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2008 Supreme(Kar) 759
IN THE HIGH COURT OF KARNATAKA
K.L. Manjunath,B. V. Nagarathna
Oriental Insurance Co. Ltd. - Appellant
Versus
Sharada - Respondents
M.FA No.7838/2003
Decided On : 11/14/2008
Appellant: Sri A. N. Krishna Swamy, Adv.
Respondents: Sri Sripad V. Shastri Adv, for Rl-4.
Headnote:(A) Motor Vehicles Act, 1988 Section 163-A - Claim petition under Notwithstanding anything contained in Act or any other law for time being in force, owner or insurer of a motor vehicle is liable to pay as per Schedule-II in respect of death or permanent disablement due to accident arising out of use of a motor vehicle - Claimant can seek compensation in terms of formula provided under Schedule-II without pleading or establishing negligence on part of owner of vehicle or vehicles concerned or of any other person.
(B) Motor Vehicles Act, 1988 Sections 163-A, 166 and 140 Accident occurring on account of victims negligence - Accident involving no other tort-feasor Injured/claimant or legal representatives of deceased would be entitled to compensation under Section 140 of Act on no fault basis and their claim under Section 163-A of Act is not maintainable - When a claim petition is filed under Section 166 of Act, same cannot be permitted to be converted to one under Section 163-A of Act as it would amount to change in basis of cause of action and as such amendment is not permissible - Even in case where claimants or deceased himself was solely negligent in causing accident, compensation to extent stated under Section 140 has to be awarded and on basis of strict liability and no claim petition can be rejected on ground that rider of vehicle or driver solely contributed to accident.
Held: Tribunal was not right in permitting the conversation of the claim petition filed under Section 166 of the Act to one under Section 163-A of the Act as the claim petition under Section 166 or Section 164A was not maintainable.
The Tribunal was not justified in awarding compensation in terms of Schedule-II of the M.V. Act which is to be read as part and parcel of Section 163-A by restricting the annual income of the deceased to Rs.39,000/- (Rs.40,000/- being the ceiling under the Schedule-II). (Paras 27,28)
(C) Motor Vehicles Act, 1988 Section 140 - Strict liability under Owner of motor vehicle is liable to pay in terms of said section where death or permanent disablement of any person occurs on account of accident arising out of use is Rs.50,000/- in case of death and Rs.25,000/- in case of an injury and claimant is not required to plead and establish that death or permanent disablement was due to any wrongful act, neglect or default of owner of vehicle or vehicles concerned or of any other person In case claimant is entitled to compensation under any other law they would be so entitled despite amount of compensation fixed under sub-section (2) of Section 140 but if • a claim is made under Section 163-A or under any other law then any compensation awarded under Section 140 of Act would be reduced to that extent.
Held: A combined reading of sub-sections (1), (2) and (3) of Section 140 would imply that the liability is in the realm of strict liability, but there is a ceiling put on the compensation that can be claimed.
However, under sub-section (4) of Section 140, the right of the claimant under subsection (1) of Section 140 cannot be defeated or reduced on the basis of the share of such person (injured claimant or the deceased) in the responsibility of such death or permanent disability. This means that where the injured claimant or the deceased had contributed to the negligence to any extent even then under sub-sections (1) and (2) the claim petition can succeed. (Para 14)
(D) Motor Vehicles Act, 1988 Section 166 - Burden on claimants Claim petition under - Claimants to make a statement that no claim for compensation under Section 140 has been made - It is incumbent upon claimants to prove negligence on the part of the for-feasor.
(E) Motor Vehicles Act, 1988 Section 175 - Motor accident claims - Jurisdiction - It is only Motor Accident Claims Tribunal that is invested with jurisdiction for determination of claims in respect of death or bodily injuries on account of use of a motor vehicle - There is a bar of jurisdiction on civil Court to entertain a claim petition.
B. V. Nagarathna, J.
This Appeal is filed by the insurance company being aggrieved by the judgment and award passed in MVC.No. 2680/2000 dated 7.2003 by MACT, Bangalore (SCCH 7) challenging the liability to pay compensation.
2. The relevant facts of the case are that the on 17.2.2003 at about 10.45 p.m.
one Muniyappa was riding scooter bearing No. KA 01/J-8690 on Hosur Lashker Road from Adugodi towards Madiwala, Bangalore. When he came near Pizza Corner a pedestrian came in front of the scooter suddenly and in order to avoid an accident, Muniyappa turned the scooter towards the extreme left side of the road and dashed against the road divider and fell down and sustained serious injuries and later died in the Hospital, contending that they had lost the bread earner of the family, the legal representatives of Muniyappa filed a claim petition under Section 166 of the MV Act but later during the course of trial got the petition amendment to one under Section 163-A as per the order of amendment dated 10.2002.
3. On receipt of notice from the Tribunal, Respondent No. 5 herein, the owner of the scooter appeared and filed his written statement denying the accident and seeking dismissed of the petition. The appellant-Insurance company filed its written statement denying the entire averments of the claim petition and specifically contending that the deceased Muniyappa was himself negligent in causing the accident. Therefore, his legal representative are not entitled to maintain the claim petition as there was violation of the terms and conditions of the policy and therefore sought for dismissal of the same.
4. Based n the above pleadings, the Tribunal framed the following issues.
"1.Whether the petitioners prove that the deceased M. Muniyappa S/o Muniswamy died in road traffic accident that occurred on 17.2.2000 at about 10.45 p.m. on Hosur road near Pizza Corner, Adugodi (within the limits of Adugodi Police Station) when he was proceeding on scooter No. KA-01/J-8690 ?
2. Whether the petitioners prove that, they are the legal representatives of the deceased?
3. Whether the petitioners prove that they are entitled for compensation as claimed and from whom?
4. What award or order ?"
5. In support of the case, Respondent No. 1 to 4/Claimants Examined pt Respondent as P. W. 1 and got marked EX.P1 to P8 while no evidence was let in by the other side. Based on the material on record the Tribunal granted Compensation Rs. 3,98,000/- with interest at the rate of 6% p.a. from the date of petition till realization. Being aggrieved by the said judgment and award the insurance company has preferred this appeal.
6. We have heard Sri A.N.Krishnaswammy learned counsel for appellant and Sri Sri pad Shastry learned Counsel for Respondent 1 to 4.
7. It is submitted on behalf of the appellant that the Tribunal was not correct in awarding compensation to an extent of Rs.3,98,OOO/- since the claim petition was initially filed under Section 166 of the M.V.
Act and after becoming aware that the said petition was not maintainable the same was got converted to one under Section 163A of the M.V. Act and even then the petition was not maintainable. Elaborating this said submission he contends that the reason for converting the petition to one under Section 166 of the Act was on account of the fact that the deceased was solely responsible for his petition was sought to be maintained under sub-section (2) of Section 163A.
However; the Tribunal lost sight the fact that the petition under section 163 is maintainable only when the claim is made in interms of Schedule-II but in the instant case the compensation awarded though apparently as per Schedule-II of the MV Act is nevertheless not maintainable under Section 163-A of the said Act. He further contends that unless there an another vehicle involved in the accident or there is another tort-feasor Section 163 of the Act is not applicable. He, therefore requests this Court to set aside the judgment and award of the Tribunal
