Karnataka High Court
United India Insurance Co Ltd vs Mr Mahesh on 6 June, 2022
Bench: H T Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JUNE 2022
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MFA No.332 OF 2019 (MV)
C/W
MFA No.331 OF 2019 (MV)
IN MFA NO.332/2019 (MVC NO.1040/2017)
BETWEEN:
UNITED INDIA INSURANCE CO. LTD.,
VARANASI TOWERS, MISSION,
STREET, BUNDER,
MANGALURU,
NOW REPRESENTED BY ITS MANAGER,
REGIONAL OFFICE, 5 & 6TH FLOOR,
KRISHI BHAVAN, NRUPATHUNGA ROAD,
HUDSON CIRCLE,
BANGALORE-560 001.
...APPELLANT
(BY SMT. HARINI SHIVANANDA, ADVOCATE)
AND:
1. MR. MAHESH,
S/O MR. CHANDAPPA MOOLYA,
31 YEARS,
R/O. NO.1-136, PALANEERU,
KODLA HOUSE, BANTWALA TQ,
KAROPADY, BANTWAL.
2. MR. B. H. HYDER,
S/O MR. HASANABBA,
2
41 YEARS,
R/O MANNAGUNDI HOUSE,
MITHA BAGILU VILLAGE,
KILLUR POST,
BELTHANGADY-574 214.
...RESPONDENTS
(NOTICE TO R-1 & R-2 SERVED
BUT UNREPRESENTED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT, PRAYING TO ALLOW THIS APPEAL AND MODIFY THE
JUDGMENT AND AWARD DATED 05.10.2018, PASSED IN
MVC NO.1040/2017, ON THE FILE OF THE IV ADDITIONAL
DISTRICT JUDGE, D.K.MANGALURU.
IN MFA NO.331/2019 (MVC NO.1039/2017)
BETWEEN:
UNITED INDIA INSURANCE CO. LTD.,
VARANASI TOWERS, MISSION,
STREET, BUNDER,
MANGALURU,
NOW REPRESENTED BY ITS MANAGER,
REGIONAL OFFICE, 5 & 6TH FLOOR,
KRISHI BHAVAN, NRUPATHUNGA ROAD,
HUDSON CIRCLE,
BANGALORE-560 001.
...APPELLANT
(BY SMT. HARINI SHIVANANDA, ADVOCATE)
AND:
1(a) MRS. RAJASHRI,
W/O LATE PRAKASHA,
42 YEARS.
1(b) MR. SACIN,
S/O LATE PRAKASHA,
3
22 YEARS,
1(a) IS THE MOTHER AND 1(b) IS THE BROTHER
OF THE DECEASED SAGAR WHO DIED DURING THE
PENDENCY OF PETITION.
BOTH ARE R/AT: HARIHALLI,
ALUR TALUK, HASSAN-573 213
PRESENTLY RESIDING AT
C/O HOTEL ANNAPOORNESWARI,
PUMPWELL, MANGALURU-575 002.
2. MR. B. H. HYDER,
S/O MR. HASANABBA,
41 YEARS,
R/O MANNAGUNDI HOUSE,
MITHA BAGILU VILLAGE,
KILLUR POST,
BELTHANGADY-574 214.
...RESPONDENTS
(BY SRI SANDESH SHETTY T, ADV. FOR R-1 (a & b);
R-2 SERVED BUT UNREPRESENTED)
THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT, AGAINST JUDGMENT AND AWARD DATED
05.10.2018, PASSED IN MVC NO.1039/2017 ON THE
FILE OF THE IV ADDITIONAL DISTRICT JUDGE,
D.K.MANGALURU, AWARDING COMPENSATION OF
RS.6,98,250 WITH INTEREST AT 6% P.A. FROM THE
DATE OF PETITION TILL REALIZATION.
THESE MFAs COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
4
JUDGMENT
MFA No.331/2019 and MFA No.332/2019 under
Section 173(1) of Motor Vehicles Act, 1988
(hereinafter referred to as 'the Act') has been filed by
the Insurance Company being aggrieved by the
judgment and decree dated 05.10.2018 passed by the
IV Additional District Judge, D. K. Mangaluru in MVC
Nos.1039/2017 and 1040/2017, respectively.
2. Facts giving rise to the filing of the appeals
briefly stated are that on 19.04.2017 deceased-Sagar
in MVC No.1039/2017 was proceeding in a motorcycle
bearing Registration No.KA-21-V-9734 along with his
friend/claimant-Mahesh in MVC No.1040/2017 as a
pillion rider from Ujire towards Belthangady and when
they reached near Laila Petrol Bunk, Belthangady, at
that time, the driver of the Maruthi Omni bearing
Registration No.KA-21-M-1469 came from
Belthangady towards Ujire at high speed and in a rash
and negligent manner and suddenly turned right side
without giving any signal and dashed to motorcycle of
the deceased. As a result of the aforesaid accident,
the deceased-Sagar sustained grievous injuries and
was hospitalized. During the pendency of the claim
petition, he died and claimant-Mahesh sustained
grievous injuries and was hospitalized.
