Karnataka High Court
The Legal Manager vs Smt Shaheeda Begum on 27 January, 2021
Author: H T Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MFA No.10665 OF 2010(MV)
C/W
MFA No.10085 OF 2010(MV)
IN MFA 10665/2010
BETWEEN:
THE LEGAL MANAGER
AIG GENERAL INSURANCE CO LTD
AHURA CENTRE, 4TH FLOOR
NO.82, MAHAKALICAVES ROAD
ANDHERI,
MUMBAI BYTATA AIG GEN INS CO LTD
JP & DEVIJMABHUKESHARI ARCADE
NO.69, MILLER"S ROAD
BANGALORE 560052
BY IT"S MANAGER400093.
...APPELLANT
(BY SRI.O MAHESH, ADV.)
AND
1. SMT SHAHEEDA BEGUM
AGED ABOUT 32 YEARS
W/O LATE HASHEEM S.H
R/AT NO. 8, HARRIS ROAD
BENSON TOWN
2
BANGALORE560046.
2. BABY H.S SABHIYA
AGED ABOUT 8 YEARS
D/O LATE HASHEEM S.H
MINOR REP. BY THEIR MOTHER
AND NATURAL GUARDIAN
SHAHEEDA BEGUM
R/AT NO.8, HARRIS ROAD
BENSON TOWN
BANGALORE560046
3. BABY S.H. SAFIYA
AGED ABOUT 8 YEARS
D/O LATE HASHEEM S.H
MINOR REP. BY THEIR MOTHER
AND NATURAL GUARDIAN SHAHEEDA
BEGUMR/AT NO.8, HARRIS ROAD
BENSON TOWN
BANGALORE560046.
4. SMT. SHANWAZ BEGUM
AGED ABOUT 53 YEARS,
W/O SYED HAROOL
R/AT NO.8, HARIS ROAD,
BENSON TOWN
BANGALORE560046
5. SYED HAROOL
AGED ABOUT 60 YEARS
S/O LATE SYED NOOR
R/AT NO.8, HARIS ROAD,
BENSON TOWN
BANGALORE560046.
6. THE ORIENTAL INSURANCE CO LTD
3
REGIONAL OFFICE,
RESIDENCY ROAD CROSS,
BANGALORE-560025
BY ITS MANAGER.
7. L. SHANKARAIAH
S/O J. CHINNA, MAJOR
VENKATASUBBAIAH
NO A-29, BY-PASSROAD
NANDYAL (H.O)
KARNOOL A.P518501.
...RESPONDENTS
THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED:20.02.2010 PASSED IN MVC NO.225/2007 ON
THE FILE OF THE XIX ADDITIONAL SMALL CAUSES
JUDGE, & MACT, BANGALORE, AWARDING A
COMPENSATION OF RS.8,30,080/- WITH INTEREST @
6% P.A. FROM THE DATE OF PETITION TILL
REALIZATION.
IN MFA 10085/2010
BETWEEN:
M/S THE ORIENTAL INSURANCE
COMPANY LIMITED
REGIONAL OFFICE
LEO SHOPPING COMPLEX
NO.44/45, RESIDENCY ROAD
BANGALORE-1.
REP BY ITS REGIONAL MANAGER.
...APPELLANT
(BY SRI. B S UMESH, ADV.)
4
AND
1. SMT SHAHEEDA BEGUM
W/O LATE HASHEEM S.H
2. BABY H.S. SABHIYA
AGED ABOUT 8 YEARS
D/O LATE HASHEEM.S.H.
3. BABY S.H. SAFIYA
AGED ABOUT 8 YEARS
D/O LATE HASHEEM.S.H.
4. SMT SHANWAZ BEGUM
AGED ABOUT 53 YEARS
W/O SYED HAROOL
5. SYED HAROOL
AGED ABOUT 60 YEARS
S/O LATE SYED NOOR
R2 AND R3 ARE BEING MINORS
AND HENCE REPRESENTED BY THEIR
NATURALGUARDINA MOTHER R1
R1 TO R5 ARE
R/AT NO.8, HARRIS ROAD
BENSON TOWN,
BANGALORE- 46
6. M/S TATA AIG GENERAL INSURANCE CO.LTD.,
AHURA CENTRE, 4TH FLOOR
NO.82, MAHAKALI CAVER ROAD
ANDHERI, MUMBAI- 400 093.
7. SRI L. SHANKARIAH
S/O CHINNA VENKATASUBBAIH,
5
MAJOR,
NO. A-29,
BY-PASS ROAD, NANDYAL-(H-0)
KARNOOL- 518501, ANDRA PRADESH
...RESPONDENTS
(BY SRI. P.JAGANATHAN, ADV. FOR R4 & R5:
SRI. O. MAHESH ADV. FOR R6:
NOTICE TO R7 IS HELD SUFFICIENT
V/O DATED:24.07.2014 )
THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED: 20.02.2010 PASSED IN MVC NO.225/2007 ON
THE FILE OF THE XIX ADDITIONAL SCJ AND MACT
BANGALORE, AWARDING A COMPENSATIN OF
RS.8,30,088/- WITH INTEREST A 6% P.A. FROM THE
DATE OF PETITION TILL REALISATION.
