NATIONAL INSURANCE COMPANY LTD. v. NATIONAL INSURANCE COMPANY LTD.

(BY SMT. SUMA KEDILAYA, ADVOCATE FOR R1 AND R2, R3 SERVED) THIS MFA IS FILED U/S.173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DT. 30.05.2019, PASSED IN MVC NO.85/2018, ON THE FILE OF THE SENIOR CIVIL JUDGE, MACT MADIKERI, AWARDING COMPENSATION OF RS.4,84,506/- WITH INTEREST AT 6 PER CENT P.A. FROM THE DATE OF FILING OF THIS PETITION TILL THE REALIZATION EXCLUDING FUTURE MEDICAL EXPENSES. THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE UMESH M ADIGA ORAL JUDGMENT This appeal has been filed by the Insurance Company challenging the judgment and award dated 30th May 2019, passed by the Court of Senior Civil judge and M.A.C.T., Madikeri, (for short `Tribunal), in MVC.No.85/2018.

#2. The parties are referred to as per their rankings before the Tribunal. - 3 - NC: 2025:KHC:38438 MFA No. 7538 of 2019 HC-KAR

#3. The brief facts of the case are that, on

12.06.2016, at about 3.30 p.m., deceased Thammaiah was going on a motorcycle, on Madikeri-Devasthur road; near Hebbettageri village, he met with an accident due to rash and negligent driving of a Jeep bearing registration No.KA-19-M-1319 by its driver. As a result of the impact, said Thimmaiah sustained grievous injuries and while undergoing treatment, he succumbed to the injuries on

13.06.2016.

#4. It is the further contention of the claimants that they are the parents of the deceased. The deceased was aged 20 years and his date of birth is 03.05.1996 and his income was Rs.40,000/- p.a. The claimants were dependent upon his earnings. With these reasons, they have prayed for awarding compensation of Rs.7,75,000/-. It is worth to note that the claim petition was filed under Section 163-A of Motor Vehicles Act, 1988.

#5. The respondent No.1 the owner and respondent No.2 is the insurer of the offending jeep. - 4 - NC: 2025:KHC:38438 MFA No. 7538 of 2019 HC-KAR Respondent No.1 remained ex parte before the Tribunal. The respondent No.2-insurer has its written statement denying the contentions of the claimants. It has further contended that the accident occurred due to the negligence of rider of the motorcycle and, therefore, respondents are not liable to pay any compensation. It also denied other averments made in the claim petition and prayed to dismiss claim petition.

#6. From the rival contentions of the parties, the Tribunal framed necessary issues.

#7. The claimants to prove their case examined claimant No.1 as PW-1 and marked nine documents as per Exs.P-1 to P-9. Respondents have examined one witness as RW-1 and marked two documents as Exs.R-1 and R-2.

#8. The Tribunal after hearing both parties, held that the accident occurred due to the involvement of the jeep bearing registration No.KA-19-M-1319. The Tribunal accepted the income of the deceased as Rs.40,000/- p.a., - 5 - NC: 2025:KHC:38438 MFA No. 7538 of 2019 HC-KAR applied the multiplier as `18' and deducted 1/3rd towards personal expenses and in all awarded compensation of Rs.4,84,506/-. The insurer challenged the said judgment and award on the ground of its liability to pay the compensation, as well as amount of compensation awarded by the Tribunal.

#9. The learned counsel for the appellant/insurer contends that accident occurred due to the negligence of rider of the motorcycle and the respondents were not joint tortfeasors, therefore, they were not liable to pay the compensation. The Tribunal has not considered these facts and erroneously fastened liability on the insurer.

#10. He further contends that claim petition is filed under Section 163-A of Motor Vehicles Act, 1988 (for short, `M.V.Act'); The age of the deceased was 20 years, therefore, the multiplier applicable to the facts of the case is `16'. He further refers to Schedule-II of the un-amended Motor Vehicles Act of the year 2018 and contends that, Schedule, - 6 - NC: 2025:KHC:38438 MFA No. 7538 of 2019 HC-KAR "above 15 years, but not exceeding 20 years," the multiplier applicable is `16'. The age of the deceased was 20 years. In view of the same, the multiplier applicable was `16' and not `18'. Therefore, the amount calculated under the head `loss of dependency' is incorrect. Hence, prayed to recalculate the same.

#11. The learned counsel respondents/claimants contends that the Tribunal has already answered the first contentions of the appellant. The Tribunal has also relied upon the judgment of Hon'ble Apex Court in the case of United India Insurance Co. Ltd., -vs- Sunil Kumar and another1. Therefore, the said contention of the appellant is not sustainable.

