Dismissed

The Divisional Controller v. Shri.Shivaji @ Balaso

Karnataka HC11 Oct 2019MFA/101843/2019

Case brief

AI extract

What is this about?

The Divisional Controller M.S.R.T.C. appealed against a compensation award of Rs. 4,80,500 granted to the parents and brother of a deceased motorcycle rider. The High Court dismissed the appeal, holding that under Section 163-A, an insurer cannot plead victim negligence.

What did the court decide?

The appeal was dismissed; the Tribunal is directed to transfer the deposited amount for disbursement; I.A. for withdrawal rejected.

The Divisional Controller Vs Shri.Shivaji @ Balaso — Motor Accident Claims | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 11^TH DAY OF OCTOBER, 2019

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BEFORE

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THE HON’BLE MR. JUSTICE H.T.NARENDRA PRASAD

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MFA No.101843/2019 (MV-D)

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Between:

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The Divisional Controller, M.S.R.T.C. Kolhapur, Kolhapur District, Maharashtra State, Rep. by Shri Rohan Bhanudas Palange.

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… Appellant

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(By Shri C.V. Angadi, Advocate)

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And:

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Shri Shivaji @ Balasao S/o. Ramachandra Mail, Age 48 years, Occ: Nil,

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Smt.Ushatai W/o. Shivaji @ Balasao Mali,

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Age 38 years, occ: Household work,

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Kumar Satish S/o.Shivaji @ Balasao Mali, Age 14 years, occ: Student,

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All are R/o.: Hindalagi, Belgaum Taluk-590 001.

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… Respondents

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(By Shri Umesh C/Ainapur, Advocate for R1 & R2; R3 is minor represented by R1)

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This MFA is filed under Section 173(1) of M.V. Act, 1988, against the judgment and award dated 15.11.2018, passed in MVC No.315/2016 on the file of the IV-Additional District and Sessions Judge and Additional Motor Accident Claims Tribunal, Belagavi, awarding compensation of Rs.4,80,500/- with interest at 6% p.a. from the date of the petition till its realization.

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This appeal coming on for orders regarding hearing on interlocutory applications, this day, the Court delivered the following:

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JUDGMENT

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This appeal is filed by the appellant-Corporation challenging the judgment and award dated 15.11.2018, passed by the IV-Additional District and Sessions Judge and Additional Motor Accident Claims Tribunal, Belagavi (for short “the Tribunal”) in MVC No.315/2016, whereby the Tribunal has granted compensation of Rs.4,80,500/with interest at the rate of 6% p.a. from the date of petition till realization.

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Brief facts of the case are that on 29.11.2015 at about 2:00 p.m. the deceased being a rider of motorcycle bearing registration No.MH-09/BR-1473 was proceeding on Ichalkaranji-Hathkanagale Road. At that time the driver of one M.S.R.T.C. bus bearing registration No.MH-20/D-8297 proceeding ahead of the motorcycle

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had abruptly stopped without any signal. As a result of the same, the rider of motorcycle dashed to the hind

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portion of the bus and that resulted in accident. Immediately the rider of motorcycle was taken to Ayush Hospital, Hythkanagale and then to Apple Saraswati Hosptial, Kolhapur, wherein he took treatment for five days. Thereafter on 04.12.2015, he succumbed to the injuries. Subsequently, the parents and brother of the rider of the motorcycle filed claim petition in MVC No.315/2016 before the Tribunal.

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In order to establish their case, the claimants have examined one witnesses and marked 12 documents. On the other hand the Corporation has examined any witnesses nor marked any documents. On appreciation of the oral and documentary evidence, the Tribunal has granted compensation of Rs.4,80,500/- with interest at the rate of 6% p.a. from the date of petition till realization. Being aggrieved by same, the appellantCorporation has filed this appeal.

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Learned counsel for the appellant-Corporation

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submits that the accident in question occurred due to

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rash and negligent driving of the rider of motorcycle, which is very clear from Ex.P2-FIR, Ex.P3-panchanama and Ex.P3-accident report and the Tribunal has wrongly fastened the liability on the Corporation. Hence, he sought for allowing the appeal.

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Per contra, the learned counsel for the respondents submits that the claim petition is filed under Section 163-A of M.V. Act and the Hon’ble Apex Court in the cases of United India Insurance Co. Ltd., vs. Sunil Kumar and Others reported in IV 2017 ACC 692 and Shivaji and another vs. Divisional Manager, United India Insurance Co. Ltd., and others reported in 2018 ACJ 2161 held that in a petition filed under Section 163-A of M.V. Act, it is not open for the insurer to take defence/plea of negligence of victim. Hence, he prays for dismissal of the appeal.

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Heard the learned counsel for the parties. Perused the materials available on record.

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It is not in dispute that rider of the motorcycle bearing registration No.MH-09/BR-1473 died due to the accident, which occurred on 29.11.2015 with bus bearing registration No.MH-20/D-8297 and the claimants i.e., parents and brother have filed claim petition under Section 163-A of M.V. Act; the Hon’ble Apex Court in the case of Shivaji and another (supra) at paragraph No.5, it is held as under:

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“5. The issue which arises before us is no longer res integra and is covered by a recent judgment of three judges of this Court in United India Insurance Co. Ltd. v. Sunil Kumar, 2018 ACJ 1(SC), wherein it was held that to permit a defence of negligence of the claimant by the insurer and/or to understand Section 163-A of the Act as contemplating such a situation, would be inconsistent with the legislative object behind introduction of this provision, which is "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 were taking an unduly long time". The Court observed that if an insurer

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was permitted to raise a defence of negligence under Section 163-A of the Act, it would "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 selfcontradictory but also defeat the very legislative intention". Consequently, it was held that in a proceeding under Section 163-A of the Act, the insurer cannot raise any defence of negligence on the part of the victim to counter a claim for compensation.”

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The principle of law laid down in the above decision is applicable to the facts of this case and the question of negligence is not a valid ground, which can be raised by the insured/insurer in an application filed under Section 163-A of M.V. Act. In view of the law laid down by the Hon’ble Apex Court, the Tribunal has justified in granting compensation to the claimants. Accordingly, the appeal is dismissed.

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The amount in deposit before this Court shall be transferred to Tribunal for disbursement.

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In view of the dismissal of the appeal, I.A.No.3/2019 filed for withdrawal of amount does not survive for consideration. Consequently, I.A.No.3/2019 stands rejected.

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SD/JUDGE

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Vnp*

The Divisional Controller v. Shri.Shivaji @ Balaso

Case brief

What is this about?

What did the court decide?

The Divisional Controller v. Shri.Shivaji @ Balaso

Case brief

What is this about?

What did the court decide?

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