- 1 - ® MFA No.10130 of 2011 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE25H DAY OF JULY, 2022 BEFORE THE HON'BLE MR JUSTICE N S SANJAY GOWDA MISC. FIRST APPEAL No.10130 OF2011(MV-I) BETWEEN:
1. SRI M.BASAVARAJAPPA S/O.LATE PAKEERAPPA AGED ABOUT59YEARS COURT AMIN, COURT COMPLEX, SHIMOGA -577 201 DEAD BY LEGAL REPRESENTATIVES1. SMT.M.SHANTHAMMA W/O.LATE M.BASAVARAJAPPA AGED ABOUT60YEARS1. SRI.M.B.MALATESHA S/O.LATE M.BASAVARAJAPPA AGED ABOUT43YEARS1. SMT.M.B.DRAKSHYANI D/O.LATE B.BASAVARAJAPPA AGED ABOUT40YEARS1. SRI.M.B.NAGESH S/O.LATE M.BASAVARAJAPPA AGED ABOUT39YEARS1. SMT.M.VIJAYALAKSHMI W/O.LATE M.B.NADISH AGED ABOUT40YEARS - 2 - MFA No.10130 of 2011 1f. M.MRUTHYUNJAYA S/O.LATE M.B.NADISH AGED ABOUT14YEARS1 RASHMI D/O.LATE M.B.NADISH AGED ABOUT13YEARS1f) AND (g) MINORS REPRESENTED BY HIS MOTHER AND NATURAL GUARDIAN SMT.M.VIJAYALAKSHMI W/O.LATE M.B.NADISH AGED ABOUT40YEARS ALL ARE R/AT THRIMURTHY NAGAR3D CROSS, NAVULE SHIMOGGA …APPELLANTS (BY SRI.D.G.LAKSHMIPATHI, ADVOCATE FOR SRI.G.S.BALAGANGADHAR., ADVOCATE) AND:
1. SRI.KRISHNAMURTHY S/O.LATE LAKSHMANA RAO AGED ABOUT34YEARS AUTO DRIVER, R/O.3RD CROSS, MILLAGHATTA EXTENSION SHIMOGA- 577 201 2. SRI AFZAL S/O.VASEER R/O.ANNA NAGAR, LEFT SIDE, MANJUNATHA EXTENSION SHIMOGA -577 201 3. NEW INDIA INSURANCE CO. LTD., SHIMOGA -577 201 - 3 - MFA No.10130 of 2011 SHABBIR AHMED DEAD BY HIS LRS4 SMT ZAREENA BI W/O.LATE SHABBIR AHMED AGED ABOUT49YEARS, 5. SMT.SAMEENA D/O.LATE SHABBIR AHMED AGED ABOUT28YEARS6 SMT.BIBI AYESHA D/O.LATE SHABBIR AHMED AGED ABOUT26YEARS7 SRI DADA PEER S/O.LATE SHABBIR AHMED AGED ABOUT25YEARS8 SMT BIBI HAZEERA D/O.LATE SHABBIR AHMED AGED ABOUT21YEARS ALL ARE R/O.M.K.K. ROAD ANSAR NURSERY OPP. NAVAMI DHARSHAN CANTEEN SHIMOGA -577 201 …RESPONDENTS (BY SRI. C.R.RAVISHANKAR, ADVOCATE FOR R3; V.O.D. 09.04.2015, SERVICE TO R1 & R2 IS HELD SUFFICIENT; V.O.D. 11.02.2015, SERVICE TO R5, R6 & R7 IS HELD SUFFICIENT; R4 AND R8 IS SERVED) THIS MFA IS FILED UNDER SECTION1731) OF MOTOR VEHICLES ACT, 1988 AGAINST THE JUDGMENT
AND AWARD DATED1907.2011 PASSED IN MVC NO.858/2007 ON THE FILE OF DISTRICT JUDGE, ADDITIONAL MACT-II, I FAST TRACK - 4 - MFA No.10130 of 2011 COURT, SHIMOGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC. THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING: JUDGMENT
1 In respect of an accident that is not in dispute and the liability of the insurance company to satisfy the compensation is also not in dispute, the Tribunal has awarded the following sums: Sl. Compensation Heads of Compensation No.Awarded 1 Medical expenses Rs.42,656=00 2 Pain and Sufferings Rs.25,000=00 3 Loss of amenities, comfort, Rs.25,000=00 happiness and conveyance 4 Attendant conveyance Rs.10,000=00 5 Special diet Rs.2,000=00 6 Loss of Income during the Rs.10,872=00 period of hospitalisation TOTAL: Rs.1,15,528=00 2. The claimant, being dissatisfied, is in appeal seeking enhancement.-. 5 - MFA No.10130 of 2011 3. The injury certificate which has been issued by McGann Hospital, Shivamogga, states that the claimant had sustained a fracture of the left hip joint and he had also sustained left acetabular fracture and was hospitalised for more than fifteen days on one occasion and five days on another occasion.
