Misc. First Appeal No.6139 of 2009,Misc. First Appeal No.419 of 2010

30th June, 2017.

Petitioner Counsel: Sri. H.V.T. GOWDA
Respondent Counsel: Sri. D.VIJAYKUMAR, Sri. R.RAJAGOPALAN, Sri. SHRIPAD V.SHASTRI, Sri. JANARDHAN REDDY

Cases Cited:
Smt.Manorama Vs. V.Mohammad and Others, 2006(6) AIR Kar R 391 [Para 6]
Khenyei Vs. New India Assurance Co. Ltd. & Others, 2015 ALL SCR 2004=Civil Appeal No.4244/2015 (SC) [Para 12,14]
M/s.United India Insurance Co. Ltd. Vs. Radha A.Kamath and Others, 2011(4) AIR Kar R 292 [Para 14]
National Insurance Co. Ltd. Vs. Honnappa and Others, ILR 2008 KAR 959 [Para 14]
Selvi Vs. K.Alagarsamy and another, 2012 ACJ 945 [Para 15]
State of Tripura and Another Vs. Bela Dey (Das) and another, 2011 ACJ 1625 [Para 15]

JUDGMENT

JUDGMENT :- In these appeals, the judgment and award passed by the M.A.C.T.-V, Court of Small Causes, Bangalore City ('the Tribunal' for brevity), in M.V.C.No.1989/2007 is under attack. While in M.F.A.No.419/2010, the B.M.T.C./owner of the vehicle is disputing its liability to indemnify the legal heir of the deceased, the widow of the deceased is challenging the award in rejecting her claim petition, in M.F.A.No.6139/2009.

2. Briefly stated, the widow and mother filed a claim petition under Section 163A of the Motor Vehicles Act, 1988 ('the Act' for brevity) on the death of one M.Muniraju in a motor vehicle accident that occurred on 9.2.2007 at 11 p.m.

3. Case of the claimants was, deceased was riding his motor cycle with moderate speed, near Hennagara gate, the offending BMTC bus bearing registration No.KA-01/F-1574 came in a high speed in a rash and negligent manner and dashed against the motor bike due to which, the deceased fell down, suffered multiple injuries and succumbed to the said injuries at the spot. The driver and the employer/BMTC contested the petition. Liability was challenged contending that the deceased himself was responsible for the accident by his rash and negligent driving. It was the defence that the deceased dashed against the parked bus. Criminal case was registered by the jurisdictional Police against the deceased himself.

4. During trial, mother of the deceased was examined as PW-1 and documents Exs.P1 to P12 were marked. Though no rebuttal evidence was not adduced, insurance policy was marked as Ex.R1.

5. The Tribunal on overall consideration of the material awarded compensation, however, rejected the claim of the widow on finding that, during the pendency of the petition, she re-married. Mother of the deceased was awarded compensation of Rs.4,51,500/- by capitalizing the compensation as per Second Schedule of the Act, with interest @ 6% per annum and cost.

6. Sri.H.V.T.Gowda, learned Counsel for the appellant of M.F.A.No.6139/2009 (widow of the deceased) submits, the Tribunal basically erred in rejecting the claim on the basis of the affidavit averments of appellant's mother-in-law. Appellant had led marital life for seven years with the deceased. As per the judgment of this Court in 2006(6) AIR Kar R 391 in the matter of Smt.Manorama -vs- V.Mohammad and Others, re-marriage will not disentitle the widow from compensation under the head of 'loss of dependency'. The pain and agony and emotional distress suffered by the appellant on the death of her husband has gone unnoticed by the Tribunal. During the pendency of this appeal, the mother-in-law expired leaving no other Class-I legal heir. The appellant being the only legal heir for the estate of her deceased husband in the absence of any Class-I legal heir is entitled for the entire compensation amount.

