Full Judgment
- 1 - MFA No.658 of 2010 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE30H DAY OF SEPTEMBER, 2022 BEFORE THE HON'BLE MR JUSTICE C M JOSHI MISCELLANEOUS FIRST APPEAL No.658 OF2010(MV) BETWEEN:
1. THE BRANCH MANAGER THE ORIENTAL INSURANCE CO.LTD., BRANCH OFFICE, OPP. TO KEB OFFICE M.C.ROAD, MANDYA571401. BY ORIENTAL INSURANCE CO.LTD., REGIONAL OFFICE, NO.44/45, LEO SHOPPING COMPLEX, RESIDENCY CROSS ROAD, BANGALORE-560 025 BY ITS MANAGER. …APPELLANT (BY SRI. O MAHESH., ADVOCATE) AND:
1. M DINESH MAJOR, S/O LATE MELAGIRIYAPPA C/O RAJU K. SHETTIHALLI VILLAGE SRIRANGAPATNA TALUK MANDYA DISTRICT.
2. B N LAKSHMINARASIMHA MAJOR, NO.895, 16TH MAIN, 3RD BLOCK, RAJAJINAGAR, BANGALORE560010. …RESPONDENTS (BY SMT. APEKSHA D., ADVOCATE FOR R1; R2 - SERVED) - 2 - MFA No.658 of 2010 THIS MFA IS FILED U/S1731) OF MV ACT AGAINST THE JUDGMENT
AND AWARD DATED0608.2009 PASSED IN MVC NO.848/2003 ON THE FILE OF THE MEMBER, ADDITIONAL MACT, SRIRANGAPATNA, AWARDING A COMPENSATION OF Rs.4,09,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF THE PETITION TILL THE DATE OF DEPOSIT IN THE TRIBUNAL AND TO SET ASIDE THE SAME. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT
AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, COURT DELIVERED THE FOLLOWING: JUDGMENT
This appeal arises out of the judgment and award passed in MVC No.848/2003 by the Additional MACT, Srirangapatna, on 06-08-2009, whereby, the petition under Section 163A of MV Act, came to be partly allowed by granting a compensation Rs.4,09,000/- together with interest with a direction to the Insurer to pay the said compensation. The insurance company, who is arrayed as respondent No.2 in the petition has approached this Court in appeal.
2. The parties would be referred to as per their ranks before the Tribunal for the sake of convenience.-. 3 - MFA No.658 of 2010 3. The brief facts are that on 05-07-1999 at about 2.00 p.m. while the deceased Sri Ramesh along with his wife and relatives was traveling in Maruthi Car bearing No.CKR9992from Bangalore to Sathanur, near Singaiyanakere, the driver Ramesh lost control and dashed to guard stone and then dashed to roadside tree. The said Ramesh, his wife Leela and the relative Pramila died in the said accident and two other inmates i.e. PW.2 Sujatha and one Ranga sustained injuries. The petitioner who is the brother of the said Ramesh, rushed to the spot and later, performed the obsequies of the deceased. Deceased Ramesh and his wife Leela had no children and therefore, the petitioner being the only legal heir of the deceased, claimed that he is entitled for the compensation of Rs.10,00,000/-.
4. It is also stated that Talaghattapura Police have registered a case in Crime No.93/1999 for the offences under Sections 279, 337 and 304 of IPC. It is contended that respondent No.1 was the owner of the vehicle and - 4 - MFA No.658 of 2010 respondent No.2 was the insurer and the policy was in force and as such, they are liable to pay the compensation to the petitioner.
5. It is relevant to note that, initially, the petition was filed under Section 166 of M.V. Act, and the income of the deceased from his Granite Business was shown to be Rs.10,000/- per month. Later, after filing of the affidavit evidence of PW1, the petition was amended and instead of Section 166 of MV Act, it was converted to a petition under Section 163A of M.V. Act and also the income of the deceased was amended to be Rs.3,000/- per month.
6. On issuance of notice, respondent No.2- Insurance Company appeared before the Tribunal and filed objections contending that the driver of the vehicle is alleged to have driven the same in a rash and negligent manner and therefore, respondent No.2 is not liable to pay any compensation. Apart from that, the other standard defences that the petitioner be put to strict proof of the fact that the driver was having driving licence and the - 5 - MFA No.658 of 2010 quantum claimed is exorbitant, etc., were also taken by the Insurance Company.
