IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF MAY, 2019 PRESENT THE HON’BLE MRS. JUSTICE B. V. NAGARATHNA AND THE HON’BLE MR. JUSTICE K. NATARAJAN MISCELLANEOUS FIRST APPEAL NO.7458 OF 2014 (MV) BETWEEN:
1. NARAYANA RAO S/O. LATE MANOJIRAO, AGED ABOUT 54 YEARS.
2. MANNU BAI W/O. NARAYANA RAO, AGED ABOUT 47 YEARS.
BOTH ARE RESIDING AT NO.53, ‘ANCHE NIVASA’’, 6TH CROSS, S.V.G. NAGAR, MUDALAPALYA, BANGALORE.
... APPELLANTS (BY SRI M.G. KANTHARAJAPPA, ADVOCATE) AND:
1. NAGARAJ S/O. SUBBANNA, AGE: MAJOR, RESIDING AT NO.33, 3RD MAIN, 4TH CROSS, MARUTHI NAGAR, YALHANKA, BANGALORE.
2. UNITED INDIA INSURANCE CO. LTD. MOTOR DEALER DIVISION, KRISHHI BHAVAN, 6TH FLOOR, HUDSON CIRCLE, BANGALORE.
... RESPONDENTS (BY SRI A.M. VENKATESH, ADVOCATE, FOR R-2;
R-1: NOTICE DISPENSED WITH VIDE ORDER DATED 29-5-2019) * * * THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED 17-10-2013 PASSED IN M.V.C. NO.6844 OF 2012 ON THE FILE OF THE XIII ADDITIONAL JUDGE & MEMBER, M.A.C.T., COURT OF SMALL CAUSES, BENGALURU, DISMISSING THE CLAIM PETITION FOR COMPENSATION.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR HEARING ON INTERLOCUTORY APPLICATION, THIS DAY, NAGARATHNA, J., DELIVERED THE FOLLOWING:
J U D G M E N T Though this appeal is listed for hearing on interlocutory application, with consent of learned counsel on both side, it is heard finally.
2. Appellants are the claimants in M.V.C. No.6844 of 2012. Said claim petition has been dismissed by judgment and award dated 17-10-2013 by the Motor Accident Claims Tribunal, Court of Small Causes at Bengaluru. Hence, being aggrieved by the dismissal of claim petition, claimants have preferred this appeal.
3. For the sake of convenience, parties herein shall be referred to in terms of their status before the Tribunal.
4. Appellants-claimants filed claim petition under Section 163A of the Motor Vehicles Act, 1988, (hereinafter referred to as ‘Act’ for the sake of brevity) seeking compensation on account of death of their son-Lokesh Rao in a road traffic accident. According to the appellants, on 15-7-2012 at about 9:30 a.m., Lokesh Rao was proceeding in a car, bearing Registration No.KA-01 M-911, on Madanpalli main road near M.R.K. Jelly Factory. Suddenly, a Tata- Sumo vehicle, bearing Registration No.KA-50/3309, dashed against front portion of the car, which was being driven by Lokesh Rao. As a result of impact, Lokesh Rao sustained grievous injuries and he was taken to Government hospital at Chinthamani, where he was treated as an out-patient for two hours. Thereafter, he was shifted to Sanjay Gandhi Hospital, where he was treated as an in-patient for two days. Sufficient amount was spent towards his medical expenses. On the advise of Doctor, he was shifted to St. John’s Medical College Hospital for further treatment. He was treated as an in-patient for eight days. Further, medical expenses were incurred for his treatment. However, he did not recover and succumbed to injuries. Contending that claimants had lost their son, they preferred the claim petition under Section 163A of the Act seeking compensation on various heads.
5. In response to notice issued by the Tribunal, respondent No.1-owner of the vehicle did not appear and was placed ex-parte. While respondent No.2-insurer appeared through its counsel and filed statement of objections contending that the Tribunal at Bengaluru had no territorial jurisdiction to entertain the petition. It further admitted the issuance of policy in respect of Tata-Sumo vehicle and its liability being subject to terms and conditions of the policy. Insurance Company, however, sought for dismissal of claim petition on the above pleadings.
6. The Tribunal framed the following issues for its consideration:
i. “Whether the petitioners prove that deceased Lokesh Rao died due to accidental injuries arising out of accident alleged to have been taken
Royalpady police station jurisdiction near M.R.K. Jalli Krasher Srinivasapura Taluk, Kolar Dist due to the rash and negligent driving of the driver of the Tata Sumo car bearing registration No.KA-50/3309?
ii. Whether the petitioners are entitled for compensation? If so, what amount and from whom?
iii. What order or award?”
Thereafter, issue No.1 was re-cast as under:
“Whether the petitioners prove that deceased Lokesh Rao died due to accidental injuries arising out of accident alleged to have been taken place on 15.07.2012 at about 9.30 a.m., in Kadapp Road, Royalpady police station jurisdiction near M.R.K. Jalli Krasher Srinivasapura Taluk, Kolar Dist in between car bearing registration No.KA-01 M-911 and Tata Sumo car bearing registration No.KA-50/3309?