4. In my view, having regard to these facts, the claimant would be entitled to a higher sum of Rs.50,000/- towards pain and suffering as against a sum of Rs.25,000/- awarded by the Tribunal.
5. The claimant would also be entitled to a sum of Rs.50,000/- towards the loss of amenities as against Rs.25,000/- awarded by the Tribunal.
6. Similarly, the attendant charges would also have to be enhanced to Rs.20,000/- as against Rs.10,000/- awarded by the Tribunal.
7. The award of compensation under other heads is maintained.-. 6 - MFA No.10130 of 2011 8. Thus, the claimants would be entitled to the following sums along with interest at the rate of six per cent per annum from the date of petition till the date of payment : Sl. Compensation Heads of Compensation No.Awarded 1 Medical expenses Rs.42,656/- 2 Pain and Sufferings Rs.50,000/- 3 Loss of amenities, comfort, Rs.50,000/- happiness and conveyance 4 Attendant conveyance Rs.20,000/- 5 Special diet Rs.2,000/- 6 Loss of Income during the Rs.10,872/- period of hospitalisation TOTAL: Rs.1,75,528/- 9. The learned counsel for the insurer, however, submitted that the claimant (Represented by his Legal representatives) had since passed away during the pendency of this appeal and therefore, the claim being one towards the personal injuries, the appeal would have to abate.-. 7 - MFA No.10130 of 2011 10. It is, no doubt, true that Section 3061 of the Indian Succession Act, 1925 does state that all demands and all rights to prosecute any action existing in favour of a person at the time of his death, would survive to his executors or administrators, except, causes of action relating to other personal injuries not causing death of the party. The provisions of Section 306 would apply to the cases in which an action for personal injuries is based on common law.
11. However, in respect of a claim under the Motor Vehicles Act, the victim of a motor vehicle accident acquires a statutory right to claim compensation. This statutory right to claim compensation under a special enactment cannot be subjected to any limitations that 1 S.306. Demands and rights of action of or against deceased survive to and against executor or administrator.—All demands whatsoever and all rights to prosecute or defend any action or special proceeding existing in favour of or against a person at the time of his decease, survive to and against his executors or administrators; except causes of action for defamation, [assault, as defined in the Indian Penal Code (45 of 1860), or other personal injuries not causing the death of the party; and except also cases where, after the death of the party].*, the relief sought could not be enjoyed or granting it would be nugatory, *Omitted vide Section 2 of the Indian Succession [Karnataka Amendment]. Act, 2014 (Karnataka Act No.29 of 2015).-. 8 - MFA No.10130 of 2011 would be imposed in respect of a claim under the general law.
12. It may be pertinent to state here that in the State of Karnataka, by way of Karnataka (Amendment) Act No.29 of 2015, has omitted the bar which existed under Section 306 of the Indian Succession Act, 1925 for continuing an action in respect of other personal injuries. Thus, in the State of Karnataka, even in respect of an action for personal injuries initiated by a person, on his death, would survive to the legal representatives of the deceased.
13. It may also be pertinent to state here that Section 166 of the Motor Vehicles Act, 1988 was amended by a Central Act No.32 of 2019 and sub-section (5) of Section 166 was inserted. Sub-section (5) of Section 1662 categorically states that the right of a person to claim compensation for injury in an accident shall, upon his 2
"166. Application for compensation: (1) x x x (5) Notwithstanding anything in this Act or any other law for the time being in force, the right of a person to claim compensation for injury in an accident shall, upon the death of the person injured, survive to his legal representatives, irrespective of whether the cause of death is relatable to or had any nexus with the injury or not."
