Karnataka High Court

Bajaj Allainz General Insurance vs Janardhan on 7 June, 2021

Author: H.P.Sandesh

                            1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 7TH DAY OF JUNE, 2021

                         BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

                 M.F.A.NO.2657/2013 (MV)

BETWEEN:

BAJAJ ALLAINZ GENERAL INSURANCE
COMPANY LTD.,
NO.636, SRIHARI COMPLEX
SEETHVILAS ROAD, MYSURU
REPRESENTED BY ITS
ASSISTANT VICE PRESIDENT (CLAIMS)
                                              ... APPELLANT
              (BY SRI H.R.RENUKA, ADVOCATE)
AND:

1.     JANARDHAN
       S/O THIMAPPA
       AGED ABOUT 25 YEARS
       R/O BYLUKUPPA VILLAGE
       PIRIYAPATNA TALUK
       MYSORE DISTRICT-571101

2.     PREETHAMGOWDA
       S/O DR. H.SHIVASHANKAR
       AGED ABOUT 43 YEARS
       CHANNAPURA ROAD
       KOTE LAYOUT
       CHIKMAGALUR-577101

3.     NATIONAL INSURANCE CO. LTD.,
       BRANCH OFFICE AT
       SRI MANJUNATHESWARA COMPLEX
                                 2



      BUS STAND, HASSAN NAGAR-573201

4.    NATIONAL INSURANCE CO. LTD.,
      II FLOOR, YASHURAM CAMBERS
      RATNAGIRI ROAD
      CHIKMAGALUR-577101

5.    SHIVAKUMAR
      S/O RAMASHETTY
      NO.82, BYLUKUPPA VILLAGE
      PIRIYAPATNA TALUK
      MYSURU DISTRICT-571101
                                                ... RESPONDENTS

        (BY SRI P.CHANDRASHEKAR, ADVOCATE FOR R1;
          SRI M.K.BHASKARAIAH, ADVOCATE FOR R2;
           SRI M.NARAYANAPPA, ADVOCATE FOR R3;
                SRI P.B.RAJU, ADVOCAR FOR R4;
              R5-SERVED AND UNREPRESENTED)

      THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
TO SET ASIDE THE JUDGMENT AND AWARD DATED 18.12.2012
PASSED IN MVC.NO.93/2010 ON THE FILE OF THE CIVIL JUDGE
(SR. DN.) AND MACT, BELUR, BY ALLOWING THE APPEAL.

     THIS M.F.A. COMING ON FOR ADMISSION THROUGH
'VIDEO CONFERENCE' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:

                        JUDGMENT

Though the matter is listed for admission today, with the

consent of the learned counsel for both the parties, it is taken up

for final disposal.

This appeal is filed challenging the judgment and award

dated 18.12.2012, passed in M.V.C.No.93/2010 on the file of

Civil Judge (Sr. Dvn) and MACT, Belur ('the Tribunal' for short)

questioning the fastening of liability on the appellant.

2. The parties are referred to as per their original

rankings before the Tribunal to avoid confusion and for the

convenience of the Court.

3. The factual matrix of the case is that claimant

sustained injuries in the accident that occurred on 17.02.2010 at

9.42 p.m. near Hassan-Belur Road involving the two vehicles

i.e., Mahindra Pickup Goods Vehicle bearing registration No.KA-

09-TC-806 and Santro Car bearing registration No.KA-18-M-

7042. The claimant who sustained injuries in the accident filed

claim petition claiming compensation of Rs.5,00,000/- for which

the respondents also filed statement of objections. In support of

his claim, examined himself as P.W.1 and got marked documents

at Exs.P1 to P14. Court witness is also examined as CW.1,

through who the documents at Exs.C1 to C6 are marked. The

respondent No.1 examined himself as R.W.1 and another

witness as R.W.2 and got marked documents at Exs.R1 to R9.

The respondent did not dispute the accident but the only dispute

is with regard to fastening the liability on the Insurance

Company in respect of vehicle.

4. Learned counsel appearing for the appellant would

vehemently contend that the case has been registered against

the driver of the Santro Car and also the insured vehicle. The

police have investigated the matter and filed the charge sheet

against the drivers of both the vehicles. Learned counsel also

would vehemently contend that the driver of the Santro Car had

lodged the complaint on 16.06.2010 almost after lapse of 4

months of the accident, whereas the the driver of the insured

vehicle had lodged the complaint on 17.02.2010 itself.

