Smt. Rashmi Vs Mr. Venu v

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20^TH DAY OF JUNE, 2025

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BEFORE

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THE HON'BLE MR JUSTICE T.M.NADAF MISCELLANEOUS FIRST APPEAL NO.1596 OF 2019 (MV-D)

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BETWEEN:

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SMT. RASHMI

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W/O RAMESH KATTENNAVAR AGED ABOUT 26 YEARS R/AT I MAIN, 1^ST CROSS MARATHA COLONY HARIHARA - 577 601

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KUM. AMRITHA D/O RAMESH KATTENNAVAR AGED ABOUT 06 YEARS MINOR REPRESENTED BY HER NATURAL MOTHER GUARDIAN SMT RASHMI W/O RAMESH KATTENNAVAR R/AT I MAIN, 1^ST CROSS MARATHA COLONY, HARIHARA DAVANAGERE DISTRICT - 577 601

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...APPELLANTS

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(BY SRI. HAREESH BHANDARY T, ADVOCATE)

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AND

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MR. VENU V S/O SRIRAMULU NAIDU V AGED ABOUT 35 YEARS DRIVER CUM OWNER OF LORRY BEARING REG NO.AP.03/X-0678 R/O #11/4 OM SHANTI NILAYA 7^TH MAIN, 7^TH CROSS BHUVANESHWARI NAGARA

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MAGADI ROAD

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BENGALURU (SSDS) - 560 023

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2 . THE MANAGER THE NEW INDIA ASSURANCE CO.LTD. CHITTOOR BRANCH (612701) 10-1/8-6 PRAKASH HIGH ROAD OPP. DISTRICT COURT CHITTOOR - 517 001 ANDHRA PRADESH

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3 . SRI H SURESH S/O PAKKIRAPPA AGED ABOUT 59 YEARS OWNER OF TATA ACE BEARING REG NO.KA.17/A-6140 R/AT NEAR MADDAMMADEVI TEMPLE 1^ST CROSS, BHARAMAPURA HARIHARA DAVANAGERE DISTRICT – 577 601

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…RESPONDENTS

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(BY SRI. B.PRADEEP, ADVOCATE FOR R2; SRI. MAHESH R UPPIN, ADVOCATE FOR R3; R1 IS SERVED AND UNREPRESENTED)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO ALLOW THIS APPEAL AND SET ASIDE THE JUDGMENT AND AWARD DATED 03.01.2017 PASSED IN MVC NO.222/2013 BY THE COURT OF THE SENIOR CIVIL JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, HARIHARA AND GRANT THE COMPENSATION AS CLAIMED IN THE CLAIM PETITION IN THE INTEREST OF JUSTICE.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED ON 17.04.2025, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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CORAM: HON'BLE MR JUSTICE T.M.NADAF

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CAV JUDGMENT

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This appeal is by the claimants/appellants calling in question the judgment and award dated 03.01.2017 in MVC No.222/2013 passed by the Senior Civil Judge and Additional MACT, Harihar, dismissing the claim petition filed under Section 163-A of the Motor Vehicles Act, 1988 (‘MV Act’, for short) as the appellants failed to prove issue No.1, the death of husband of appellant No.1 and father of appellant No.2 in the head-on collision involving Tata Ace bearing Reg.No.KA-17/A-6140 and Eicher Lorry bearing Reg.No.AP-03/X-0678.

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The brief facts that leading to file the appeal are as under:-

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On 06.06.2013, at about 8.20 p.m., deceased Ramesh being driver of Tata Ace bearing Reg.No.KA-17/A-6140 moving near Makanur Cross situated on NH-4 colluded with Eicher Goods Vehicle bearing No.AP-03-X-0678. The deceased, who was the driver of Tata Ace vehicle lost his consciousness due to severe injuries suffered in the accident and was taken to the hospital. He was inpatient for a period of two days and thereafter,

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succumbed to the injuries at S.S.Hospital, Davanagere. The driver of the Eicher Goods Vehicle registered a crime making allegations against the deceased that he was the root cause for the accident. The appellants filed claim petition under Section 163A of the MV Act, 1988.

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The case of the appellants before the Tribunal was that there was head-on collision between two vehicles and deceased has suffered severe injuries resulting in his death during treatment. He was working as a Driver and was earning a sum of Rs.3,200/- p.m. taking care of appellants, who are his wife and daughter.

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On notice, both the respondents No.1 and 2 appeared through their respective counsel and respondent No.3 being absent was placed exparte. Respondent No.2 – Insurance Company filed written statement denying the contentions of the appellants taking defence that it is the deceased, who is responsible for the accident and was negligent while driving the vehicle. He being the tort feasor is not entitled for any compensation.

