Dismissed

The Legal Manager v. Byregowda M

Karnataka HC2 Jun 2022MFA/2884/2014

Case brief

AI extract

What is this about?

An insurance company appealed the Motor Accident Claims Tribunal's award of compensation where the deceased died in a rash and negligent motorcycle accident. The Court held that Section 163-A claims are maintainable without proving negligence and dismissed the appeal against the Tribunal's award.

What did the court decide?

The appeal was dismissed, confirming the Judgment and Award dated 28.02.2014 by the Motor Accident Claims Tribunal.

The Legal Manager Vs Byregowda M — Motor Accident Claims | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 02^ND DAY OF JUNE, 2022

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BEFORE

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THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

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M.F.A.NO.2884/2014 (MV)

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BETWEEN :

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THE LEGAL MANAGER, BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LIMITED, GROUND FLOOR, NEW MISSION ROAD, NEAR BANGALORE STOCK EXCHANGE, BANGALORE-560027.

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NOW AT BAJAJ ALLIANZ GENERAL INSURANCE CO.LTD., REGIONAL OFFICE, GOLDEN HEIGHTS, 4^TH LEVEL, NO.1/2, 59^TH CROSS, 4^TH “M” BLOCK, RAJAJINAGAR, BANGALORE-560010. BY IT’S MANAGER

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… APPELLANT

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(BY SRI O.MAHESH, ADVOCATE APPEARING THROUGH V/C)

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AND :

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BYREGOWDA M. AGE 54 YEARS, S/O LATE MARIYAPPA, DEAD BY HIS LR’S

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1 (A) LAKSHMIDEVI, AGED 40 YEAR

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W/O. LATE BYREGOWDA M.,

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1(B) MASTER M. GANESH, AGED 22 YEAR

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S/O LATE M. BYREGOWDA,

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BOTH ARE RESIDING AT NO.651, 16^TH MAIN, 4^TH BLOCK, NANDINI LAYOUT, BANGALORE-560096.

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A.V. SHOBHA, MAJOR, D/O SHIVAKUMAR, HOLALU, HASSAN TALUK & DIST.

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... RESPONDENTS

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(BY SRI KENCHAPPA, ADVOCATE FOR R2, REPRESENTED AS LR OF DECEASED R1, RANKED R1(A), R1 (A & B)- ARE SERVED,R1(B) BROUGHT ON RECORD AS LR OF DECEASED R1,

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R3-NOTICE HELD SUFFICIENT V/O DT:28-04-2016 RANKED AS PER AMENDED APPEAL MEMO DT:19.07.2019)

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THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:28.02.2014 PASSED IN MVC NO.2707/2012 ON THE FILE OF XXI ADDITIONAL SMALL CAUSES JUDGE AND XIX ACMM, MEMBER, MACT, BANGALORE, AWARDING COMPENSATION OF RS.4,31,172/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL DEPOSIT AND ETC.,

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THIS M.F.A. COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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The present appeal is filed by the appellantInsurance Company challenging the judgment and

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award dated 28.02.2014 passed in

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MVC.No.2707/2012 by XXI Addl. Small Causes Judge and XIX ACMM, Member, MACT, Bangalore.

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2. Brief facts of the case are as under:

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On 28.02.2012 the deceased was riding the

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motor cycle bearing Reg.No.KA-02-HN-5138 from Nandini Layout to Dr.Ambedkar Engineering College, Nagarabhavi Ring Road. At that time, the driver of Canter bearing Reg.No.KA-21-6772 suddenly drove the same in a rash and negligent manner at Laggere Ring Road Bridge, Opp.Krishna Bhavan Hotel, the deceased in the process of avoiding the said vehicle, the mirror of the motor cycle touched against Canter vehicle and deceased fell down along with motor cycle and sustained multiple fatal injuries. He died on the way to the hospital. The claimants who are the parents of the deceased have filed the claim petition under Section 163-A of the Motor Vehicles Act, 1989,

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(hereinafter referred to as “the Act” for short) before the Tribunal claiming compensation.

