IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MAY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA No.10672 OF 2013 (MV) BETWEEN 1. SMT. REVATI KAMATH W/O LATE VASUDEVA KAMATH AGED ABOUT 53 YEARS 2. S. V. VARUN KAMATH S/O LATE VASUDEVA KAMATH AGED ABOUT 23 YEARS 3. SMT. VANDITHA V KAMATH D/O VASUDEVA KAMATH AGED ABOUT 26 YEARS ALL ARE R/O DOOR NO.42 OLD BAR LANE ROAD SHIMOGA CITY – 577 201 ... APPELLANTS (BY SRI. M. V. MAHESWARAPPA, ADVOCATE) AND 1. MANSOOR S/O AHMED SHARIEF AGED ABOUT 34 YEARS OWNER OF LORRY BEARING REGN. NO. CRX 9529 R/O B. M. ROAD AMBEDKAR NAGAR HASSAN – 573 116.
2. ASADULLA SHARIEF @ MUSTAK AGED ABOUT 48 YEARS DRIVER OF LORRY BEARING REGN. NO.CRX. 9529 R/O CHIKKANAKATTE VILLAGE HASSAN TALUK AND DIST – 573 116 3. THE BRANCH MANAGER SRI RAM GENERAL INSURANCE COMPANY LIMITED, NO.1003 E. B. RHCO INDUSTRIAL AREA JAIPUR, RAJASTHAN – 302 022 4. THE BRANCH MANAGER NATIONAL INSURANCE COMPANY LIMITED, B.H.ROAD, SHIMOGA – 577 201 ... RESPONDENTS (BY SRI. O. MAHESH, ADV. FOR R3; SMT. H. R. RENUKA, ADV. FOR R4;
V.O.D 5.7.2016–NOTICE TO R1 HELD SUFFICIENT; AND NOTICE TO R2 DISPENSED WITH) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 21.08.2013 PASSED IN MVC NO.333/2010 ON THE FILE OF THE 2ND ADDITIONAL DISTRICT JUDGE & AMACT-2, SHIMOGA, DISMISSING THE PETITION FOR COMPENSATION.
THIS MFA COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Heard the learned counsel for the appellants – claimants and the learned counsel for respondent nos.3 & 4 and perused the records.
2. The claimants / appellants who are the legal representatives of the deceased have preferred this appeal, challenging the judgment dated 21.08.2013 of the II Addl. District Judge & AMACT-2, Shimoga passed in MVC No.333/2010 dismissing their claim petition for compensation.
3. The factual matrix is that on 16.12.2009 at about 1.30 p.m., when one Vasudeva Kamath was driving a maruthi car bearing Regn.No.KA-14/M-7468, near Benakeshwara Rice Industries, N.T. Road, Shimoga, a lorry bearing Regn.No.CRX-9529 was said to have been parked on the right side of the road for unloading goods. Due to the glazing sunlight, the said Vasudeva Kamath could not see the lorry parked on the wrong side of the road and as a result, dashed against the said lorry and caused the accident. As a result of the accident, Vasudeva Kamath underwent head injury and died on the spot. Since the deceased was earning Rs.40,000/- per annum at the time of the accident, the legal representatives of the deceased filed a claim petition under Section 163-A of the MV Act before the Tribunal claiming compensation from the owner and insurer of the lorry for the death of the bread-winner of their family.
4. After service of notice, Respondent No.3 appeared and filed objections contending that the petition was not maintainable since the accident was caused due to the negligence of the deceased who did not possess a licence to drive the car. Moreover, he had driven the car on the wrong side, that too away from the road and dashed against a stationary lorry, as a result of which the petition ought to be dismissed.
Respondent No.4 also appeared and filed its objections contending that the petition was filed with ulterior motive. That the first appellant being the wife of the deceased, was not a third party as contemplated under the MV Act. Further, that the liability of the Insurance Company was strictly in terms of the conditions of the policy. Since the appellants were the legal heirs of the deceased and appellant no.1 being the owner of the car herself, the claim petition was not maintainable under Section 163-A of the MV Act and hence prayed for dismissal of the claim petition.
5. The Tribunal, after evaluation of the oral and documentary evidence on record, placing reliance on several judgments including the decision of the Apex Court in the case of NATIONAL INSURANCE COMPANY LIMITED vs. SINITHA (2012 ACJ 1 : : (2012) 2 SCC 356), proceeded to dismiss the claim petition. It is this judgment which is under challenge in the present appeal.
6. On a careful evaluation of the evidence of the parties as well as the material on record, I find that it is necessary to extract the relevant portion of the said judgment in Sinitha’s case (supra), which reads as under:
“16. At the instant juncture, it is also necessary to reiterate a conclusion already drawn above, namely, that Section 163A of the Act has an overriding effect on all other provisions of the MV Act, 1988. Stated in other words, none of the provisions of the MV Act which is in conflict with Section 163A of the Act will negate the mandate contained therein (in Section 163A of the Act). Therefore, no matter what, Section 163A of the Act shall stand on its own, without being diluted by any provision. Furthermore, in the course of our determination including the inferences and conclusions drawn by us from the judgment of this Court in Oriental Insurance Company Limited vs. Hansrajbhai V. Kodala ((2001) 5 SCC 175), as also, the statutory provisions dealt with by this Court in its aforesaid determination, we are of the view, that there is no basis for inferring that Section 163A of the Act is founded under the "no-fault" liability principle. Additionally, we have concluded herein above, that on the conjoint reading of Sections 140 and 163A, the legislative intent is clear, namely, that a claim for compensation raised under Section 163A of the Act, need not be based on pleadings or proof at the hands of the claimants showing absence of "wrongful act", being "neglect" or "default". But that, is not sufficient to determine that the provision falls under the "fault" liability principle. To decide whether a provision is governed by the "fault" liability principle the converse has also to be established, i.e., whether a claim raised thereunder can be defeated by the concerned party (owner or insurance company) by pleading and proving "wrongful act", "neglect" or "default". From the preceding paragraphs (commencing from paragraph 12), we have no hesitation in concluding, that it is open to the owner or insurance company, as the case may be, to defeat a claim under Section 163A of the Act by pleading and establishing through cogent evidence a "fault" ground ("wrongful act" or "neglect" or "default"). It is, therefore, doubtless, that Section 163A of the Act is founded under the "fault" liability principle. To this effect, we accept the contention advanced at the hands of the learned counsel for the petitioner.”
(emphasis supplied) 7. In the present case on hand, the evidence of PW.1 – widow of the deceased clearly goes to show that her husband was negligent in causing the accident. She had admitted that the accident had occurred about 5 feet away from the road on the other side. Further, she had also admitted that the road was 40 feet wide and was a national highway. She has also clearly admitted that her husband himself was responsible for the accident. The Insurance Company has thus proved the negligence of the deceased by placing cogent evidence in that regard.
Thus, as held by the Apex Court, when the claim of the appellants under Section 163A has been defeated by pleading and establishing through cogent evidence the fault or negligence or default on the part of the deceased, the Tribunal was right in rejecting the claim of the appellants for grant of any compensation.
Hence, I do not find any error in the order of the Tribunal dismissing the claim petition. The order passed by the Tribunal is in line with the said decision, which does not call for any interference in this appeal.
Hence, the appeal is dismissed. Office to draw the decree accordingly.
Sd/- JUDGE KS