012
BETWEEN:
BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.,
BAJAJ AUTO FINANCE LTD., AKRUDI,
POONA-411 035.
R/BY BAJAJ AUTO FINANCE LTD,
HARSHAMAHAL ROAD,
HASSAN - 573 201.
NOW R/BY REGIONAL OFFICE,
GROUND FLOOR, NO.37,
TBR TOWERS, IST CROSS,
NEW MISSION ROAD,
Digitally
signed by JAI ADJACENT TO JAIN COLLEGE &
JYOTHI J
Location: BANGALORE STOCK EXCHANGE,
HIGH
COURT OF J.C.ROAD,
KARNATAKA
BANGALORE - 560 002
REP. BY ITS SENIOR LEGAL EXECUTIVE,
SRI. C. SHANKARAIAH,
BANGALORE - 560 001.
...APPELLANT
(BY SRI. D. VIJAY KUMAR, ADVOCATE FOR
SRI. SRIPAD V SHASTRI, AMICUS CURIAE)
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MFA No. 826 of 2012
C/W MFA No. 6251 of 2012
AND:
1. SMT. RENUKA @ RENUKAMMA.,
W/O. LATE SHIVALINGACHARI @ SHIVALINGARAJU,
AGED ABOUT 34 YEARS.
2. DHANALAKSHMI,
D/O. LATE SHIVALINGACHARI @ SHIVALINGARAJU,
AGED ABOUT 17 YEARS.
3. PAVITHRA,
D/O. LATE SHIVALINGACHARI @ SHIVALINGARAJU,
AGED ABOUT 15 YEARS.
4. MONIKA,
D/O LATE SHIVALINGACHARI @ SHIVALINGARAJU,
AGED ABOUT 13 YEARS,
RESPONDENT NO.2 TO 4 ARE MINORS
REP. BY THEIR MOTHER THE 1ST RESPONDENT.
ALL ARE R/O.
C/O. RAGHAVENDRA,
SRI. JYOTHI NILAYA,
VALLABAI ROAD,
3RD CROSS,
HASSAN - 573 201.
5. SRI. SURESHA KUMAR,
S/O SRI. DYAVEGOWDA,
AGED ABOUT 33 YEARS,
VARIN RESIDENTIAL SCHOOL,
DODDA HOSURU GATE,
GOOLURU POST,
TUMKUR TALUK,
TUMKUR DISTRICT - 572 101.
(OWNER OF THE BAJAJDISCOVER BIKE BEARING
NO.KA-06-X-4519).
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MFA No. 826 of 2012
C/W MFA No. 6251 of 2012
6. SRI. S.V. GOPALAKRISHNA,
S/O SRI. S.V. VENKATESHA,
AGED ABOUT 41 YEARS,
F.D.A PRIMARY HEALTH CENTRE,
KUNDURU MATH,
DANDIGANAHALLI HOBLI,
CHANNARAYAPATTANA TALUK - 573 116.
(OWNER OF THE HERO HONDA SPLENDOR MOTOR
CYCLE BEARING NO.KA-13-Q-8677).
...RESPONDENTS
( R6 - NOTICE HELD SUFFICIENT
VIDE ORDER DATED:15.02.2016)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:26.10.2011 PASSED IN MVC
NO.259/2009 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL
JUDGE, ADDITIONAL MACT, HASSAN, DISMISSING THE CLAIM
PETITION FOR COMPENSATION, HOWEVER, THE PETITIONERS
NO.1 TO 4 THEREIN ARE ENTITLED TOTAL COMPENSATION OF
Rs.50,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF
PETITION TILL REALIZATION.
IN MFA NO.6251/2012
BETWEEN:
1. SMT. RENUKA @ RENUKAMMA,
W/O. LATE SHIVALINGACHARI @
SHIVALINGARAJU,
AGED ABOUT 34 YEARS.
2. DHANALAKSHMI,
D/O. LATE SHIVALINGACHARI @ SHIVALINGARAJU,
AGED ABOUT 17 YEARS.
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MFA No. 826 of 2012
C/W MFA No. 6251 of 2012
3. PAVITHRA,
D/O. LATE SHIVALINGACHARI @ SHIVALINGARAJU,
AGED ABOUT 15 YEARS.
