IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF OCTOBER, 2019 PRESENT THE HON'BLE MR. JUSTICE S.N. SATYANARAYANA AND THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM MFA NO.5249 OF 2016 (MV) BETWEEN:
KIRAN KUMAR V.
S/O VENKATARAMU V. AGED ABOUT 30 YEARS RESIDING AT NO.43 1ST MAIN, 10TH CROSS POOJAMMA TEMPLE ROAD GOREGUNTEPALYA BENGALURU – 560 022.
SINCE DEAD REP. BY HIS LRS.
1. DODDAMMA W/O LATE RANGAIAH, AGED ABOUT 76 YEARS 2. MANGALAMMA W/O LATE PARASHU RAMAIAH AGED ABOUT 45 YEARS BOTH ARE RESIDING AT NAGAVALLI, NAGAVALLI POST, HEBBUR HOBLI, TUMAKURU TALUK & DISTRICT. (AMENDED V/C/O DTD: 24.09.2019) (BY SRI. S.P.SHANKAR, SR. COUNSEL FOR SRI.CHANDRASHEKARA.K.A, ADVOCATE & SRI.K.YOGESH, ADVOCATE) AND:
1. JEEVAN SINGH, SINCE DECEASED BY HIS LRs;
1(a). BALAJI SINGH AGED ABOUT 55 YEARS 1(b). SHARADA BAI, W/O BALAJI SINGH, AGED ABOUT 51 YEARS BOTH ARE RESIDING AT NO.7/10, 1ST MAIN, 2ND CROSS, WATER TANK ROAD, NEAR: GOVT.SCHOOL, GOREGUNTEPALYA, BENGALURU – 560022.
2. ICICI LOMBARD GENERAL INSURANCE CO.LTD., PRESENT ADDRESS:
...APPELLANTS NO.121, THE ESTATE, 9TH FLOOR, DICKENSON ROAD, M.G.ROAD, BENGALURU-560022 PREVIOUS ADDRESS:
NO.89, 2ND FLOOR, SVCR COMPLEX, MADIVALA, HOSURU ROAD, BENGALURU – 560086.
AMENDED AS PER THE COURT ORDER DATED:24/09/2019 ...RESPONDENTS (BY SRI. K.V.LAKSHMI NARASIMHAN, ADVOCATE FOR R1(A&B);
SRI.B.C.SHIVANNE GOWDA, ADVOCATE FOR R2) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:05.07.2016 PASSED IN MVC NO.5419/2013 ON THE FILE OF THE XVI ADDITIONAL JUDGE, MEMBER, MACT, COURT OF SMALL CAUSES, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ORDERS THIS DAY, SATYANARAYANA J., DELIVERED THE FOLLOWING:
JUDGMENT This appeal was initially filed by the claimant in MVC.No.5419/2013 on the file of the Motor Accident Claims Tribunal, Bengaluru, seeking compensation for the injuries suffered in a road traffic accident dated 09.06.2013 involving Car bearing Reg.No.KA-04-D- 5765, in which the claimant was traveling along with his friends.
2. The record would disclose that the accident took place on 09.06.2013 at about 3.30 a.m. near Rasthepalya on NH-48 when claimant and his friends were on their way to Dharmasthala. In the said accident, claimant has suffered injuries which are grievous in nature. In the claim petition which was filed by him, on appreciation of the medical documents available on record and also the evidence which was adduced by the Doctor who treated him, the Tribunal felt that the claimant in entitled to compensation in a sum of Rs.26,46,000/- payable with interest at 9% p.a. from the date of petition till date of payment. However, the Tribunal while passing the judgment and award foisted the liability to pay compensation on the insured for the reason that the vehicle in which the claimant was traveling was a taxi and that the driver of the vehicle did not have necessary endorsement on the licence to drive the vehicle involved in the accident.
3. Admittedly, as on the date of the judgment and award passed by the Tribunal on 05.07.2016, the claimant was alive. Thereafter, he filed the present appeal seeking enhancement of compensation. It is seen that during the pendency of the present appeal, the appellant – claimant died on 02.04.2018. Thereafter, the legal heirs of the deceased claimant filed an application seeking permission to come no record. Said application was opposed by the Insurer on the ground that the applicants in the present appeal seeking permission to come no record as legal heirs of deceased appellant should establish that they are the legal heirs who are entitled to come on record. It is in this background, the Co-ordinate Bench of this Court referred the matter back to Tribunal for an enquiry with reference to the application which was filed by the legal heirs of deceased appellant and to give a finding whether they are the legal heirs of the deceased and whether they have the right to come on record. The Tribunal decided the said application in favour of applicants by its order dated 16.04.2019. Thereafter, this appeal is posted before this Court for consideration on merit.
