G. NAGARATHNA v. G. MANJUNATHA

(BY SMT. JAYALAKSHMAMMA K.B. ADV., FOR R1 SRI. S.V. HEGDE MULKHAND, ADV., FOR R2) - - - THIS M.F.A. IS FILED U/S 173(1) OF MV ACT, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD PASSED IN MVC NO.1483/2014 ON 17.10.2016 BY THE SENIOR CIVIL JUDGE AND MACT AT ARSIKERE AND AWARD OF COMPENSATION OF 80,00,000/- AND DIRECT INSURANCE COMPANY TO DEPOSIT THE AWARD AMOUNT WITH 12% INTEREST PER ANNUM IN THE INTEREST OF JUSTICE. THIS M.F.A. HAVING BEEN HEARD AND RESERVED ON 30.10.2024, COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY VIJAYKUMAR A. PATIL J., DELIVERED THE FOLLOWING: CORAM: HON'BLE MRS. JUSTICE K.S.MUDAGAL HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL CAV JUDGMENT & ORDER ON I.A.NO.1/2024 (PER: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL) Challenging the judgment and award passed in MVC No.1483/2014 on the file of the Sr. Civil Judge and MACT, Arsikere, claimants have filed this appeal.

2. The appellants were the claimants and respondents were the respondents in MVC No.1483/2014 before the - 3 - NC: 2024:KHC:47810-DB MFA No.2850/2017 Tribunal. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the Tribunal.

3. The wife, son and parents of deceased Sri.S.N.Ravisha filed claim petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act') seeking compensation of Rs.80,00,000/- for the death of Sri.N.S.Ravisha in a road accident that occurred on 18.06.2014. It was contended that the deceased was driving Fiat Linea Car bearing registration No.KA-06 N-5997 from Mallasandra Village to Arasikere town along with his father, sister and her children. Near Mylanahalli gate, Arsikere, he drove the car in high speed, rash and negligent manner, without following the traffic rules, lost control over the car, as such the car toppled on the road and accident occurred. Ravisha sustained fatal injuries on his head and succumbed to the injuries. His dead body was shifted to Jayachamarajendra Government Hospital. Doctor conducted postmortem. It was also contended that Ravisha was a BBMP contractor with several ongoing projects in his hand, was earning Rs.3,00,000/- p.m., was an income tax assessee and was the only earning member of the family. The Arasikere - 4 - NC: 2024:KHC:47810-DB MFA No.2850/2017 Rural police have registered the FIR in Crime No.149/2014 and investigation, filed abated charge sheet against Sri.S.N.Ravisha for the offences punishable under Sections 279, 337, 304-A of Indian Penal Code, 1860 (hereinafter referred to as 'the IPC'). They sought for grant of compensation.

4. Respondent No.1 being the owner of the vehicle involved in the accident has entered appearance before the Tribunal. However, he did not file written statement. Respondent No.2 - the insurer filed detailed written statement. It was contended that the claim petition is not maintainable and the claimants are not entitled for any compensation as the accident occurred due to the negligence of the deceased himself. The police filed charge sheet against the deceased which clearly establishes that the deceased was negligent and there is clear admission in the claim petition with regard to the deceased being negligent. It was further contended that it is the primary responsibility of the insurer to pay compensation in the cases of third party victim of the accident arising out of use of the motor vehicle by way of contract of indemnity. In the instant case, the deceased himself was negligent, hence indemnifying the insured would not arise. It was also - 5 - NC: 2024:KHC:47810-DB MFA No.2850/2017 contended that the claimants have exorbitantly claimed the compensation, denying the age, avocation and income of the deceased and sought for dismissal of the claim petition.

5. The Tribunal recorded the evidence. Claimant No.1 got examined herself as PW-1 and got marked Exs.P1 to P10. On behalf of respondent/insurer RW-1 was examined and no documentary evidence was adduced. The Tribunal, on appreciation of the pleadings and evidence recorded the finding that the claim petition filed by the heirs of tort-feasor is not maintainable in law under Section 166 of the Act and dismissed the claim petition. Being aggrieved, the claimants are in appeal seeking for compensation.

