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2018 Supreme(Kar) 781
IN THE HIGH COURT OF KARNATAKA AT KALABURAGI BENCH
P.G.M. PATIL, J.
The Divisional Manager, United India Insurance Company Ltd. – Appellant
Versus
Smt. Kamalamma W/o Redeppa – Respondent
MFA Nos. 32591 of 2011, 200599 of 2014
Decided On : 30-11-2018
For the Appellant : Sri. Sanjay M. Joshi.
For the Respondent: Babu H. Metagudda.
Headnote:
Motor Vehicles Act – Section 163(A),140 and 166 – Accident – Insurance claim- These two appeals are filed by insurer challenging awards passed under Section 163(A) of Motor Vehicles Act on the ground that the claim petitions were not at all maintainable - It is the case of claimants in the said case that deceased husband and son of claimants and one were proceeding on motorcycle - Deceased was riding the motorcycle - When they were proceeding in order to avoid the accident with a dog which suddenly came across road, deceased took motorcycle by the side of the road which fell into a ditch, due to which said one sustained grievous injuries and later succumbed to injuries while he was under treatment at OPEC hospital- Whether claimants are entitled for just compensation under Section 166 of Act or any other provisions of the Act – Held, Hon’ble Apex Court while remanding the matter in the case of Ningamma & Another vs. United India Insurance Co. Ltd. directed this Court to deal with issues involved in said case and consider whether claimants are entitled for just compensation under Section 166 of the Act or any other provisions of Act - After remand, this Court considered the applicability of the provisions of the Act for awarding compensation if claimants are entitled to and this Court invoked the provisions of Section 140 of the Act and awarded compensation to the claimants by judgment passed in MFA - In the cases on hand, though impugned awards are liable to be set aside, it is just and necessary to award compensation to the claimants in both the cases as provided under Section 140 of Act - Hence, the question of law is answered accordingly - In the result, both appeal are disposed of.
1. Though the MFA 32591/2011 was listed for admission, with the consent of learned counsel for the parties, heard for final disposal.
2. These two appeals are filed by the insurer challenging the awards passed under Section 163(A) of Motor Vehicles Act (Hereinafter referred as ‘the Act’ for short) on the ground that the claim petitions were not at all maintainable.
3. Since common questions of law and facts are involved in both the appeals, they are taken together for disposal by this common judgment.
4. MFA No. 32591/2011 is filed by the insurer the Divisional Manager, United India Insurance Company Ltd. Challenging the award dated 26.07.2011 passed by the Motor Accident Claims Tribunal at Lingasugur in MVC No. 179/2010.
5. It is the case of the claimants in the said case that on 23.05.2010 at 9.00 p.m. the deceased Reddeppa, the husband and son of the claimants and one Tippanna were proceeding towards Gorebal Tanda from Karadakal Tanda on motorcycle bearing No. KA-36L-3566. The deceased Reddeppa was riding the motorcycle. When they were proceeding near Kasaratti Tanda, in order to avoid the accident with a dog which suddenly came across the road, the deceased took the motorcycle by the side of the road which fell into a ditch, due to which Reddeppa sustained grievous injuries and later succumbed to the injuries while he was under treatment at OPEC hospital. Thereafter, the wife and mother of the deceased filed petition under Section 163(A) of the Act claiming compensation of Rs. 7,00,000/-. They have further averred in the petition, that the deceased was doing labour work and earning Rs. 40,000/- per annum and they were depending on his earnings. It is also stated that the motorcycle belonged to respondent No. 1 and the same was insured with respondent No. 2.
6. Respondent No. 1 remained absent and placed ex-parte. Respondent No. 2 appeared before the Tribunal and filed written statement denying the liability itself. It was further contended that the accident occurred due to own negligence of the deceased and as such, the insurer is not liable to pay the compensation.
7. Based on the pleadings of the parties, the Tribunal framed issues and received evidence produced by the claimants and passed the impugned award granting compensation of Rs. 4,19,000/- and the liability was saddled on the respondent No. 2 insurer.
8. Aggrieved by the same, the insurer is before this Court in MFA No. 32591/2011.
9. MFA No. 200599/2014 is filed by the same insurer. The claimants being mother, father, sister and brother filed claim petition in MVC No. 346/2012 under Section 163(A) of the Act before the II Addl. MACT and Additional District & Sessions Judge at Bidar sitting at Bhalki claiming compensation for the death of Syed Feroz in the accident that occurred on 17.03.2012. It is stated that the respondent No. 1 is the owner and respondent No. 2 is the insurer of the offending Hero Honda motorcycle bearing No. KA-39J-8328. Deceased Syed Feroz was working under respondent No. 1 and on 17.03.2012 in order to attend the work, the deceased was proceeding on the said motorcycle and when he was so proceeding on Halsi Bhatambra road, near Inchur at about 10.30 p.m. by that time one bus came from the opposite direction in a rash and negligent manner and due to flash headlight, the deceased took motorcycle by the side of the road, it hit to the guard stone of the road due to which he fell down and sustained grievous injuries all over the body. Initially he was shifted to Sree hospital, Bidar, thereafter Medinova hospital, Hyderabad where he was inpatient from 18.03.2012 to 12.04.2012. He was referred to Gandhi hospital, Secundrabad where he was inpatient from 12.04.2012 to 18.04.2012 and while under treatment he succumbed to injuries on 18.04.2012. The claimants have stated that Syed Feroz was hale and healthy, aged about 20 years and was earning Rs.3,300/per month by way of salary. They have lost their bread earner on whom they were depending.
10. Re