7. The Tribunal framed following issues:
"1. Whether the petitioner proves that on 5-7- 1999 at about 2 p.m. his brother Ramesha was driving the Maruthi vehicle bearing No.CKR9992from Bangalore side towards Sathnur along with his wife and relatives and the aid vehicle while arrived near Singaiahnakere of Nelaguli village the said Ramesh who was the driver of the vehicle lost the control of the vehicle and the vehicle dashed to the guard stone of the road and it further dashed to side tree and fell into the halla and thereby the aid Ramesha sustained grievous injuries and succumbed to the injuries as pleaded in the petition?.
2. Whether the petitioner is entitled compensation from the respondent as prayed for?.
3. What order or award?.
8. The petitioner was examined as PW1 and Exs.P1 to P6 were marked and one of the inmate of the car was examined as PW2.
9. After hearing both the sides, the Tribunal held that the notional income of the deceased has to be taken at Rs.3,000/- per month in the absence of any other proof - 6 - MFA No.658 of 2010 of income and partly allowed the petition by awarding a sum of Rs.4,09,000/- as compensation.
10. It is also to be noted that during the pendency of the petition, an application under Section 140 of M.V. Act, was filed by petitioner, the Tribunal directed Insurance Company to deposit a sum of Rs.50,000/- and paid to the petitioner. Such an order was complied by the respondent No.2 -Insurance Company and the sum of Rs.50,000/- has been disbursed to the petitioner.
11. Aggrieved by the said judgment and award, the Insurance Company is in appeal before this Court.
12. The grounds contended by the appellant are that, the Tribunal erred in holding that it had the territorial jurisdiction and that the petition ought to have been filed at Bangalore. It was also contended that when it was specifically pleaded that the deceased who was driving the vehicle was a businessman having Granite business and an income of Rs.10,000/- per month, it was not open for the petitioner to convert the petition to be one under Section - 7 - MFA No.658 of 2010 163A of M.V. Act. It is contended that the petition speaks of the fault liabilities and only by amending the provisions and income it cannot be brought under the purview of Section 163A of M.V. Act. Therefore, when it is an admitted fact that the accident was due to the negligence of the deceased Ramesh, the present petition by his brother is not maintainable. Therefore, the Insurance Company sought for dismissal of the petition.
13. After filing of this appeal, notice was issued to the petitioner/respondent No.1 and he has appeared through his counsel and respondent No.2 served and unrepresented. The Tribunal records have been secured.
14. Heard the learned counsel for the appellant and learned counsel for respondent No.1.
15. The learned counsel appearing for the appellant- Insurance Company vehemently contended that the petitioner had filed the petition under Section 166 of MV Act and later, converted the same by way of amendment to the one under Section 163A of M.V.Act, which is - 8 - MFA No.658 of 2010 prima-facie impermissible. He contends that the amendment of the petition though permissible, the income of the deceased could not have been brought down so as to bring the petition within the purview of Section 163A of M.V. Act. Therefore, he contends that the benefit available under Section 163A could not have been granted to the petitioner. The petitioner should have proved the fault liability as envisaged under Section 166 of M.V. Act. The deceased having driven the vehicle by himself and no other vehicle being involved in the accident, it was a self made accident and as such, the driver is not entitled for any compensation. It is contended that the tortfeasor himself cannot maintain a petition against the Insurance Company for his own negligence and therefore, fastening of the liability on the appellant is impermisible. He would contend that by bringing the petition under Section 163A of M.V. Act, the petitioner could not have put a cap on the income of the deceased though he was earning Rs.10,000/- per month as previously contended by him. It is submitted that at relevant point of time, the policy did - 9 - MFA No.658 of 2010 not cover the inmate of the vehicle and as such the insurance cover was not available to the driver.
16. Per contra, learned counsel appearing for the respondent No.1/petitioner has contended that the petitioner can very well bring the income of the deceased within the purview of Section 163A of M.V. Act and that there is absolutely no material on record to show that the deceased was having an income of more than Rs.40,000/- per annum. She has supported the impugned judgment to be proper and correct.
17. On hearing the learned counsel for both the sides, the only point that arise for consideration is, Whether the petitioner could have brought the petition under Section 163A of M.V. Act, by way of an amendment though the deceased had a higher income?.
