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.10715 OF 2013 (MV) BETWEEN MR VICTOR LOUIS PAUL S/O PAUL RAJ AGED ABOUT 38 YEARS PERMANENT R/O 45 KENNEDYS 5TH LANE ORRGAUM POST K.G.F. 563 120 KOLAR DISTRICT – 563 101 PRESENTLY R/AT NO 152-2 AROGYASWAMY HOUSE T C PALYA, K R PURAM BANGALORE 36 ... APPELLANT (BY SRI. GOPAL KRISHNA N., ADVOCATE) AND 1. SRI RAMASWAMY K S/O KRISHNAPPA MAJOR IN AGE R/AT BADAMAKANAHALLI VILLAGE HUNUKUNDA POST BANGARPET TALUK KOLAR DISTRICT – 563 101 2. THE NATIONAL INSURANCE COMPANY LTD.
REGIONAL OFFICE SHUBARAM COMPLEX M G ROAD BANGALORE 560 001 REP BY ITS MANAGER ... RESPONDENTS (BY SRI. SUGUNA R. REDDY, ADV. FOR R1; SRI. E. I. SANMATHI, ADV. FOR R2) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 30.07.2013 PASSED IN MVC NO.4878/2012 ON THE FILE OF THE XIII ADDITIONAL SMALL CAUSES JUDGE, MEMBER, MACT, COURT OF SMALL CAUSES, BANGALORE, DISMISSING THE CLAIM PETITION FOR COMPENSATION.
THIS MFA COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal though listed for admission, with the consent of learned counsel for appellant and learned counsel for respondents, the same is taken up for final disposal.
2. Heard the learned counsel for appellant and learned counsel for respondents. Perused the records.
3. This appeal is preferred by the appellant against the judgment rendered by the MACT & Court of Small Causes, Bangalore in MVC No.4878/2012 dated 30.07.2013 whereby the claim petition filed by the claimant / appellant was dismissed.
4. Factual matrix of the appeal is as under:
It is stated in the petition that on 20.09.2011 at about 3.30 p.m. when the claimant was proceeding in his motor cycle bearing Regn.No.KA-08-K-2692 towards Bethamangala from Kolar with his wife as pillion rider slowly and cautiously, at that time near Badamakanahalli village on Kolar – Bethamangala road, a Hero Honda motor cycle bearing No.KA-08-Q-1154 had come from the opposite direction in high speed in a rash and negligent manner in the wrong side and had dashed against his motor cycle, causing the accident. The appellant and his wife thereby had sustained injuries. The accident had occurred solely due to the actionable negligence on the part of the rider of the motor cycle bearing Reg. No.KA-08-Q-1154. Hence the claimant had filed a claim petition before the Tribunal under Section 163A of the MV Act seeking compensation.
Notice was ordered on the respondents in the claim petition and respondents had filed their respective written statements denying the petition averments. Both the respondents had contended that the accident occurred solely due to the rash and negligence of the appellant / claimant himself in respect of which the jurisdictional police had filed a charge-sheet against the appellant. Hence, it was contended that the appellant was not entitled for any compensation. It was further contended that in view of the decision of the Apex Court in ACJ 2012 page 1, the claim petition itself was not maintainable.
The appellant examined himself as PW.1 and got examined another witness as PW.2 and in support of his case got marked documents at Exhibits P1 to P13. On behalf of the respondents, two witnesses, i.e., RWs 1 and 2 were examined and Ex.R1 – Insurance Policy and Ex.R2 – CC of order sheet 511/2011 schedule was marked.
Based upon the pleadings of the parties, the Tribunal framed issues and held issue Nos.1 and 2 in the negative and consequently dismissed the claim petition and denied to grant any compensation to the claimant, with an observation that Section 163A of the MV Act can be raised only at the behest of a third party and not on fault liability principle. The appellant himself being the tort feasor, the Tribunal held that it is well- settled principle of law that he cannot be compensated for his own negligence. The same is reflected in the impugned judgment rendered by the tribunal. It is this judgment which is under challenge in this appeal.
