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2006 Supreme(Kar) 336
Karnataka High Court
Judges : V.GOPALA GOWDA,JAWAD RAHIM
LEELAVATHI ALIAS LEELAMMA - Appellant
Versus
CHANDRA MOULI - Respondent
MFA 10166 Of 2005
Decided On : 04/12/2006
Advocates Appeared :
A.N.Hegde, A.N.Krishna Swamy, A.N.KRISHNA SWAMYMY, G.REVATHY, S.P.SHANKAR
Headnote:Motor Accident Claims - Principles - Appeal of insurance company - Not maintainable in the absence of permission of MACT.
Cases Referred: 2002 (7) SCC 456; AIR 2000 SC 1165; AIR 2005 Sc 3110; ILR 1990 Kar 4300; ILR 2002 Kar 1864; AIR 1947 SC 18; AIR 2006 SC 557; 2004 AIR Kar H.C.R. 2287.
Motor Vehicles Act, 1988 - Section 173 - Appeal of insurer - Maintainability - In the absence of order on application under Section 170 seeking permission, insurer cannot maintain appeal.
Cases Referred: 2002 (7) SCC 456; AIR 2000 SC 1165; AIR 2005 Sc 3110; ILR 1990 Kar 4300; ILR 2002 Kar 1864; AIR 1947 SC 18; AIR 2006 SC 557; 2004 AIR Kar H.C.R. 2287.
Motor Vehicles Act, 1988 - Section 166 - Death of claimant/ injured - Effect - Death of injured during pendency of his claim petition - Can his heirs be non suited - When permissible - If death of injured and accident have a close nexus, his heirs cannot be non suited. [Jawad Rahim, J]: We have examined the medical evidence with all seriousness and appreciated the same inthe perspective it deserves. We are satisfied the medical evidence, establishes that the death of H.C. Chetan Kumar on 2-7-2003 was result of injuries suffered by him in the road traffic accident occurred on 13-9-2003 was result of injuries suffered by him in the road the sufference of injuries and his ultimate death is well established. Proved facts, therefore, compl us to record that the conclusion arived at by the Tribunal that H.C. Chetan umars death is result of sufferance of injuries in the road traffic accident in question, requires to be confirned. In the resultant position even by applying the dictum of decisions referred, we are satisfied that th emaxim Acto personalis moritur cum persona-Personal action dies with the parties to the cause of action, is not applicable to the facts of this case. Petiton is maintainable and the death of H.C. Chetan Kumar created cause of action for the claimants to seek compensation as provided for under the provisions of Section 166 of the M.V.Act. We, therefore, discount all the contentions of insurance company regarding right of the claimants to maintain petition and give quietus to the finding of the Tribunal on this question.
Cases Referred: 2002 (7) SCC 456; AIR 2000 SC 1165; AIR 2005 Sc 3110; ILR 1990 Kar 4300; ILR 2002 Kar 1864; AIR 1947 SC 18; AIR 2006 SC 557; 2004 AIR Kar H.C.R. 2287.
Motor Vehicles Act, 1988 - Section 170 - Permission under - Application by insurer - Procedure to be followed by tribunal. [Jawad Rahim, J]: The law is well settled that when the Insurance Company seeks permission to contest the case on all grounds, the tribunal is required to consider such grounds on its merit. If the ground urged int he application is that there is collusion between the owner and the claimant, the Insurance Company must sustantiate it. Likewise, if it is a ground that insured has failed to contest the case, the Tribunal must examine such contention with reference to the conduct of the insured. In either case the burden is upon the Insurance Compnay to substantiate existence of circumstances enumerated in claude (a) and (b) of Section 170 of the Motor Vehicle Act. If such grounds are urged and substantiated, the Tribunal has to consier it on its merits and pass a considered order justifying the grant of permission to the Insurance Company to enlarge the defence available to it unde rSection 149(2) of the Act and contest the case on all grounds. In the instant case, it is not disputed that the Tribunal has not passed any considered order, much less any order disposing of the aplication. While emphsizing that when the Insurance Company seeks permission invoking section 170 of the Motor Vehicle Act, it is incumbent uponthe Insurance Comany to establish existence of the circumstances for grant of such permission, it is equally necessary as a statutoryly reauired that the Tribunal must pass a considered order, in the absence of which, if the application is disposed of mechanically with cryptic orders, it will be no roder in law.
