H.V. Shashikala vs C.K. Farook and Others

N.K. Patil, J.—This appeal by the claimant is directed against the judgment and award dated 24th February 2010, passed in MVC No. 18/2004, by the Presiding Officer, Fast Track Court, Channarayapatna, (for short, ''Tribunal''), dismissing the claim petition filed under Section 166 of the Motor Vehicles Act and allowing the application filed under Section 140(2) of Motor Vehicles Act, awarding compensation of Rs. 50,000/- with interest @ 6% p.a., under ''No fault liability'', in favour of the claimant as against her claim for Rs. 12,00,000/-.

On account of the injuries sustained in the road traffic accident, the appellant filed the claim petition under Section 166 of the Motor Vehicles Act, before the Tribunal, seeking compensation of a sum of Rs. 12,00,000/- against the Insurance Companies and owners of both the vehicles, i.e. Lorry and Motor cycle. The said claim petition had come up for consideration before the Tribunal on 24th February, 2010. The Tribunal, after considering the relevant material available on file and after appreciation of the oral and documentary evidence, dismissed the claim petition filed under Section 166 of the Motor Vehicles Act and allowed the application filed under Section 140(2) of Motor Vehicles Act, awarding compensation of Rs. 50,000/- with interest @ 6% p.a. under ''No fault liability'' in favour of the claimant as against her claim for Rs. 12,00,000/-. Being dissatisfied with the quantum of compensation awarded by the Tribunal and aggrieved by the dismissal of the claim petition filed under Section 166 of the Motor Vehicles Act, the appellant has filed the appeal before this Court, seeking to allow the claim petition, awarding reasonable compensation.

I have gone through the grounds urged in the memorandum of appeal and the impugned judgment and award passed by Tribunal and heard the learned counsel appearing for the appellant and learned counsel appearing for both the Insurers.

Learned counsel appearing for appellant at the outset vehemently submitted that, the Tribunal grossly erred in awarding only a sum of Rs. 50,000/- under ''No fault Liability'', allowing the application filed under Section 140(2) of Motor Vehicles Act, though after remand from this Court, the appellant got examined the eye witness. Thereby, the Tribunal has given a wrong decision by brushing aside the evidence of the eye witness, which is liable to be set aside by this Court, by allowing the claim petition filed by the appellant. She further submitted that the Tribunal ought to have appreciated the fact that even if the offending Lorry was parked, the negligence ought to have been attributed to the offending vehicle also and therefore the judgment and award passed by Tribunal is totally against the material produced by the appellant on the basis of which, the Tribunal could have come to a conclusion that the accident occurred due to the negligence of the Lorry itself and not due to the negligence of the deceased. Therefore, she submitted that, looking from any angle, the impugned judgment and award passed by Tribunal is liable to be set aside, by allowing the appeal.

Per contra, learned counsel appearing for both the Insurers, inter alia contended and sought to substantiate the impugned judgment and award passed by Tribunal, stating that the same is passed after critical evaluation of the oral and documentary evidence available on file, inasmuch as the Tribunal has recorded a specific finding of fact, holding that the rider of the motor cycle, viz. the deceased Umesh, who is none other than the husband of claimant/appellant is solely responsible for the occurrence of accident. Further, they submitted that in the claim petition filed by the appellant in M.V.C. No. 17/2004, seeking compensation on account of the injuries sustained by her in the road traffic accident, the Tribunal has recorded a finding of fact, holding that the accident has occurred solely on account of the rash and negligent riding by the rider of the motor cycle, i.e. deceased Umesh and the said finding has reached finality as the appellant has not challenged the same. Therefore, they submitted that the Tribunal, after critical evaluation of the oral and documentary evidence available on file, has rightly dismissed the claim petition filed under Section 166 of the Motor Vehicles Act and allowed the application under Section 140(2) of the Motor Vehicles Act, by awarding Rs. 50,000/- as compensation under ''No fault Liability'', with interest at 6% per annum, from the date of petition till its deposit. Hence, interference in the same is unwarranted.

After careful consideration of the submission of the learned counsel appearing for appellant and learned counsel appearing for Insurers and after perusal of the entire material available on file, including the impugned judgment and award passed by Tribunal, the only point that arise for my consideration in this appeal is,

"Whether the Tribunal is justified in dismissing the claim petition filed under Section 166 of M.V. Act and allowing the application filed under Section 140(2) of M.V. Act.?" 7. After perusal of the entire material available on file, it emerges that, occurrence of accident and the resultant death of deceased Umesh and injuries to the appellant, who is none other than the wife of deceased, who was traveling as a pillion rider in the motor cycle ridden by the deceased are not in dispute.