THESE MFAs COMING ON FOR ADMISSION,
THROUG VIDEO CONFERENCE, THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
These appeals under Section 173(1) of the Motor
Vehicles Act, 1988 (hereinafter referred to as 'the Act',
for short) have been filed by the AIG General
Insurance Company and Oriental Insurance Company
respectively being aggrieved by the judgment dated
20.2.2010 passed by the Motor Accident Claims
Tribunal.
2. Facts giving rise to the filing of the appeals
briefly stated are that on 4.12.2005, the deceased
Hasheem was proceeding in Tata Safari bearing
registration No.KA-02-MM-333 from Bangalore
towards Madanapalli, at that time, lorry bearing
registration No.AP-04-T-4700 being driven by its
driver at a high speed and in a rash and negligent
manner, dashed to the vehicle in which the deceased
was traveling. As a result of the aforesaid accident,
the deceased sustained grievous injuries and died at
the spot.
3. The claimant filed a petition under Section
166 of the Act seeking compensation. On service of
notice, the respondent No.1 and 2 appeared through
counsel and filed written statements in which the
averments made in the petition were denied. The
respondent No.3 did not appear before the Tribunal
inspite of service of notice and was placed ex-parte.
4. On the basis of the pleadings of the parties,
the Claims Tribunal framed the issues and thereafter
recorded the evidence. The Tribunal held that the
claimants are entitled to a compensation of
Rs.8,30,088/- along with interest at the rate of 6%
p.a. and directed the respondent Nos.1 and 2 to
deposit the compensation amount equally along with
interest. Being aggrieved, these appeals have been
filed.
5. Sri.O.Mahesh, learned counsel for AIG
General Insurance Company has contended that the
Tribunal has given a clear finding that the accident
has occurred due to rash and negligent driving of both
the vehicles and they have contributed to the accident
equally. But in page 19 of the judgment of the
Tribunal, the Tribunal has held that the respondent
No.1, insurer of Tata Safari is not liable to pay
compensation and dismissed the petition against
respondent No.1, Insurance Company. In page 20,
operative portion of the judgment, the Tribunal has
directed both the respondent Nos.1 and 2 to
indemnify the claimants by depositing the amount
equally. The said finding of the Tribunal is contrary to
the materials available on record. Hence, he sought
for allowing the appeal i.e., MFA 10665/2010.
6. On the other hand, Mr.B.S.Umesh, learned
counsel for Oriental Insurance company has
contended that in respect of issue No.1 framed by the
Tribunal, the Tribunal has given clear finding that the
accident has occurred due to rash and negligent
driving of the car by its driver. In the operative
portion of the order, the Tribunal has held that
accident has occurred due to contributory negligence
and the drivers of the car as well as lorry have
contributed to the accident equally. The said finding of
the Tribunal is contrary to the materials available on
record. Hence, he sought for allowing the appeal i.e.,
MFA 10085/2010.
7. Heard the learned counsel for the parties
and perused the records.
8. It is not in dispute that Tata safari bearing
No.KA-02-MM-333 and lorry bearing No.AP-04-T-4700
were involved in the accident occurred on 4.12.2005.
9. The Tribunal has framed issues and issue
No.1 reads as follows:
"whether the petitioners prove that
Hasheem S.J. died in the RTA that occurred on
4.12.2005 at about 10.00 a.,. on B.C.Road near
Mandyala Gate, Rayalpad, due to the actionable
negligence by the driver of the Tata Safari
Bearing Regn.No.Ka-02-MM-333 at the same
time the driver of lorry bearing Regn.No.AP-04-
T-4700 came on wrong side due to which both
the vehicles are colluded with each other? "
The Tribunal has given a finding that the accident has
occurred due to rash and negligent driving of the car,
but answered issue No.1 in the affirmative. In page 18
of the order, the Tribunal has held that accident has
occurred due to contributory negligence and the
drivers of the Tata Safari as well as lorry have
contributed to the accident equally. Further, in page
19, it has dismissed the claim petition against the
respondent No.1, insurer of Tata Safari. Finally, in
page 20, operative portion of the order, the Tribunal
has directed both the respondent Nos.1 and 2 to
indemnify the claimants by depositing the amount
equally. The said finding of the Tribunal is contrary to
the materials available on record. Hence, the matter
requires to be remanded to the Tribunal for fresh
consideration in respect of finding on negligence and
liability is conerned.
10. Accordingly, the appeals are allowed. The
impugned judgment and award of the Tribunal is set
aside. The matters are remanded back to the Tribunal
for fresh consideration in respect of negligence and
liability is concerned. In respect of finding of the
Tribunal on quantum of compensation is concerned,
the same is confirmed, since the claimants have not
filed any appeal.
The amount in deposit in both the appeals is
ordered to be transferred to the Tribunal
Sd/-
JUDGE
DM
