IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF MARCH, 2019 PRESENT THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA AND THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD M.F.A. No.11792/2012 (MV) BETWEEN:
1. K.A. KUTTAPPA S/O. LATE ACHAPPA, AGED ABOUT 58 YEARS 2. SMT. K.K. SUDHA, W/O. K.A. PUTTAPPA, AGED ABOUT 51 YEARS, BOTH ARE R/AT KAVADI VILLAGE, AMMATHI, VIRAJPET TALUK, KODAGU DISTRICT – 571 218. ... APPELLANTS (BY SRI SARAT CHANDRA BIJAI, ADVOCATE) AND:
1. M.U. BOPPANNA S/O. UTTAPPA, AGED ABOUT 21 YEARS, RESIDING AT NALLURE VILLAGE, BALELE, VIRAJPET TALUK, KODAGU DISTRICT – 571 218.
2. I.P. MANDANNA S/O. I.C. POONACHA, AGED ABOUT 21 YEARS, KAIKERE VILLAGE, GONIKOPPE, VIRAJPET TALUK, KODAGU DISTRICT – 571 218.
3. THE MANAGER, ORIENTAL INSURANCE COMPANY LTD., BADSHA BUILDING, VIRAJPET, KODAGU DISTRICT – 571 218. ... RESPONDENTS (BY SRI SACHIN B.S., ADVOCATE FOR R-1; SRI NAVEEN V.R., ADVOCATE FOR R-2; SRI O. MAHESH, ADVOCATE FOR R-3) ***** THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:02.06.2012 PASSED IN MVC NO.9/2011 ON THE FILE OF THE COURT OF SENIOR CIVIL JUDGE, MACT, VIRAJPETE, DISMISSING THE CLAIM PETITION FOR COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:-
J U D G M E N T Though this appeal is listed for admission, with the consent of learned counsel for both the parties, it is heard finally.
2. Appellants are the parents of the deceased – Goutham. Being aggrieved by the dismissal of the claim petition by judgment and award dated 02.06.2012 filed by them in MVC.No.9/2011 by the Sr. Civil Judge and MACT at Virajpet (hereinafter referred to as ‘the Tribunal for the sake of convenience) the claimants have preferred this appeal.
3. The parties shall be referred to in terms of their status before the Tribunal.
4. It is the case of the claimants that on 14.08.2009 at about 11.15 am, Goutham, their son was traveling as a pillion rider on a motor cycle bearing No.KA- 03-EA-9444 near Bittangala Village. The respondent was the rider of the vehicle and he drove the same in a rash and negligent manner. As a result, the motor cycle dashed against a bridge at Bittangala Village. The rider and pillion rider fell down from motor cycle. The rider got injured on his hands and pillion rider Goutham, fell from the motor cycle got seriously injured on his head and arms and later succumbed to the same. Contending that they lost their son in a road traffic accident, they filed the claim petition seeking compensation on various leads.
5. The claim petition was filed U/s 163A of the Motor Vehicle Act, 1988 (hereinafter referred to as ‘the Act’ for the sake of convenience). In response to the claim petition, the first respondent appeared and contended that the deceased – Goutham was riding the vehicle and that respondent No.1 was the pillion rider and that the rider was responsible for his death and therefore, sought for dismissal of the claim petition.
6. Similarly, the Insurance Company appeared and filed its statement of objections contending that Goutham being rider of the vehicle was himself negligent in causing the accident and therefore, sought for dismissal of the petition.
7. On the basis of the rival pleadings, the Tribunal framed the following issues for its consideration:-
“1. Whether the petitioner proves that on 14.08.2009 at about 11.15 am, while the son of the petitioner was traveling as a pillion rider motor cycle bearing Registration No.KA-03EA-9444 near Bittangala village, the respondent No.1 being the rider of the said vehicle had drove the vehicle in a rash and negligent manner having lost control over the said vehicle and dashed against the bridge and thereby caused grievous injuries and later on succumbed to injuries?
2. Whether the petitioner is entitled of the relief of compensation as prayed? If so from whom and at what rate?
3. What Order and decree?”
8. In support of their case, the claimant examined three witnesses as PW1 to PW3 and they produced 17 documents which were marked as Ex.P1 to Ex.P17. On behalf of respondents, one witness was examined as RW-1 who is respondent No.1. On the basis of the said evidence, the Tribunal held that the claimants’ son Goutham was in fact the rider of the motor cycle and not a pillion rider. That charge sheet was filed against the rider of the vehicle. He was negligent in driving the motor cycle. As a result, he himself was cause for his death and hence no compensation could be awarded U/s 163A of the Act. Consequently, the claim petition was dismissed. The Tribunal accepted the contention of the respondent – Insurer that the rider of the vehicle, being son of the claimant who was negligent in causing the accident, could not claim compensation U/s 163A of the Act. Being aggrieved by the dismissal of the claim petition, the claimants have preferred this appeal.
9. We have heard the learned counsel for the appellants and learned counsel for Respondent No.1 and learned counsel for Respondent No.3 – Insurance Company.