7. Sri.R.Rajagopalan, learned Counsel appearing for the appellant of M.F.A.No.419/2010 / owner of the vehicle submits, the deceased himself was responsible for the accident by hitting the parked BMTC bus. Complaint was lodged against him only and charge sheet was filed against him. Nobody challenged the said charge sheet. It is the established position of law, even in respect of a claim under Section 163 of the Act, a Tortfeasor is not entitled for any relief. In that view of the matter, none of the claimants could have maintained the claim petition. Assuming that it is an accident involving two vehicles, then the claimants ought to have arraigned the owner and insurer of Motor cycle in their claim petition. They can be indemnified by said owner/insurer only. Hence, the judgment and award of the Tribunal is liable to be set aside and the claim petition be rejected.

8. With the above rival submissions and on perusal of the lower court records, the following points arise for consideration:

1. Whether the Corporation has no liability to indemnify the legal heirs of the deceased in their claim petition under Section 163A of the Act?

2. Whether the widow of the deceased consequent upon her re-marriage is disentitled for compensation?

3. If in the negative, whether the appellant of M.F.A.No.6139/2009 is entitled for the entire compensation on the death of her mother-in-law?

9. It is seen during the pendency of the appeals, on the death of the mother of the deceased (second respondent of M.F.A.No.419/2010), the appellant of M.F.A.No.6139/2009 was permitted to prosecute the appeal against the respondent subject to condition that she establishes dependency and entitlement to secure compensation. Though a third party had filed application to come on record in the place of the deceased Sakamma as her legal heir, said applications are already rejected.

10. Now returning to the factual matrix, it is the trump card for the BMTC, that the deceased himself having been charge sheeted for negligence by the Police and the said charge sheet at no point of time having been challenged, the legal heirs of the deceased cannot claim benefit of Section 163A of the Act since the law will not approve a Tortfeasor to get the benefit of his own mistake.

11. The Corporation had urged above contention before the Tribunal and the same was negatived. As such, the claimant was not the eye-witness to the incident. The driver of the BMTC bus, who was on the wheels and the Conductor could have been the best witnesses to testify about the incident. The BMTC having withheld the evidence within their command now cannot build up the case only on the basis of the charge sheet. The inaction on the part of the mother and the widow in not challenging the charge sheet will not fortify the defence of the BMTC unless the contention is corroborated by oral evidence of the eye-witnesses. In that view of the matter, it is inevitable to dwell upon the presumption that it is an accident involving two vehicles.

12. With regard to the contention that the claimants ought to have arrayed the owner and insurer of the motor bike as respondents and are eligible for compensation from the owner of two wheeler - the Apex Court in the matter of Khenyei -vs- New India Assurance Co.Ltd. & Others in Civil Appeal No.4244/2015 : [2015 ALL SCR 2004] held that it is open for the claimant to recover the entire compensation from one of the joint Tort Feasors.

13. The claim petition having been filed under Section 163A of the Act, which is a special provision and the capitalization of the compensation being on the structured formula contemplated in the schedule to the Act, it is mandate upon the Tribunal to go by the requirement of Section 163A of the Act. A claimant, who has filed a petition under Section 166 of the Act, is required to prove the negligence of the driver of the offending vehicle. But same is not the position in a petition under Section 163A of the Act, which reads thus:

"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 motor vehicle or the authorized insurer shall be liable to pay in 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.

(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".

14. It is clear from the above that once the accident is proved, the owner or the insurer of the vehicle is bound to pay the compensation in accordance with the structured formula enumerated in the second schedule to the Act. The Division Bench of this Court in M/s.United India Insurance Co.Ltd. -vs- Radha A.Kamath and Others reported in 2011(4) AIR Kar R 292 has laid down that provision of Section 163A of the Act discloses that in a case of composite negligence of two vehicles, the owner and the insurer of both the vehicles would be liable to pay the compensation. Admittedly, the present accident since between two vehicles and the compensation sought under Section 163A of the Act, the liability shall be borne by the owner/insurer of both the vehicles. In the judgment of the Apex Court in Khenyei [2015 ALL SCR 2004] (supra), it was ruled that it is open for a claimant to recover the entire compensation from one of the joint tort feasors. Another Division Bench of this Court in National Insurance Co.Ltd. -vs Honnappa and Others (ILR 2008 KAR 959) has taken the same opinion. In that view of the matter, the claimants cannot be non-suited for not arraying the owner and insurer of the two wheeler on which the deceased was proceeding. Wherefore, the BMTC cannot avoid its vicarious liability to indemnify the claimants without there being any proof of negligence on the part of the BMTC bus.

