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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
B.V. NAGARATHNA, K. NATARAJAN, JJ.
Narayana Rao S/o. Late Manojirao – Appellant
Versus
Nagaraj S/o. Subbanna – Respondent
Miscellaneous First Appeal No.7458 of 2014 (MV)
Decided on : 29-05-2019
Motor Vehicles Act, 1988 - Section 163A, 163A(2), 140(4) and 166 - Accident - Compensation on Death - Whether petitioners prove that deceased Lokesh Rao died due to accidental injuries arising out of accident alleged to have been taken place in Kadapp Road, due to rash and negligent driving of driver of Tata Sumo car bearing registration - Whether petitioners are entitled for compensation - Whether there was any negligence on part of Driver - Whether deceased was earning income - Whether claim petition was maintainable or not – Held, Appellants counsel contended that accident occurred on account of collision between two vehicles, namely car, bearing Registration in which deceased was proceedings and a Tata-Sumo vehicle, bearing Registration - Claim petition was filed under Section 163A of Act and same could not have dismissed for reasons that deceased was not a third party - Such a reasoning of Tribunal is erroneous - He submitted that when two vehicles are involved and a claim petition under Section 163A of Act is filed, insurer cannot raise defence of negligence and it is for Tribunal to decide same - Having regard to Section 163A of Act and Schedule II of Act - Further, under Section 163A of Act, insurer cannot be permitted raise defence of negligence - Otherwise, such a provision would be on par with a proceeding under Section 166 of Act, which would not only be self-contradictory, but also defeat very legislative intention in a proceeding under Section 163A of Act, which is by way of insertion made by amendment to Act - Therefore, insurer cannot raise any defence of negligence on part of victim - Aforesaid aspect has not been considered by Tribunal which has simply dismissed claim petition by holding deceased was not a third party - Approach of Tribunal is wholly erroneous - Matter is remanded to Tribunal for a fresh adjudication - Since claimants and Insurance Company are represented by their respective counsel, they shall appear before Tribunal on without expecting any separate notice from Tribunal - Tribunal, however, shall issue notice to respondent No.1, who was placed exparte on previous occasion and thereafter, dispose claim petition in accordance with law and in an expeditious manner - Appeal disposed of.
JUDGMENT :
Though this appeal is listed for hearing on interlocutory application, with consent of learned counsel on both side, it is heard finally.
2. Appellants are the claimants in M.V.C. No.6844 of 2012. Said claim petition has been dismissed by judgment and award dated 17-10-2013 by the Motor Accident Claims Tribunal, Court of Small Causes at Bengaluru. Hence, being aggrieved by the dismissal of claim petition, claimants have preferred this appeal.
3. For the sake of convenience, parties herein shall be referred to in terms of their status before the Tribunal.
4. Appellants-claimants filed claim petition under Section 163A of the Motor Vehicles Act, 1988, (hereinafter referred to as ‘Act’ for the sake of brevity) seeking compensation on account of death of their son Lokesh Rao in a road traffic accident. According to the appellants, on 15-7-2012 at about 9:30 a.m., Lokesh Rao was proceeding in a car, bearing Registration No.KA01 M911, on Madanpalli main road near M.R.K. Jelly Factory. Suddenly, a Tata-Sumo vehicle, bearing Registration No.KA50/3309, dashed against front portion of the car, which was being driven by Lokesh Rao. As a result of impact, Lokesh Rao sustained grievous injuries and he was taken to Government hospital at Chinthamani, where he was treated as an outpatient for two hours. Thereafter, he was shifted to Sanjay Gandhi Hospital, where he was treated as an inpatient for two days. Sufficient amount was spent towards his medical expenses. On the advise of Doctor, he was shifted to St. John’s Medical College Hospital for further treatment. He was treated as an inpatient for eight days. Further, medical expenses were incurred for his treatment. However, he did not recover and succumbed to injuries. Contending that claimants had lost their son, they preferred the claim petition under Section 163A of the Act seeking compensation on various heads.
5. In response to notice issued by the Tribunal, respondent No.1-owner of the vehicle did not appear and was placed exparte. While respondent No.2 insurer appeared through its counsel and filed statement of objections contending that the Tribunal at Bengaluru had no territorial jurisdiction to entertain the petition. It further admitted the issuance of policy in respect of Tata-Sumo vehicle and its liability being subject to terms and conditions of the policy. Insurance Company, however, sought for dismissal of claim petition on the above pleadings.
6. The Tribunal framed the following issues for its consideration:
ii. Whether the petitioners are entitled for compensation? If so, what amount and from whom?
iii. What order or award?”
Thereafter, issue No.1 was recast as under:
“Whether the petitioners prove that deceased Lokesh Rao died due to accidental injuries arising out of accident alleged to have been taken place on 15.07.2012 at about 9.30 a.m., in Kadapp Road, Royalpady police station jurisdiction near M.R.K. Jalli Krasher Srinivasapura Taluk, Kolar Dist in between car bearing registration No.KA01 M911 and Tata Sumo car bearing registration No.KA50/3309?
7. In order to prove their case, P.W.1-claimant No.1 was examined. He produced 12 documents, which were marked as Exs.P.1 to P.12. R.W.1 was examined on behalf of Insurance Company and got marked 2 documents as Exs.R.1 and R.2. On the basis of evidence on record, the Tribunal dismissed the claim petition filed under Section 163A of the Act. Being aggrieved by the dismissal, claimants have preferred this appeal.
8. We have heard learned counsel for the appellants and learned counsel for respondent No.2 Insurance Company and also
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