10. The counsel for the appellants contended that although the claimants pleaded before the Tribunal that their son – Goutham was a pillion rider and not rider of the vehicle and respondent No.1 herein was the rider of the motor cycle, nevertheless, a finding was given by the Tribunal to the effect that deceased – Goutham was in fact the rider of vehicle. After giving such a finding, the Tribunal held that the deceased being the cause for his death was not entitled to any compensation even under Section 163A of the Act. He submitted that the Tribunal might have been right in saying so based on the judgment dated 02.06.2012 in the case of Sri K.A. Kuttappa and others vs. Sri M.U.Bopanna and another but subsequently the Hon’ble Supreme Court in the case of United India Insurance Company Ltd., vs. Sunil Kumar and another reported in AIR 2017 SC 5710 (Sunil Kumar) has categorically held that under Section 163A of the Act, the Insurance Company cannot raise any defence of negligence on the part of the victim; that it is not necessary under the said Section to plead or establish that the death had taken place and the said Section had an overriding effect and hence as per Second Schedule to the Act, compensation would have to be determined and paid to the legal representatives of the deceased. He contended that the Tribunal was not right in dismissing the claim petition even though it held that the deceased was a rider of the motor cycle. Despite the said fact, the Tribunal had to determine compensation on the basis of the Second Schedule and grant compensation to the appellants – parents of the deceased Goutham. He submits that the judgment passed in the case of Sunil Kumar has been followed by another three Judge Bench of the Hon’ble Supreme Court in the case of Shivaji and another vs. Divisional Manager, United India Insurance Company Ltd., and others, AIR 2018 SC 3705 (Shivaji and another). The dismissal of the claim by the Tribunal may now been set aside while confirming the finding that the deceased Goutham, son of the appellants, was indeed rider of the motor cycle and grant compensation as per Second Schedule to the Act is the submission of learned counsel for appellants.
11. Per contra, the learned counsel for the insurer –third respondent contended that appellants have been aprobating and reprobating by blowing hot and cold at the same time. That, in MVC No.184/2009 was filed by them by contending that deceased Goutham was the rider of the motor cycle. The said claim petition was withdrawn. Subsequently, the instant claim petition was filed by contending that Goutham was a pillion rider. However, the Tribunal has held that he was indeed the rider of the motor vehicle and not a pillion rider. He further contended that in the claim petition filed by Respondent no.1, it was contended that Goutham was the rider of the motor vehicle and respondent No.1 was the pillion rider. That in the said claim petition, the respondent No.1 pillion rider was awarded compensation. Learned counsel for Respondent No.3 contended that having regard to the prevarication of the appellants, they are not entitled for compensation under Section 163A of the Act and thus, there is no merit in the appeal and the appeal may be dismissed.
12. Learned counsel for Respondent No.1 contended that in the claim petition filed by respondent No.1 and in the instant claim petition, it has been averred that the deceased Goutham was the rider of the vehicle and respondent No.1 was pillion rider and hence appropriate orders may be made in this appeal.
13. Having heard the learned counsel for the respective parties, the following points would arise for our consideration.
1) Whether the Tribunal was justified in dismissing the claim petition ?
2) If answer for Point No.1 is in the negative, whether the claimants are entitled to compensation as per Section 163A r/w Second Schedule to the Act ?
3) What order ?
14. The fact that on 14.08.2009 at 11.15 am the deceased Goutham along with respondent No.1 herein were proceeding on a motor vehicle and the motor vehicle hit the bridge and Goutham died and respondent No.1 sustained injuries has been established.
15. However, there was a controversy as to whether the motor cycle was driven by Goutham or respondent No.1 herein. According to respondent No.1 the motor cycle was driven by Goutham and respondent No.1 was a pillion rider. Even in MVC No.184/2009, the appellants herein had contended that the motor cycle was driven by Goutham. But the said claim petition was withdrawn and subsequently, MVC No.9/2011 was filed by the appellants-claimants. On the basis of the claim petition, the appellants contended that the motor cycle was driven by respondent No.1 and that Goutham was pillion rider. However, the appellants were unsuccessful in proving the same and a categorical finding has been given by the Tribunal that it was Goutham, the deceased, who was riding the motor cycle and respondent No.1 was pillion rider. The said finding has not been challenged by any of the parties in this appeal. Accepting the said finding, the appellants have now sought for compensation under Section 163A of the Act having regard to the latest position of law on the point based on the judgment of the Hon’ble Supreme Court referred to above. Section 163A of the Act reads 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
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.”
16. Section 163A of the Act was inserted by virtue of amendment made to the Act with effect from 14.11.1994. The said section is a special provision regarding payment of compensation on structured formula basis. Section 163A of the Act says that notwithstanding anything contained in the 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. Sub-section 2 of Section 163A says that 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 and sub-section 3 says that 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.