- 9 - MFA No.10130 of 2011 death, survive to his legal representatives. Thus, the statutory right to claim compensation under the Motor Vehicles Act would survive to the legal representatives of a person who has suffered an injury, even after his death. In this view of the matter, the argument that on the death of the claimant, the claim would itself abate cannot be accepted.
14. It is to be noticed here that the very purpose of inserting sub-section (5) of Section 166 of the Motor Vehicles Act was obviously in response to the grievances of the legal representatives of the claimants for personal injuries, who were losing their statutory right to claim compensation only because of a general proposition of law applicable to the claims for personal injuries under the general law. It is also clear from this amendment that the legislature wanted to create an exception to the general rule when it came to victims of a motor vehicle accident and therefore the general principle applicable to the claims under the general law cannot be applied blindly.-. 10 - MFA No.10130 of 2011 15. It will also be stated here that under Section 166(5) of the Motor Vehicles Act, the statute uses the term ‘compensation’. The term compensation used in the provision encompasses both pecuniary loss and non- pecuniary loss. The term compensation, by its very definition, includes both pecuniary and non-pecuniary losses cannot be dissected to mean only pecuniary losses and the exclusion of non-peculiarly losses. The legislature by using the expression compensation has indicated its intent that all sums payable to the victim of an accident and if it was the intent of the legislature to restrict the right to claim only pecuniary losses would not have used the term compensation in Section 166(5) of the Act. Thus, if the law intended that the right to claim compensation would survive to the legal representatives of the deceased, it would naturally mean that it would include the right to claim compensation in respect of both pecuniary and non- pecuniary losses.-. 11 - MFA No.10130 of 2011 16. The general principle that, in a claim for personal action under the general law, that non-pecuniary losses would not survive cannot be applied to the claims for compensation under the Motor Vehicles Act. This is basically because the compensation payable under the Motor Vehicles Act is a statutory compensation which becomes payable to victims of a motor vehicle accident. If the Legislature did not choose to limit the right of the legal representative to claim compensation to only a specified kind of loss i.e., pecuniary losses, by way of a judicial pronouncement, the claim for compensation by the legal representatives of the deceased, cannot be restricted only to some specified heads of compensation, such as pecuniary losses.
17. Thus, the legal representatives of the person who had initiated an action for personal injuries, could continue the proceedings and the same would not abate even if the claim is only for non-pecuniary losses.-. 12 - MFA No.10130 of 2011 18. It will also have to be noticed here that the insertion of sub-section (5) was essentially a declaratory and also a clarificatory provision. The said subsection intended to declare that the legal representative of the deceased in a claim for compensation for personal injuries could continue the proceedings and it also sought to clarify that the application of a general proposition of law would not be applicable to a claim under the MV Act.