15. The right of a widow to seek compensation despite her remarriage fell for consideration before this Court and various other courts and was upheld. By virtue of Section 14 of the Hindu Succession Act (since parties herein are Hindus as suggested by their respective names), a widow becomes entitled for award of compensation as a legal heir in a claim petition before the Tribunal. It is not only towards loss of dependency she claims maintenance but also towards the loss of estate she is entitled for compensation. A right that vested with her for compensation on the death of her husband, no law divests the right so vested on her remarriage. Here is the case where her mother-in-law has also expired during the pendency of the proceedings. In a reported judgment from the High Court of Judicature at Madras, Madurai Bench in 2012 ACJ 945 in the matter of Selvi -vs- K.Alagarsamy and another, such contention taken by the Insurance Company was held 'opposed to public policy'. In another judgment from the High Court of Judicature at Gauhati in 2011 ACJ 1625 in the matter of State of Tripura and Another -vs- Bela Dey (Das) and another, it was observed that "neither in Section 165 nor in section 166, there is any restriction/bar prohibiting or disqualifying a widow, who remarries during the pendency of a claim petition, from getting compensation for the death of her husband. In view of the provisions laid down in Section 166, as the widow of the deceased becomes the legal representative of the deceased immediately on the death of her husband in a vehicular accident, her right to seek compensation under the M.V.Act accrues in her favour. There is no principle of limited heirship and there is nothing in the Motor Vehicles Act that in order to get compensation, the widow is required to remain unmarried. . . . . ."

16. That takes us to the position that the appellant of M.F.A.No.6139/2009/Smt.Anitha, the widow of the deceased cannot be prevented to claim compensation despite her remarriage. No other Class-I legal heir having been shown to inherit the estate of her deceased mother-in-law, the consequence is Smt.Anitha becomes entitled for the entire compensation in accordance with the structured formula contemplated in Schedule II to the Act.

17. The Tribunal has assessed the loss of dependency at Rs.4,42,000/- by considering the monthly income of the deceased at Rs.3,250/- and deducting 1/3rd of the same towards personal expenses of the deceased worked out the notional income at Rs.26,000/- per annum with the multiplier of '17' (since the age of the deceased was 33 years then). Rs.5,000/- is awarded towards loss of love and affection; Rs.2,000/- towards funeral and obsequies expenses and Rs.2,500/- towards loss of estate. Thus the compensation is worked out at Rs.4,51,500/- with interest @ 6% per annum. The finding of the Tribunal in non-suiting the petitioner only on the ground she got remarried since is not founded either on any statutory provision and against the public policy, the appellant of M.F.A.No.6139/2009 is entitled for the entire compensation amount and M.F.A.No.419/2010 deserves to be dismissed.

Accordingly, M.F.A.No.6139/2009 preferred by the claimant is allowed. The judgment and award dated 28.5.2009 in M.V.C.No.1989/2007 passed by the M.A.C.T.-V, Court of Small Causes, Bangalore City, in rejecting her claim is set aside. The appellant/claimant is entitled for the entire compensation ordered by the Tribunal at Rs.4,51,500/- with interest @ 6% per annum from the date of petition till realization.

M.F.A.No.419/2010 preferred by the BMTC is dismissed.

In view of disposal of M.F.A.No.419/2010, Misc.Cvl.No.819/2010 filed therein does not survive for consideration, hence, disposed of.

The statutory amount in deposit shall be transmitted to the jurisdictional Tribunal.

Ordered accordingly.