5. Learned counsel for appellant has taken me through the impugned judgment and also the material available on record. He contends that the Tribunal has erroneously dismissed the claim petition made by the claimant under Section 163(A) of the MV Act attributing the entire negligence on the appellant – injured and further holding that only third parties can maintain a claim petition under Section 163(A) and not a person who caused the accident. The Tribunal has failed to appreciate the evidence on record and has committed an error in coming to a conclusion that the appellant was not entitled to any compensation. Learned counsel has placed reliance on a judgment of the Apex Court in the case of UNITED INDIA INSURANCE CO. LTD. vs. SUNIL KUMAR AND ANOTHER (AIR 2017 SC 5710) in support of his contention that it is not open for an Insurer to raise defence of negligence on the part of a victim in claim proceedings under Section 163-A. The relevant portion of the judgment reads as under:
7. As observed in Hansrajbhai V. Kodala (AIR 2001 SC 1832) one of the suggestions made by the Transport Development Council was “to provide adequate compensation to victims of road accidents without going into long drawn procedure.” As a sequel to the recommendations made by the Committee and the Council, Section 140 was enacted in the present Act in place of Section 92A to 92E of the Old Act. Compensation payable thereunder, as under the repealed provisions, continued to be on the basis of no fault liability though at an enhanced rate which was further enhanced by subsequent amendments. Section s140 and 141 of the present Act makes it clear that compensation payable thereunder does not foreclose the liability to pay or the right to receive compensation under any other provision of the Act or any other law in force except compensation awarded under Section 163A of the Act. Compensation under Section 140 of the Act was thus understood to be in the nature of an interim payment pending the final award under Section 166 of the Act. Section 140 163-A, on the other hand, was introduced in the New Act for the first time to remedy the situation where determination of final compensation on fault basis under Section 166 of the Act was progressively getting protracted. The Legislative intent and purpose was to provide for payment of final compensation to a class of claimants (whose income was below Rs.40,000/- per annum) on the basis of a structured formula without any reference to fault liability. In fact, in Hansrajbhai V. Kodala (supra) the bench had occasion to observe that:
“Compensation amount is paid without pleading or proof of fault, on the principle of social justice as a social security measure because of ever increasing motor vehicle accidents in a fast-moving society. Further, the law before insertion of Section 163-A was giving limited benefit to the extent provided under Section 140 for no-fault liability and determination of compensation amount on fault liability was taking a long time. That mischief is sought to be remedied by introducing Section 163-A and the disease of delay is sought to be cured to a large extent by affording benefit to the victims on structured formula basis. Further, if the question of determining compensation on fault liability is kept alive it would result in additional litigation and complications in case claimants fail to establish liability of the owner of the defaulting vehicles.”
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.”
6. In the light of the said decision and keeping in view the submission made by the learned counsel for appellant and learned counsel for respondent No.2 – Insurance Company, I am of the considered view that this matter requires to be remitted back to the Tribunal to decide regarding quantification of the claim made by the appellant for compensation. Since the grounds urged in the appeal are found to be justifiable, it is just and proper to intervene with the impugned judgment rendered by the Tribunal. Hence I proceed to pass the following:
O R D E R The appeal preferred by the appellant/claimant is allowed.
Consequently, the impugned judgment dated 30.07.2013 passed by the Member, MACT, Court of Small Causes, Bangalore, in MVC No.4878/2012, is hereby set aside and the matter is remitted to the concerned Tribunal, which shall proceed in accordance with law relating to quantification of the compensation required to be awarded, keeping in view of the evidence adduced by the claimant/appellant as well as the documents placed before the Court and as well by providing opportunity to both sides.
The matter shall be disposed of within a period of three months from the date of receipt of a copy of this order.
Sd/- JUDGE KS