Karnataka High Court
The Divisional Manager vs Renuka W/O. Malappa Talwar on 15 February, 2022
Bench: S.Vishwajith Shetty
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 15 T H DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE S.VISHWAJITH SHETTY
M.F.A. No.22545/2012
C/W
M.F.A. No.22544/2012 (MV)
IN MFA No.225 45/ 2012
BET WEEN
THE DIV IS IONAL MANAGER,
THE NAT IONAL INSU RANCE COMPANY LIMIT ED,
SU JATHA TALKIES COMPLEX,
HU BB ALLI.
...APPELLANT
(BY SRI S.K.KAYAKAMATH, ADVOCATE)
AND
1. SRI KARWAN,
S/O SAHDEVAP PA RAMANA,
AGE: 30 YEARS,
OCC: NOW NIL,
R/O SHIVASHANKA R COLONY ,
NEAR SIDDARUDH MAT H CROSS,
OLD HU B LI, HU BBALL I.
2. SMT.BHAGIRATH I,
W/O SANGAPPA HU NU GU ND,
AGE: MAJOR,
OCC: BU SINESS AND OWNER OF
LORRY B EARING NO.CNE-3733,
R/O NEAR RAGHAV ENDRA T EMPLE,
MU DDEBHIHAL, DIST: VIJAYAPU RA.
...RESPONDENTS
(BY SRI SANTOSH D.NARAGU ND, ADVOCATE FOR R2;
APPEAL AGA INST R1 DISM ISSED)
2
THIS MISCELLANEOUS FIRST APPEA L IS FILED UNDER
SECTION 173(1) OF MOTOR VEH ICLES ACT, 1988, AGAINST
THE J UDGMENT AND AWARD DATED 30.12.2 011 PASS ED IN
MVC No.59/2007 ON THE FILE OF T HE II ADDIT IONA L
SENIOR CIVIL JU DGE AND MEMB ER, MOT OR ACCIDENT
CLAIMS T RIB UNAL, HUBB ALLI, AWARDING THE
COMPENSATION OF ` 17,000/- WITH INTEREST AT THE RATE
OF 6% P.A. FROM THE DATE OF PET ITION T ILL
REAL IZ ATION.
IN MFA No.225 44/ 2012
BET WEEN
THE DIV IS IONAL MANAGER,
THE NAT IONAL INSU RANCE COMPANY LIMIT ED,
SU JATHA TALKIES COMPLEX,
HU BB ALLI.
...APPELLANT
(BY SRI S.K.KAYAKAMATH, ADVOCATE)
AND
1. SMT.RENU KA,
W/O MALAPPA TALWAR,
AGE: 24 YEARS,
OCC: HOU SEHOLD WORK,
R/O HEGGER I JANAT A QU ARTERS,
HUBB ALLI.
2. SMT.NINGAMMA,
W/O NINGA PPA TA LWAR,
(DECEASED)
3. SMT.BHAGIRATH I,
W/O SANGAPPA HU NU GU ND,
AGE: MAJOR,
OCC: BU SINESS AND OWNER OF
LORRY B EARING NO.CNE-3733,
R/O NEAR RAGHAV ENDRA T EMPLE,
MU DDEBHIHAL, DIST: VIJAYAPU RA.
...RESPONDENTS
(BY HARISH S.MAIGUR, ADVOCATE FOR R1;
SRI SANTOSH D.NARAGUND, ADVOCATE FOR R3;
R2-DECEASED; R1 IS TREATED AS LR OF R2)
3
THIS MISCELLANEOUS FIRST APPEA L IS FILED UNDER
SECTION 173(1) OF MOTOR VEH ICLES ACT, 1988, AGAINST
THE J UDGMENT AND AWARD DATED 30.12.2 011 PASS ED IN
MVC No.57/2007 ON THE FILE OF T HE II ADDIT IONA L
SENIOR CIVIL JU DGE AND MEMB ER, MOT OR ACCIDENT
CLAIMS T RIB UNAL, HUBB ALLI, AWARDING THE
COMPENSATION OF ` 4,67,00 0/- WITH INT EREST AT THE
RATE OF 6% P.A. FROM THE DATE OF PET IT ION TIL L
REAL IZ ATION.