4. MONIKA,
D/O LATE SHIVALINGACHARI,
AGED ABOUT 13 YEARS,
APPELLANT NOS.2 TO 4 ARE MINORS
REP. BY THEIR MOTHER THE 1ST APPELLANT.
ALL ARE PRESENTLY
R/AT. C/O. RAGHAVENDRA,
SRI. JYOTHI NILAYA,
VALLABAI ROAD,
3RD CROSS,
HASSAN - 573 301.
...APPELLANTS
(BY SRI. SRIPAD V SHASTRI, ADVOCATE)
AND:
1. SURESHAKUMAR,
S/O SRI. DYAVEGOWDA,
AGED ABOUT 30 YEARS,
VARIN RESIDENTIAL SCHOOL,
DODDA HOSURU GATE,
GOOLURU POST,
TUMKUR TALUK,
TUMKUR DISTRICT - 575 101.
2. S.V. GOPALAKRISHNA,
S/O SRI. S.V. VENKATESHA,
AGED ABOUT 38 YEARS,
F.D.A PRIMARY HEALTH CENTRE,
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NC: 2023:KHC:36136
MFA No. 826 of 2012
C/W MFA No. 6251 of 2012
KUNDURU MATH,
DANDIGANAHALLI HOBLI,
CHANNARAYAPATTANA TALUK - 573 301.
3. MANAGER,BAJAJ ALLIANZ GENERAL
INSURANCE CO. LTD.,
BAJAJ AUTO FINANCE LTD., AKRUDI,
POONA - 411 035.
R/BY: MANAGER, BAJAJ ALLIANZ GENERAL
INSURANCE CO. LTD.,
BAJAJ AUTO FINANCE LTD.,
HARSHAMAHAL ROAD,
HASSAN - 573 301.
...RESPONDENTS
(R1 - NOTICE IS DISPENSED WITH VIDE ORDER
DATED 23.02.207;
R2 - NOTICE SERVED;
SRI. D. VIJAY KUMAR, ADVOCATE FOR R3)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:26.10.2011 PASSED IN MVC
NO.259/2009 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL
JUDGE, MEMBER, ADDITIONAL MACT, HASSAN, DISMISSING
THE CLAIM PETITION U/SECT 163-A OF MV ACT AND
AWARDING A COMPENSATION OF RS.50,000/- U/S. 140 OF
MVC ACT WITH INTEREST @ 6% P.A. FROM THE DATE OF
PETITION TILL REALIZATION WITH COSTS.
THESE APPEALS, COMING ON FOR HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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MFA No. 826 of 2012
C/W MFA No. 6251 of 2012
JUDGMENT
Aggrieved by the award passed in MVC No.259/2009, dated 26.10.2011, both the claimants as well as Insurance Company are before this Court. The Insurance Company's appeal is numbered as MFA No.826/2012 and the claimants appeal is numbered as MFA No.6251/2012. The claim petition was filed seeking compensation of an amount of Rs.10,00,000/- on account of death of the deceased in the motor vehicle accident.
2. The case of the claimant is that, on 09.11.2007 at about 12.15 noon, when the deceased was proceeding towards Kunduru village in a two wheeler Bajaj Discovery Bike and when he came near Yaliyuru village near the estate of Puttaraju, on Udayapura-Yaliyuru road, one two wheeler came and hit to his motorcycle and he had sustained grievous injuries. He was admitted to the Hospital and then he was shifted to Bangalore Hospital for further treatment, he succumbed to the injuries on the -7- NC: 2023:KHC:36136 MFA No. 826 of 2012 C/W MFA No. 6251 of 2012 way to Bangalore. Hence, a claim petition was filed under Section 163-A of the Motor Vehicles Act.