Cases Referred: 2002 (7) SCC 456; AIR 2000 SC 1165; AIR 2005 Sc 3110; ILR 1990 Kar 4300; ILR 2002 Kar 1864; AIR 1947 SC 18; AIR 2006 SC 557; 2004 AIR Kar H.C.R. 2287.
( 1 ) MFA10166/05 is an appeal by the Insurer and MFA11578/ 05 is by the claimant challenging the Judgment and Award of addl. MACT, Tumkur in MVC 974/2000 dated 7. 10. 2005. While the Insurer seeks to negate the liability fastened upon it to discharge the award, the claimants have sought for enhancement being not satisfied with the grant.
( 2 ) THESE appeals had come up for admission and at the request of both sides it has been taken up for disposal on merits.
( 3 ) WE shall, during the course of Judgment refer to the parties according to the rankings in the Trial Court for the sake of brevity and better appreciation of the grounds urged by them. In that, the appellant in MFA 11578/05 shall be referred to as claimants and the appellant in MFA 10166/05 shall be referred to as appellant insurer.
( 4 ) PERUSAL of the impugned Judgment and Award as also the grounds of the appeal indicate that, young boy named Chetan Kumar who was at the verge of completion of law degree studying in Tumkur and the only surviving son of the claimants namely Leelavathi and sadashivaiah suffered injuries in road traffic accident while riding yamaha Motor Cycle KA-06. 6659 within the territorial limits of belenahalli Village in Tumkur District. The motor cycle was hit by lorry bearing No. KA. 06. 8818 driven in a rash and negligent manner by its driver namely Yogesh. The accident said to have occurred on 12. 9. 1999 at about 12. 30 a. m.
( 5 ) CHETHAN Kumar who suffered head injury was immediately shifted to the local hospital for first aid and subsequently he was shifted to Bhagwan Mahaveer Jain Hospital, Bangalore. The injuries caused to his person, as noticed by the Medical Officer, showed his condition was serious. He was subjected to surgeries and other procedures, but remained in the state of coma for nearly three years and 10 months. From the date of accident he neither gained consciousness nor was in a position to be revived. During this period he was shifted to several major specialty hospitals periodically as he had developed several complications. He succumbed to injuries on 2. 7. 2003 nearly after three years and ten months.
( 6 ) AS the injured was in the state of comma, his mother filed claim petition claiming compensation of Rs. 25 lakhs towards medical expenses but after his demise they were substituted as legal representatives. The claim was lodged against the Driver-Yogesh and the Owner of the lorry KA 06 8818- Chandramouli, as also the insurer of the offending lorry namely National Insurance Company Limited. , tumkur, seeking compensation.
( 7 ) THE claim was resisted by the respondent-Insured owner as also Insurer. Yogesh, the driver of the lorry did not contest.
( 8 ) THE insurer has vehemently refuted the charge that the vehicle insured by it was involved in the accident However, the owner admitted involment of his vehicle in the road accident and in this regard his admission was taken on record. It so transpired that the Tribunal having received the evidence tendered by the claimants and also respondents passed award on 2. 8. 2004 which was assailed before this Court in appeal MFANo. 8214/04. This Court allowed the appeal in part. As the claimants had also challenged the award, it was set aside, the claim petition was remanded to the Tribunal for further consideration after giving opportunity to both the sides to lead evidence in support of their claim. The insurer was permitted to obtain prior permission to contest the claim as required under Section 170 of the act. The Tribunal during fresh inquiry, received evidence as offered by the parties and passed award on 7. 10. 2005 granting to the claimants in all compensation of Rs. 27,58,499/- with interest at 8% per annum that judgment and award is impugned in these appeals. 8. We have heard Learned Counsel Sri A. N. Krishna Swamy for the Insurer-Appellant and Learned Senior Counsel Sri S. P. Shankar, for claimants, in supplementation to the material on recor
