IMPORTANT POINT
In proceedings under Section 163-A of the MV Act, the insurer cannot raise any defense of negligence on the part of the victim to counter a claim for compensation.

JUDGMENT :

Though these appeals are listed for admission, with the consent of learned counsel for the parties, they are taken up for final disposal.

2. MFA No.102120/2016 is filed by the claimants challenging the contributory negligence to an extent of 40% saddled on the deceased as well as seeking enhancement of compensation, whereas, the insurance company is also in appeal in MFA No.102901/2015 challenging the liability as well as quantum of compensation awarded under judgment & award dated 18.04.2015 passed in MVC No.5/2013 by the Addl. MACT, Sirsi (for short, ‘Tribunal’).

3. Brief facts leading to filing of these appeals are that on 6.7.2012, one late Mahabaleshwar Krishna Bhat, being the rider of motorcycle bearing registration No.KA-31/J-9818 was proceeding near KHB colony on Sirsi-Hubli road. Truck bearing registration No.KA-30-3522 was parked in a dangerous manner without indication of signal. At that time, it was raining and the deceased could not see the truck, which was negligently parked without any signal and he dashed to the truck from its behind. As a result, the said Mahabaleshwar Krishna Bhat fell down and sustained severe injuries to his head, legs, hands and other parts of the body. Immediately, he was shifted to TSS Hospital, Sirsi and in spite of best efforts of the doctor, he succumbed to the injuries. It is averred that the deceased Mahalbaleshwar was aged about 57 years, working as Music teacher and earning Rs.3,300/- per month.

4. Before the Tribunal, Respondent No.2/Insurance Company contested the proceedings by filing statement of objections and denied the averments made in the claim petition. It is further averred that the claim petition is liable to be dismissed as not maintainable under Section 163-A of the MV Act, 1988 as the deceased himself was responsible for the accident and just to get compensation, the claimants have falsely filed claim petition. Hence, sought for dismissal of the claim petition.

5. The claimant No.2, son of the deceased Mahabaleshwar, examined himself as PW1 and got marked the documents as Ex.P1 to P7. The respondents examined one witness as RW1, but did not mark any document.

6. The Tribunal on scrutiny of entire material available on record, allowed the claim petition in part awarding total compensation of Rs.1,47,600/- with interest at 6% per annum from the date of petition till realization. The claimants as well as the insurance company are in appeals before this Court.

7. Heard the learned counsel Sri. Vinayak Bhat for Sri. S.V. Yaji, learned counsel for the claimants and Sri. S.K. Kayakamath, learned counsel for the Insurance Company.

8. Learned counsel for the appellants/claimants Sri. Vinayak Bhat in support of his appeal would submit that the Tribunal committed an error in holding that the deceased has contributed 40% to the occurrence of the accident in question, without taking note of the fact that the claim petition was filed under Section 163-A of the MV Act. He submits that when the claim petition was filed under Section 163-A of the MV Act, question of negligence cannot be looked into. Hence, he seeks to modify the impugned judgment and award of the Tribunal by saddling the entire liability on the insurance company. He further submits that the Tribunal committed an error in assessing income of the deceased at Rs.3000 per month and he seeks to consider the same at Rs.40,000/- per annum.

9. Per contra, learned counsel Sri. S.K. Kayakamath, for appellant/Insurance Company in support of his appeal submits that the Tribunal committed an error in fastening the liability to an extent of 60% on the insurance company, which is contrary to the statutory provisions of Section 163-A of the MV Act, as no risk is contemplated under the insurance policy in respect of self negligent accident. Insofar as quantum of compensation, Sri. Kayakamath submits that the award of compensation requires to be modified as per Second Schedule of the MV Act by awarding appropriate compensation. Thu