4. Heard the learned Senior Counsel Sri S.P.Shankar appearing for the claimant/appellants and learned counsel Sri K.V.Lakshmi Narasimhan for the first respondent and learned counsel Sri B.C. Shivanne Gowda for second respondent.
5. Admittedly, this appeal is filed by the original claimant himself on two grounds, i) seeking enhancement of compensation and ii) shifting the liability on the insurer to pay compensation. So far as first prayer of original claimant seeking enhancement of compensation is concerned, the same does not survive for consideration in view of his death subsequent to filing of this appeal. Hence, that ground cannot be pursued by his LRs. as decided in catena of decisions rendered by Co-ordinate Bench of this Court as well as the Apex Court holding that when the claimant seeking compensation for injuries suffered in an accident dies during the pendency of the appeal, the appeal which is filed by him seeking enhancement of compensation does not survive for consideration, which legal position is not in dispute.
Therefore, prayer of the appellants to that extent cannot be considered.
6. Insofar as second prayer seeking shifting of liability to pay compensation on the Insurer in which he was traveling, learned Senior Counsel Sri S.P. Shankar, appearing for the appellants would bring to the notice of this Court that the liability to pay compensation is required to be shifted on the insurer of offending vehicle, in the fact situation. He would also bring to the notice of this Court, the said legal position is no longer res integra, in the light of the judgment rendered by the Apex Court in the case of MUKUND DEWANGAN VS. ORIENTAL INSURANCE COMPANY LIMITED reported in AIR 2017 SC 3668.
7. Learned counsel appearing for the Insurance Company fairly concede the aforesaid legal position. Therefore, pursuant to the ratio laid down in the matter of MUKUND DEWANGAN (supra), liability to pay compensation would automatically get shifted on the Insurance Company. Accordingly, the appeal filed by the claimant to that effect, which is pursued by his legal heirs is required to be allowed.
8. At this juncture, learned counsel appearing for contesting respondent - Insurer would submit before this Court that when the claim petition was disposed of by the Claims Tribunal by its judgment and award dated 05.07.2016, there was no scope for the contesting respondent - Insurer before the Tribunal to challenge the judgment and award passed by the Tribunal inasmuch as the liability to pay compensation was not saddled on the insurer. In that view of the matter, the Insurer had no scope to file any appeal against the judgment and award passed by the Tribunal challenging the quantum of compensation. Learned counsel for respondent-
Insurer states that in this appeal his right was limited to oppose the prayer of the appellant/claimant so far as the appeal is concerned with reference to shifting liability on the Insurer. He would submit that the aforesaid right is also now extinguished by the finding rendered in this judgment on the second ground urged by the claimant/appellants. Therefore, his presence is only ornamental so far as the scope of present appeal is concerned.
9. In any event, when this appeal is being decided in favour of the legal heirs of the claimant to receive compensation which is already awarded to the appellant by the Tribunal from the insurer and insured jointly and severally, it is now open for the Insurer to challenge the same with reference to quantum. He would contend that since allowing of this appeal so far as shifting liability to pay compensation on the insurer would modify the judgment and award passed by the Tribunal in MVC.No.5419/2013 retrospectively. Therefore, the right to challenge the same before this very Bench cannot be taken away.
10. In that view of the matter, while allowing this appeal, this Court would reserve liberty to the contesting respondent - Insurer to challenge the quantum of compensation, if the Insurance Company so desires, as contended by the learned counsel appearing for the Insurer and the same shall be done at the earliest. The learned counsel for appellants would submit that at this length of time it is not permissible to reserve liberty to file the appeal with limitation to be calculated from this day. However, if this Court were to hold that limitation should commence from the date on which the earlier judgment and award was passed in MVC.No.5419/2013 by the Tribunal, then this Court will also have to observe that the benefit of Section 14 of Limitation Act would be available to insurer. In that view of the matter, this Court, keeping the interest of the claimant in mind and also recognizing the right of the Insurer to challenge the quantum of compensation awarded by the Tribunal, would observe that, if the Insurer does not choose to file an appeal within 30 days from the date of receipt of a copy of this order, it shall deposit the entire compensation before this Court.
With such observation, this appeal is allowed.
Sd/- JUDGE Sd/- JUDGE CA