IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO M.F.A. No.4949/2009 (MV) BETWEEN:
IFFCO TOKIO GENERAL INSURANCE CO. LTD., BANGALORE RETAIL, NO.28, 1ST FLOOR, CITY CENTRE, CHURCH STREET, BANGALORE–1, NOW REP. BY ITS THE ZONAL MANAGER IFFCO TOKIO GENERAL INSURANCE CO. LTD., CUSTOMER SERVICE CENTRE, KSCMF BUILDING, 3RD FLOOR, 3RD BLOCK, CUNNINGHAM ROAD, BANGALORE – 560 052. ... APPELLANT (BY SRI A.N. KRISHNA SWAMY, ADVOCATE) AND:
1. B.T. RANGAPPA S/O. LATE THIMMAIAH, NOW AGED ABOUT 57 YEARS, OCC: AGRICULTURE 2. SREEDHARA B.R. S/O. B.T. RANGAPPA, NOW AGED ABOUT 28 YEARS 3. BRAHMANANDAMURTHY B.R. S/O. B.T. RANGAPPA, NOW AGED ABOUT 26 YEARS, ALL R/O BETTAHALLI, SREEKERE POST KUDUR HOBLI, MAGADI TALUK, BANGALORE RURAL DISTRICT.
4. SMT. GANGALAKSHMAMMA W/O. B.T. RANGAPPA, NOW AGED ABOUT 52 YEARS, R/O NO.58, BETTAHALLI, SREEKERE POST, KUDUR HOBLI, MAGADI TALUK, BANGALORE RURAL DISTRICT. ... RESPONDENTS (BY SRI N.K. SIDDESWARA, ADVOCATE FOR R-1 TO R-3; SRI A.C. BALARAJ, ADVOCATE FOR R-4) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 02.04.2009 PASSED IN MVC NO. 276/2007 ON THE FILE OF PRESIDING OFFICER, FAST TRACK COURT-V, BANGALORE RURAL DISTRICT, BANGALORE, AWARDING A COMPENSATION OF RS.4,80,200/- WITH INTEREST @ 8% P.A. FROM THE DATE OF PETITION TILL REALISATION.
THIS APPEAL COMING ON FOR DICTATING JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal by the Insurance company is directed against the judgment and award dated 02.04.2009 passed by the District and Sessions Judge, Fast Track Court- V, Bangalore Rural District, Bangalore wherein the petition filed by the by the Claimants in MVC No.276/2007 was partly allowed totally awarding a compensation of Rs.4,80,200/- along with interest at 8% p.a. from the date of petition till the date of realization.
2. The proceedings came to be initiated before the MACT because of the accident dated 14.12.2006 wherein one Munivenkate Gowda took the permission of the owner of the motor cycle bearing registration No. KA 03 EX 4147 and was riding the vehicle at Hessaraghatta farm on 14.12.2006 at about 11 p.m. The motor cycle was driven at a high speed and it capsized resulting in the death of both rider and pillion rider. Venkategowda was said to be aged 28 years and claimed to be earning Rs.3300/- p.m. The claim petition came to be filed under Section 163-A of the MV Act by the claimants who are the father and brothers of the deceased seeking compensation.
3. The claim for compensation has been resisted by the Insurance Company on the ground that the author of the accident was the rider of motor cycle – Sri Munivenkategowda, who was stated to be the son of first claimant – Rangappa.
4. The learned Member of the Tribunal was accommodated with the oral evidences of PWs 1 and 2, and documentary evidence of Ex.P1 to P12 on behalf of claimants and oral evidence of RW1 and documentary evidence of Ex.R1 on behalf of the Respondent.
5. The learned Member of the Tribunal adjudicated the matter with reference to accident, injuries, death and loss of dependency and partly allowed the petition and awarded the compensation as mentioned above and fastening liability jointly and severally on the respondents.
6. Being aggrieved by saddling of liability on the Insurance Company, it has challenged the judgment and award. It is the contention of the Insurance Company that the Insurance Company was not liable to pay compensation to the claimants as the accident has occurred due to negligence on the part of the rider and the vehicle was driven as unauthorized person and his mother is the RC owner of the vehicle. Under these circumstances, its contention is that if the Court found that the payment of compensation has to be made to the claimants, it ought to have been saddled exclusively on the owner who is none other than the mother of the deceased Munivenkategowda.
7. The leaned counsel for the appellant – Sri A.N. Krishnaswamy would submit that from the facts, it is apparently clear that the owner of the vehicle bearing registration No.KA 03 EX 4147, is Gangalakshmamma. It is not in dispute that deceased Munivenkategowda was the son of said Gangalakshmamma. In the circumstances, the contention of the appellant – Insurance company is that the liability ought to have been saddled on the owner of the vehicle. Thus, it prays for modification of the judgment and award.