17. A reading of said Section would indicate that the person who himself is the cause for accident resulting in permanent disability or death need not plead or establish the negligence on the part of the owner of the vehicle. In other words, the implication is the driver of the vehicle, who is victim of the accident, may be due to his own negligence resulting in his death or permanent disablement, can seek compensation. The object and purpose of said provision is to award compensation even to the legal heirs of those persons who die or the victims who suffer permanent disablement on account of their own negligence. Section 163A is in contradistinction to Section 166 of the Act, where the claim petition could be filed by the claimants before the Tribunal and seek compensation on account of proved negligence on the part of the driver and owner of the offending vehicle. The distinction is that in the case of claim petition being filed under Section 163A such pleading or proof of negligence is not a requirement. The claim petition filed under Section 163A of the Act would have to be adjudicated having regard to Second Schedule which prescribes a structured formula for award of compensation. The said section has an overriding effect on Section 140 as well as Section 166 of the Act.
18. In the instant case, the appellants had earlier filed the claim petition under Section 166 of the Act. The same was withdrawn and subsequently, the present claim petition No.9/2011 has been filed under Section 163A of the Act. The claim petition has been tried and adjudicated upon. But having regard to position of law as it then existed, after coming to a conclusion that the son of the claimant Goutham who died in the accident was indeed the rider of the motor cycle and had been the cause for the accident, compensation was not awarded and consequently, the claim petition was dismissed. However, the position of law is now different having regard to the judgment of the Hon’ble Supreme Court in the case of Sunil Kumar. In the said case, the Hon’ble Supreme Court has considered the earlier dicta in the case of Deepal Girishbhai Soni and others vs. United India Insurance Company Ltd, Baroda reported in AIR 2004 SC 2107 and also Oriental Insurance Co., Ltd vs. Hansrajbhai vs. Kodala and others reported in AIR 2001 SC 1832 wherein in paragraphs 8 and 9 it has been held as follows:-
“8. From the above discussion, it is clear that grant of compensation under Section 163A 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.”
19. The Hon’ble Supreme Court has categorically held that if, in a claim petition filed under Section 163A of the Act, the insurer is permitted to raise the defence of negligence, then it would be to bring a proceeding under Section 163A of the Act on par with the proceeding under Section 166 of the Act which would not only be self – contradictory but would also defeat the very legislative intention. In the circumstances, the Hon’ble Supreme Court has held in a claim petition filed under Section 163A of the Act, it is not open to the insurer to raise any defence of negligence on the part of the victim. The aforesaid judgment has been followed by another Bench consisting of three Hon’ble Judges in the case of Shivaji and another, which case arises from a judgment passed by this Court. In the said case, the driver of the car dashed into a truck resulting in his death and the death of two other persons and injuries to two more persons, all of whom were traveling in the car. The parents of the deceased driver filed the claim petition seeking compensation under Section 163A of the Act. The Tribunal allowed the claim petition and awarded compensation of Rs.4,60,800/- together with interest at 9% p.a. The insurer preferred an appeal before this Court. The claimants also filed the appeal seeking enhancement of compensation. This Court allowed the insurer’s appeal and set aside the order of the Tribunal, holding that the deceased driver was the tortfeasor and responsible for causing the accident and hence, compensation could not have been awarded to his parents. They approached the Hon’ble Supreme Court, which followed its earlier judgment in Sunil Kumar and held that if an Insurer was permitted to raise a defence of negligence under Section 163A of the Act, it would “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”. Therefore, the Insurer cannot raise any defence of negligence on the part of victim to counter claim for compensation.
20. In view of the aforesaid position of law, it is held that the Tribunal, on finding that the son of the appellants being the rider of the vehicle was the cause of the accident and died as a result of it, could not have dismissed the petition on the basis of plea of negligence raised by the insurance – company. Hence point No.1 is answered in favour of appellants and against respondent No.3- Insurance company.
21. Having held that the claim petition could not have been dismissed, the next point for our consideration is about the compensation that has to be awarded to the claimants- parents of the deceased- Goutham. As already discussed, the claim petition was filed under Section 163A of the Act for which even the structured formula as in the second schedule would apply. The date of accident is 14.08.2009. The deceased Goutham was a student aged 20 years not earning any income. In the circumstances, as per Second Schedule (as it existed prior to the amendment, which is, with effect from 22.05.2018) would apply. As per Second Schedule, the annual income must be notionally assessed and the same is assessed at Rs.15,000/- p.a. in case of non-earning person and the appropriate multiplier must be applied as the deceased was 20 years of age. Consequently, on the head of loss of dependency, the compensation would be Rs.2,55,000/-
(Rs.15,000 x 17). In addition to this, as per structured formula, a sum of Rs.2,000/- is awarded towards funeral expenses, a sum of Rs.2,500/- is awarded towards loss of estate and the total compensation payable is Rs.2,59,500/-, which is with interest at 6% p.a. from the date of claim petition till realization.
22. In the result, the appeal is allowed in the aforesaid terms. The claimants are entitled for a total compensation of Rs.2,59,500/- with interest at 6% p.a. from the date of petition till the date of payment which is apportioned equally between them. The parties to bear their respective costs.
Sd/- JUDGE Sd/- JUDGE nm/mvs