#12. Learned counsel for the respondents further contends that, according to the claimants, the date of birth of the deceased was 03.05.1996 and the date of accident was 12.06.2016. Therefore, as on the date of the accident, he was aged about 20 years, 1 month and 1 AIR 2017 SC 5710 - 7 - NC: 2025:KHC:38438 MFA No. 7538 of 2019 HC-KAR 13 days. The words used in the Second Schedule, which is referred to by the learned counsel for the appellant, are that, `not exceeding 20 years' and in the second line, it is stated as `above 20 years, but not exceeding 25 years'. In this case, since the age of the deceased was 20 years, 1 month and 13 days, it exceeded the age of 20 years. Moreover, Motor Vehicles Act is a benevolent legislation, it has to be interpreted in a way whichever is beneficial to the claimants. Hence, multiplier applicable to the facts of the present case is `17' and on that basis, compensation be awarded.

#13. The contentions raised by the learned counsel for the appellant was already answered by the Tribunal. The claim petition was filed by the claimants under Section 163-A of Motor Vehicles Act, which reads as under : " 163A. Special provisions as to payment of compensation on structured formula basis.— (1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the - 8 - NC: 2025:KHC:38438 MFA No. 7538 of 2019 HC-KAR motor vehicle or the authorised insurer shall be liable to pay the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be. Explanation.—For the purposes of this sub- section, “permanent disability” shall have the same meaning and extent as the Workmen’s Compensation Act, 1923 (8 of 1923). (2) In any claim for compensation under sub- section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person. (3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule." (emphasis supplied)

#14. While considering the compensation petition under Section 163-A of M.V. Act, the involvement of the - 9 - NC: 2025:KHC:38438 MFA No. 7538 of 2019 HC-KAR vehicle is sufficient. There is no need to plead and prove the rash and negligent driving of driver of the offending vehicle. Undisputedly, the vehicle belonging respondent No.1 was involved in the accident. The driver of the offending vehicle was charge sheeted by the concerned Investigating Officer. Considering these facts, the Tribunal has rightly held that claimants had proved that the accident occurred due to the involvement of the offending vehicle and respondents were liable to pay compensation. This Court does not find any fault in the said findings.

#15. Undisputedly, the age of the deceased was 20 years and his date of birth shows as 03.05.1996, that was accepted by the Tribunal. But, the Tribunal erroneously has taken the multiplier as `18', instead of `17' i.e., the multiplier applicable as per Schedule-II of the M.V. Act. In the claim petitions filed under Section 166 of the M.V.Act, if the age of the deceased was 20 years, the multiplier applicable is `18'. - 10 - NC: 2025:KHC:38438 MFA No. 7538 of 2019 HC-KAR Probably the Tribunal has considered the same and applied the multiplier as `18'. The multiplier applied by the Tribunal is incorrect.

#16. As the present claim petition was filed under Section 163-A of Motor Vehicles Act, as rightly submitted by the learned counsel for the respondents/claimants, the age of the deceased at the time of accident was 20 years, 1 month and 13 days and it was exceeding 20 years. As per Schedule-II of the un-amended Motor Vehicles Act of the year 2018, the multiplier applicable to the victim of an accident, whose age was between 15 years and below 20 years, then multiplier is `17'. But, in this case, the age of the deceased was 20 years 1 month and 13 days, i.e., exceeding 20 years; therefore, second clause of Schedule-II of un-amended Motor Vehicles Act i.e., above 20 years, but not exceeding 25 years, would be applicable and the multiplier applicable in this case was `17'. As rightly submitted, it is beneficial legislation and it shall be interpreted to the benefit of victim of the accident. - 11 - NC: 2025:KHC:38438 MFA No. 7538 of 2019 HC-KAR

#17. Since it is a structured formula, except the compensation to be awarded under the head, `loss of dependency', the compensation that has to be awarded is according to Schedule-II of the Motor Vehicles Act. Accordingly, the claimants are entitled to the following amount of compensation : Particulars Amount in Rs. Loss of dependency 4,53,339/- (Rs.26,667 x 17) Funeral expenses Loss of estate Total 2,500/- 2,500/- 4,58,339/- Amount awarded by the Tribunal - 4,84,506/-

#18. Accordingly, I proceed to pass the following : ORDER i) The Appeal is allowed in part. ii) The judgment and award dated 30th May 2019, passed in MVC.No.85/2018, by - 12 - NC: 2025:KHC:38438 MFA No. 7538 of 2019 HC-KAR the Senior Civil Judge, M.A.C.T., Madikeri, stands modified. iii) The claimants are entitled compensation of Rs.4,58,339/- as against Rs.4,84,506/- awarded by the Tribunal, with interest at the rate of 6% p.a., from the date of petition till its realization. iv) The appellant Insurance Company shall deposit the said amount within a period of six weeks from the date of award. v) The apportionment, release and deposit of the amount are as ordered by the Tribunal. vi) The amount in deposit before this Court shall be transmitted to the concerned Tribunal for disbursement in accordance with the aforesaid judgment. If there is any excess amount deposited by the insurer, the same shall be refunded to the appellant-insurer. vii) Draw award accordingly. - 13 - NC: 2025:KHC:38438 MFA No. 7538 of 2019 HC-KAR Registry is directed to send back the records along with a copy of this judgment to the concerned Tribunal. Sd/- (UMESH M ADIGA) JUDGE bk/ List No.: 1 Sl No.: 79