Allowed

M/S Oriental Insurance Company Limited v. Smt Revathi Shambu Shettigar

Karnataka HC27 Oct 2022MFA/808/2012

Case brief

AI extract

What is this about?

The High Court allowed an appeal filed by an insurance company against a Motor Accident Claims Tribunal's award. The Court held that the Tribunal lacked jurisdiction because the deceased's income exceeded Rs. 40,000 per annum, making the Section 163-A petition non-maintainable, ruling with the proviso from the Deepal Girishbhai Soni judgment.

What did the court decide?

The judgment and award passed by the Motor Accident Claims Tribunal were set aside. The Tribunal is directed to refund the amount deposited by the insurer after verification.

M/S Oriental Insurance Company Limited Vs Smt… — 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 27^TH DAY OF OCTOBER 2022

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BEFORE

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

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MFA No.808 OF 2012(MV)

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BETWEEN:

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M/s Oriental Insurance Company Limited, D.O.V. Shankar House, III Floor, No.1, R.M.V. Extension, Mekhri Circle, Bangalore-560 080, Now represented by its Regional Office, No.44/45, Leo Shopping Complex, Residency Road, Bangalore-560 025, Rep. by Its Authorized Signatory. … Appellant

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(By Sri.Lakshmi Narasappa, Advocate for Sri. A.M. Venkatesh, Advocate)

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AND:

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Smt. Revathi Shambu Shettigar, W/o Late Shri Shambu Shettigar, Aged about 33 years.

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Kum. Pooja, D/o Shambu Shettigar, Aged about 8 years.

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Kum. Diksha, D/o Shambu Shettigar, Aged about 6 ½ years R2 and R3 are minors Rep by their mother natural Guardian R1. R1 to R3 are R/o Sri. Durga Krupa, Battakodi,Kinnigoli, Mangalore-571150. 4. The Managing Director, K.S.R.T.C., Double Road, Shanthinagar, Bangalore-560 027. 5. M/s. Leo Chartered Housing, Private Limited, II Floor, No.3, Margin Guard Cross Road, Bangalore-560 001. 6. Smt. Yamuna Shettigar, W/o Nonaiah Shettigar, Major, R/o Mangalore. ... Respondents (By Sri. K.Vishwanath, Advocate and Sri. T.V. Nanjegowda, Advocate for R1 to R3: Sri. M.S. Narayan, Advocate for R4: Sri. G.N. Subramani, Advocate for R6: Notice to R5 is H/S v/O dated: 02.03.2015)

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This MFA is filed under Section 173(1) of MV Act, against the Judgment and Award dated:23.05.2011 passed in MVC No.5723/2007 on the file of the XII Additional Small Causes

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Judge, Member, MACT, Bangalore, awarding a Compensation of Rs. 4,09,500/- with interest @ 6% P.A. from the date of petition till realization. This MFA, coming on for hearing, this day, this Court, delivered the following:

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J U D G M E N T

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This appeal under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’, for short) has been filed by the Insurance Company being aggrieved by the judgment dated 23.05.2011 passed by the Motor Accident Claims Tribunal, Bangalore in MVC No.5723/2007.

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Facts giving rise to the filing of the appeal briefly stated are that on 30.08.2015 at about 8.00 p.m. the deceased Shambu Shettigar was proceeding on motorcycle bearing registration No.KA-05/EA-5717 from K.R.Puram to NGEF on old Madras road. At that time, a KSRTC bus bearing registration No.KA-07/F-533 which was being driven in a rash and negligent manner, dashed against the deceased. As a result of the aforesaid accident, the

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deceased sustained grievous injuries and succumbed to the injuries.

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The claimants filed a petition under Section 163-

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A of the Act seeking compensation for the death of the deceased along with interest.