3. It is the case of the claimants that, the deceased was working as an agriculturist and earning annual income of Rs.50,000/- and by vending milk and earning an amount of Rs.3,000/- per month. They have restricted the income of the deceased to Rs.40,000/-. The Court below had observed that, when the income of the deceased is above Rs.50,000/- from agriculture and an amount of Rs.36,000/- from vending milk, which comes to Rs.86,000/-. They cannot restrict the claim to Rs.40,000/- and maintain an application under Section 163-A of Motor Vehicles Act and they cannot claim compensation under Section 163-A of Motor Vehicles Act. However, the Court below had granted an amount of Rs.50,000/- under Section 140 of the Motors Vehicles Act. Aggrieved thereby the insurer of the motorcycle on which the deceased was traveling and the claimants are before this Court. -8-
NC: 2023:KHC:36136 MFA No. 826 of 2012 C/W MFA No. 6251 of 2012
4. Learned counsel appearing for the claimants submits that though they have stated that the income is Rs.50,000/- from agriculture and Rs.3,000/- per month from vending milk, but they have restricted the claim to Rs.40,000/-. He submits that in the evidence it has been stated that though the deceased was earning an amount of Rs.50,000/- per annum out of agriculture, sometimes he might get half of the amount. It is submitted that in the evidence it is clearly stated that the income is Rs.40,000/-. The Court below went wrong in dismissing the claim petition. Learned counsel submits that, ultimately what is the income of the deceased has to be assessed by the Court below and mere pleadings of the parties cannot be criteria for the Court to dismiss the petition. He had relied on an order passed by the Division Bench of this Court in MFA No.1981/2005 dated 31.05.2005. Wherein the Division Bench has observed that, -9- NC: 2023:KHC:36136 MFA No. 826 of 2012 C/W MFA No. 6251 of 2012 "Admittedly, the appellants-claimants made application only under Section 163-A of the Act. The argument of the learned counsel for the Insurance Company is that since in the said application it was claimed by the claimants that the deceased was earning yearly income of Rs.1,00,000/- and since that income is more than Rs.40,000/- , the application filed by them is not maintainable and that application ought to have been treated as the one filed under Section 166 of the Act and dealt with accordingly. This submission is not acceptable to us for more than one reason. The pleading of a party can never be placed on the pedestal of a law. Simply because the claimants have under a wrong perception or appreciation of the facts asserted a fact which they cannot prove, that circumstance itself without anything further has no legal efficacy to determine the jurisdiction of the MACT. The jurisdiction of the MACT is determined by the law and not by pleading of a party who invokes its jurisdiction. Be that as it may, it is not a finding of the MACT that the yearly income of the deceased was more than
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NC: 2023:KHC:36136 MFA No. 826 of 2012 C/W MFA No. 6251 of 2012 Rs.40,000/-. On appreciation of oral and documentary evidence, the Tribunal has recorded a finding that the deceased was earning only Rs.2,400/- per month. That means that the deceased was earning Rs.28,800/- per annum. Therefore, we hold that the Tribunal had jurisdiction to entertain the application filed by the appellants-claimants under Section 163A of the Act and that in entertaining that application the MACT has not committed any illegality as contended by the learned standing counsel for the Insurance Company".
5. He also relied on another judgment of this Court in the case of the New India Assurance Company Limited Vs Sri Abdul Bhasheer @ Basheer and Others1 wherein this Court had observed that, when the claimants have restricted the income to Rs.40,000/- an application under Section 163-A of the Act is maintainable. He further relied on another Full Bench judgment of this Court in Guruanna Vadi and Another Vs The General 1 ILR 2009 KAR 501
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NC: 2023:KHC:36136 MFA No. 826 of 2012 C/W MFA No. 6251 of 2012 Manager Karnataka State Road Transport Corporation and Another2, and submits that, if the income is restricted to Rs.40,000/- though his income is more still an application can be maintained. Basing on these documents and relying on these judgments, learned counsel submits that, the Court below went wrong in dismissing the application under Section 163-A and the Court ought to have granted the compensation as per the table.
6. On the other hand learned counsel appearing for the Insurance Company submits that, when the income is above Rs.40,000/- the question of restricting the said income does not arise, in the light of the law laid down by the Hon'ble Apex Court. He further submits that, it is the case of the claimants that, because of the rash and negligent driving of the driver of the opposite vehicle, the accident had taken place. The claimants ought to have impleaded the owner and the insurer of the other vehicle. 2 ILR 2001 KAR 2879
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NC: 2023:KHC:36136 MFA No. 826 of 2012 C/W MFA No. 6251 of 2012 It is submitted that the owner of the opposite vehicle is liable to pay the compensation but not the insurer. The Court below went wrong in granting the compensation of an amount of Rs.50,000/- under no fault liability which they are not liable to pay. It is submitted that as per the case of the claimants the negligence is on the part of the opposite party, owner and insurer of the said vehicle are liable to pay the compensation.
