IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30th DAY OF JANUARY, 2017 BEFORE THE HON’BLE MR. JUSTICE B MANOHAR MFA.No.4072/2011 (MV) BETWEEN THE BRANCH MANAGER ORIENTAL INSURANCE CO. LTD, BRANCH OFFICE, TGMA BUILDINGS, J.C. ROAD, TUMKUR-572101, BY ORIENTAL INSURANCE CO. LTD REGIONAL OFFICE No.144, No.44/45, LEO SHOPPING COMPLEX, RESIDENCY CROSS ROAD, BANGALORE-560 025 BY ITS MANAGER. .. APPELLANT (By Sri O MAHESH, ADVOCATE) AND 1. JOGANNA, AGE 73 YEARS, S/O LATE BUDDAPPA R/AT No. 839, 3RD MAIN, 3RD CROSS, 1ST STAGE, TRIVENI ROAD, YESHWANTHPUR BANGALORE – 560 022.
2. SHIVANANDA MAJOR, SENIOR MANAGER, CKGBRO, BANGALORE, R/AT NAGENAHALLI VILLAGE, DODDERI HOBLI, MADHUGIRI TALUK-572132, TUMKUR DISTRICT. .. RESPONDENTS (By Sri V JAVAHAR BABU, ADVOCATE FOR R1, Sri L B SUMANTH, ADVOCATE FOR R2) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:28.10.2010 PASSED IN MVC No.6332/2008 ON THE FILE OF THE XXII ADDITIONAL SMALL CAUSES JUDGE, MEMBER MACT, COURT OF SMALL CAUSES, BANGALORE, AWARDING A COMPENSATION OF Rs.94,500/- WITH INTEREST @ 6% P.A.FROM THE DATE OF PETITION TILL DEPOSIT.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING: -
JUDGMENT The Oriental Insurance Co. Ltd. has filed this appeal, challenging the judgment and award dated 28th October 2010 made in MVC No.6332/2008 by the Motor Accident Claims Tribunal, Bengaluru (for short `Tribunal’), fastening the liability on them to compensate the claimant.
2. The facts leading to filing of this appeal are as under:
On 27.4.2008 at about 8.30 a.m, son of the claimant deceased Siddaraju was proceeding on his motorcycle bearing registration No.KA-01/EH-3134 along with his brother Sri J Ranganna towards his native place Devagondanahalli. While he was proceeding near Nanjappa’s land at Gidadagalahalli on Tovinakere Badavanahalli Road, a Hero Honda CD 100 Deluxe bearing Regn. No.KA-06/H-5278 came from opposite direction, ridden in a rash and negligent manner dashed against the motorcycle of the son of the claimant. Due to the impact, the rider as well as pillion rider i.e. Siddaraju and J Ranganna fell down and sustained grievous injuries all over the body. Immediately after the accident, Siddaraju became unconscious, but pillion rider, Ranganna sustained simple injuries. The said Siddaraju was shifted to nearest General Hospital, Tovinakere by an autorickshaw. As per the advise of the doctor, he was shifted to NIMHANS at Bangalore for better treatment. Thereafter he was shifted to Shirdi Sai Hospital, Bangalore, however he was succumbed to the injuries on 22.5.2008. Thereafter, the body was shifted to General Hospital, Tumkur for postmortem.
3. In the claim petition, it was contended that at the time of death, Siddaraju was aged about 32 years and was working as a Quality Auditor in Carley Exports Garment and he was getting salary of Rs.3,300/- per month. A lot of money was spent for his treatment and funeral expenses. Hence, claim petition was filed under Section 163-A of Motor Vehicles Act (for short `Act’) seeking compensation of Rs.6,00,000/-.
4. The Insurance Company filed written statement denying the entire averments made in the claim petition and contended that due to rash and negligent riding of the motorcycle by the deceased himself, the accident had occurred. Further, the police have registered the case against the deceased. He was a tort-feasor. Hence, the Insurance Company is not liable to compensate the claimant and sought for dismissal of the claim petition against it.
5. On the basis of the pleadings of the parties, the Tribunal has framed necessary issues.
6. The claimant in order to prove his case, got examined himself as PW1 and brother of the deceased was examined as PW2. Claimant in MVC No.7833/2008, who was a pillion rider of the motorcycle bearing Regn. No.KA-06/H-5278 was examined as PW3 and Exs.P1 to P17 were got marked. On behalf of Insurance Company, one of the officials was examined as RW1 and Exs.R1 to R4 were got marked.
7. The Tribunal after appreciating the oral and documentary evidence let in by the parties and taking into consideration the IMV report, copy of the complaint, panchanama and charge sheet, held that due to negligence on the part of rider of the motorcycle, the accident had occurred. Since there was involvement of two vehicles in the accident, as per Section 163A of the Act, claimant need not prove the negligence. The pillion rider traveling in one of the vehicles involved in the accident had filed a claim petition. Hence, it is beyond doubt for two vehicles being involved in the accident. Hence, the claimant is entitled for compensation.
8. The Tribunal taking into consideration the notional income of the deceased at Rs.3,000/- per month deducting 50% towards his personal expenditure, applying multiplier 5, since the claimant was aged about 70 years awarded a sum of Rs.90,000/- towards `loss of dependency’ and Rs.4,500/- towards `loss of estate and funeral expenses’. In all, Rs.94,500/- has been awarded by the Tribunal with interest at 6% p.a. and liability has been fixed on the Insurance Company to compensate the claimant. The Insurance Company being aggrieved by the judgment and award, fastening the liability on it to compensate the claimant has filed this appeal.
