IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF AUGUST, 2018 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT M.F.A.No.4359 OF 2010 Between:
Oriental Insurance Co., Ltd., D.O VII, No.1, Shankar House, Mekhri Circle, Bangalore.
Now by its Regional Office, Leo Complex, Residency Road Cross, Bangalore-560 025.
Represented by its Deputy Manager Mrs. Sudha Ganesh ... Appellant (By Sri. M.Arun Ponappa, Advocate) And:
1. Smt. Sumithramma, aged about 36 years, W/o late H.C.Varadaiah, 2. Darshan H.V, aged about 17 years, S/o late H.C.Varadaiah.
3. Divya H V, aged about 15 years, D/o late H.C.Varadaiah, (2nd and 3rd being minors, Represented by natural guardian/ Mother 1st pet./Respt.) 4. Smt. Devamma, aged about 74 years, W/o late Varadaiah, All residing at No.7, 3rd Cross, N.M.Road, Mysore Road, Bangalore-560 026.
5. The Managing Director K.S.R.T.C Double Road, Shanthinagar, Bangalore-560 027. ... Respondents (By Sri. Ningegowda and Associates, Advocate for R1 to R4 Smt. H.R.Renuka, Advocate for R5) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated: 16.01.2010 passed in *MVC No.1537/2006 on the file of the XIX Additional Small Cause Judge and MACT, Bangalore(SCCH-17), awarding a compensation of Rs.8,33,000/- 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 by the insurer challenges the judgment and award dated 15.01.2010 made by MACT, Bengaluru SCH - 17 allowing * MVC.No.1537/2006, whereby a compensation of *Corrected as vide court order dated 14.09.2018 Rs.8,33,000/- with interest at the rate of 6% has been awarded subject to usual condition of bank deposit.
2. There is no dispute as to the accident in question and the consequent death of the bread-winner of the claimants’ family.
3. The only substantial question of law raised by the learned panel counsel for the insurer is;
“Whether cause of text of Section 167 of the Motor Vehicles Act 1988, is it open to the claimants to prefer a claim under the provisions of this Act, having availed the benefit under the provisions of the Workmen’s Compensation Act, 1923?.”
4. The learned counsel for the insurer raises the above substantial question of law on the fact premise that the claimants had earlier obtained compensation after adjudication of their claim under the provisions of the Workmen’s Compensation Act, 1923.
5. The learned counsel for the claimants rightly points out that there was no such claim petition ever having been filed before the Commissioner and therefore, that question does not arise at all; he relies upon the verdict of the High Court of Judicature at Bombay in the case of Sharad Ganpat Deshmukh and others vs. Kunda Ashok Polade and others reported in 2004 ACJ 1266.
6. The MACT having discussed this aspect of the matter at para 11 of its judgment holding that the claimants had not got any claim adjudicated under the provisions of the W.C.Act,1923, although the Commissioner had directed release of the amount deposited by the employer in favour of the claimants under the W.C. Act itself.
7. That being the fact matrix, the question now sought to be urged by way of substantial question of law does not arise at all.
8. No other ground having been urged, no substantial question of law having arisen in this appeal and the appeal being devoid of merits stands dismissed.
9. The amount in deposit shall be transmitted to the MACT for being released to the claimants forthwith for disbursal.
Sd/- JUDGE KA/RB