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The Tribunal subsequent to the pleadings, framed three issues, which reads as follows:-

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1. “Whether the petitioner proves that on 06/06/2013 at about 08.20 p.m when the petitioner’s husband of deceased Ramesh drive the Tata ACE bearing Reg.No.KA17/A-6140 near Makanur Cross, P.B Road, NH-4 respondent No.1 is the driver of Eicher Goods bearing Reg.No.AP-03/X-0678 drove the same coming from opposite direction dashed to the deceased vehicle, as a result Ramesh sustained succumbed to the injuries and taken him to Government hospital for treatment, after two days of the accident he died in the hospital?

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2. Whether the petitioner is entitled for compensation as sought in the petition? If so, what is the quantum of compensation and from whom petitioner is entitled?

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What order or award? ”

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The appellants to prove their case, examined appellant No.1 as PW-1 and got marked 8 documents as Exs.P.1 to P.8. An official of respondent No.2 was examined as RW-1 and Insurance policy of Eicher Goods vehicle was marked as Ex.R.1.

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The Tribunal upon hearing the learned counsel appearing for the parties and considering the materials placed before it, answered issue No.1 in the Negative and proceeded to

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dismiss the claim petition on the ground more specifically stated at paragraph No.18 which reads as follows:-

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“18. After going through the both decisions on which parties have placed their reliance. I have gone through the undisputed police records. In the case on hand the petitioners have got marked Ex.P1 to Ex.P8. They also produced the certified copy of charge sheet. That has not been marked by the petitioners. However judicial note of the same has been taken in order to adjudicate the matter in hand. On plain perusal of charge sheet which reveals that due to rash and negligent driving of the vehicle bearing Reg. No.KA-17/A-6140 by the deceased Ramesh the accident had occurred. It is pertinent to note that this fact has not been disputed the petitioners. Thus it is crystallized that the deceased Ramesh was a tort feasor. The accident was because of fault on part of him. It is also crystallized that the respondent No.1 who is driver of Eicher Lorry was not tort feasor and not faulty. It is important to mention that the petitioners in their petition contended that the accident was because of head on collision between both vehicles. The said contention is contrary and against the police records placed on record by the petitioners themselves. Under the circumstances the unreported decision on which the petitioners have placed their reliance does not come to their rescue. On the other hand the decision on which the insurer has placed its reliance is aptly applicable to the case on hand. In view of the evidence placed on record by the parties to the petition, the decision reported in ILR 2016 KAR 249 and reasons assigned herein above, I am of the opinion that the petitioners have utterly failed to prove Issue No.1. Under the

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circumstances I am of the opinion that the petition itself is not maintainable. In view of the discussion made herein above 1 proceed to answer Issue No. 1 in Negative.”

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Consequently, dismissed the claim petition of the appellants, which is challenged in the present appeal.

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Heard Sri.Hareesh Bhandary T., learned counsel appearing for the appellants and Sri.B.Pradeep, learned counsel appearing for the respondent No.2 and Sri.Mahesh R. Uppin, learned counsel for respondent No.3. Respondent No.1 though served, unrepresented and perused the entire materials placed before the Court.

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Sri.Hareesh Bhandary T., vehemently contended that the Tribunal has committed serious error holding that the accident is result of rash and negligent driving by the driver of the Tata Ace bearing Reg.No.KA-17/A-6140 on the ground that the compliant was lodged against him by the driver of the Eicher Goods Vehicle bearing Reg.No.AP-03/X-0678 and the police have submitted abated charge sheet. He further argued that the Tribunal has failed to consider the fact that petition filed was under Section - 163-A of MV Act, wherein, as per the provisions,

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negligence is immaterial. Admittedly, two vehicles are involved in the accident and Motor Vehicle Accident Report at Ex.P.5, clearly shows that there are damages to both the vehicles. On perusal of the Spot Mahazar at Ex.P.3, which clearly shows that there is plenty of road space available to the Eicher Goods Vehicle to avoid the accident. In view of the language used in the said provision, proof of negligence is immaterial and he seeks to allow the appeal and remand for consideration of the case of the appellants for awarding compensation.

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Per contra, Sri.B.Pradeep, learned counsel appearing for the Insurance Company submitted that the issues framed by the Tribunal is not on negligence but it is on the ground that whether the death of the deceased has resulted in the head-on collision between the two vehicles. The Tribunal has considered the case of the appellants in view of the material placed before it and comes to the conclusion that appellants have failed to prove the death is result of head-on collision between the two vehicles and has rightly dismissed the petition and seeks to dismiss the appeal.

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Sri.Mahesh R. Uppin, learned counsel for the respondent No.3 supported the judgment of the Tribunal and agreed with the arguments of learned counsel appearing for the respondent No.2.

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Having heard the learned counsel for the parties, perused the entire materials placed before the Court, the points that arise for my consideration is as under:-

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Whether the Tribunal is right in answering issue No.1 in Negative?

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Whether the matter requires remand?

