Smt Sundari Vs Mr K Chandraprakash Shetty

BOTH ARE R/AT DOOR NO.2-398, ANAVU HOUSE, URUVALU POST & VILLAGE, BELTHANGADY TALUK, PRESENTLY R/AT THUKRA POOJARY COMPOUND, PADIL, MANGALURU, D.K DISTRICT-575 004

¶14

…APPELLANTS

¶15

(BY SRI. RAVISHANKAR SHASTRY G.,ADVOCATE)

¶16

AND:

¶17

MR K CHANDRAPRAKASH SHETTY S/O GOPAL SHEETTY, ADULT, OCCUPATION NOT KNOWN, R/AT GOPAL NIVAS, M/S SRI MANJUNATH MOTOR, KINNIMULKI, UDUPI-576101

¶18

2 - NC: 2025:KHC:32087 MFA No. 4911 of 2017

¶19

HC-KAR

¶20

RELIANCE GENERAL INSURANCE CO LTD OFFICE AT: MAXIMUS COMMERCIAL COMPLEX, LIGHT HOUSE HILL ROAD, MANGALURU. D.K.DISTRICT REPRESENTED BY ITS

¶21

BRANCH MANAGER-575001

¶22

MR CHANDRANATH JAIN S/O NEMIRAJA KONDE, ADULT, OCCUPATION NOT KNOWN, R/AT KUNDADRY, HALEKOTE, BELTHANGADY, SOUTH KANARA, KARNATAKA-575242

¶23

NATIONAL INSURANCE CO LTD., OFFICE AT I FLOOR, SHRI KSHETRA DHARMASTHALA BUILDING, MAIN ROAD, PUTTUR, SOUTH KANARA, KARNATAKA, REPRESENTED BY ITS BRANCH MANAGER-574201

¶24

…RESPONDENTS

¶25

(BY SRI. MALLIKARJUNA REDDY N.A, ADVOCATE FOR SRI. B.PRADEEP.,ADVOCATE FOR R2; SRI.S.V.HEGDE MULKHAND, ADVOCATE FOR R4; R1 AND R3 SERVED)

¶26

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 31.12.2016 PASSED IN MVC NO.1163/2015 ON THE FILE OF THE III ADDITIONAL DISTRICT JUDGE AND MEMBER MACT-IV, D.K,MANGALURU, DISMISSING THE CLAIM PETITION FOR COMPENSATION.

¶27

THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

¶28

3 -

¶29

NC: 2025:KHC:32087 MFA No. 4911 of 2017

¶30

HC-KAR

¶31

CORAM: HON'BLE MRS. JUSTICE P SREE SUDHA

¶32

ORAL JUDGMENT

¶33

This appeal under Section 173(1) of M.V. Act arises from the Judgement and award dated 31.12.2016 passed in MVC No.1163/2015 by the III Additional District Judge and Member, MACT-IV, D.K. Mangaluru.

¶34

Heard the arguments of learned counsel appearing for both the parties.

¶35

The appellants/claimants who are the mother and sister of the deceased have filed the claim petition in MVC No.1163/2015, under Section – 166 of Motor Vehicles Act, seeking compensation of Rs.5,00,000/- with interest @ of 12% per annum on account of death of the deceased Chandrashekar K, who succumbed to the accidental injuries in a road traffic accident that occurred on 01.07.2015. The Tribunal dismissed the claim petition on the ground that the rider of the motor cycle-deceased was himself negligent. Against the said order, the appellants/claimants preferred this appeal

¶36

4 -

¶37

NC: 2025:KHC:32087 MFA No. 4911 of 2017

¶38

HC-KAR

¶39

The learned counsel for the appellants relied upon the judgment of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd -v- Sunil Kumar and Another , reported in AIR 2017 SC 5710 , wherein it is clearly held that, it is not open for insurer to raise defence of negligence on part of victim in claim proceedings under Section 163A of Motor Vehicles Act.

¶40

Admittedly, if an application is filed under 163 of the Motor Vehicles Act, the petitioner need not prove the negligence and it was clearly held by the Supreme Court time and again, but the Tribunal without considering the said fact dismissed the application. Therefore, the order of the tribunal is patently erroneous and is setaside. Accordingly, I pass the following:

¶41

ORDER

¶42

i. The appeal is allowed.

¶43

ii. The matter is remanded to the tribunal with a direction to consider the other evidence for calculation of the compensation under Section 163 of the Act, and to dispose of the matter by duly giving opportunity to both parties to lead

¶44