IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 28TH DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL No.9944/2013 (MVC) Between:
The New India Insurance Co. Ltd. Regional Office, Mahalakshmi Chambers, M.G.Road, Bengaluru-560 001. Rep. by its Manager Sri V. Ramachandran. ... Appellant (By Sri K. S. Lakshminarasappa, Advocate For Sri B.C.Seetharama Rao, Advocate) And:
1. Smt. Sumithramma Aged about 44 years, W/o Late Annaiahppa, 2. Miss. Nagaveni Aged about 26 years, D/o Late Annaiahppa, 3. Miss Manjula Aged about 24 years, D/o Late Annaiahppa, 4. Miss. Anitha Aged about 20 years, D/o Late Annaiahppa, All are residing at No.44, G.G.Palya, Bengaluru West, Bengaluru-560 022.
5. Smt. Gangamma, Major W/o Puttaswamy, R/at Puttaswamy Layout, Kengeri, Tavarekere Main Road, Bengaluru South Taluk, Bengaluru Rural District-562 130. ... Respondents (By Sri Shipad V. Shastri, Advocate for R1 to R4; Sri Sri S.N.Bhat, Advocate for R5) This Miscellaneous First Appeal is filed under Section 173(1) of MV Act, against the judgment and award dated 13.08.2013 passed in MVC No.7335/2011 on the file of the XI Additional Judge, MACT, Court of Small Causes, Bengaluru, awarding compensation of Rs.4,26,900/- with interest @ 6% P.A. from the date of petition till realization and etc., This Appeal coming on for Admission, this day, the Court delivered the following:
J U D G M E N T This appeal is filed by the appellant-Insurance Company challenging the judgment and award passed in M.V.C.No.7335/2011 whereby the Tribunal while awarding a total compensation of Rs.4,26,900/- to the claimants for the death of one Annaiahppa, held the respondent Nos.1 and 2 before the Tribunal jointly and severally liable to pay the compensation and further held that the respondent No.1- Insurance company shall pay the compensation with interest.
2. I have heard the learned counsel for appellant and the learned counsel appearing for respondent Nos.1 to 4.
3. The brief facts leading to filing of this appeal are that the claim petition was filed by respondent Nos.1 to 4 herein seeking a total compensation of Rs.6,00,000/- for the death of one Annaiahppa in a road traffic accident which occurred on 13.12.2004 at about 11.30 p.m., involving a Bajaj Tempo bearing registration No.KA-03-6061 and a lorry bearing registration No.KA-02-A-24. It is the case of the claimants that on 13.12.2004 at about 11.30 p.m., the deceased was traveling in the Bajaj Tempo bearing registration No.KA-03-6061 along with others and goods from Santepete towards Bangalore. When the said tempo reached near Yentaganahalli palya, at that time the driver of the Bajaj Tempo dashed the said vehicle against a parked lorry bearing registration No.KA-02-A- 24 from back side and due to the impact, the persons traveling in the said tempo sustained injuries and Annaiahppa succumbed to the injuries.
4. The claim petition was filed under Section 163(A) of the Motor Vehicles Act, 1988 (‘the MV Act’ for short) seeking compensation for the death of Annaiahppa. The claimants are the wife and daughters of the deceased. The Tribunal awarded a total compensation of Rs.4,26,900/- with simple interest at the rate of 6% p.a. from the date of petition till the date of realization and fixed the liability on the Insurance Company i.e., the appellant herein to pay the compensation.
5. The learned counsel for the appellant– Insurance company assailing the aforesaid judgment and award passed by the Tribunal would contend that the finding recorded by the Tribunal with regard to negligence as well as liability is contrary to law and material on record and the same is liable to be set aside. He would contend that there is an inordinate delay of seven years in filing the claim petition and the FIR was filed against the driver of the tempo in question and therefore, the Tribunal was not justified in entertaining the claim petition and further holding the insurer of the lorry in question liable to pay the compensation. He would further contend that the accident is solely on account of the driver of the tempo, which is evident from the FIR and the death occurred due to the negligent driving by the driver of the tempo belonging to the deceased wherein the deceased was the owner of the said tempo. As such, the claimants could not have maintained the claim petition. Learned counsel for the appellant further submitted that even the charge sheet has been filed against the driver of the tempo who was driving in a rash and negligent manner. Under these circumstances, even in a petition filed under Section 163(A) of the MV Act, seeking compensation for the death of the owner cum driver of the offending tempo, the Tribunal ought to have considered the aspect of negligence and should have dismissed the claim petition. Instead, the Tribunal has ordered to delete the owner and insurer of the Bajaj Tempo namely, respondent No.3 and 4 before the Tribunal holding they are not necessary parties to the proceedings.