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My answer to point No.1 is in ‘negative’ and to point No.2 is in ‘affirmative’ for the following:-

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R E A S O N S

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Undisputed facts are accident between two vehicles i.e., Tata Ace and Eicher Goods Vehicle, injuries suffered by the deceased and his death after couple of days, registration of the compliant by the driver of the Eicher Goods Vehicle and police have submitted abated charge sheet against the deceased. It is

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also undisputed that the petition filed was under Section 163A of the MV Act. Though the issues framed by the Tribunal state that whether the death of the deceased is caused due to head-on collision between two vehicles, but the conclusion arrived by the Tribunal is on the negligence of the deceased. The language provided under Section 163A of the MV Act does not speak about negligence but it speaks about the death or injury of accident victims. Section 163A of the MV Act is introduced by the legislature to provide compensation to the victim of injury or death on structured formula basis. In the said provision, the victims of injury or death can claim compensation without there being any need to prove negligence on the part of the owner or driver of the vehicle against whom the claim is made. Section 163A of the MV Act is no more res integra .

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The Hon’ble Apex Court in the case of UNITED INDIA INSURANCE COMPANY LTD., VS. SUNIL KUMAR AND ANOTHER IN CIVIL APPEAL NO.9694/2013 DATED 24.11.2017 has held that in a proceeding under Section-163A of the MV Act it is not open for the insurer to raise any defence of negligence on the part of the victim. The Hon’ble Apex Court

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after discussing the case at paragraphs No.6 to 9, answer the question under reference in Negative holding that it is not open for the insurer to raise any defense of negligence on the part of the victim. The same reads as under:-

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“6. Deepal Girishbhai Soni's case (supra), in fact, arose out of a reference made for a decision on the correctness of the view expressed in Oriental Insurance Co. Ltd. vs. Hansrajbhai V. Kodala and other4 that determination of compensation in a proceeding under Section 163A of the Act is final and further proceedings under Section 166 of the Act is barred. The opinion rendered in Hansrajbhai V. Kodala (supra) contains an elaborate recapitulation of the reasons behind the enactment of Section 92A to 92E of the Old Act (i.e. Motor Vehicles Act, 1939) (corresponding to Sections 140 to 144 of the present Act) introducing for the first time the concept of 'no fault liability' 4 [(2001) 5 SCC 175 in departure from the usual common law principle that a claimant should establish negligence on the part of the owner or driver of the motor vehicle before claiming any compensation for death or permanent disablement caused on account of a motor vehicle accident. In the said report, there is a reference to the deliberations of the Committee constituted to review the provisions of the Motor Vehicles Act, 1988 and the suggestions of the Transport Development Council on the basis of which the draft Bill of 1994 was enacted, inter alia, to provide for:

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"(h) increase in the amount of compensation to the victims of hit-and-run cases;

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(k) a new predetermined formula for payment of compensation to road accident victims on the basis of age/income, which is more liberal and rational."

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7. As observed in Hansrajbhai V. Kodala (supra) 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

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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. Sections 140 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.

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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 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:

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"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 mis-chief 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 de-faulting vehicles."

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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

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Section 163A(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.

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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.

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9. For the aforesaid reasons, we answer the question arising by holding that in a proceeding under Section 163A of the Act it is not open for the Insurer to raise any defence of negligence on the part of the victim.”

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The material placed before the Court including the complaint, charge sheet Spot Mahazar and Motor Vehicle Accident Report clearly shows that there is head-on collision between the vehicles as right side of both the vehicles were damaged. The Tribunal has failed to consider these points so also failed to consider the language used in Section 163A of MV Act.

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In view of the settled position of law by the Hon’ble Apex Court, in the judgment stated supra , the finding of Tribunal

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is erroneous while answering the issue No.1, accordingly calls for interference at the hands of this Court. Accordingly, the point No.1 is answered in the Negative and in favour of the appellants holding that the death is caused due to involvement of vehicles and the appellants are entitled to seek compensation under Section 163-A of MV Act.

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Insofar as point No.2 is concerned, the Tribunal after answering issue No.1 in the Negative, has observed that consideration of issue No.2 with regard to awarding compensation to the appellants in respect of death of the deceased, does not survive for consideration.

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In view of answering point No.1 in the Negative and considering the fact that the Tribunal has erred in dismissing the claim petition on the ground that the accident is caused due to negligence on the part of the deceased and deceased being the tort feasor, is not entitled for compensation, the claimants are entitled for compensation under structured formula basis as contemplated under Section 163A of the MV Act. As there is no deliberation by the Tribunal regarding quantum of compensation, the matter required to be remanded. In that view of the matter,

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the appeal succeeds and accordingly, this Court proceed to pass the following:-

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ORDER

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i) The judgment and award dated 03.01.2017 in MVC No.222/2013 passed by the Senior Civil Judge & Additional MACT, Harihar, is hereby set aside .

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ii) The matter is remanded for fresh consideration by the Tribunal only on quantum of compensation under structure formula as contemplated under Section 163A of the MV Act.

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iii) No order as to costs.

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Sd/(T.M.NADAF) JUDGE

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MH/-

Smt. Rashmi v. Mr. Venu v

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Smt. Rashmi v. Mr. Venu v

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