IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH M.F.A.No.9626/2012 (MV) BETWEEN:
1. SMT. NETHRAVATHI, W/O. LATE NANDAKUMAR, AGED ABOUT 23 YEARS.
2. MASTER, S/O. LATE NANDAKUMAR, AGED ABOUT 10 MONTHS.
3. SRI. VEERABADRACHARI, S/O. LATE APPAYA CHARI, AGED ABOUT 68 YEARS.
4. SMT. GOURAMMA, W/O. VEERABADRACHARI, AGED ABOUT 56 YEARS.
5. SRI. GAJENDRA PRASAD, S/O. VEERABADRACHARI, AGED ABOUT 43 YEARS.
ALL ARE R/AT No.844/113 ‘SRI VISVAKARMA NILAYA’, SHANKARAPURA, KADUGODI, BENGALURU-67. … APPELLANTS (BY SRI K.N. HARISH BABU, ADVOCATE) AND:
1. SRI. DAKANA CHARY, S/O. ASWATHA NARAYANA, AGED MAJOR, No.655/3, MARIAPPA PMPD, KADUGODI EXTENSION, BENGALURU-560 067.
2. THE BRANCH MANAGER, IFFCO-TOKIO GENERAL INSURANCE CO. LTD., No.745, 1ST FLOOR, NEW MICO MAIN ROAD, CHENNAKESHAVA NAGAR, ELECTRONIC CITY POST, BENGALURU-560 100. ... RESPONDENTS (BY SRI B. PRADEEP, ADVOCATE FOR R-2, R1 SERVED) THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 16.04.2012 PASSED IN MVC.NO.8019/2009 ON THE FILE OF THE I ADDITIONAL SMALL CAUSES JUDGE, MACT, BENGALURU, DISMISSING THE CLAIM PETITION FOR COMPENSATION.
THIS M.F.A. COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T Though this matter is listed for admission, with the consent of learned advocates for the parties, it is taken up for final disposal.
2. This appeal is filed challenging the judgment and award of dismissal dated 16.4.2012 passed in M.V.C.No.8019/2009, on the file of the Motor Accident Claims Tribunal, Bengaluru (SCCH-11).
The brief facts of the case:
3. It is the case of the claimants/appellants that on 29.10.2009 at about 7.00 p.m., when the deceased was riding the motorcycle on Balagere Main Road, opposite of Nanja Reddy’s property, suddenly a dog came in front of the said vehicle and while avoiding the dog, the deceased lost the control of the vehicle and fell from the vehicle and met with an accident. Due to the terrific impact, the deceased fell down and sustained severe head injuries and died on the way to the hospital. The post mortem was also conducted. It is the contention in the petition that the deceased was hale and healthy working in a private factory drawing a salary of Rs.40,000/- per annum. Due to the death of the deceased, the petitioners have lost their only earning member of their family.
4. The claimants got examined petitioner No.3 as P.W.1 and got marked the documents at Exs.P.1 to 12. It is also mentioned that the petitioners had filed an application before the Tribunal under Order 6 Rule 17 of CPC seeking to strike off the provisions mentioned. The petition was filed under Section 166 of the Motor Vehicles Act, 1988 (‘the Act’ for short) and the same was to be corrected as Section 163A of the Act. The Tribunal had rejected the application on the ground that it was a self-accident. Changing Section 166 to Section 163A of the Act does not make any difference. The Court below also considering the matter on merits, rejected the claim petition. Hence, the present appeal is filed.
5. The grounds of the appeal is that the Court below failed to take note of the contents of the petition filed under Section 163A of the Act and merely mentioning the proviso of Section 166 of Act cannot be a ground to dismiss the petition. It is further urged that in the entire claim petition, the pleading is restricting Section 163A and not under Section 166 of the Act. Hence, the very judgment of the Trial Court is erroneous.
6. The learned counsel for the appellants also reiterating the ground urged in the appeal would contend that the Court below dismissed the petition on technicality and has not considered the matter on merits.
7. Per contra, the learned counsel for the respondent No.2 also did not dispute that the petition was filed invoking Section 163A of the Act and not the contents of the pleadings under Section 166 of the Act.
8. Having heard the arguments of the learned counsel for the appellants and learned counsel for the respondent No.2, the points that arise for the consideration of this Court are:
(i) Whether the Court below has committed an error in dismissing the petition?
(ii) What order?
Points (i) and (ii):
9. On perusal of the judgment of the lower Court, it is evident that the Court below while considering issue Nos.1 and 3 made an observation that the petitioners have failed to prove that the deceased met with an accident due to rash or negligent driving of any other vehicle. As a result, he has sustained the injuries and later succumbed to the said injuries.
10. On perusal of the records, it is clear that an application was filed earlier under Order 6 Rule 17 of CPC seeking amendment to incorporate the provisions under Section 163A instead of Section 166 of the Act. The same was rejected.
The respondent also did not dispute the fact that in the petition, the averments are clear that the petition was filed under Section 163A of the Act. When such being the case, first of all the Tribunal ought not to have rejected the application under Order 6 Rule 17 of CPC. It appears that the very conclusion of the Tribunal is nothing but technicality. When the social legislation is made, the Tribunal ought to have taken note of the very object and intent of the legislation and also the wisdom of the legislation and the same has not been considered. Apart from that, the impugned order discloses that the petitioners have not proved that the accident was due to rash or negligent driving of any other vehicle.
11. The learned counsel for the appellants brought to the notice of this Court an unreported Division Bench judgment of this Court dated 11.6.2019 passed in M.F.A.No.3889/2011. Paragraph No.30 of the said judgment reads as under:
“30. In the circumstances, it is held that the principle of strict liability has been incorporated under Section 163A of the Act. Therefore, even in a case where there is no tort feasor and no negligence caused by any tort feasor, but on account of the use of the motor vehicle in a public place, an injury or death is caused, in such a situation under Section 163A of the Act read with Second Schedule, on structured formula basis, the claim petition would have to be considered dehors the aspect of negligence. But, in the instant case, the claim petition has been dismissed. In the circumstances, we set aside the judgment and award of the Tribunal. Matter is remanded to the concerned Tribunal to re-consider the case afresh in light of the law laid down by the Hon’ble Supreme Court and followed by this Court and in accordance with law.”
12. Having considered the principles laid down in the unreported judgment, it is held that the principle of strict liability has been incorporated under Section 163A of the Act. Therefore, even in a case where there is no tort feasor and no negligence caused by any tort feasor, but on account of the use of the motor vehicle in a public place, an injury or death is caused, in such a situation under Section 163A of the Act read with Second Schedule, on structured formula basis, the claim petition would have to be considered dehors the aspect of negligence.
13. Hence, it is a fit case to set aside the judgment and award of the Tribunal and to remand the matter to the Tribunal to consider it afresh in keeping the provisions under Section 163A of the Act and dispose of the matter on merits.
14. In view of the discussions made above, I pass the following:
ORDER (i) The appeal is allowed.
(ii) The judgment and award dated 16.4.2012 passed in M.V.C.No.8019/2009, on the file of the Motor Accident Claims Tribunal, Bengaluru (SCCH-11), is set aside.
(iii) The matter is remanded back to the Tribunal to consider it afresh under Section 163 A of the Act.
(iv) Both the parties are directed to appear before the Tribunal on 16.12.2019, without expecting any notice from the Tribunal.
Sd/- JUDGE MD