IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 21ST DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL NO.8435/2011 (MV) BETWEEN:
Reliance General Insurance Company Limited, No.28, 5th Floor, East Wing, Centenary Building, M.G. Road, Bengaluru – 560 001.
By its Zonal Legal Manager ... APPELLANT (By Sri. H.S.LIngaraj, Advocate) AND:
1. K.V.Venkata Reddy, Aged about 24 years, S/o. Venkata Subba Reddy, R/a Konepalli Village, Burudugunte Post, Chintamani Taluk, Chikkaballapur District – 563 125.
2. Shylamma K.V. Major, W/o. M.V.Krishna Reddy, No.81, Bhattarahalli, Near Vinayaka Temple, R.M.S.Colony, Old Madras Road, Bengaluru – 560 049. ... RESPONDENTS (By Sri. N.Gopalakrishna, Advocate for R1; R2 is served ) This Miscellaneous First Appeal is filed under Section 173(1) of MV Act, against the Judgment and award dated 30.09.2010 passed in MVC No.8055/2009 on the file of the XVI Additional Judge, MACT, Bengaluru, awarding a compensation of Rs.1,34,180/- with interest @ 6% p.a from the date of petition till realization.
This Appeal coming on for Final hearing this day, the Court delivered the following:
J U D G M E N T This appeal is filed by the Insurance Company challenging the liability fastened on it while awarding a sum of Rs.1,34,180/- as compensation to respondent No.1 for the injuries sustained by him in a road traffic accident involving a goods tempo bearing registration No.KA-01-7379 and a goods tempo bearing Registration No.KA-03-A-2609.
2. I have heard the learned Counsel appearing for the appellant and the learned Counsel appearing for Respondent No.1.
3. It is the contention of the learned Counsel appearing for the appellant that he is the insurer of the goods tempo bearing registration No.KA-03-A-2609. Case was registered against the driver of the opposite vehicle i.e. respondent No.1 herein and charge sheet was also filed against him. As such, the Tribunal was not justified in fastening the liability on the appellant/insurer. Accordingly, he seeks to allow the appeal.
4. Per contra the learned counsel appearing for respondent No.1 relying upon a decision of the Hon’ble Supreme Court in the case of UNITED INDIA INSURANCE CO. LTD., Vs. SUNIL KUMAR AND ANOTHER reported in AIR 2017 SC 5710 contends that the petition was filed under Section 163-A of the Motor Vehicles Act, 1988 (hereinafter called as ‘MV Act’ for short) and therefore, it is not open for the insurer to raise defence of negligence on the part of victim in a claim proceedings under Section 163-A of MV Act. Accordingly, he seeks to dismiss the Appeal.
5. The accident involving the aforementioned goods tempo is not in dispute. The appellant is the insurer of the said vehicle. The claim petition was under Section 163-A of the MV Act. The Tribunal has awarded a total compensation of Rs.1,34,180/- with interest at 6% p.a. to Respondent No.1. The only contention raised by the learned counsel for the appellant is that the charge sheet was filed against the driver of the opposite vehicle i.e. respondent No.1 herein, as such, he was rash and negligent in driving the vehicle and cause for the accident. Therefore, the appellant could not have been saddled with the liability.
6. The Hon’ble Apex Court in the decision stated supra , while answering the question as to “Whether in a claim proceeding under Section 163-A of the Motor Vehicles Act, 1988, it is open for the Insurer to raise the defence/plea of negligence?” has held at paragraph Nos.8 and 9, which reads as under:
“ 8. From the above discussion, it is clear that grant of compensation under Section 163-A 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 163-A(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.”
7. In view of the above settled position of law, there is no merit in this appeal. Accordingly, the appeal is dismissed.
8. The amount in deposit shall be transmitted to the Tribunal.
Sd/- JUDGE KTY