3. The claimants filed separate claim petition
under Section 166 of the Act seeking compensation.
It was pleaded that they spent huge amount towards
medical expenses, conveyance, etc. It was further
pleaded that the accident occurred purely on account
of the rash and negligent driving of the offending
vehicle by its driver.
4. On service of notice, the respondent Nos.1
and 2 being the owner and the insurer of the
offending vehicle have appeared through counsel and
filed written statement in which the averments made
in the petition were denied.
It was pleaded by the owner that the petition
itself is false and frivolous in the eye of law. It was
further pleaded that the offending vehicle was insured
with Insurance Company and the policy was in force
as on the date of the accident and the driver of the
offending vehicle had valid driving licence. Hence, the
Insurance Company is liable to pay the compensation.
It was pleaded by the Insurance Company that
the accident was due to negligence on the part of the
deceased and not on the part of the driver of the
offending vehicle. It was further pleaded that the
driver of the offending vehicle did not possess valid
driving licence as on the date of the accident. The
liability is subject to terms and conditions of the
policy. The age, occupation and income of the
deceased are denied. It was further pleaded that the
quantum of compensation claimed by the claimants is
exorbitant. Hence, they sought for dismissal of the
petition.
5. On the basis of the pleadings of the parties,
the Claims Tribunal framed the issues and thereafter
recorded the evidence. The claimant No.1(a) in
MVC No.1039/2019 was examined as PW-1 and the
claimant in MVC No.1040/2019 was examined as
PW-2 and got exhibited documents namely Ex.P1 to
Ex.P18. On behalf of the respondents, no witness was
examined but exhibited a document namely Ex.R1.
The Claims Tribunal, by the impugned judgment, inter
alia, held that the accident took place on account of
rash and negligent driving of the offending vehicle by
its driver, as a result of which, the claimant sustained
injuries. The Tribunal further held that the claimants
in MVC No.1039/2017 are entitled to a compensation
of Rs.6,98,250/- and the claimant in MVC
No.1040/2017 is entitled to a compensation of
Rs.1,00,000/- along with interest at the rate of 6%
p.a. and directed the Insurance Company to deposit
the compensation amount along with interest. Being
aggrieved, these appeals have been filed by the
Insurance Company.
6. Smt. Harini Shivanand, learned counsel for
the Insurance Company has raised the following
contentions in both the cases:
Re-Liability:
The accident has occurred due to negligence on
the part of the rider of the motorcycle. Both rider and
the pillion rider of the motorcycle were not wearing
head gear and the rider was not holding driving
licence as on the date of the accident. Since he has
violated the provisions of the motor vehicle Act, the
Tribunal has failed to consider this aspect of the
matter and has wrongly held that only the driver of
the offending vehicle alone was negligent in causing
the accident. She further contended that it is very
clear from the sketch produced at Ex.P5, the driver of
the Car has taken extreme right side and has almost
reached the edge of left side of the road to reach the
petrol bunk and the rider of the bike has not made
any effort to stop the vehicle. Therefore, he has also
contributed to the alleged accident. The Tribunal has
erred in holding that the driver of the Car alone was
negligent in causing the accident. Hence, she sought
for allowing the appeals filed by the Insurance
Company.
Re-Quantum in MVC No.1039/2017, she has
contended that the death of the deceased-Sagar was
not due to the accidental injuries. The claimants have
not examined the doctor to prove that the death was
due to the injuries sustained by the deceased in the
road traffic accident. Therefore, the Tribunal has erred
in awarding compensation for 'loss of dependency'.
She further contended that the compensation awarded
by the Tribunal for pain and suffering and other
incidental expenses are on higher side.
Re-Quantum in MVC No.1040/2017, the injuries
suffered by the claimant are minor in nature.
Considering the injuries suffered by the claimant and
considering the wound certificate, the compensation of
Rs.1,00,000/- awarded by the Tribunal is on higher
side. Hence, she sought for reduction of
compensation.
7. Per contra, Sri Sandesh Shetty, the learned
counsel for the claimant has raised following counter
contentions:
Re-Liability:
The accident was occurred due to rash and
negligent driving of the driver of the offending car. He
further contended that it is a national highway where
the driver of the Car has come extreme right side to
reach the petrol bunk which is situated other side of
the road and dashed against the motorcycle where
there is no any traffic signal. Since he was negligent in
causing the accident, therefore, the Tribunal has
rightly held that the accident occurred due to
negligence on the part of the driver of the Car. He
further contended that the Insurance Company has
not examined the driver of the Car to disprove the
case of the claimants. Even the Police has registered a
FIR against the driver of the Car and after thorough
investigation, has filed the charge sheet as per Ex.P4.
The Tribunal was justified in fastening the liability on
the Insurance Company. He further contended that
even though the rider of the motorcycle was not
wearing head gear and was not holding a driving
licence and the same are violation of the rules or
violation of provisions of motor vehicles Act, he was
not negligent in causing the accident. In support of
his contention, he has relied upon the judgment of the
Hon'ble Apex Court in the case of MOHAMMED
SIDDIQUI vs. NATIONAL INSURANCE COMPANY
LIMITED reported in AIR 2020 SC 520.