19. A three-Judge Bench of the Hon’ble Apex Court in the case of R. Rajagopal Reddy (dead) by LRs vs. Padmini Chandrasekharan (dead) by LRs - AIR1996SC238has held as follows: “17. As regards, reason No.3, we are of the considered view that the Act cannot be treated to be declaratory in nature. Declaratory enactment declares and clarifies the real intention of the legislature in connection with an earlier existing transaction or enactment, it does not create new rights or obligations. On the express language of Section 3, the Act cannot be said to be declaratory but in substance it is prohibitory in nature and seeks - 13 - MFA No.10130 of 2011 to destroy the rights of the real owner qua properties held benami and in this connection it has taken away the right of the real owner both for filing a suit or for taking such a defence in a suit by benamidar. Such an Act which prohibits benami transactions and destroys rights flowing from such transactions as existing earlier is really not a declaratory enactment. With respect, we disagree with the line of reasoning which commanded to the Division Bench. In this connection, we may refer to the following observations in 'Principles of Statutory Interpretation', 5th Edition 1992, by Shri G.P. Singh, at page 315 under the caption 'Declaratory statutes' :- “The presumption against retrospective operation is not applicable to declaratory statutes. As states in CRAIES and approved by the Supreme Court :
"For modern purposes a declaratory Act may be defined as an Act to remove doubts existing as to the common law, or the meaning or effect of any statute. Such Acts are usually held to be retrospective. The usual reason for passing a declaratory Act is to set aside what Parliament deems to have been a judicial error whether in the statement of the common law or in the interpretation of - 14 - MFA No.10130 of 2011 statutes. Usually, if not invariably, such an Act contains a preamble, and also the word 'declared' as well as the word enacted". But the use of the words 'it is declared' is not conclusive that the Act is declaratory for these words may, at times be used to introduce new rules of law and the Act in the latter case will only be amending the law and will not necessarily be retrospective. In determining, therefore, the nature of the Act, regard must be had to the substance rather than to the form. If a new Act is to explain an earlier Act, it would be without object unless construed retrospective. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended. The language 'shall be deemed always to have meant' is declaratory, and is in plain terms retrospective. In the absence of clear words indicating that the amending Act is declaratory, it would not be so construed when the pre-amended provision was clear and unambiguous. An amending Act may be purely clarificatory to clear a meaning of a provision of the principal Act which was - 15 - MFA No.10130 of 2011 already implicit. A clarificatory amendment of this nature will have retrospective effect and, therefore, if the principal Act was existing law when the constitution came into force the amending Act also will be part of the existing law. In Mithilesh Kumari v. Prem Bihari Khare, Section 4 of the Benami Transactions (Prohibition) Act, 1988 was, it is submitted, wrongly held to be an Act declaratory in nature for it was not passed to clear any doubt existing as to the common law or the meaning or effect of any statute. The conclusion however, that Section 4 applied also to past benami transactions may be supportable on the language used in the section.
18. No exception can be taken to the aforesaid observations of learned author which in our view can certainly be pressed in service for judging whether the impugned section is declaratory in nature or not. Accordingly it must be held that Section 4 or for that matter the Act as a whole is not a piece of declaratory or curative legislation. It creates substantive rights in favour of benamidars and destroys substantive rights of real owners who are parties to such transactions and for whom new liabilities are created by the Act.” - 16 - MFA No.10130 of 2011 20. As could be seen from the above, it is clear that the amendment to S. 166 by inserting sub-section (5) will have to be held to be retrospective in its application and will thereby apply to pending proceedings also.
21. Furthermore, having regard to the beneficial nature of the statute, it will have to be held that this amendment would also apply to pending proceedings. Merely because the claim was instituted prior to the amendment, that, by itself, would not disentitle the legal representative of the deceased to avail the benefit that the Legislature intended to confer under Section 166(5) of the Motor Vehicles Act.
22. It is to be submitted that in a proceeding to claim statutory compensation under the MV Act, the actual entitlement of the claimant as on the date of death would only be relevant. Thus, any sum that the claimant would be entitled to as on the date of his death would have to be given to his legal heirs on the ultimate adjudication of the claim and the same cannot be denied because the - 17 - MFA No.10130 of 2011 claimant had passed away during the pendency of the proceedings.
23. If the argument of the other side were to be accepted, then the long pendency of the litigation would deprive the person who was entitled to the statutory compensation and his legal representative who also had endure the pain and agony along with the claimant and had contributed their time and money would also be deprived of the compensation. Therefore, the argument of the learned counsel in this regard cannot be sustained.
24. The Tribunal has absolved the insurance company of its liability on the ground that the driver of the Auto- rikshaw did not possess an endorsement in his driving licence to drive a passenger carrying commercial vehicle as on the date of the accident.
25. This reasoning by the Tribunal cannot be sustained in view of the judgment rendered by the Hon'ble Apex Court in Mukund Dewangan vs. Oriental Insurance - 18 - MFA No.10130 of 2011 Company Limited - (2017) 14 SCC663 and consequently, the insurance company would have to be made liable for the compensation.
26. Accordingly, the insurance company is directed to deposit the entire compensation with interest within two months from the date of receipt of a certified copy of this judgment.
27. The amount in deposit, if any, is ordered to be transmitted to the Tribunal forthwith for disbursement in terms of the award.
28. The appeal is allowed accordingly to the extent stated above. SD/- JUDGE RK ct:AN