8. The accident dated 14.12.2006, involvement of the vehicle, sustaining of injuries by the rider and pillion rider, death of the rider (Munivenkategowda) are not in dispute.
9. The loss of dependency is not seriously disputed. In the circumstances, liability is the bone of contention between the parties.
The owner of the vehicle was arrayed as Respondent No.1 who asserts that she had given permission to her son Munivenkategowda to take the motor cycle and due to accident the death of rider and pillion rider has been caused.
10. The learned counsel for the respondents – Sri Siddeswara would submit that regarding negligence, relaxation is shown in Section 163-A of MV Act. The claimants have made claim for compensation because of death of the deceased, in the capacity of his dependents from the insurance company.
11. In the circumstances, it is to be noticed that the provisions of Section 163-A of MV Act, 1988 softens the stand on ‘negligence’. As such, the claimants are not expected to prove negligence to the extent of 100%. In the circumstances, it is necessary to reproduce Section 163-A of the MV Act, which is as under:
“163A. Special provisions as to payment of compensation on structured formula basis.— (1) 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 authorised 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. Explanation.—For the purposes of this sub- section, “permanent disability” shall have the same meaning and extent as in the Workmen’s Compensation Act, 1923 (8 of 1923).
(2) In any claim for compensation under sub- section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.
(3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule.
12. The adjudication of the case is also guided by the recent judgment of the Hon’ble Supreme Court in the case of United India Insurance Company Limited Vs. Sunil Kumar and another (2018 ACJ 1) wherein it has been held at paras 8 and 9 as follows:-
“8. From the above discussion, it is clear that grant of compensation under section 163-A of the Act on the basis of the structured formula is in the nature of a final award and the adjudication there under is required to be made without any requirement of any proof of negligence of the driver/owner of the vehicle(s) involved in the accident. This is made explicit by section 163-A (2). Though the aforesaid section of the Act does not specifically exclude a possible defence of the insurer based on negligence of the claimant as contemplated by section 140(4), to permit such defence to be introduced by the insurer and/or to understand the provisions of section 163-A of the Act to be contemplating any such situation would go contrary to the very legislative object behind introduction of section 163-A of the Act, namely, final compensation within a limited time frame on the basis of the structured formula to overcome situations where the claims of compensation on the basis of fault liability was taking an unduly long time. In fact, to understand section 163-A of the Act to permit the insurer to raise the defence of negligence would be to bring a proceeding under section 163-A of the Act at par with the proceeding under section 166 of the Act which would not only be self-contradictory but also defeat the very legislative intention.
9. For the aforesaid reasons, we answer the question arising by holding that in a proceeding under section 163-A of the Act it is not open for the insurer to raise any defence of negligence on the part of the victim.”
13. The owner or the rider do not bear disqualification regarding the compensation from the Insurance Company. In the circumstances, I find that the finding given by the Tribunal that the Insurance company is liable to pay compensation is just and proper. The owner of the vehicle is respondent No.1 before the Tribunal and respondent No.2 is the insurance company. There is no impediment for claimants to claim compensation against the insurer. But the crux of the matter is that it is not uncommon that whenever the liability is saddled on the owner, the appeal is preferred as the claimants would be eager to see that saddled Liability is on the insurance company. In this connection, though no such grounds are taken specifically, it is quite obvious that the sense of guarantee and security in receiving the compensation is expected to be more probable from the insurance company than compared to the insured. However, in the given case the liability to pay compensation is saddled on the Insurance Company under the facts and circumstances of the case independently.
14. But in so far as the quantum of compensation is concerned, the learned Member of the Tribunal has taken monthly income of the deceased at Rs.3300/-, since he was aged 28 years, the applicable multiplier of 18 has been taken and thus awarded a total compensation Rs.4,75,200/- (Rs.3300X12X1/3X18) towards loss of dependency and Rs.5000/- towards funeral expenses in all Rs.4,80,200/-
15. However, the learned member of the Tribunal has erred in awarding interest at 8% instead of 6% p.a. and same is reduced to 6% p.a.
16. Hence the appeal filed by the appellant is partly allowed and Judgment and Award passed by the tribunal is modified in respect of interest by reducing it from 8% p.a. to 6% p.a.
*“The statutory amount of Rs.25,000/- deposited before this Court shall be transmitted to the Tribunal forthwith. Further, it is made clear that the impugned Judgment and award passed by the Tribunal, in so far as it relates to apportionment and deposit is concerned, the same shall remain un-altered”
nm * Inserted vide court order dated 05.03.2019 Sd/- JUDGE