IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S DIXIT M.F.A No.8531 OF 2010 (MV) BETWEEN ARVIND KUMAR T.S.
S/O SRINIVASA MURTHY T.V. AGED ABOUT 34 YEARS, R/O NO 7, WALKER ROAD, BANGALORE-1. ... APPELLANT (BY SRI.SHRIPAD V SHASTRI, ADVOCATE) AND 1. THE ORIENTAL INSURANCE CO. LTD.
D.O. NO.VII, NO.22, D.V.G. MAIN ROAD, BASAVANAGUDI, BANGALORE-04. BY ITS MANAGER.
2. SRI.H. DEVARAJ, S/O SRI HULLYAPPA, NO. 36, 2ND CROSS, GAYATHRI LAYOUT, BASAVAPURA MAIN ROAD, NEAR CAMBRIDGE SCHOOL, K.R. PURAM, DEVASANDRA, BANGALORE-36. ... RESPONDENTS (BY SRI. ASHOK N PATIL, ADVOCATE FOR R1;
V/O DATED 23.01.2015, NOTICE TO R2 HELD SUFFICIENT) THIS MFA IS FILED U/S 173 (1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:11.12.2009 PASSED IN MVC NO.1202/2006 ON THE FILE OF XIX ADDITIONAL SCJ & MACT, BANGALORE, DISMISSING THE CLAIM PETITION FOR COMPENSATION.
THIS MFA COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT This appeal by the claimant calls in question the judgment and award dated 11.12.2009 made by the MACT, Bangalore (SCCH-17), dismissing the claim petition in M.V.C.No.1202/2006 on the ground that the negligence has not been proved by the claimant.
2. The learned counsel for the appellant-claimant submits that even when the negligence was not proved, still by virtue of the text of Section 140 of the M.V. Act, 1988, the injured claimant is entitled to a compensation of Rs.25,000/- under ‘No Fault Theory’ in the absence of the waiver of the said claim in the claim petition itself. He points out from the original claim petition the LCR that there is no exclusionary pleadings and therefore, there is no waiver of the said claim.
3. Per contra, the learned counsel appearing for the respondent-Insurer vehemently submits that the claim petition itself is under Section 166 of the M.V. Act and therefore, the question of invoking the ‘No Fault Theory’ clause will not arise at all. She further submits that the MACT has considered all aspects of the matter and has arrived at a finding that there being no culpable negligence, the question of liability does not arise. So arguing, the learned counsel seeks dismissal of the appeal.
4. I have heard the learned counsel for the appellant-claimant and the learned counsel for the respondent-Insurer. I have perused the Appeal Papers and also the original LCR.
5. The claim petition admittedly is not under Section 163-A but under Section 166 of the Act. In such circumstances, unless the claim for compensation on ‘No Fault Theory’ is given up specifically by the pleadings, the claimant will be entitled to the benefit of the some compensation, in view of the text of Section 140 read with the explanation to Section 165 and also Proviso to Section 166 (2) of the Act. This aspect has not been adverted to by the MACT.
In view of Above the matter needs re-consideration at the hands of MACT.
In the above circumstances, this appeal succeeds in part; the matter is remitted back to the MACT for consideration afresh, as to the claim on the basis of ‘No Fault Theory’ under Section 140 of the M.V. Act, 1988, after hearing all the concerned.
Time for compliance four months. No costs.
cbc Sd/- JUDGE