THESE A PPEA LS COMING ON FOR ADMISS ION, T HIS
DAY THE COU RT DELIVERED THE FOLLOW ING:
JUDGMENT
These two appeals have b een preferred by the
insurer of the offend ing lorry bearing registration
No.CNE-3733 challeng ing the judgment and award
dated 30.12.2011 passed by the Motor Accident Claims
Tribunal, Hubb alli (hereinafter referred to as the
'Tribunal', for brevity) in MVC Nos.57/2007 and
59/2007, both on the ground of liability as well as on
quantum.
2. Though these appeals are listed for
admission, with the consent of the learned counsels
appearing for the parties, the same are taken up for
final disposal. The parties are referred to by their
rankings assigned to them before the Tribunal for the
sake of convenience.
3. Brief facts of the case as revealed from the
records are:
On 03.06.2005, the deceased Malappa Talwar
was traveling in the goods autorickshaw bearing
registration No.KA-25/A-7903 along with the
claimants in MVC Nos.58/2007 and 59/2007 and the
autorickshaw was driven by the deceased Malappa
while the others were traveling as coolies in the said
vehicle. When the autorickshaw reached near Kusugal
on Hubballi-Navalgund road, offending lorry bearing
registration No.CNE-3733 which was driven by its
driver in a rash and negligent manner dashed against
the autorickshaw and caused the accident. It is in
this background, the claimants in MVC No.57/2007
who are the wife and mother of deceased Malappa
had filed a claim petition initially under Section 166
of the Motor Vehicles Act, 1988 (for short, the 'Act')
claiming compensation against the owner and insurer
of the offending lorry bearing registration No.CNE-
3733 . The injured in the said accident had filed claim
petitions under Section 163-A of the Act in MVC
No.58/2007 and MVC No.59/2007. The claimants in
MVC No.57/2007 had subsequently amended their
claim petition and brought the same under Section
163-A of the Act. The Tribunal vide the impugned
judgment and award dated 30.12.2011 had dismissed
MVC No.58/2007 and had partly allowed MVC
No.57/2007 and MVC No.59/2007. Being aggrieved
by the same, the insurer of the offending lorry
bearing registration No.CNE-3733 is before this Court.
4. Learned counsel for the insurer submits
that the offending truck has been falsely implicated
in the accident in question and the involvement of
the offending vehicle in the accident in question is
not proved. He submits that the Tribunal had failed
to appreciate the material placed by the insurer
before the Tribunal and had come to an erroneous
conclusion that the claimants had proved involvement
of the offending truck in the accident in question and
thereby had erred in holding the owner and insurer of
the offending truck liable to pay compensation. He
also submits that the compensation awarded to the
claimants in MVC No.57/2007 is on the higher side.
Accordingly he prays to reduce the same.
5. Per contra, learned counsel appearing for
the claimants submits that the Tribunal has rightly
held the owner and insurer of the offending truck
liable to pay compensation. He submits that the
involvement of the offending truck in the accident in
question has been proved and the driver of the
offending truck was tried for the charge sheeted
offences before the jurisdictional Magistrate. It is
submitted by the learned counsel for the claimants
that the compensation awarded by the Tribunal is
just and proper and needs no interference.
6. I have carefully considered the arguments
addressed by both the counsel and also perused the
material on record.
7. In respect of the accident that had taken
place on 03.06.2005, immediately thereafter, one of
the injured, who is a claimant in MVC No.59/2007,
had lodged a police complaint before the
jurisdictional police and in the said complaint, the
involvement of the offending truck in the accident in
question has been stated. The complainant has
clearly stated that, when the deceased Mallappa was
driving his autorickshaw carefully, the rider of the
offending truck who was driving it in a rash and
negligent manner, dashed against the autorickshaw
and caused the accident. He has stated that, since
the accident was caused in the night, he could not
see the registration number of the offending truck,
which had dashed against the autorickshaw and he
has also stated that the driver had fled away from
the scene of accident without stopping the truck.
