IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S DIXIT MFA NO.4459 OF 2010 (MV) BETWEEN THE BRANCH MANAGER, ORIENTAL INSURANCE CO. LTD., CHITRADURGA BRANCH, CHITRADURGA, NOW REPRESENTED BY ITS REGIONAL MANAGER, ORIENTAL INSURANCE CO. LTD., REGIONAL OFFICE, #44/45, LEO SHOPPING COMPLEX, RESIDENCY ROAD, BANGALORE – 560 025. ... APPELLANT (BY SRI.SHIVAKUMAR M.V., ADVOCATE FOR SRI. A N KRISHNA SWAMY, ADVOCATE) AND 1. P. K. INDRESH REDDY, S/O LATE P.KESHAVA REDDY, NOW AGED ABOUT 36 YEARS, 2. GOKULA CHOWDARY, S/O P.K. INDRESH @ P K INDRESH REDDY, NOW AGED ABOUT 7 YEARS, SINCE MINOR REPTED BY HIS NATURAL GUARDIAN/FATHER, THE 1ST RESPONDENT HEREIN.
BOTH R/O G.R. HALLI, CHITRADURGA TALUK.
3. ASLAM S/O FAKRUDDIN SAB, NOW AGED ABOUT 49 YEARS, BUS DRIVER, R/O HOLEHONNUR, SHIMOGA TALUK & DISTRICT.
4. SMT. S.J. SHANTHA, W/O LATE S.R. JAGADEESH, MAJOR, OWNER OF BUS.
R/O SHIVAGANGA, HOLALKERE TALUK, CHITRADURGA DISTRICT. ... RESPONDENTS (BY SRI.G SHANKAR GOUD, ADVOCATE FOR R1, SRI.R.SHASHIDHARA, ADVOCATE FOR R4 NOTICE IN RESPECT OF R.3 IS DISPENSED WITH VIDE ORDER DATED 04.09.2013) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED :02.11.2009 PASSED IN MVC NO.1320/2006 ON THE FILE OF I ADDITIONAL CIVIL JUDGE (SR. DN.) & ADDITIONAL MACT, CHITRADURGA, AWARDING A COMPENSATION OF RS.11,31,000/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL DEPOSIT.
THIS MFA COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT This appeal by the Insurer calls in question the judgment and award dated 02.11.2009 made by the I Additional Civil Judge (Sr. Dvn.) and Additional MACT, Chitradurga allowing the claim in MVC No.1320/2006, whereby a global compensation of Rs.11,31,000/- with interest at the rate of 6% per annum thereon has been awarded in favour of respondent-claimants 1 & 2.
2. The brief facts stated are that in a vehicular accident that happened on 19.02.2006 because of alleged rash and negligent driving of the bus bearing Registration No.KA-27/A-2727, it had hit a tipper lorry coming from the opposite direction and consequently, one Smt.Saritha, the wife of 1st respondent-claimant i.e., the mother of the 2nd respondent-claimant having sustained fatal injuries, succumbed thereto, the medical treatment not yielding result.
3. The claim petition in MVC No.1320/2006, which was initially filed under Sections 166 & 163-A of the MV Act, 1988 came to be converted by amending the pleadings as the one under Sec. 166-A, the other section having been left out and thus the claim is founded on ‘No Fault Liability’.
4. To prove the claim, the 1st respondent-claimant i.e., the widower of the deceased was examined as P.W.1 and one Mr.Thippeswamy who had sustained injuries in the very same incident was examined as P.W.2. In all, 13 documents came to be marked as per Ex.P.1 to Ex.P.13, which included inter alia the FIR, IMV Report and educational records of the deceased. From the side of the appellant-insurer, one Mr.Govindaraju, an official of the company was examined as RW.1 and a copy of the Insurance Policy was marked in his evidence as per Ex.R.1.