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1. Learned counsel for the appellant Insurance Company submitted that the deceased was riding the motorcycle in a rash and negligent manner and died in the accident. Therefore, after investigation the police have filed the charge sheet against the deceased himself. Therefore, the claim petition filed under Section 163-A of the Act is not maintainable. Further submitted that the deceased was riding the motorcycle by not wearing helmet on his head, but had kept the helmet on his left hand. Under these circumstances, the accident has occurred. Therefore, not wearing helmet, but keeping the same in hand shows the negligence on the part of the deceased, which is proved by R.W.1 who is the witness to the accident. P.W.1 also during the course of crossexamination has admitted that the deceased who is his son was riding the motorcycle by keeping the

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helmet on his left hand and not wearing the helmet on his head. Therefore, it proves negligence on the part of the deceased itself and due to his negligence, the accident has occurred. Under these circumstances, the claim petition is not maintainable.

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Furthermore, P.W.1 being petitioner No.1 father of the deceased cannot maintain claim against his own insurer of the motorcycle. Therefore, the claim petition is not maintainable. Hence, the Tribunal without considering all these factors has wrongly allowed the claim petition, which needs interference by this Court.

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Further, the learned counsel for the appellant-Insurance Company submitted that when the petition was filed under Section 163-A of the Act, but the income of the claimant was taken at Rs.10,000/- per month, under these circumstances, the claim petition under Section 163-A of the Act is

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not maintainable. Even though, the petition later on came to be amended by restricting the income to an extent of Rs.40,000/- per annum, but initially the claimants had filed the claim petition showing the income of the deceased at Rs.10,000/- per month, which shows that by making amendment by the claimants is nothing, but malafide one so as to make the claim petition maintainable. This is not permissible under the eye of law. Therefore, even if the income of the deceased is restricted to Rs.40,000/- per annum by way of amendment to the claim petition, but the fact is that initially the income was claimed at Rs.10,000/- per month. Hence, the petition is not maintainable. Further submitted that P.W.1 who is the father of the deceased has deposed that, even after amendment of petition, during the course of his evidence, has deposed that the deceased was earning income of Rs.10,000/- per month. Therefore, even after amendment to the claim petition regarding the

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income, but thereafterwards during trial, P.W.1 had deposed that the deceased was earning Rs.10,000/per month. Therefore, under these circumstances also, the claim petition filed under Section 163-A of the Act is not maintainable. Further submitted that even the Tribunal has no power to restrict the income to Rs.40,000/- per annum and award composition. Therefore, prays to allow the appeal by setting aside the judgment and award passed by the Tribunal.

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On the other hand, learned counsel for respondent No.2 who is the mother of the deceased vehemently argued that the claim petition is filed under Section 163-A of the MV Act and therefore, the rash and negligent aspect need not be pleaded and established. Therefore, the claim petition is very much maintainable. Even if the accident is caused due to the rash and negligent on the part of the deceased himself, further the income at Column No.6 mentioned in the claim petition has got amended by restricting to

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Rs.40,000/- per annum, therefore, the claim petition filed under Section 163-A of the Act is maintainable. Further submitted that, even though, P.W.1 being the father of the deceased had deposed that the deceased was earning Rs.10,000/- per month, but the Tribunal has correctly restricted the income to Rs.40,000/- per annum by considering the amendment made in the petition. Therefore, the Tribunal has correctly calculated the quantum of compensation and accordingly, awarded the compensation, which needs no interference. Hence, prays to dismiss the appeal by confirming the judgment and award passed by the Tribunal.

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In the present case, the claim petition is

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filed under Section 163-A of the Act. Exs.P.1, P.2 and P.3 are the FIR, Complaint and charge sheet and all these documentary evidence prove that the deceased himself was rash and negligent in riding the motor

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cycle and he died in the accident. Ex.P.3 is the charge sheet, which was filed against the deceased himself. Therefore, the charge sheet is filed on the deceased himself for the rash and negligent riding of motor cycle. Therefore, under these circumstances, the claim petition is filed under Section 163-A of the Act.