5. Learned counsel for the appellant not disputes the

fact that the accident is due to the head on collusion between

the two vehicles. It is also the contention of the learned counsel

for the appellant that the driver of the Santro Car went on the

wrong side of the road and caused the accident. The Tribunal

has committed an error in fastening the liability only on the

Insurance Company of the offending vehicle on the ground that

the driver had admitted the guilt and paid the fine before the

Court. Learned counsel also brought to the notice of this Court

the sketch marked at Ex.P4 and also Ex.P5 - the IMV report.

Referring to these two documents, learned counsel would

vehemently contend that the Tribunal erred in fastening the

liability only on the ground that the driver had admitted the guilt

and paid the fine.

6. Per contra, learned counsel appearing for the

respondent No.4, who insured the Santro Car, would vehemently

contend that the driver of the other offending vehicle admitted

the guilt and paid the fine and hence, the Tribunal has rightly

come to the conclusion that the accident was on account of sole

negligence on the part of the driver of the other offending

vehicle. Hence, it does not require interference of this Court.

7. Having heard the arguments of the respective counsel and also on perusal of the records, the points that would arise for the consideration of this Court are:-

(i) Whether the Tribunal has committed an error in fastening the liability exclusively on the appellant/Insurance Company ?

      (ii)      What order ?


Points No.1 and 2:-

8. Having heard the respective counsel and also on

perusal of the materials available on record, it is not in dispute

that there is an involvement of the two vehicles in the accident.

It is also not in dispute that the accident is on account of head

on collusion between the two vehicles when both the vehicles are

proceeding in the opposite direction. The sketch at Ex.P4,

which is brought to the notice of this Court by the learned

counsel for the appellant clearly depicts the direction of the two

vehicles on spot, where the accident had taken place. Though

the learned counsel for the appellant vehemently contend that

taking note of Ex.P4, the Tribunal ought to have exonerated the

liability on the Insurance Company, not examined the driver of

the offending vehicle and also not examined the Investigating

Officer, who conducted the investigation and filed the charge

sheet. It is not in dispute that the Investigating Officer has filed

the charge sheet against the drivers of the two respective

vehicles. The Tribunal has come to the conclusion that the

driver of the insured vehicle of this appellant had admitted the

guilt and paid the fine. When the charge sheet is filed against

the drivers of both the vehicles, the Tribunal ought to have taken

note of the same and also that admission of guilt is only in

respect of the charge sheet filed against him.

9. It is also important to note that Ex.P5-IMV Report

clearly discloses that front portion of both the vehicles have been

damaged. The sketch clearly discloses that the insured vehicle

of the appellant was proceeding towards Belur from Hassan and

other insured vehicle i.e., Santro Car, which is insured by

respondent No.4 was proceeding in the opposite direction.

Having taken note of the fact that the accident is due to head on

collusion between the two vehicles and also particularly, the

sketch at Ex.P4, it is appropriate to take the contributory

negligence on both the drivers of the vehicles, which shall be

apportioned to the extent of 60% on the part of the driver of the

Santro Car since he proceeded towards the right side of the

direction, where the insured vehicle of the appellant was

proceeding and to the extent of 40% on the insured vehicle of

the appellant considering the damages caused to both the

vehicles as indicated in Ex.P5. It is not in dispute that both the

vehicles are insured with the appellant and respondent No.4.

The Tribunal has committed an error in fastening the liability

against the appellant and not fastening the liability on the other

insurer when admittedly, two vehicles are involved in the

accident. Hence, it requires interference of this Court by

modifying the judgment and award passed by the Tribunal and

fastening the liability on the insurers of both the vehicles in view

of the observations made in this order, particularly, taking into

consideration of Ex.P4-sketch and Ex.P5-IMV report. Hence, I

answer point No.1 as partly affirmative.

10. In view of the discussion made above, I pass the

following:-

ORDER

(i) The appeal is allowed in part.

(ii) The judgment and award passed by the Tribunal is modified by fastening the liability on the appellant as well as respondent No.4 in the ratio of 40:60 respectively.

(iii) If any deposit is made by the appellant, the same is ordered to be transmitted to the Tribunal forthwith.

(iv) The appellant is directed to deposit the 40% of the award amount before the Tribunal and in case of excess amount being deposited, the same shall be refunded to the appellant, on proper identification.