7. Having heard learned counsel on either side, perused the entire material on record. The Court below dismissed the claim petition observing that the petition under Section 163-A of the Act is not maintainable as the income of the deceased is above Rs.40,000/-. Now before this Court learned counsel for the claimant submits that though in their pleadings it is stated that the deceased was earning Rs.50,000/- per annum from agriculture and Rs.36,000/- per annum from vending milk but in the evidence it is stated that sometimes from the agriculture he used to get half of the income and also stated that the
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NC: 2023:KHC:36136 MFA No. 826 of 2012 C/W MFA No. 6251 of 2012 deceased income was Rs.40,000/-. According to him the Court need not look at the pleadings but should ascertain, what the income is. This Court is not able to appreciate the submissions made by the learned counsel for the claimants. They filed a claim petition stating that the income of claimant is Rs.50,000/- + Rs.36,000/- = Rs.86,000/-. They have not taken any steps to clarify the same by making an amendment to their pleadings. Learned counsel is relying on the evidence, even as per the evidence of the parties assuming that the deceased was getting an income of Rs.25,000/- per annum for some years through agriculture, still the income is Rs.25,000/- + Rs.36,000/- = Rs.61,000/- is also above Rs.40,000/- even on that count also it cannot be said that the income of the claimant as per the evidence of PW1 is below Rs.40,000/- and the Court below had failed to appreciate the same. He relied on the Full Bench Judgment of this Court and the judgment of the learned Single Judge that when the claimants have restricted to Rs.40,000/- they can maintain an application under Section 163-A of Motor
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NC: 2023:KHC:36136 MFA No. 826 of 2012 C/W MFA No. 6251 of 2012 Vehicles Act. Even that submission also this Court is not able to appreciate in the light of the law laid down by the Hon'ble Apex Court in the case of DEEPAL GIRISHBHAI SONI AND OTHERS V. UNITED INDIA INSURANCE CO. LTD3. The Division Bench judgment of this Court is of the year 2001, Deepal Girishbai's case is the subsequent judgment of the three Bench of the Hon'ble Apex Court. It is submitted by the learned counsel for the appellant that no ratio is laid down by the Hon'ble Apex Court in the said judgment. At this stage it is appropriate to look at the judgment of the Hon'ble Apex Court,
50. This rule of last opportunity was extended to constructive last opportunity in British Columbia Electric Rly. Co. v. Loach where it is modified to mean that if the plaintiff and the defendant were both in default, the determining question is, without whose negligence the mischief might have not happened?
3 2004 ACJ 934
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NC: 2023:KHC:36136 MFA No. 826 of 2012 C/W MFA No. 6251 of 2012 Really in ultimata analysis the enquiry is who caused the accident?
Applicability of the Last Opportunity Rule in India.
51.The common law doctrine of contributory negligence as laid down in Butterfield vs. Forrester was followed in India on the basis of justice, equity and good conscience, produced hardship when one of the two negligent parties suffered the greater loss although his negligence was not the major cause of accident.
67. Initially amount provided in this section was Rs. 7500/- and Rs. 1500/0, which was amended and increased to Rs.
25,000 and to Rs. 12,000/-which is amended further and raised to Rs.50,000/- and Rs.25,000/-. The amount is raised by the legislature keeping in mind the falling value of a rupee. This payment is for a limited purpose only. It is by way of, as it appears, an interim instant relief. For the remaining claim amount, however, huge or large it be, claimants were required to face that procedural music of hardship to prove
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NC: 2023:KHC:36136 MFA No. 826 of 2012 C/W MFA No. 6251 of 2012 negligence against the mighty Insurance Company. It appears that in view of the judgement of this Court in the case of MUNSHIRAM D. ANAND VS. PRAVINSINH PRABHATSINH (1996(1) G.L.H. 513 a claimant is entitled to file an application under Section 140 irrespective of Section
166. However, there is no statutory bar for the claimant to file application under Section 140 irrespective of Section 166. In our opinion, it is unfortunate for the claimants that if a claim under Section 166 of the Act is made claimant/s has/have to prove negligence of the other side and while proving the same all the defence u/Sec. 149 of the Act or u/Sec. 170 if permission is sought in writing and granted by speaking order are open for the Insurance Company and owners of the vehicle either to prove and show no negligence on their part or there is a contributory negligence of the victim or its vehicle. Even by addition of Section 140, the legislature again could not achieve the goal to alleviate the hardship. The legislature was therefore required to add Section 163-A in the Act. It will be relevant
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NC: 2023:KHC:36136 MFA No. 826 of 2012 C/W MFA No. 6251 of 2012 to refer to statement of objects and reasons whereby Section 163-A was introduced by the Parliament. It will be relevant to refer to the factors which were taken into consideration by the Parliament and they are in paragraph (2) of the Statement of Objects and Reasons which reads as under:
STATEMENT OF OBJECTS AND REASONS "2. After the coming into operation of the Bill or Committee, Government received a number of representations and suggestions from the State Governments, transport operators and members of public regarding the inconvenience faced by them because of the operation of some of the provisions of the 1988 Act. A review Committee was therefore constitute by the Government in March 1990 to examine and review the 1988 Act.
