United India Insurance Co.Ltd vs Veeresh S/O Basavarajappa Mudgal ...
2021 Latest Caselaw 3759 Kant

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       IN THE HIGH COURT OF KARNATAKA
               KALABURAGI BENCH

  DATED THIS THE 10TH DAY OF NOVEMBER, 2021

                     BEFORE

      THE HON'BLE MR.JUSTICE M.G.S.KAMAL

            MFA No.32721/2013 (MV)

BETWEEN

UNITED INDIA INSURANCE CO. LTD.,
REGD.& HEAD OFFICE NO.24 WHITE ROAD
CHENNAI, NOW REPRESENTED BY ITS
DIVISIONAL MANAGER, UNITED INDIA
INSURANCE CO. LTD.,
RAICHUR-584101.
                                         ...Appellant

(BY SRI S. S. ASPALLI, ADVOCATE)

AND

1. VEERESH S/O BASAVARAJAPPA MUDGAL
   AGE: 34 YRS, OCC:KIRANA BUSINESS
   R/O TIDIGOL, TQ:SINDHANUR,
   DIST:RAICHUR-584101.

2. CHANDRAKANTH S/O HANUMANTHA CHALUVADI
   AGE: 35 YRS, OCC:JEEP DRIVER
   R/O SARJAPUR VILLAGE, TQ:LINGASUGUR
   NOW RESIDING AT MATUR, TQ,SINDHANUR
   DISTRICT RAICHUR-584101.

3. AMARAPPA S/O PAMPANNA GUDADUR
   AGE 26 YRS. OCC: DRIVER OF TRACTOR,
   R/O TIDIGOL, TQ:SINDHANUR
                              2




  DISTRICT RAICHUR-584101.

4 . PAMPANNA S/O SHANKARAPPA SANKANAL
   AGE: 57 YRS, OCC:AGRICULTURE
   R/O TIDIGOL VILLAGE TQ:SINDHANUR-584101
   (OWNER OF TRAILER REGN.KA-36/TB-97)

5 . MANJUNATH S/O PAMPANNA SANKANAL
   AGE: 30 YRS., OCC:AGRICULTURE
   R/O TIDIGOL VILLAGE TQ:SINDHANUR
   DISTRICT RAICHUR-584101
   (OWNER OF TRAILER REGN.NO.KA-36-TB-97)
                                  ...RESPONDENTS

(BY SRI PUNITH H MARKAL, ADVOCATE FOR R1;
NOTICE TO R2 DISPENSED WITH;
R3 TO R5 IS SERVED)

     THIS MFA FILED U/S 173(1) OF THE MV ACT
PRAYING TO CALL FOR THE RECORDS IN MVC
NO.116/2011 ON THE FILE OF THE ADDL. MOTOR
ACCIDENT CLAIMS TRIBUNAL (SR. CIVIL JDUGE) AT
LINGASUGUR     DATED    08.03.2013.  (SITTING   AT
SINDANOOR) TO SET ASIDE THE JUDGMENT AND AWARD
DATED: 08.03.2013 IN MVC NO.116/2011 PASSED BY THE
ADDL. MOTOR ACCIDENT CLAIMS TRIBUNAL LINGASUGUR
SITTING AT SINDANOOR BY ALLOWING THE ABOVE
APPEAL.

     THIS APPEAL COMING ON FOR ORDERS THIS DAY,
THE COURT DELIVERED THE FOLLOWING:-

                       JUDGMENT

This appeal is filed under Section 173(1) of the Motor

Vehicles Act, 1988 (for short 'M. V. Act') by the insurance

company against the judgment and award dated

08.03.2013 passed in MVC No.116/2011 on the file Motor

Accident Claims Tribunal at Lingasugur sitting at Sindhanur

(for short 'the Tribunal').

2. Brief facts leading up to filing of the present

appeal are that on 22.06.2010, the claimant, who was

proceeding in Mahindra jeep bearing registration No.KA-

36/M-1677 on Sindhanur - EJ Bommanahal road, the

driver of the said jeep drove the same in high speed in a

rash and negligent manner and dashed against the tractor-

trailer bearing registration No.KA36/TB-1389 and KA-36-

TB-97, which was parked on the road in a manner

obstructing free flow of traffic and endangering to the

human life. Due to the impact, the claimant sustained

grievous injuries in the nature of fracture of left forearm

and other passengers of the said jeep were also sustained

injuries.

3. Thereupon, the claimant has filed a claim

petition under Section 166 of the M. V. Act seeking

compensation on the premise that he put to loss and

hardship due to the injuries sustained in the accident.

4. Upon service of notice, the driver of the jeep,

who is respondent No.2 herein, the driver of the tractor,

who is respondent No.3 herein, the owner of the tractor,

who is respondent No.4 herein and owner of trailer, who is

respondent No.5 herein have appeared and filed their

written statement denying the petition averments. The

insurance company, who is appellant herein appeared

through its counsel filed written statement denying the

age, income and occupation of the claimant. It is

contended that the accident caused due to rash and

negligent driving of jeep by its driver, but, the police

authorities have filed a false and frivolous charge sheet

against the driver of the tractor and trailer. It is further

contended that the it is not liable to pay any compensation

because the tractor and trailer are not insured with it and

hence sought for dismissal of the claim petition.

