IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF JUNE 2017 BEFORE THE HON'BLE MR. JUSTICE N.K. SUDHINDRARAO M.F.A. NO.7639/2016 (MV) BETWEEN:
Mr. Bhawesh Kumar, Aged about 46 years, Retired Sergeant, Residing at No.2, 1st Floor, S.S. Apartment, 4th Cross, M.S. Palya, Singapura Main Road, Vidyaranyapura Post, Bangalore – 560097. … Appellant (By Sri. Ashwathanarayana Reddy, Advocate) AND:
Mr. Durvesh Kumar Ojha, S/o Late Mathura Prasad, Aged about 49 years, Working as Junior Warrant Officer Air Force Station Bagdogra, Siliguri West Bengal, R/at SMQ 396/12, NP Area, Air Force Station, Jalahalli, Bangalore – 560014. ...Respondent (By Sri. Ambaji Rao Najre, Advocate) This appeal filed under Section 173(1) of MV Act is directed against the judgment and award dated 05.10.2016 passed in MVC No. 2583/2013 on the file of the VII Additional Judge and XXXII ACMM, Court of Small Causes, Bengaluru, awarding compensation of Rs. 1,00,000/- with interest at 8% p.a. from the date of petition till its realization.
This appeal coming on for admission this day, the Court delivered the following:
J U D G M E N T This appeal is directed against the judgment and award dated 5.10.2016 passed in MVC No.2583/2013 by the VII Additional Judge & XXXII ACMM, Court of Small Causes, Bengaluru, wherein award of Rs.1,00,000/- was ordered to be payable by the respondent together with interest at 8% per annum from the date of the petition till realization. For the sake of convenience the parties will be referred with reference to their ranking before the Tribunal.
2. The incident that gave raise to initiation of proceedings under the Motor Vehicles Act (for short ‘The Act’) is that on 16.2.2013, when the petitioner was on his evening walk on the left side of the road in 7th Camp Area, near MES Gate at Air Force Station, Jalahalli (East) Campus, Bengaluru at 6.30 hours, it is stated that one Nitin Kumar who is the son of the appellant, aged 16 years, rode Hero Honda CD-100 bearing Registration No.UP-14-H-2951 with a high speed and in a rash and negligent manner and hit the petitioner from his hind side because of which he fell down and suffered grievous injuries including fracture of tibia and fibula, in addition to injury to head. The case came to be registered in Crime No.5/13 for the offences punishable under Sections 279, 337, 134 (a) & (b) of IPC read with Section 187 of IMV Act.
3. The learned Member of the Tribunal on the basis of the assertions, denials and materials available on record, framed the issues on the occurrence of the accident, entitlement of compensation, permission for prosecuting the case, jurisdiction of the Tribunal and injuries leading to disability. Further the Member of the Tribunal ordered the owner of the vehicle (appellant herein) to compensate the petitioner (respondent herein).
4. The learned counsel for the appellant would submit that the area where accident took place is the one notified as defence area that is Air force. The petitioner who has claimed the compensation to the injuries sustained by him in the accident is a Defence Officer and father of the person who caused the injuries is a Defence Officer as well.
5. At this juncture, learned counsel for the appellant would submit that the petitioner ought to have filed the claim petition before the designated forum under Section 5 of the Indian Air Force Act, 1950 (for short ‘The Act’) which is to the effect of application of the said Act to certain force under Central Government and the same is not pertaining to enforcing of remedy for compensation. Learned counsel for the appellant would also stress that the offences cannot be adjudicated by the courts established either under the civil law, criminal law or any social legislation. He also made a point that Section 32(5) of the Air Force Act enables the embargo following Section 2(d) of the Act. The relevant portion of the provisions are extracted hereunder:
32. Priority in respect of Air Force personnel’s litigation.— (1) x x x x (2) x x x x (3) x x x x (4) x x x x (5) If in any case a question arises as to the proper air force authority qualified to grant such certificate as aforesaid, such question shall be at once referred by the court to an officer having power not less than a group commander or equivalent commander whose decision shall be final.
2. Persons subject to this Act.—The following persons shall be subject to this Act wherever they may be, namely:— (a) x x x (b) x x x (c) x x x (d) persons not otherwise subject to Air Force law, who, on active service, in camp, on the march, or at any frontier post specified by the Central Government by notification in this behalf, are employed by, or are in the service of, or are followers of, or accompany any portion of the Air Force.”