8. In the light of the law laid down by the Hon'ble Apex Court the purport of Section 163-A of the Motor Vehicles Act is to take care of the people whose income is below Rs.40,000/- and question of restricting the claim
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NC: 2023:KHC:36136 MFA No. 826 of 2012 C/W MFA No. 6251 of 2012 and maintaining an application under Section 163-A of the Act would not arise. In view of the same this Court finds no reasons to interfere with the findings of the Court below that the application under Section 163-A of the Act is not maintainable.
9. The deceased was riding the vehicle which belongs to the first respondent, which is insured by the appellant-Insurance Company. The policy is marked as Ex.R1. Ex.R1 policy shows that, for the owner/driver, personal accident coverage of Rs.1,00,000/- is provided. The Hon'ble Apex Court in the case of Ningamma and another Vs United India Insurance Co.Ltd4, has observed that the borrower of the vehicle steps into the shoes of the owner. In this case as per the policy there is a coverage of Rs.1,00,000/- for the personal accident coverage to the owner of the vehicle, the deceased who was driving the vehicle step into the shoes of the owner and he is entitled for the said amount. On this the learned 4 2009 ACJ 2020
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NC: 2023:KHC:36136 MFA No. 826 of 2012 C/W MFA No. 6251 of 2012 counsel for the Insurance Company submits that the judgment of Ningamma would not apply to the facts of the case, as in that case only one vehicle is involved, whereas in this case, two vehicles are involved and they are not liable to pay the compensation.
10. It is submitted that, if the owner is driving the vehicle then only the Insurance Company is liable, but not when someone else is driving the vehicle. The contention of the learned counsel for the appellant-Insurance Company cannot stand the legal scrutiny. The contention that the negligence aspect also has to be decided has no legs to stand for the reason that the petition is filed under 163-A of the Motor Vehicels Act. Whether it is the petition filed under Section 163-A or 166 of the Motor Vehicles Act when it comes to the personal accident coverage the insurance cannot be absolved of its liability as they have already collected the premium. The only question is when the deceased was driving the vehicle, will he step into the shoes of the owner or not. In the light of the law laid down
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NC: 2023:KHC:36136 MFA No. 826 of 2012 C/W MFA No. 6251 of 2012 in Ningamma's case, the Insurance Company is liable to pay an amount of Rs.1,00,000/- towards personal accident coverage to the claimants.
11. Accordingly, the appeal of the Insurance Company is dismissed.
12. The appeal of the claimant is partly allowed, by granting compensation of an amount of Rs.1,00,000/- under personal accident coverage.
i) The amount in deposit shall be transmitted to the Tribunal forthwith.
ii) The Insurance company shall deposit the remaining amount within a period of eight weeks from the date of receipt of copy of the judgment. On such deposit, the claimant is entitled to withdraw the entire amount without furnishing any security.
iii) Registry is directed to return the Trial Court Records to the Tribunal, along with certified
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NC: 2023:KHC:36136 MFA No. 826 of 2012 C/W MFA No. 6251 of 2012 copy of the order passed by this Court forthwith without any delay.
iv) No costs.
Pending miscellaneous petitions, if any, shall stand closed.
SD/-
JUDGE KBM List No.: 1 Sl No.: 8 CT:SNN