5. Based on the pleadings of the parties, the

Tribunal framed issues and recorded evidence. The

claimant examined himself as PW.1 and one Dr.Ashwini

Kumar Singh has been examined as PW.2 and exhibited 8

documents as Exs.P1 to P8. One G.K.Panduranga Rao has

been examined as DW.1 and exhibited 4 documents as

Exs.D1 to D4 on behalf of the respondents.

6. The Tribunal after having appreciated the

pleadings and material evidence placed on record held that

the claimant sustained injuries in the accident involving

the jeep and the tractor-trailer. Consequently, held that

the claimant is entitled for total compensation of

Rs.99,500/-. While assessing the liability, the Tribunal has

come to the conclusion that there was contributory

negligence on the part of both the driver of the jeep as

well as the driver of the tractor-trailer. Since the tractor-

trailer and jeep were insured with the respective insurers,

directed the liability of payment of compensation be

fastened at 50% each on the said insurance companies.

Being aggrieved by the said order fastening the liability of

paying the compensation at 50%, the insurance company,

who is the insurer of the tractor-trailer is before this Court.

7. Heard the learned counsel for the appellant -

insurance company and the learned counsel for the

respondent No.1 - claimant.

8. The accident in question involving the tractor-

trailer and the jeep resulting in injuries to the claimant is

not in dispute. The compensation awarded by the Tribunal

at Rs.99,500/- has not been questioned. The limited

challenge to the impugned order is to the extent of

fastening 50% of the liability on the insurer of the tractor-

trailer.

9. The learned counsel for the appellant -

insurance company reiterating the grounds urged in the

appeal memorandum submitted that as per the contents of

FIR and complaint filed by one Radhavendra, which is

registered in Crime No.24/2010 at Turvihal police station

categorically reveal that the accident had occurred on

account of rash and negligent driving on the part of the

driver of the jeep and there was no negligence on the part

of the driver of the tractor-trailer, who had parked the said

vehicle on the left side of the road. He further submits

that the claimant, who has been examined as PW.1 has

categorically asserted that it was the driver of the jeep

who was driving the same in a rash and negligent manner

and due to the said act, the accident had occurred. Thus,

he submits that these two aspects of the matter has not

been taken into consideration by the Tribunal even while

erroneously holding that there was contributory

negligence. He further submits despite categorical

statement in the complaint and the FIR, concerned police

filed the charge sheet against the driver of both the

vehicles, which would not be justified in view of the

aforesaid admitted position. Hence, he seeks for allowing

of the appeal by exonerating the insurance company from

the liability to pay the compensation.

10. The respondent No.1 - claimant is represented

by his counsel. Despite service of notice, respondent No.2

has remained absent.

11. The only question that arises for consideration

is:

"Whether the appellant/insurance company has made out a case for interference with the order of the Tribunal fixing 50% liability on it?"

12. It is settled position of law that aspect of

contributory negligence or negligence as the case may be

has to be established independently by leading cogent

evidence. The insurance company, who is under

contractual obligation to pay/indemnify the loss either to

the person or to the property subject matter of the policy,

cannot infer contributory negligence from the

circumstances without leading evidence. It is equally

settled position of law that FIR is not a substantive piece of

evidence. The contents of complaint and FIR have to be

corroborated with independent evidence. In the instant

case, there is no independent evidence led in to establish

the negligence solely on the part of the driver of the jeep.

The fact that the tractor-trailer having been parked on the

road is established from the FIR, charge sheet, spot

mahazar, IMV report and the spot sketch. The reason for

parking the said tractor-trailer on the road has not been

forthcoming. Section 122 of the M. V. Act provides that no

person in charge of a motor vehicle shall cause or allow

the vehicle or any trailer to be abandoned or to remain at

rest on any public place in such a position or in such a

condition or in such circumstances as to cause or likely to

cause danger, obstruction or undue inconvenience to other

users of the public place or to the passengers. There was

no material evidence placed on record to show the

circumstances warranting parking of the tractor-trailer at

the spot of the accident. There is also no material placed

on record as to whether the driver of the driver/owner of

the tractor-trailer has taken sufficient precaution to caution

the fellow road users. In the absence of these crucial

aspects of the matter, merely on the ground of statement

made in the complaint, it cannot be inferred that there was

no negligence on the part of the driver of the tractor-

trailer. The Tribunal after taking into consideration these

aspects of the matter has come to the conclusion fastening

the liability at 50% each on the insurer of the tractor-

trailer, who is the appellant herein, as well as on on the

jeep. The said finding cannot be found fault with. For the

aforesaid analysis, the point raised is answered and

following order is passed:

ORDER

a) The appeal filed by the insurance company is

dismissed.

b) The judgment and order passed by the

Tribunal dated 08.03.2013 passed in MVC

No.116/2011 is confirmed.

c) The amount in deposit be transmitted to the

concerned Tribunal.

Sd/-

JUDGE

Srt