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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JULY, 2022
BEFORE
THE HON’BLE MR. JUSTICE ANANT RAMANATH HEGDE
M.F.A.No.10796/2011(MV)
C/w
M.F.A.No.10795/2011(MV)
M.F.A.NO.10796/2011
BETWEEN:
SRI.K.J.KRISHNA
SINCE THE DEAD ARE REPRESENTED BY LR’S
PROPOSED APPELLANT
1(A) SMT.RADHA
W/O LATE K.J.KRISHNA
AGED ABOUT 57 YEARS
1(B) SMT.SARITHA K
D/O LATE K.J.KRISHNA
AGED ABOUT 37 YEARS
1(C) SMT. SAVITHA K K
D/O LATE K.J.KRISHNA
AGED ABOUT 34 YEARS
1(D) SRI.DEEPU K K
S/O LATE K.J.KRISHNA
AGED ABOUT 31 YEARS
1(E) SRI.ARJUN K K
S/O LATE K.J.KRISHNA
AGED ABOUT 28 YEARS
(CAUSETITLE AMENDED AS PER COURT ORDER DT:22.06.2021)
ALL ARE R/AT KAMALAPURA VILLAGE
PIRIYAPATNA TALUK, MYSURU DISTRICT …APPELLANTS
(BY SRI C.VINAY SWAMY, ADVOCATE)
R
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M.F.A.NO.10795/2011
BETWEEN:
SMT.SARITHA
W/O MAHESH
D/O K.J.KRISHNA
AGED ABOUT 34 YEARS
7TH BLOCK, 4TH CROSS
BASAVESHWARANAGAR
BANGALORE
...APPELLANT
(BY SRI C.VINAY SWAMY, ADVOCATE)
AND:
1.
BOREGOWDA S/O SIDDEGOWDA
DRIVER OF TRACTOR – TRAILER NO.
KA-09 T 3555-3556
AMMANAKOPPALU
PERIYAPATNA TALUK
2.
SIDDEGOWDA S/O BOREGOWDA
AGED ABOUT 73 YEARS
RAMANATHA THUNGA VILLAGE
PERIYAPATNA TALUK
OWNER OF TRACTOR – TRAILER NO.
KA-09 T 3555-3556
3.
UNITED INDIA INSURANCE COMPANY LTD.
CLUB COMPLEX, HUNSUR – 571105
POLICY NO.070602/31/06-01-00008887
VALID UP TO 21.03.2008
...RESPONDENTS
(COMMON IN BOTH APPEALS)
(BY SRI JWALA KUMAR, ADVOCATE FOR R3;
V/O/DTD:27.01.2021 NOTICE TO R1 & R2 DISPENSED WITH)
THESE APPEALS ARE FILED UNDER SECTION 173(1) OF THE
MV ACT AGAINST THE JUDGMENT AND AWARD DATED 07.03.2011
PASSED IN MVC NOS.1945/2010 AND 1946/2010 ON THE FILE OF
THE PRESIDING OFFICER, FAST TRACK COURT, HUNSUR, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
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THESE APPEALS COMING ON FOR FURTHER HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
Whether the rights conferred under S.166 (5) of the
Motor Vehicles Act, 1988, ( ‘Act of 1988’ for short) to the
legal representative/s of the deceased claimant, are available
to
him/them
if
the
claimant had
died prior
to
the
commencement of Act no.32/2019 and during the pendency of
claim petition or appeal by the claimant, is the question.
Or to put it differently, whether Section 166(5) of
the Act of 1988 is having prospective, retrospective or
retroactive operation?
In terms of the judgment and awards dated
07.03.2011, in M.V.C.No.1945/2010 and M.V.C.No.1946/2010
on the file of the Fast Track Court, Hunsur, the Tribunal
awarded compensation of Rs.3,36,200/- in favour of the
claimant in M.V.C.No.1945/2010 and Rs.1,15,000/-in favour
of the claimant in M.V.C.No.1946/2010. Both the claimants
are in appeal seeking enhancement of compensation.
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4.
The claimant/appellant in M.F.A. 10796/2011
expired on 13.06.2019. His legal representatives are brought
on record to prosecute the appeal.
5.
The findings of the Tribunal regarding the injuries
and disability sustained by the claimants in both cases are not
disputed and the insurer has not questioned the liability.
6.
The Motor Vehicles Act, 1988 is amended in terms
of Act No.32/2019. The amendment is notified on 01.04.2022.
sub-section 5 of Section 166 of the Motor Vehicle Act is
relevant to this case. Sub-section 5 of S.166 of the Motor
Vehicles Act, 1988 reads as under:
"(5) Notwithstanding anything in this Act or any
other law for the time being in force, the right of a
person to claim compensation for injury in an accident
shall, upon the death of the person injured, survive to
his legal representatives, irrespective of whether the
cause of death is relatable to or had any nexus”.
7. Since the claimant before the Tribunal in MVC no.
1945/2010 who filed appeal in MFA 10796/2011 died on
13.06.2019, whether the legal representatives of the deceased
appellant who have come on record vide order dated
22.06.2021 can pursue the appeal on all grounds available to
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original claimant/appellant is required to be considered in the
light of sub-section 5 of Section 166 of the Act of 1988. The
insurer would contend that the since appellant died before
introduction of S.166 (5) of the Act of 1988, the rights flowing
from the said provision is not available to the legal
representatives of the deceased appellant.
8.
Heard the learned Counsel Sri. C. Vinay Swamy
appearing for the claimants – appellants and the learned
Counsel Sri. Jwala Kumar appearing for the respondent -
insurer.
9.
Learned Counsel for the claimants/appellant Sri. C.
Vinay Swamy would raise the following contentions.
The Motor Vehicle Act, of 1988, is a beneficial
legislation and sub-section 5 of Section 166 of the
Act, is introduced more as a clarification to the
existing law as such the present appellants who
are the legal representatives of the deceased
claimant are entitled to claim compensation on all
grounds available to the original claimant.
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Sub-section 5 of Section 166 of the Act of 1988,
being declaratory or clarificatory in nature, must
be
construed
to
have
retrospective
effect.
Consequently, though the original claimant died
before the introduction of sub-section 5 of Section
166 of the Act of 1988, the present appellants who
are his legal representatives should be allowed to
prosecute the appeal on all grounds available to
the original claimant. Reliance is placed on
Commissioner of Income Tax v/s. Vatika Township
Pvt. Ltd. (2015), 1 SCC, 1.
Alternatively, assuming that S.166 (5) of the Act is
held to be prospective in operation, in terms of the
law laid down in the case of Oriental Insurance
Company V/s Kahlon @ Jasmail Singh Kahlon,
(AIR 2021 SC 3913), the appeal does not abate on
account of the death of original claimant/appellant and
right to seek enhancement of compensation under the
head of loss of estate, if not under the heads of pain
and suffering and loss of amenities is st