7. In order to prove their case, P.W.1-claimant No.1 was examined. He produced 12 documents, which were marked as Exs.P.1 to P.12. R.W.1 was examined on behalf of Insurance Company and got marked 2 documents as Exs.R.1 and R.2. On the basis of evidence on record, the Tribunal dismissed the claim petition filed under Section 163A of the Act. Being aggrieved by the dismissal, claimants have preferred this appeal.
8. We have heard learned counsel for the appellants and learned counsel for respondent No.2-Insurance Company and also perused the material on record.
9. Since respondent No.1-owner of Tata-Sumo vehicle was placed ex-parte before the Tribunal, memo was filed seeking dispensation of notice for the said respondent. Having regard to Order XLI Rule 14(4) of the Code of Civil Procedure, 1908, notice to respondent No.1 has been dispensed with.
10. Appellants’ counsel contended that accident occurred on account of collision between two vehicles, namely car, bearing Registration No.KA-01 M-911, in which the deceased was proceedings and a Tata-Sumo vehicle, bearing Registration No.KA-50/3309. Claim petition was filed under Section 163A of the Act and the same could not have dismissed for the reasons that the deceased was not a third party. Such a reasoning of the Tribunal is erroneous. He submitted that when two vehicles are involved and a claim petition under Section 163A of the Act is filed, the insurer cannot raise the defence of negligence and it is for the Tribunal to decide the same. Having regard to Section 163A of the Act and Schedule II of the Act. He further submitted that the Tribunal, instead of considering the evidence on record so as to ascertain as to whether there was any negligence on the part of the Driver of Tata-Sumo vehicle, has simply dismissed claim petition on the basis of catena of decisions, which have been discussed by the Tribunal. Therefore, he prayed that judgment and award may be set aside and matter be remanded for the Tribunal for reconsideration.
11. Per contra, learned counsel for the respondent- Insurance Company supported the judgment and award of the Tribunal by contending that claim petition under Section 163A of the Act was not maintainable. It was not known as to whether the deceased was earning income within Rs.40,000/- per annum and therefore, whether claim petition was maintainable or not. No doubt, the Tribunal, without examining that aspect of the matter, has dismissed claim petition by holding the deceased was not a third party and hence, appropriate orders may be made in appeal.
12. Detailed narration of contentions need not be reiterated, except highlighting that the death of Lokesh Rao occurred on account of collision between two vehicles. It is also not in dispute that claim petition has been filed under Section 163A of the Act.
13. In a recent judgment, the Hon’ble Supreme Court in the case of UNITED INDIA INSURANCE CO. LTD. v. SUNIL KUMAR AND ANOTHER reported in AIR 2017 SC 5710 has opined that “granting compensation under Section 163A of the Act on the basis of the structured formula is in the nature of a final award and adjudication is required to be made without any requirement of any proof of negligence of the driver or owner of vehicle(s) involved in the accident. This is made explicit by Section 163A(2) of the Act. Though said 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) of the Act, to permit such defence to be introduced by the insurer or to understand 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 timeframe 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 longtime.” Further, under Section 163A of the Act, the insurer cannot be permitted raise the defence of negligence. Otherwise, such a provision would be on par with a proceeding under Section 166 of the Act, which would not only be self-contradictory, but also defeat the very legislative intention in a proceeding under Section 163A of the Act, which is by way of insertion made by the amendment to the Act. Therefore, the insurer cannot raise any defence of negligence on the part of the victim. Aforesaid aspect has not been considered by the Tribunal which has simply dismissed claim petition by holding the deceased was not a third party. The approach of the Tribunal is wholly erroneous.
14. The aforesaid judgment in the case of Sunil Kumar has been reiterated by the Hon’ble Supreme Court in the case of SHIVAJI AND ANOTHER v. DIVISIONAL MANAGER, UNITED INDIA INSURANCE COMPANY LTD.
AND OTHERS reported in AIR 2018 SC 3705 and also by this Court in the case of K.A. KUTTAPPA AND ANOTHER v.
M.U. BOPPANNA AND OTHERS in MISCELLANEOUS FIRST APPEAL NO.11792 OF 2012 decided on 18-3-2019.
15. In the circumstance, the judgment and award of the Tribunal is set aside. The matter is remanded to the Tribunal for a fresh adjudication. Since claimants and Insurance Company are represented by their respective counsel, they shall appear before the Tribunal on 24-6-2019 without expecting any separate notice from the Tribunal. The Tribunal, however, shall issue notice to respondent No.1, who was placed ex-parte on the previous occasion and thereafter, dispose the claim petition in accordance with law and in an expeditious manner.
16. Accordingly, appeal is disposed off in the aforesaid terms.
Parties to bear their respective costs.
SD/- JUDGE kvk SD/- JUDGE