Thus the learned counsel for the appellant submitted that in order to adjudicate the offences in connection with any incident in defence area, the jurisdiction lies with the defence authorities by conducting Court Marshall and not with the Member of Tribunal constituted under the Motor Vehicles Act.
6. Learned counsel for the appellant would submit that in view of the restriction imposed under Section 32 sub-Section (5) of the Act, the petition was not maintainable. In so far as said section is concerned, it is contended that when a question arises as to the competent Air force Authority who can grant such certificate, it shall have to be clarified by the Court by referring the same to the Officer ranking not less than group commander or equivalent commander and his decision shall be final.
7. Learned Counsel for the appellant submit that before prosecuting a case of similar type the certificate is necessary. Learned counsel vehemently submitted that the Tribunal has considered the compensation higher than what the petitioner deserves, as under:
Food and nourishment, attendant Charges etc.
6. Future medication Rs. 15,000/- Total Rs.1,00,000/-.
Finally learned counsel for the appellant submitted that the interest rate awarded by the Tribunal is on the higher side and the same requires to be reduced. Learned counsel would also submit that factors are considered on the higher side and contended that the respondent is not entitled for future income as his salary or other revenue are not restricted because of the accident.
8. The learned counsel for the respondent would submit that there was no embargo for the Tribunal in the matter of jurisdiction or to pass the order directing the respondent to pay the compensation to the injured.
9. It is pertinent to note that there are two facets in the matter. The learned counsel for the respondent would submit that the accident happened due to the negligence of respondent’s son, aged 16 years who was riding the vehicle at that particular hour in the defence area and he was not made a party. In so far as dispute in the criminal side is concerned, it is undisputed that a criminal case is registered against the respondent’s son in Crime No.5/13 for the offences punishable under Sections 279, 337, 134 (a) & (b) of IPC read with Section 187 of IMV Act. The main point on which the learned counsel for appellant relies is regarding the exemption enjoyed by the Military personnel in respect of any incident or offence, wherein the matter will be tried and adjudicated by Court Marshall and not by this Court.
10. It is pertinent to note that the restriction imposed is in respect of the order passed by the authority in Air Force against the employee or person is in so far as the performance of official duty is concerned and it has no relevance in response of remedy in respect of a civil right. It is to be further noted that it was individual case of the respondent that he was claiming compensation or award in respect of damages committed by the Air force in its official capacity through execution of any such order or vehicle running over a person and causing injuries. Thus minimum care has to be maintained between the personal factors and in performing official duty. In so far as registration of case on criminal side is concerned, the learned counsel for the appellant submitted that the case was not pursued. No doubt, the First Information Report was filed against the juvenile i.e., son of the appellant therein.
11. It is not the case of the appellant’s counsel when defence forces are engaged in performing the duties to protect the sovereignty of the nation and they are under sovereign duty, accident took place resulting injury to the respondent (claimant). Hence it is the submission of the learned counsel for the appellant is that the claim petition is not maintainable.
12. In the context of the prevalent circumstances, as the learned counsel for the appellant submits that since the jurisdiction is not available, he was not given an opportunity of submitting regarding maintainability as well. In so far as the right of the injured is concerned, it is seen that the Motor Vehicles Act, 1988 is very much enforceable in the form of social legislature. is enacted as a social legislation.
13. It cannot be the contention of the appellant that the forum was not competent in the light of the fact that appellant or respondent being defence personnel and incident being occurred in the defence area. The said submission does not deserve consideration.
14. In the sum and substance, due to the disability suffered, loss of income during laid up period or future loss of income is not granted. The amount of Rs.50,000/- was awarded considering the pain and agony suffered by the petitioner due to the injuries sustained in the accident.
15. The court does not find any exorbitant compensation that is more than proportion. The contention urged by the appellant is neither justifiable nor deserves consideration.
16. The personal right and official one cannot be clubbed together for the purpose of a relief. However, in the context of the case, it appears just and proper to reduce the interest awarded by the Tribunal on the compensation amount from 8% to 6% per annum from the date of petition till the date of realization. The Court not find any infirmity or irregularity. Hence, the Court pass the following:
O R D E R Accordingly, the appeal is allowed-in-part by reducing the interest awarded on the compensation from 8% to 6% per annum from the date of petition till the date of realization.
RS/* ct:pgg Sd/- JUDGE