18. For better understanding, the provisions of Section 163A of MV Act, is reproduced below:
"163A. Special provisions as to payment of compensation on structured formula basis.- - 10 - MFA No.658 of 2010 (1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be. Explanation.-For the purposes of this sub-section, “permanent disability” shall have the same meaning and extent as in the Workmen’s Compensation Act, 1923 (8 of 1923). (2) In any claim for compensation under sub- section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person. (3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule.
19. It is worth to note that, for a petition to be maintainable under Section 163A of M.V.Act, the petitioner need not prove the negligence. Therefore, when a petition is filed under Section 163A of M.V. Act, the Tribunal need - 11 - MFA No.658 of 2010 not consider whether the accident happened due to actionable negligence or not. It would suffice, if the petitioner prove that the accident had occurred by the use of the vehicle. The question of negligence become alien in respect of a petition filed under Section 163A M.V. Act. Having said that, invocation of Section 163A can be done only if the conditions mentioned therein are fulfilled.
20. The Apex Court had an occasion to consider the interplay of Section 140, 163A and 166 of Motor Vehicles Act, in the case of Deepal Girishbhai Soni and others Vs. United India Insurance Co.,Ltd.,1. The question that were referred to the Full Bench of the Apex Court was to clarify whether the petition under Section 163A of M.V. Act, is a final proceeding or whether it is a interim proceeding in respect of petition filed under Section 166 of M.V. Act. No-doubt, the Apex Court has held that, if a petition is filed under Section 163A of M.V. Act, then a petition under Section 166 of M.V. Act, will not be 1 2004 (5) SCC385- 12 - MFA No.658 of 2010 maintainable and vice versa. However, it held that Section 140 of M.V. Act, provide for an interim relief both for the petition under Sections 163A and 166 of M.V. Act. The view taken in the case of Oriental Insurance Company Ltd., Vs. Hansrajbhai V. Kodala2 was held to be correct.
21. While deciding the said matter, in paras 66 and 67, while affirming the view taken in Kodala's case, it is observed as below:
"66. We may notice that Section 167 of the Act provides that where death of, or bodily injury to, any person gives rise to claim of compensation under the Act and also under the Workmen's Compensation Act, 1923, he cannot claim compensation under both the Acts. The Motor Vehicles Act contains different expressions as, for example, "under the provision of the Act", "provisions of this Act", "under any other provisions of this Act" or "any other law or otherwise". In Section 163-A, the expression "notwithstanding anything contained in this Act or in any other law for the time being in force" has been used, which goes to show that the Parliament intended to insert a non- obstante clause of wide nature which would mean that the provisions of Section 163-A would apply despite the contrary provisions existing in the said Act or any other law for the time being in force. Section 163-A of the Act covers cases where even negligence is on the part of the victim. It is by 2 2001(5) SCC175- 13 - MFA No.658 of 2010 way of an exception to Section 166 and the concept of social justice has been duly taken care of. Conclusion :
67. We, therefore, are of the opinion that Kodala (supra) has correctly been decided. However, we do not agree with the findings in Kodala (supra) that if a person invokes provisions of Section 163- A, the annual income of Rs.40,000/- per annum shall be treated as a cap. In our opinion, the proceeding under Section 163-A being a social security provision, providing for a distinct scheme, only those whose annual income is upto Rs.40,000/- can take the benefit thereof. All other claims are required to be determined in terms of Chapter XII of the Act".
22. Thereafter, a Division Bench of this Court in the case of United India Insurance Co.,Ltd and others Vs. Anitha and others3, has dealt with the matter by considering the decision in Deepal Girishbhai's case and held in para 6 as below:
"It is, therefore, clear from the above decision in law that only persons whose annual income is upto Rs.40,000/- can take the benefit of Section 163-A and no other persons and all other clients are required to be dealt with in terms of Section XII of the Act. Such being the decision in 3 ILR2007 Karnataka 28 - 14 - MFA No.658 of 2010 law, the Tribunal could not have allowed the petition as if it was under Section 163-A by scaling down the annual income from Rs.1,20,000/- to Rs.40,000/- so as to bring the case within the purview of Section 163A. As such, we find enough force in the submission made by the learned counsel for the insurance company and the Tribunal ought not to have allowed the petition under Section 163-A. Therefore, the appeal No.8622/2003 is concerned, on this score alone, the appeal filed by the insurance company deserved to be allowed by setting aside the order of the Tribunal. Consequently, the appeal filed by the National Insurance Company in M.F.A. 816/04 also deserves to be allowed on the very same ground and accordingly, the other two appeals are allowed by setting aside the judgment of the Tribunal in M.V.C.No.785/99".