6. Sri.Vamshi Krishna C., learned counsel for the appellants submits that the Tribunal committed grave error in dismissing the claim petition without appreciating the pleading and evidence on record in its proper prospective. It is submitted that the Tribunal has come to erroneous conclusion that the claimants have not produced the IMV report. However, the said report was produced before the Tribunal but the Tribunal failed to consider the same which resulted in - 6 - NC: 2024:KHC:47810-DB MFA No.2850/2017 miscarriage of justice. It is further submitted that the accident in question occurred due to tyre burst of the vehicle as a result of which the vehicle toppled down and the driver of the vehicle died. The Tribunal failed to consider the same and recorded the finding that the accident occurred due to rash and negligent driving of the deceased. It is also submitted that the claimants filed an application under Order VI Rule 17 of the Code of Civil Procedure, 1908 seeking amendment of the claim petition which was erroneously dismissed by the Tribunal and this Court can now consider the said amendment and allow the claim petition.

7. Placing reliance on the judgment of the Hon'ble Supreme Court in the case of Mohammad Mustafa Vs. Sri.Abubackar and others1 he submitted that this Court can consider the application for amendment of pleading at the appellate stage. Placing reliance on the judgment of the Hon'ble Supreme Court in the case of Ningamma and another Vs. United India Insurance Co. Ltd.2 he submitted that the deceased was not the owner of the vehicle, the 1 (1970) 3 SCC 891 2 (2009) 13 SCC 710 - 7 - NC: 2024:KHC:47810-DB MFA No.2850/2017 accident is caused due to bursting of tyre, hence, the dependants are entitled for compensation. He seeks to allow the appeal.

8. Per contra, Sri.Hegde Mulkhand, learned counsel for respondent No.2 justifying the impugned judgment and award of the Tribunal submitted that the Tribunal considered the law laid down by the Hon'ble Supreme Court as well as this Court and rightly came to the conclusion that it is a case of deceased himself being the tort-feasor, hence the claimants being the legal heirs of the tort-feasor are not entitled to receive any compensation under Section 166 of the Act. It is submitted that the aspect of negligence is the important factor while considering the claim petition under Section 166 of the Act. It is further submitted that the Insurance Company would indemnify the third party as per the terms of the policy and not the tort-feasor.

9. In support of his contentions, he placed reliance on the following decisions of the Hon'ble Supreme Court and this Court: - 8 - NC: 2024:KHC:47810-DB MFA No.2850/2017 i. Minu B.Mehta and another Vs. B.R.Nayan and another3 ii. United India Insurance Co. Vs. Smt.Tulshi Devi and others4 iii. Lalitha and others Vs. Rangappa and others5 iv. The Manager, Bajaj Allianz General Insurance Co. Ltd. Vs. Gulab Jan6

10. Considering the rival submissions of the parties and examining the materials on record, the point that arises for consideration is “Whether the impugned judgment and award of the Tribunal calls for any interference”? ANALYSIS

11. The wife, son and parents of deceased Sri.N.S.Ravisha filed claim petition seeking for compensation of Rs.80,00,000/- for the death of Sri.N.S.Ravisha in a road traffic accident that occurred on 18.06.2014. The averments in the claim petition are that the deceased Sri.N.S.Ravisha drove Fiat Linea car bearing registration No.KA-06 N-5997 in high speed, rash and negligent manner without following the traffic rules, 3 (1977) 2 SCC 441 4 MFA No.3053/2007 dt.10.01.13 5 MFA No.32435/2010 dt. 06.06.13 6 MFA No.6131/2009 dt. 06.07.11 - 9 - NC: 2024:KHC:47810-DB MFA No.2850/2017 lost control over the same, due to which the car toppled on the road leading to his death. The wife of the deceased i.e. claimant No.1 entered the witness box as PW-1 and deposed that accident occurred due to tyre burst. The said portion of the evidence is contrary to her own pleading. Hence, such evidence is unacceptable. The pleading and evidence available on record indicate that the claimants have taken clear stand before the Tribunal that the accident occurred due to rash and negligent driving of the car by the deceased Sri.N.S.Ravisha.