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On service of summons, the respondent Nos.1 and 3 appeared through counsel and filed written statements in which the averments made in the petition were denied. The age, occupation and income of the deceased are denied. It was pleaded that the petition itself is false and frivolous in the eye of law. It was further pleaded that the accident was due to the rash and negligent riding of the motorcycle by the deceased himself. It was further pleaded that the liability is subject to terms and conditions of the policy. It was further pleaded that the quantum of compensation claimed by the claimants is exorbitant. Hence, they sought for dismissal of the petition.

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The respondent No.2 did not appear before the

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Tribunal inspite of service of notice and hence was placed

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ex-parte.

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On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimants, in order to prove their case, examined claimant No.1 as PW-1 and another witness as PW-2 and got exhibited documents namely Ex.P1 to Ex.P19.

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On behalf of respondents, one witness was examined as RW-1 and no documents were got exhibited. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent riding of the motorcycle as well as the driver of the offending vehicle at 50% each, as a result of which, the deceased sustained injuries and succumbed to the injuries. The Tribunal further held that the claimants are entitled to a compensation of Rs.4,09,500/- along with interest at the rate of 6% p.a. and directed the Corporation and the

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Insurance Company to deposit 50% each of the

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compensation amount along with interest. Being aggrieved, this appeal has been filed.

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The learned counsel for the Insurance Company has raised the following contentions:

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Firstly, the claim petition is filed under Section 163-A of the Act. It is admitted that the deceased was working as a driver cum office assistant in a private company and was earning Rs.10,000/- per month. But the Tribunal has given a finding that the claimants have restricted the salary of the deceased to Rs.3,300/- per month. The same is contrary to the provisions of Section 163-A of the Act and the same is not permissible. In support of his contention he has relied on the judgment of the Hon’ble Apex court in the case of DEEPAL GIRISHBHAI SONI vs. UNITED INDIA

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INSURANCE COMPANY LIMITED reported in (2004) 5 SCC 385.

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None appears for respondent Nos. 1 to 3.

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8. Heard the learned counsel for the Insurance

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Company and perused the judgment and award and the original records.

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The case of the claimant is that on 30.08.2015 at

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about 8.00 p.m. the deceased Shambu Shettigar was proceeding on motorcycle bearing registration No.KA05/EA-5717 from K.R.Puram to NGEF on old Madras road. At that time, a KSRTC bus bearing registration No.KA-07/F533 which was being driven in a rash and negligent manner, dashed against the deceased. As a result of the aforesaid accident, the deceased sustained grievous injuries and succumbed to the injuries. The claimants are wife and children of the deceased. The claimants have contended that the deceased was earning Rs.10,000/- per month but since they have filed the petition under Section 163-A of the Act they have restricted their claim to Rs.3,300/- per month. In the finding of the Tribunal it is very clear that

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the deceased was earning Rs.10,000/- per month and his annual income is more than Rs.40,000/-. Since he was earning more than Rs.40,000/- per month, the claim petition filed by the legal representatives under Section 163-A of the Act is not maintainable. The Hon’ble Apex Court in the case of DEEPAL GIRISHBHAI SONI (supra) has held as follows:

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“The scheme envisaged under Section 163A, in our opinion, leaves no manner of doubt that by reason thereof the rights and obligations of the parties are to be determined finally. The amount of compensation payable under the aforementioned provisions is not to be altered or varied in any other proceedings. It does not contain any provision providing for set off against a higher compensation unlike Section 140. In terms of the said provision, a distinct and specified class of citizens, namely, persons whose income per annum is Rs. 40,000/- or less is covered thereunder whereas Sections 140 and 166 cater to all sections of society. “

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In view of the above, the claim petition filed by

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the claimants under Section 163-A of the Act is not

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maintainable.

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Accordingly, the appeal is allowed. Judgment and award passed by the Tribunal is set aside.

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The Tribunal is directed to refund the amount deposited by the appellant herein, i.e., Insurance Company

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after due verification.

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Cm/-

M/S Oriental Insurance Company Limited v. Smt Revathi Shambu Shettigar

Case brief

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M/S Oriental Insurance Company Limited v. Smt Revathi Shambu Shettigar

Case brief

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