23. This view of the Division Bench was preceded by another decision of the Division Bench in the case of Sharabai alias Sharada and another Vs. P. Sahebkhan and others4. 4 2005 SCC Online Karnataka 293:2006 ACJ229 - 15 - MFA No.658 of 2010 24. It is relevant to note that in Sharabai's case, the Division Bench did not consider about the scaling down of the income of the deceased to bring the petition within the purview of Section 163A. It was observed as below:
"7. Admittedly, the appellants-claimants made application only under Section 163-A of the Act. The argument of the learned Counsel for the Insurance Company is that since in the said application it was claimed by the claimants that the deceased was earning yearly income of Rs.1,00,000/- and since that income is more than Rs.40,000/-, the application filed by them is not maintainable and that application ought to have been treated as the one filed under Section 166 of the Act and dealt with accordingly. This submission is not acceptable to us for more than one reason. The pleading of a party can never be placed on the pedestal of a law. Simply because the claimants have under a wrong perception or appreciation of the facts asserted a fact which they cannot prove, that circumstance itself without anything further has no legal efficacy to determine the jurisdiction of the Motor Accidents Claims Tribunal. The jurisdiction of the Motor Accidents Claims Tribunal is determined by the law and not by pleading of a party who invokes its jurisdiction. Be that as it may, it is not a finding of the Motor Accidents Claims Tribunal that the yearly income of the deceased was more than Rs.40,000/-. On appreciation of oral and documentary evidence, the Tribunal has recorded a finding that the deceased was earning only Rs.2,400/- per month. That means that the deceased was earning Rs.28,800/- per annum........"
- 16 - MFA No.658 of 2010 On above premise, it proceeded to grant the compensation to the claimant.
25. Lastly, the decision in a case of National Insurance Company Vs. Annie Varkey and others5 decided by Punjab and Haryana High Court notes the question "whether petition under Section 166 of M.V. Act can be scaled down by bringing the income within the purview of Section 163A of M.V. Act. It was observed in para 13 as below:
"13. I have gone through the judgments referred to above by Mr. Ashish Grover and find that these do not help his case. The Hon'ble Karnataka High Court in Sharabai and another's case (supra) did not lay down that a petition can be brought under Section 163-A of the Motor Vehicles Act by claiming the lesser income than the one which was being drawn by the deceased. The Hon'ble High Court merely held that the pleadings of a party could never be placed on the pedestal of finding by Tribunal. In the said case, the Hon'ble High Court held that the claimants had claimed that the income of the deceased was Rs. 1,00,000/- but the finding recorded by the Tribunal was that they failed to prove the same on record. The Hon'ble High Court went on to hold that it was not the finding of the Tribunal that yearly income of the deceased was more than Rs.40,000/-. Thus, this 5 2007 ACJ1827- 17 - MFA No.658 of 2010 judgment is of no help to the case of the respondents. Our own High Court in the case of Ravinder and Anr. (supra) also did not hold that a petition under Section 163-A of the Act would be competent in case income of the deceased was more than Rs.40,000/-. In the said case, this Court refused to interfere in exercise of its revisional jurisdiction under Article 227 of the Constitution of India against the order allowing the amendment of the claim petition to convert it from one under Section 166 to one under Section 163-A of the Motor Vehicles Act with a view to restrict the income to less than Rs.40,000/-. Similarly, the judgment of this Court in Gurmeet Kaur's case (supra) is also of no help to the respondents as in that case this Court was pleased to hold that the claimants can be permitted to scale down their claim and mention correct income of the deceased. In the case in hand, the correct income of the deceased was Rs.12,000/- per month. Therefore, it was not open to the claimants to forego part of the claim, so as to bring the claim under Section 163- A of the Motor Vehicles Act".