The Tribunal, after critical evaluation of the oral and documentary evidence available on file, specifically observed that the appellant has maintained one more petition in M.V.C. No. 17/2004 under Section 166 of the M.V. Act praying for compensation for the injuries sustained by her in the same accident and the said claim petition was decided along with the claim petition vide common judgment dated 28/01/2006, holding that the rider of the motor cycle i.e., deceased Umesh was solely responsible for the accident. However the appellant, being the pillion rider, it allowed the claim petition in M.V.C. No. 17/2004 impart, holding that she is entitled for compensation of Rs. 50,000/- together with interest from respondent Nos. 1 and 2, who are the owner and the insurer of the motor cycle. But, it can be seen that the appellant or the respondents have not challenged the judgment and award passed in the said M.V.C. No. 17/2004. Thus, the said judgment and award has reached finality.

Further, after perusal of the case papers of M.V.C. No. 17/2004, it is seen that on deposit of the compensation amount, she has even withdrawn a portion of the amount and the balance amount has been invested in her name. It proves beyond all reasonable doubt that she has accepted the findings and the conclusion arrived at by the Tribunal in-toto in M.V.C. No. 17/2004 filed by her and the present claim petition being a petition arising out of the same accident and she being the claimant in M.V.C. No. 17/2004, though as a legal heir of the deceased, the Tribunal held that the finding given in M.V.C. No. 17/2004 would be applicable even to the present petition and held that, in the above referred decision, the appellant herein is estopped from contending contrary to the findings given in M.V.C. No. 17/2004, which was not challenged by her.

Accordingly, for the foregoing reasons, the Tribunal held that the rider of the motor cycle i.e. deceased Umesh himself was solely responsible for the occurrence of the accident and issue No. 1 partly in the Affirmative.

As the present claim petition was filed under Section 166 of MV Act, it was incumbent on the appellant to prove the actionable negligence on the part of the alleged offending vehicle. While appreciating the materials on record it becomes clear that the legal heirs of the deceased/appellant has failed to prove rashness or negligence on the part of the driver of the lorry as alleged in the claim petition. In the said circumstances, the Tribunal held that they are not entitled for any compensation as prayed in the claim petition filed under Section 166 of the M.V. Act.

But, while perusing the case papers, it is seen that, at the time of maintaining the claim petition, the legal heirs have maintained an application under Section 140(2) of M.V. Act praying for compensation of Rs. 50,000/-. As provided under the said provision, in case of death, a sum of Rs. 50,000/- can be awarded under ''No Fault Liability''. The material on record clearly indicates that the lorry bearing Registration No. KL-13/F-9729 was involved in the accident. Thus, invoking Section 149 (2) of M.V. Act, the Tribunal held that the respondent Nos. 1 and 2 being the insured and the insurer of the said Lorry, they are liable to pay Rs. 50,000/- to the legal heirs of the deceased based on ''No Fault Liability''.

The said finding of fact recorded by Tribunal, is not disputed or challenged by the learned counsel appearing for appellant nor have they examined the eye witnesses. Hence, the reasoning, finding and also the discussion of the Tribunal are just, fair and proper as the same are recorded after critical evaluation of the oral and documentary evidence available on file. Therefore, interference in the well considered judgment and award passed by Tribunal is uncalled for.

Further, the submission of the learned counsel appearing for the appellant that the appellant being the pillion rider of the motor cycle involved in the accident, does not take away the legitimate entitlement of compensation under Section 166 of the Motor Vehicles Act on account of the death of her deceased husband in the road traffic accident, cannot be accepted nor the same has got any substance, for the reason that the Tribunal after critical evaluation of the oral and documentary evidence available on file, has dismissed the claim petition filed under Section 166 of the M.V. Act and allowed the application filed under Section 140(2) of the Act, awarding compensation of Rs. 50,000/- under ''No fault liability''. Therefore, I do not find any justification or good ground as such made out by appellant to entertain the relief sought in this appeal.

Therefore, having regard to the facts and circumstances of the case, the appeal filed by appellant is liable to be dismissed as being devoid of merit. Accordingly, it is dismissed.

Office to draw award, accordingly.