Re-Quantum in MVC No.1039/2017 he has
contended that the death of deceased-Sagar was due
to the accidental injuries. Due to the accident, he has
suffered grievous injuries and later he died during the
pendency of the claim petition. Therefore, the Tribunal
has rightly granted compensation towards 'loss of
dependency'. He further contended that considering
the injuries sustained by the deceased and considering
the age and avocation of the deceased, the overall
compensation awarded by the Tribunal is just and
reasonable compensation. Hence, he sought for
dismissal of the appeals.
Re-Quantum in MVC No.1040/2017, respondents were
served and unrepresented.
8. Heard the learned counsel for the appellant
and learned counsel for the respondent in MVC
No.1039/2017 and perused the judgment and award
and original records.
9. The case of the claimant on 19.04.2017
deceased-Sagar was proceeding in a motorcycle
bearing Registration No.KA-21-V-9734 along with his
friend Mahesh as a pillion rider from Ujire towards
Belthangady and when they reached near Laila Petrol
Bunk, Belthangady, at that time, the driver of the
Maruthi Omni bearing Registration No.KA-21-M-1469
came from Belthangady towards Ujire at high speed
and in a rash and negligent manner and suddenly
turned right side without giving any signal and dashed
to motorcycle of the deceased. Due to impact, they
fell down and sustained grievous injuries. To prove
the case, Rajashree/claimant No.1(a) in MFA
No.1039/2017 was examined as PW.1. She has
categorically deposed that the accident occurred due
to rash and negligent driving of the driver of the Car.
They have produced complaint as per Ex.P1, FIR as
per Ex.P2, sketch as per Ex.P5, Inquest report as per
Ex.P6, Post Mortem Report as per Ex.P8, Charge
Sheet as per Ex.P4. Immediately after the accident,
the complaint has been registered against the driver
of the offending Car as per Ex.P1. The Police has
registered a FIR and after thorough investigation, has
filed a charge sheet against the driver of the offending
Car as per Ex.P4. To disprove the case of the
claimants, the respondents have not examined any
witness and they have not even examined the driver
of the Car. In the cross-examination of PW.1, nothing
worthwhile has been elicited. Even as per the sketch,
it is very clear that the accident was occurred on NH-
234, the road was proceeding from Bantwala
(Belthangady) to Kadur i.e. East to West, the width of
the road is 22 feet and the Car was proceeding from
Bantwala towards Kadur and the motorcycle was
coming from Kadur towards Bantwala. As per the
Sketch, it is very clear that the accident was occurred
2 feet away from the edge of the road i.e. from South.
The driver of the Car suddenly took right turn to reach
the petrol bunk which is situated in South side and
dashed against the rider of the motorcycle. It is very
clear from Ex.P5, the driver of the Car was negligent
in causing the accident. The Tribunal has rightly held
that the driver of the Car in causing the accident.
Even though the rider of the motorcycle was not
wearing head gear, but seeing the sketch as well as
the complaint and FIR, it is very clear that there is no
any negligence on the part of the rider of the
motorcycle. Even the Hon'ble Apex Court in the case
of 'MOHAMMED SIDDIQUI' (supra) has held that it
cannot be held contributory negligence, unless it is
established that his very act of riding along with two
others, contributed either to the accident or to the
impact of the accident upon the victim. In the case on
hand, non wearing of the head gear is a violation of
the rules, it is not established that it was contributed
to the accident. Therefore the contention of the
appellant/Insurance Company that the rider of the
motorcycle is also contributed negligent in causing the
accident is unsustainable.
In respect of quantum is concerned in MVC
No.1040/2017, considering the evidence and
considering the injuries suffered by the claimant, I am
of the opinion that the overall compensation of
Rs.1,00,000/- awarded by the Tribunal with interest is
just and reasonable.
In respect of quantum in MVC No.1039/2017,
the accident was occurred on 19.04.2017 and the
rider Sagar died on 26.09.2017. The claimants have
not examined the doctor to prove that the death of
Sagar was due to the accidental injuries. No document
has been produced. The Tribunal has also not
discussed whether the death was due to the accidental
injuries or not. Under thus circumstances, in respect
in MVC No.1039/2017 regarding quantum is
concerned, the matter requires to be remitted back to
the Tribunal for fresh consideration.
Accordingly MFA No.332/2019 (MVC
No.1040/2017) filed by the Insurance Company is
hereby dismissed.
MFA No.331/2019 is remitted back to the
Tribunal only in respect of quantum. In respect of
negligence is concerned, the judgment and award
passed by the Tribunal is hereby confirmed.
The Tribunal is directed to reconsider the matter
afresh only in respect of quantum in MVC
No.1039/2017 after giving opportunity to both the
parties to produce additional documents and adduce
additional evidence.
Since both the parties represented before this
Court, they are directed to be appeared before the
Tribunal on 04.07.2022 without further notice.
The Tribunal is directed to dispose of the appeal
within a period of four months from the date of
appearance of the parties.
Amount in deposit shall be transmitted to the
Tribunal
Sd/-
JUDGE
HA/-