26. In view of the decisions of the Apex Court in Deepal Girishbhai Soni and others' case as well as in Anitha and others' case referred supra, the position of law is clear. The decision of the Punjab and Haryana High Court has only persuasive effect on this Court and it cannot be a binding precedent. But what has been stated in Deepal Girishbhai Soni and others' case, reiterated by the Division Bench of this Court holds the field. Having - 18 - MFA No.658 of 2010 considered the above dicta by the Division Bench of this Court and the decision of the Apex Court and also the observation by Punjab and Haryana High Court, what emerges is that, (a) the provisions of Section 163A are in the nature of a social security legislation and as such, the claimant cannot be permitted to bring a petition under Section 163 A of MV Act, by capping his income to Rs.40,000/- per annum. (b) Such scaling down of the income for the purpose of availing the compensation cannot be permitted. Albeit, if the income per se is below Rs.40,000/-, petition can be converted to the one under Section 163A by bringing an amendment. (c) In case, the petition is filed under Section 163A of M.V. Act, and the evidence on record regarding the income is to the effect that it is above Rs.40,000/-, the petition is liable to be rejected, unless, it is converted to one under Section 166 of M.V. Act.-. 19 - MFA No.658 of 2010 27. These propositions, of course, pose an anomaly. If a person having income of Rs.50,000/- is injured/died in an accident out of his own negligence, he or his legal heirs are not entitled for any compensation; however, if he had income of Rs.40,000/- or less, then they are entitled for compensation if the petition is filed u/s 163A of MV Act.
28. Coming to the facts of the present case, it is evident that the petitioner being the brother of the deceased filed a petition under Section 166 of M.V. Act, by showing the income of the deceased as Rs.10,000/- per month from the Granite business and later, converted the same to a petition under Section 163A of M.V. Act and restricted the income to Rs.3,000/- per month. Of course, the petitioner has not led any evidence to show the proof of income of the deceased, except his oral testimony. It is relevant to note that the application for amendment of the petition was filed on 01-08-2005. Even prior to it, on 29-04-2004, the petitioner had filed his affidavit evidence as PW1. In the said affidavit, the petitioner had - 20 - MFA No.658 of 2010 categorically sworn to the fact that the deceased was having an income of Rs.10,000/- per month from Granite business and that he was aged 33 years at the time of the accident. This categorical admission, cannot be taken away by filing another affidavit. Even the Court had examined PW1 on 29/1/2004 and Exs.P1 to P6 were marked in evidence.
29. Subsequent to allowing of IA No.6 dated 01-08-2005, the petition and the income of the deceased came to be amended, thereby, bringing the petition under Section 163A of M.V. Act. Thereafter, he filed another affidavit, wherein, he contended and sworn that, the deceased was earning a sum of Rs.3,000/- per month from granite business. No documentary evidence is placed on record to show the income of the deceased. PW1 was cross-examined by the Insurance company on 7-7-2007, where nothing is brought out about the income.
30. When we examine the above facts in the light of the law laid down concerning Section 163A of M.V. Act, it - 21 - MFA No.658 of 2010 is evident that the contentions of the petitioner that the deceased was having an income of Rs.10,000/- per month cannot be brushed aside and as such, the petition under Section 163A cannot be entertained. Obviously, the oral testimony of PW1 dated 29-4-2004 cannot be annihilated by a subsequent affidavit/testimony. An admission on affidavit remains on record. It is clear that the petitioner in order to bring petition under Section 163A of M.V. Act has caped the income of the deceased at Rs.3,000/- per month. This is directly in the teeth of the observations made by the Apex Court in Deepal Girishbhai Soni and others' case. Hence, the point is answered accordingly and the appeal deserves to be allowed.
31. During the pendency of the petition, Respondent No.1 had filed an application under Section 140 of M.V. Act and in pursuance to the same, the Tribunal had ordered the appellant Insurance Company to deposit a sum of Rs.50,000/-. Accordingly, the appellant deposited the said amount and it has been disbursed to the petitioner - 22 - MFA No.658 of 2010 respondent No.1. Since the appeal has to be allowed, the respondent No.1 has to be directed to refund the said amount to the appellant.
32. Hence, the following: ORDER
(i) The appeal is allowed. (ii) The impugned judgment and award dated 06-08-2009 passed in MVC No.848/2003 by the Tribunal is hereby set aside. (iii) The petition in MVC No.848/2003 stands dismissed. (iv) The interim compensation received by the petitioner /respondent No.1 is ordered to be refunded to the appellant-Insurance Company without any interest. Sd/- JUDGE tsn*