9. Sri O Mahesh, learned Advocate appearing for the appellant contended that due to negligence on the part of rider of the motorcycle, the accident had occurred. He was a tort-feasor and responsible for the accident. Hence, the Insurance Company is not liable to compensate the claimant. As per Section 163-A of the Act, though it is not necessary for the claimant to prove the accident, the Insurance Company can prove the negligence, if any, on the part of the deceased. Though the deceased Siddaraju was working as a Quality Auditor in Carley Exports Garment, the claim sought for by the claimant was restricted to Rs.3,300/-
p.m. though the deceased was earning much more than the said amount. Hence, the claim petition filed by the claimant is not maintainable under Section 163-A of the Act and the judgment and award, fastening the liability on it is contrary to law.
10. On the other hand, Sri Javahar Babu, learned Advocate appearing for claimant - respondent No.1 argued in support of the judgment and award passed by the Tribunal and contended that while, the deceased Siddaraju was proceeding on the motorcycle towards his native place, near Nanjappa’s land at Gidadagalahalli on Tovinakere Badavanahalli Road, the offending Hero Honda came from opposite direction in a rash and negligent manner dashed against the deceased. Due to the impact, he fell down and sustained grievous injuries to vital part of the body. During the course of treatment, he died on 22.5.2008. Since the police have registered a case against the deceased, the claim petition was filed under Section 163-A of the Act seeking compensation. The Tribunal after appreciating the oral and documentary evidence awarded a meager compensation of Rs.94,500/-. Claimant has not preferred any appeal against the impugned judgment and award. Under Section 163-A of the Act, claimant need not prove the negligence. A special provision has been made as to payment of compensation on structured-formula basis. In the instant case, two vehicles were involved in the accident. Hence, under Section 163-A of the Act, claimant is entitled for compensation and sought for dismissal of the appeal. In support of his contentions, learned Advocate has relied upon judgments reported in (2004) 5 SCC 385 in the case of Deepal Girishbhai Soni and others –vs- United India Insurance Co. Ltd. and 2017 (1) Kar.LR 132 in the case of United India Insurance Company Ltd. –vs- Smt.Rajamma and others.
11. I have carefully considered the arguments addressed by the learned counsel appearing for the parties and perused oral and documentary evidence and the judgment and award.
12. The records produced by the parties clearly disclose that on 27.4.2008, while the deceased Siddaraju was proceeding on motorcycle bearing Regn. No.KA-01/EH-3134 along with his brother Ranganna, the said vehicle met with an accident involving another motorcycle viz. a Hero Honda CD 100 Deluxe bearing Regn. No.KA-06/H-5278. In view of the accident, the deceased sustained grievous injuries and subsequently died on 22.5.2008. The father of the deceased filed the claim petition under Section 163-A of the Act seeking compensation. Since the police have registered the case against the deceased, claimant claimed that he need not prove the negligence on part of the deceased. Due to negligence on the part of the rider of another motorcycle, the accident had occurred. In the instant case indisputably, two vehicles were involved in the accident. The pillion rider of another motorcycle had filed the claim petition seeking compensation. Both the claim petitions filed by the father of the deceased Siddaraju as well as the pillion rider were clubbed together and disposed of by the common judgment and award passed by the Tribunal. Hence, it is beyond doubt that two vehicles were involved in the accident. The accident occurred due to the negligence on the part of the deceased Siddaraju is immaterial. Under Section 163-A of the Act, claimant need not prove the negligence. Section 163A of the Act reads as under:
“163-A. Special provisions as to payment of compensation on structured-formula basis.- Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorized insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be.
In the instant case, due to the death of Siddaraju, his legal heir - dependant had filed the claim petition. There was involvement of two vehicles in the accident. The legal heir of the deceased can maintain the claim petition filed under Section 163A of the Act.
13. Though the appellant had taken a contention that the deceased was working as a Quality Auditor in Carley Exports Garment and he was getting salary much more than of Rs.3,300/- p.m. in order to get compensation, the claimant has filed this appeal under Section 163-A of the Act and income has been reduced to bring the claim into the provision of Section 163-A of the Act, no material has been placed to show that the deceased was getting income of more than Rs.3,300/- p.m. Hence, the contention of the Insurance Company as to the claim petition filed under Section 163A of the Act is not maintainable cannot be acceptable. Section 163-A of the Act was enacted for grant of immediate relief to a section of people whose annual income is not more than Rs.40,000/- p.a. Having regard to the fact that in terms of Section 163-A of the Act read with the Second Schedule appended thereto, compensation is to be paid on a structured formula not only having regard to the age of the victim and his income. The compensation awarded by the Tribunal is in accordance with the structured formula as contemplated under the statute. In the instant case, when two vehicles were involved in the accident, the Insurance Company has not disputed the occurrence of the accident, the claimant is entitled for compensation under Section 163-A of Act. Even though the insurer of the offending vehicle is not made a party, it will not affect the case of the claimant. The Tribunal, after appreciating the oral and documentary evidence, in a proper perspective, has given cogent reasons for awarding the compensation. The appellant has not made out a case to interfere with the impugned judgment and award passed by the Tribunal. The appeal is devoid of merits. Accordingly, I pass the following:
ORDER Appeal is dismissed.
The amount in deposit before this Court is ordered to be transmitted to the concerned MACT for disbursement.
Sd/- JUDGE Bkm.