New India Assurance Co. Ltd. vs V. Krishna Murthy Namboodri, Smt. Rukmimi Krishna Murthy, V. Muralidharan and Oriental Insurance Co Ltd.

Ajit J. Gunjal, J.—Even though this appeal is listed for admission, with the consent of both the Counsel, we have taken up this appeal for final hearing.

This appeal would relate to MVC No. 4296/2000. The appeal which arose out of the companion claim petition No. 6931/2005 was heard and disposed of on 10.03.2011.

The factual matrix of the case is as under:

On 29.05.2000 at about 5.30 p.m., the deceased in MVC No. 1921/2000 was riding the motor cycle bearing registration No. KA-03-EA-3879 on Bhoopasandra Main Road and the deceased in MVC No. 4296/2000 was riding the motor cycle bearing registration No. CKK-4753 on Bhoopasandra Main Road.

It is the case of the claimants in MVC No. 1921/2000 that the rider of the motor cycle was driving it slowly and cautiously. At that time, the rider of the motor-cycle bearing registration No. CKK-4753 came in a rash and negligent manner and hit the motor cycle bearing registration No. KA-03-EA-3879. The resultant effect was both the riders sustained grievous injuries and both of them succumbed to the injuries. Hence, two claim petitions are filed, one by the widow and children of the rider of the motor cycle bearing registration No. KA-03-EA-3879, which is numbered as MVC No. 1921/2000 and another by the parents of the rider of motor cycle bearing registration No. CKK 4753, which is numbered as MVC No. 4296/2000.

In the connected appeal, we have recorded a finding that the rider of the motor cycle bearing registration No. CKK 4753 by name Biju was responsible for the said accident. The Tribunal has also recorded the same finding. We notice that during the pendency of the claim petition before the Tribunal, a memo is filed by the claimants-Respondents indicating that they propose to prosecute the petition as one u/s 163A of the Motor Vehicles Act. even chough the original petition was filed u/s 166 of the Motor Vehicles Act (hereinafter referred to as ''the Act''). The said application has been granted. Indeed, we also notice that the counsel for the insurer has also endorsed that they have no objection to allow the said application, hence, the Tribunal granted permission to convert the petition as to one u/s 163A of the Act and accepted the claim petition and awarded compensation of Rs. 3,31,000/- with interest at the rate of 7% per annum.

Mr. O Mahesh, learned Counsel appearing for the insurer for the vehicle bearing registration No. KA-03-EA-3879 submits that the Tribunal has erred in permitting the claimants to prosecute the claim petition as one u/s 163A of the Act He submits that once the application is filed u/s 166 of the Act, the question of it being converted into Section 163A of the Act and restricting the claim would not arise. He further submits that the compensation as determined by the Tribunal warrants interference in as much as if the claim petition is treated as one u/s 163A of the Act, structured formula is required to be adopted. He further submits that in the event, if this Court were to hold that the claim petition as u/s 153A of the Act as maintainable, the insurer of the vehicle bearing registration No. CKK-4753 is also equally liable to satisfy the award in equal proportion.

Mr. A M Venkatesh, learned Counsel appearing for the insurer of the vehicle bearing registration No. CKK-4753 submits that at the first instance, the insurer is not liable to satisfy the award. He further submits that in the event, if this Court were to affirm the award, the liability may be apportioned in the ratio of 50% each.

We have given our anxious consideration to the submissions made by the learned Counsel appearing for the insurer of both the vehicles. We notice that the claimants are served and unrepresented.

Indeed, we notice that it is not in dispute that initially the claim petition was filed u/s 166 of the Act. It is also not in dispute that in the claim petition, the claimant would claim that the deceased was a trainee and was earning Rs. 6,000/- per month. The evidence is led in support of the said contention. Indeed, Mr. O Mahesh, learned Counsel appearing for the insurer is right in submitting that if the income of the deceased is much more than what is optimum amount as permitted in the schedule, the claim u/s 163A of the Act is certainly not maintainable. But however in the case on hand, we notice that initially, the claim petition was filed u/s 166 of the Act and a memo was filed by the claimants, the same was converted into Section 163A of the Act. It is no doubt true that a Division Bench ruling of this Court would indicate that once the claim petition is filed u/s 166 of the Act, an application made by the claimant to convert into 163A of the Act is impermissible. Apparently, the facts of this case are different than the decision reported in 2003 ACJ 1532. Indeed in that appeal, deceased was working as a sweeper and was an employee of the Corporation City at Bangalore and his gross salary was Rs. 4,342/- and net salary was Rs. 4,179/- thus, having regard to the said unimpeachable evidence, the Court was of the view that the conversion is impermissible, but however, the facts are different here. It is no doubt true that the claim of the claimants was than deceased was trainee in a company, but however, it is significant to notice that Ex.R1 which is produced by the Respondent during the course of trial clearly indicates that the so called employer of the deceased had given certificate that the deceased Biju was not at all employed in his company. Hence, in the circumstances, it cannot be said that the deceased was employed and was earning a sum of Rs. 6,000/- per month. In the circumstances, we are of the view that the petition was maintainable u/s 163A of the Act. It is no doubt true that the claimant has pleaded and has deposed before the Tribunal that the deceased was earning Rs. 6,000/- per month, but however as observed Ex.R1 is a document which is produced by the claimant which belies the statement. Another factor which weighs with us is that there was no objection by the insurer before the Tribunal for such conversion of petition from one u/s 166 of the Act to 163A of the Act. Consequently, we are of the view that the said decision is not applicable to the facts of the case. It is also to be noticed that the claimants are dominus litis and having said so, we are of the view that the Tribunal was justified in permitting such conversion. This takes us to the question as to the quantum. Once the petition is treated as one u/s 163A of the Act, one is required to determine the compensation with reference to the structured formula. Since we have recorded a finding that the deceased was not a earning member, his annual income is required to be taken at Rs. 15,000/- per year. If we deduct 1/3rd towards his personal expenses and adopt the multiplier 14 which would be the age of the mother, the total compensation awardable to the claimant would be Rs. 1,40,000/- to which we add sum of Rs. 4,500/- under conventional heads and we round it of to Rs. 1,50,000/-. Indeed, we are of the view that the insurers of both the vehicles are liable to satisfy the claim in equal proportion. Hence, we pass the following:

ORDER

a) The appeal is accepted in part.

b) The compensation awardable to the claimant would be Rs. 1,50,000/-.

c) Both the Appellant as well as Respondent No. 4 insurers of both the vehicles are liable to satisfy the award in the ratio of 50% each.

d) The amount in deposit shall be transmitted to the concerned Tribunal.

e) Appeal stands disposed of accordingly.