6. Per contra, the learned counsel appearing for respondent Nos.1 to 4–claimants would contend that this is a petition filed under Section 163(A) of the MV Act and therefore, the question of considering actionable negligence does not arise. He would place reliance on the decision of the Hon’ble Apex Court in the case of UNITED INDIA INSURANCE CO. LTD., Vs. SUNIL KUMAR AND ANOTHER reported in AIR 2017 SC 5710 in support of his argument in this regard.
7. Learned counsel for the claimants would also contend that the delay in filing the claim petition is not a ground to dismiss the said petition. In view of the amendment to the act, there is no limitation to file a claim petition, since the limitation to file the claim petition has been deleted with effect from 14.11.1999. In support of his arguments, he placed reliance on the Judgment of the Hon’ble Apex Court in the case of NEW INDIA ASSURANCE CO. LTD. Vs. C. PADMA AND ANOTHER reported in 2003 7 SCC 713.
8. The claimants/respondents Nos.1 to 4 herein are the wife and three daughters of the deceased. Admittedly, the claim petition was filed under Section 163(A) of the MV Act. The case of the claimants is that while the deceased was traveling with goods in a tempo bearing registration No. KA-03-6061 and when the said tempo reached near Yentaganahalli Palya, at that time, the driver of the tempo dashed the said vehicle against the lorry from behind which was parked on the road, as a result of which, he sustained injuries and died. It is not disputed that the FIR was registered against the driver of tempo in question.
9. The Hon’ble Apex Court in the case UNITED INDIA INSURANCE CO. LTD., Vs. SUNIL KUMAR AND ANOTHER reported in AIR 2017 SC 5710 has held at Para 8 and 9 which reads as under:
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 thereunder 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 163A(2). Though the aforesaid section of the Act does not specifically exclude a possible defence of the Insurer based on the 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 163A of the Act to be contemplating any such situation would go contrary to the very legislative object behind introduction of Section 163A 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 163A of the Act to permit the Insurer to raise the defence of negligence would be to bring a proceeding under Section 163A 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 163A of the Act it is not open for the Insurer to raise any defence of negligence on the part of the victim.
10. In view of the above settled position of law, the contention of the learned counsel appearing for the appellant with regard to contributory negligence cannot be accepted.
11. The learned counsel for the appellant has contended that there is inordinate delay in filing the claim petition. The Hon’ble Apex Court in the case of NEW INDIA ASSURANCE CO. LTD. Vs. C. PADMA AND ANOTHER reported in 2003 7 SCC 713 has held in Para- 12 as under:
12. The learned counsel for the appellant next contended that since no period of limitation has been prescribed by the legislature, Article 137 of the Limitation Act may be invoked, otherwise, according to him, stale claims would be encouraged leading to multiplicity of litigation for non-prescribing the period of limitation. We are unable to countenance the contention of the appellant for more than one reason. Firstly, such an Act like the Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, if otherwise the claim is found genuine. Secondly, it is a self-contained Act which prescribes the mode of filing the application, procedure to be followed and award to be made. Parliament, in its wisdom, realised the grave injustice and injury being caused to the heirs and legal representatives of the victims who suffer bodily injuries/die in accidents, by rejecting their claim petitions at the threshold on the ground of limitation, and purposely deleted sub-section (3) of the Section 166, which provided the period of limitation for filing the claim petitions and this being the intendment of the legislature to give effective relief to the victims and the families of the motor accidents untrammeled by the technicalities of the limitation, invoking of Article 137 of the Limitation Act would defeat the intendment of the legislature.
12. The concept of contributory negligence does not affect the compensation claimed under Section 163(A) of the MV Act and the delay in maintaining a claim petition itself would not be a ground to reject the claim petition as held by the Hon’ble Apex Court in the above decisions.
13. In that view of the matter, the Tribunal entertaining the petition and awarding compensation to the claimants and fastening the liability on the appellant-Insurer cannot be said to be erroneous and without jurisdiction.
14. For the aforesaid reasons, this appeal being devoid of merits, the same is dismissed.
The amount in deposit before this Court shall be transmitted to the Tribunal for disbursement.
Sd/- JUDGE HA/KLV