IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF MAY, 2017 BEFORE:
THE HON’BLE MR. JUSTICE B.MANOHAR MFA.NO. 6879/2011 (MV) BETWEEN:
SRI ABDUL SAMAD, S/O LATE UMARABBA, AGED ABOUT 21 YEARS, R/AT DOOR NO.1-68-3, HASATH MANZIL, BADRIYA NAGAR, MALLUR, MANGALORE, D.K.DISTRICT. ... APPELLANT (BY SRI.M.PRASHANTH, ADV. FOR SRI.S.VISHWAJITH SHETTY, ADV.) AND:
1. MR.ABDUL SIDDIQ, S/O ABDUL KHADER, AGED ABOUT 31 YEARS, R/O HOUSE NO.1-159/1, ELIYAS MANZIL, PADDANDADKA KATTE, PERINJA, POST HOSANGADY, BELTHANGADY TALUK, D.K.DISTRICT – 574 201.
2. BRANCH MANAGER, M/S NATIONA INSURANCE CO.LTD., 2ND FLOOR CHAMBERS, OPPOSITE CENTRAL MARKET, MARKET ROAD, MANGALORE – 574 201. ... RESPONDENTS (BY SRI.O.MAHESH, ADV. FOR R2, R.1 NOTICE DISPENSED WITH V/O. DTD: 08.06.2015) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 24.2.2011 PASSED IN MVC NO.962/2009 ON THE FILE OF MEMBER, MACT-IV & III ADDITIONAL DISTRICT JUDGE, DAKSHINA KANNADA, MANGALORE, DISMISSING THE CLAIM PETITION FOR COMPENSATION.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING: -
J U D G M E N T Appellant being the claimant has filed this appeal challenging the legality and correctness of the judgment and award dated 24-02-2011 made in MVC No.962/2009 passed by the Motor Accident Claims Tribunal, Mangalore (hereinafter referred to as "the Tribunal" for short) dismissing the claim petition filed by him.
2. The appellant filed a claim petition under Section 163-A of the Motor Vehicles Act contending that on 10-03-2009 at about 1.00 p.m., while he was proceeding in a motorcycle bearing Registration No.KA-19/V-3404 along with a pillion rider towards Bantwal within the limits of Bantwal Town Police Station, the rider of the motorcycle bearing Registration No.KA-21/K-965 came from opposite direction in a rash and negligent manner and dashed against the motorcycle of the claimant. Due to that, the claimant has sustained grievous injuries all over the body. Immediately after the accident, he was shifted to Highland hospital at Mangalore, wherein he took treatment as inpatient from 10-03-2009 to 23-03-2009. During the course of treatment, he has undergone surgery and has spent more than Rs.1,20,000/- towards medical expenditure. Prior to the accident, he was working as a coolie at Central Market, Mangalore and earning Rs.6,000/- p.m. At the time of accident he was aged about 20 years. In view of the injuries he has sustained and suffering undergone, he is not in position to do the work which he was doing prior to the accident. Hence, sought for compensation of Rs.5,00,000/-.
3. Though the first respondent was served with notice, he remained unrepresented. The insurance company filed the written statement contending that due to the rash and negligent riding of the motorcycle by the claimant himself, the accident had occurred and the police have registered a case against the claimant himself. He was a tort feasor. Further the insurer of the other vehicle i.e. KA-21/K-965 has not been made party. Hence, the claim petition is liable to be dismissed for non-joinder of necessary parties.
4. On the basis of pleadings of the parties, the Tribunal framed the following issues:-
1. Whether the petitioner proves that the accident occurred on 10.3.2009 at about 1.00 p.m. near Green Garage, Gudina Bali, Bantwal Muda Village, Bantwal Taluk, was due to the rash and negligent riding by the rider of the Motor Cycle bearing Registration No.KA.21-K-965?
2. Whether the petitioner had sustained injuries during the accident?
3. Whether the Respondent No.2 proves that the accident was entirely due to the rash and negligent riding by the rider of the Motor Cycle bearing Registration No.KA-19/V-3404?
4. Whether the petitioner is entitled for compensation? If so, how much and from whom?
5. What order?
5. The claimant in order to prove his case got examined himself as P.W.1 and the doctor who treated him was examined as P.W.2 and got marked the documents as Ex.P1 to Ex.P16. On behalf of the respondents, none of the witnesses were examined, however, the documents were marked as Ex.R1 to Ex.R5.
6. The Tribunal, after appreciating the oral and documentary evidence let in by the parties, taking into consideration copy of the complaint and charge sheet held that due to the rash and negligent riding by the claimant, the accident occurred, the police have chargesheeted the claimant, he himself is a tort feasor. Hence, the claimant cannot claim compensation. Further, under Section 163-A of the Motor Vehicles Act, the person having income of less than Rs.40,000/- per annum alone can maintain a claim petition. In the instant case, the claimant himself has clearly stated that he was working as a coolie in the Central Market and earning more than Rs.6,000/- p.m. Hence, the claim petition itself is not maintainable and the Tribunal held issue No.1 and 4 in negative and issue No.2 and 3 in affirmative and dismissed the same. Being aggrieved by the said judgment and award, the appellant preferred this appeal.
7. I have heard Sri.M.Prashanth, learned counsel appearing for the appellant and Sri.O.Mahesh, learned counsel appearing for Respondent No.2. Perused the judgment and award and oral and documentary evidence.
8. In the claim petition, the claimant himself has stated that he was working as a coolie in the Central Market and earning Rs.6,000/- p.m. Under Section 163-A of the Motor Vehicles Act, which is a special provisions made for payment of the compensation on structured formula. In the said provision, the claimant need not prove the negligence. However, there is a ceiling limit in the income. The person having income less than Rs.40,000/- per annum can only maintain the claim petition under Section 163-A of the Motor Vehicles Act. In the instant case, the claimant himself clearly admitted that his income is more than Rs.6,000/- p.m. Hence he cannot maintain the claim petition under Section 163-A of the Motor Vehicles Act. Further, the insurer of the other vehicle has also not been arrayed as party to the proceedings. When there is collision between two vehicles, the insurers of both the vehicles had to be made parties. The Police have also registered a case against the claimant himself for rash and negligent riding of the vehicle. He is a tort feasor and no compensation can be awarded to the tort feasor.
9. The Tribunal taking into consideration all these aspects of the matter has dismissed the claim petition. I find no infirmity or irregularity in the judgment and award passed by the Tribunal dismissing the claim petition since the claim petition is not maintainable. Accordingly, the appeal is dismissed.
Sd/- JUDGE mpk/-*