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Considering the submission made by the learned counsel for the appellant-Insurance Company that the deceased has kept his helmet on his right hand without wearing on his head, which grossly amounts to negligent on the part of the deceased himself. But as per the police investigation and charge sheet, it is found out that the deceased himself was rash and negligent in causing the accident and died in the accident. Therefore, under these circumstances, the claim petition filed under Section 163-A of the Act is maintainable or not is to be considered.

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Sub-section 2 of Section 163-A of the Act stipulates that there is no need to make plead or establish the rash and negligent aspect even the deceased himself was rash and negligent and died in the accident. Then the claim petition filed under Section 163-A of the Act is maintainable. In this regard, I place reliance on the judgment of the Hon’ble Supreme Court in the case of United India Insurance Company Ltd. Vs. Sunil Kumar and Another reported in (2019) 12 SCC 398, wherein at paragraph No.8, it is held as under:

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“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 163-A of the Act to be contemplating any such situation would go

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contrary to the very legislative object behind introduction of Section 163-A 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 were taking an unduly long time. In fact, to understand Section 163-A of the Act to permit the insurer to raise the defence of negligence would be to bring a proceeding under Section 163-A of the Act on a par with the proceeding under Section 166 of the Act which would not only be self-contradictory but also defeat the very legislative intention.”

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Even though, the evidence produced by the claimants themselves prove the fact that the deceased was rash and negligent in riding the motorcycle and by his own act, he died in the accident. In spite of it, the claim petition filed under Section 163-A of the Act is maintainable. Even if non-wearing of helmet on the head, but keeping the same on left hand also amounts to negligent, but for his own negligence also, the claim petition filed under Section 163-A of the MV Act is maintainable.

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Considering the other submissions that in the present case insurance policy issued in respect of the motorcycle is “Package Policy” and covering the risk of owner and driver for Rs.1,00,000/-. This is the coverage of personal accident as per the terms and conditions of the policy. The owner and driver is entitled to the accident claim to an extent of Rs.1,00,000/-, but this cannot prevent from making claim under Section 163-A of the Act. Therefore, there is no merit in the contention of the Insurance Company that the owner who was driving the motor cycle alone is entitled for personal accident coverage of Rs.1,00,000/-. This contention is with regard to coverage of personal accident based on payment of extra premium. Therefore, upon claim made under Section 163-A of the MV Act, even though, the deceased himself was rash and negligent, but the claim petition is very much maintainable and the Tribunal by restricting the income at Rs.40,000/- per

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annum has awarded the compensation. Therefore, the judgment and award passed by the Tribunal is found to be legal and justifiable, which needs no interference. Therefore, I do not find any merit in the appeal filed by the appellant-Insurance Company and the same is liable to be dismissed. Even though, the personal accident coverage is for Rs.1,00,000/-, but by making payment of extra premium, that cannot be restricted to Rs.1,00,000/- only for covering the personal accident risk, since the claim petition is filed under Section 163-A of the MV Act. Hence, I proceed to pass the following

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ORDER

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The appeal is dismissed .

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The judgment and award dated 28.02.2014 passed in MVC.No.2707/2012 by XXI Addl. Small Causes Judge and XIX ACMM, Member, MACT, Bangalore, is hereby confirmed.

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The amount in deposit shall be transmitted to

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the Tribunal along with the TCR and the copy of this order forthwith.

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Draw award accordingly.

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No order as to costs.

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In view of dismissal of the appeal, I.A.No.1/2019 does not survive for consideration and it is dismissed.

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Sd/JUDGE

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The Legal Manager v. Byregowda M

Case brief

What is this about?

What did the court decide?

The Legal Manager v. Byregowda M

Case brief

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What did the court decide?

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