12. Admittedly, deceased had borrowed the said car from respondent No.1 the registered owner which was insured with respondent No.2 - Insurance Company. As on the date of the accident the insurance was in force. Immediately after the accident Smt.Shobharani gave information about the accident to the Arasikere Rural police on 18.06.2014 at 11 a.m. The jurisdictional police, based on the information registered the FIR in Crime No.149/2014 for the offences punishable under Sections 279, 337, 304A of IPC against deceased Sri.N.S.Ravisha. The police, on investigation filed abated charge sheet against him. Admittedly, the claimants have not challenged the charge sheet filed against the deceased. The - 10 - NC: 2024:KHC:47810-DB MFA No.2850/2017 claimants have made an attempt to amend the claim petition by filing an application under Order VI Rule 17 of the CPC seeking to amend the claim petition by bringing the new plea i.e. "the driver side tyre had burst as a result of which, the car tilted, the driver lost control and the accident has caused".

13. In support of the said application, affidavit is sworn wherein it is stated that in confusion she could not give proper information to the police and she is not aware what have the police recorded as her statement in the form of FIR. FIR was incorrect. The Tribunal has, by considered detailed order dated

25.01.2016, rejected the application. The said order of the Tribunal has attained finality. When things stood thus, now the claimants are making an attempt to bring new plea of facts such as bursting of tyre resulted in the accident. Moreover, the claimants at a belated stage are making a clear attempt to overcome the admissions their pleading which impermissible and contrary to the settled principles of law. Such amendment of the claim petition takes away the rights accrued to the respondent/insurer, thereby causing serious prejudice to respondent No.2 in its defence. Hence, the application is liable to be dismissed. - 11 - NC: 2024:KHC:47810-DB MFA No.2850/2017

14. Insofar as entitlement of compensation and maintaining the claim petition under Section 166 of the Act, the Hon'ble Supreme Court in the judgment in Ningamma's, case referred to supra has clearly held that when an application for claim of compensation is made under Section 166 of the Act, the Tribunal is required to hold an enquiry into the claim and then proceed to make an award. It has further observed that when such claim is made by the legal representatives of the deceased, it has to be proved that the deceased was not himself responsible for the accident by his rash and negligent driving and it would also be necessary to prove that the deceased would be covered under the policy so as to make the Insurance Company liable to make payment to the legal heirs. In the instant case, admittedly the accident occurred due to the rash and negligent driving of the deceased himself and he being self tort-feasor, the legal heirs cannot claim any compensation for his death, otherwise it would amount to a person who committed breach getting the compensation for his own wrongs. In the instant case, the deceased has borrowed the vehicle in question from respondent No.1, hence, he stepped into the shoes of the owner of the vehicle and for the - 12 - NC: 2024:KHC:47810-DB MFA No.2850/2017 negligence of the owner or borrower of the vehicle, the Insurance Company cannot be compelled to indemnify for such wrongs. Our view gains support from the judgment of Hon'ble Supreme Court in the case of Minu B.Mehta and another, referred to supra. The judgment relied on by the learned counsel for the Insurance Company referred to supra also support our view with regard to entitlement of compensation by the heirs of the deceased when the deceased himself is tort- feasor.

15. So far as the contention that the Tribunal did not consider the motor vehicle accident report is concerned, though the said report was available in the records, the same was not marked by the claimants before the Tribunal for the best reasons known to them. The motor vehicle accident report dated 26.03.2014 indicates the cause of accident as was not due to any mechanical defect of the motor vehicle. The motor vehicle accident report further indicates that the wheel disc was bent and tyre was burst due to the impact. Therefore, as per the motor vehicle accident report, due to the impact of the accident, tyre was burst and not vice-versa. Hence, contrary - 13 - NC: 2024:KHC:47810-DB MFA No.2850/2017 contention urged by the claimants merits no consideration and is accordingly rejected.

16. For the foregoing reasons, we are of the considered view that the impugned judgment and award does not call for any interference.

17. For the aforementioned reasons, we pass the following: ORDER I.A.No.1/2024 and the appeal are dismissed. Sd/- (K.S.MUDAGAL) JUDGE Sd/- (VIJAYKUMAR A. PATIL) JUDGE RV List No.: 1 Sl No.: 1