8. The Investigating Officer on receipt of the
complaint had registered the FIR and during the
course of investigation, he has held a spot mahazer
and the number plate of the offending lorry was
seized by him from the spot of the accident. The
material on record would go to show that the police
complaint has been lodged at about 6.30 am on
03.06.2005 and the spot mahazer has been drawn by
the Investigating Officer between 10.30 am and
11.30 am. The spot mahazer witness one Sri.Ganesh
has been examined before the Magistrate Court,
wherein the accused in the criminal case i.e., the
driver of the offending truck was tried for the alleged
offences in the charge sheet. In the deposition
before the learned Magistrate, a copy of which is
available on record, the said panch witness
Sri.Ganesh has clearly supported the case of the
prosecution and he has deposed to the effect that the
number plate of the offending truck has been seized
by the Investigating Officer from the spot of the
accident.
9. The Tribunal having placed reliance on
Ex.P4-Spot Mahazar report has held that the
claimants have proved the involvement of the
offending truck bearing registration No.CNE-3733 in
the accident in question. Having regard to the fact
that the spot mahazer has been prepared by the
Investigating Officer immediately after the complaint
was registered in respect of the accident in question,
it cannot be disbelieved more so when the
Investigating Officer has seized the number plate of
the offending vehicle from the spot and therefore the
Tribunal has rightly presumed the involvement of the
offending truck in the accident in question. The
complainant had suffered injuries in the accident and
he was admitted in the hospital. Even the other
inmates of the vehicle, who had suffered injuries,
were admitted in the hospital. The owner or the
insurer of the offending truck have not placed any
material to disbelieve Ex.P4. Though the learned
counsel for the insurer has examined RW3, who is the
panch witness for seizure of the lorry, his evidence
will not help the Insurer because he is not the panch
witness for spot mahazar report-Ex.P4 and the
involvement of the offending truck in the accident in
question is prima facie proved by the claimants, on
the basis of Ex.P4, read with deposition of the panch
witness to the said document, which is available on
record. Therefore, I do not find an illegality or
irregularity in the finding recorded by the Tribunal,
that the offending truck bearing registration No.CNE-
3733 was involved in the accident that had taken
place on 03.06.2005, in which the claimants in MVC
No.58/2007 and 59/2007 had suffered injuries and
deceased Mallappa had died.
10. Therefore, there is no merit in the
contention urged by the learned counsel for the
appellant insurer that the Tribunal was not justified
in saddling the liability to pay compensation on the
insurer of the offending truck bearing registration
No.CNE-3733.
11. Insofar as the quantum of compensation
awarded by the Tribunal is concerned, the claim
petitions are admittedly filed under Section 163A of
the Act. The Tribunal having taken the income of the
deceased Mallappa at `3,000/- per month, has
applied the multiplier of 18, which ought to have
been 17. In the said event, the claimant should be
entitled for a compensation of `4,08,000/-
(`2,000x12x17) as against `4,32,000/- awarded by
the Tribunal. Under the conventional heads, the
Tribunal has together awarded a sum of `35,000/-.
Since the claim petition is filed under Section 163A of
the Act, the claimants are entitled for a compensation
of `9,500/- under the conventional heads.
12. Under the circumstances, the claimants in
MVC No.57/2007 are totally entitled for a
compensation of `4,17,500/- as against `4,67,000/-
awarded by the Tribunal. Insofar as the
compensation awarded to the claimant in MVC
No.59/2007 is concerned, the same is just and proper
and needs no interference.
13. The order passed by the Tribunal insofar as
it relates to the rate of interest, apportionment,
disbursement, deposit, etc., remains unaltered in
both the cases. Accordingly the following:
ORDER
MFA No.22545/2012 is dismissed and MFA
No.22544/2012 is partly allowed.
The amount in deposit in both these cases is
directed to be transferred to the Tribunal for the
purpose of disbursement. Registry is also directed to
transfer the trial Court records forthwith.
In view of disposal of the main appeals, all
pending I.A.s. will not survive for consideration.
Sd/-
JUDGE
CLK /ga b