5. The MACT after adverting to the pleadings of the parties and after appreciating the evidence on record has made the impugned judgment and award that are put in challenge by the Insurer on the ground of maintainability and excessive award of compensation.
6. The learned counsel for the appellant firstly submits that the claim petition having been amended to bring it within the confines of Section 163-A of the Act, the same was liable to be rejected for want of jurisdiction inasmuch as the income of the deceased was admittedly more than Rs.40,000/- i.e., the limit statutorily prescribed under Schedule II to the Act. Secondly, he submits that in any event, the compensation ought to have been determined on the basis of the said maximum amount prescribed.
7. The learned counsel for the respondent- claimants vehemently contends that the first contention as to the maintainability has already been answered by the Apex Court in the case of Deepal Girishbhai Soni and others vs. United India Insurance Co. Ltd. , 2004 ACJ 934, in favour of the claimant and therefore, the contention as to the maintainability falls to the ground. Further he submits that the compensation awarded by the Tribunal being just and reasonable needs no interference at the hands of this Court.
8. I have heard the learned counsel for the appellant-Insurer and the learned counsel for the respondent-claimants. I have perused the appeal papers and also Lower Court Records in original.
9. The evidentiary material placed on record by the claimants goes to show that the vehicular accident happened and consequently, one Smt.Saritha having sustained fatal injuries succumbed thereto. Since it is a petition admittedly under Section 163-A of the Act which is founded on the principal of ‘No Fault Liability’, the other issues which, otherwise, would have arisen, pale into insignificance.
10. The first contention of the learned counsel for the appellant that Rs.40,000/- being the ceiling limit prescribed under Schedule II to the Act, petition itself is not maintainable, is liable to be rejected in view of the decision of the Apex Court supra, para No.67 whereof reads as under:
“67. We, therefore, are of the opinion that Kodala’s case, 2001 ACJ 827 (SC), has correctly been decided. However, we do not agree with the findings in Kodala (supra), that if a person invokes provisions of section 163- A, the annual income of Rs.40,000 shall be treated as a cap. In our opinion, the proceeding under section 163-A being a social security provision, providing for a distinct scheme, only those whose annual income is up to Rs.40,000 can take the benefit thereof. All the other claims are required to be determined in terms of Chapter XII of the Act.”
Therefore, the issue as to the maintainability of petition under Section 163(A) is held in favour of the respondents.
11. The 2nd contention of the learned counsel for the appellant-insurer that in view of the inbuilt statutory limitation on monetary values in the II schedule to the Act, the maximum compensation payable would be on the basis of Rs.40,000/- regardless of higher income value of the deceased, has got a lot of force.
12. The last contention of the appellant-Insurer that there being only two dependants, the MACT ought to have given deduction of 1/3rd, and not 1/4th in view of the law declared by the Apex Court in the case of Sarla Verma and others V. Delhi Transport Corporation and another, (2009) 6 SCC 121.
13. Consequently, the compensation has to be re- worked out as under:
Rs.40,000 x 1/3rd x 18x 2 = Rs.4,80,000/-
(MACT had wrongly taken 17 as the multiplier and therefore in its stead, 18 is taken since deceased was aged 25 years) Rs.4,500/- being the compensation under the conventional heads as prescribed under Schedule II itself, the same is to be added to the above figure and this works out to be Rs.4,84,500/-.
14. In the above circumstances, the appeal of the Insurer succeeds in part; the impugned judgment and award are modified downwardly revising the compensation from Rs.11,31,000/- to Rs.4,84,500 (Rupees four lakh eighty four thousand & five hundred only) with interest at the rate of 6% per annum.
The condition as to the Bank Deposit stipulated by the MACT is waived on the submission of the counsel for the claimants, regard being had to the long pendency of the lis.
The amount in deposit in the Registry is to be transmitted to the jurisdictional MACT for disbursal as compensation to the claimants. The MACT shall refund the residue, if any, to the appellant-insurer, forthwith.
No costs.
Sd/- JUDGE NBM