Karnataka High Court

The Oriental Insurance Co.Ltd vs Geeta W/O Late Krishna And Ors on 16 June, 2022

Bench: Rajendra Badamikar

                            1


            IN THE HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH

          DATED THIS THE 16TH DAY OF JUNE 2022

                         BEFORE

       THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR

                MFA No.201229/2016 (MV)
BETWEEN:
THE ORIENTAL INSURANCE CO. LTD.,
THROUGH ITS DIVISION MANAGER,
DIVISION OFFICE, N.G. COMPLEX,
OPP: MINI VIDHAN SOUDHA,
GULBARGA-585102.
                                           ... APPELLANT
(BY SRI. SANJAY.M.JOSHI, ADVOCATE)

AND:

1.     GEETA W/O LATE KRISHNA,
       AGE: 37 YEARS, OCC: HOUSEWIFE,

2.     AMAR S/O LATE KRISHNA,
       AGE: 17 YEARS, OCC: STUDENT,

3.     ATISH S/O LATE KRISHNA,
       AGE: 15 YEARS, OCC: STUDENT,

4.     AKANKSHA D/O LATE KRISHNA,
       AGE: 13 YEARS, OCC: STUDENT,

5.     ASHA D/O LATE KRISHNA,
       AGE: 17 YEARS, OCC: STUDENT,

6.     JAMUNABAI W/O GOVINDRAO,
       AGE: 62 YEARS, OCC: NIL,

7.     GOVINDRA S/O LATE GANAPATI,
       AGE: 62 YEARS, OCC: NIL,
                                  2


      ALL ARE R/O KUMBARWADA
      BANK COLONY, BIDAR-585401.

8.    P.RAMESH S/O BIKPATI PADAL,
      AGED MAJOR, OCC: BUSINESS,
      R/O H.NO.15-9-36, RAMANNAPETA,
      WARANGAL,
      ANDHRA PRADESH-506002.
                                                 ... RESPONDENTS
(BY SMT. NEEVA M.CHIMKOD, ADV. FOR R1 TO R6 & R7;
     V/O DATED 02.02.2017 NOTICE TO R8 IS DISPENSED WITH)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, PRAYING TO
CALL FOR THE RECORDS IN MVC NO.32 OF 2014 ON THE FILE
OF PRL. DISTRICT & SESSIONS JUDGE, & PRL. MACT, BIDAR
AND SET ASIDE AND MODIFY THE JUDGMENT AND AWARD
DATED 12.04.2016 BY ALLOWING THIS APPEAL WITH COSTS
AND GRANT SUCH OTHER RELIEF AND FURTHER RELIEFS AND
ETC.

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

                           JUDGMENT

This appeal is filed by the Insurance Company under

Section 173(1) of the Motor Vehicles Act, 1988 ('MV Act' for

short) challenging the judgment and award dated 12.04.2016

passed by the Principal Motor Accidents Claims Tribunal and

Principal District and Sessions Judge, Bidar, ('Tribunal' for short)

in MVC No.32/2014, whereby the Tribunal has partly allowed the

claim petition filed by the claimants/respondents herein and

awarded compensation of Rs.9,91,600/-, and apportioned the

negligence to the extent of 20% on the part of offending

vehicle-Lorry and 80% to the vehicle-Maruti Car of the

deceased, and accordingly awarded compensation of

Rs.1,98,320/- to the claimants, which is 20% of total

compensation amount awarded by it.

2. For the sake of convenience, the parties herein

are referred as per the ranks occupied by them before the trial

Court.

3. The brief factual matrix leading to the case are

that, on 25.12.2005 the deceased along with friends was

proceeding on Bidar to Hyderabad road in Maruti Car bearing

Registration No.KA.04/M.4191 and at about 6.30 .am., when

they reached near excise check-post, at that time a lorry

bearing Registration No. AP.36/W.2489 came from opposite

direction and as a result, they collided with each other and

due to which, the deceased sustained fatal injuries. The

deceased was travelling by sitting on left side of the car and

the accident is because of actionable negligence on the part of

the lorry driver. Hence, this claim petition came to be filed by

the legal heirs of the deceased, who are wife, minor children

and parents of the deceased Krishna.

4. The respondent/Insurance Company contested

the matter on the ground that, there is no negligence on the

part of the driver of the offending vehicle (Lorry) and the

charge sheet has been laid as against the driver of the car and

hence, no liability can be fastened on the owner and driver of

the lorry. Hence, the Insurance Company has disputed the

liability and sought for dismissal of the claim petition.

5. Having heard the arguments on both sides and

after perusing the records, the Tribunal has allowed the claim

petition in part and awarded compensation of Rs.1,98,320/-

which is being 20% of total compensation to the claimants

with interest at 6% pa., from the date of petition till the date

of realisation by fastening the liability on Respondents No.1 &

2, holding that the driver of the lorry has contributed to cause

of accident in question to an extent of 20%. Being aggrieved

by this judgment and award, the appellant/Insurance

Company has filed this appeal.

6. Heard the learned counsel for the appellant-

Insurance Company and the learned counsel for the

respondents/claimants. Perused the records.

7. Learned counsel for the appellant would contend

that the Tribunal has erred in fastening 20% of liability on the

driver of the offending lorry on the basis of the sketch and the

spot mahazar and the complaint allegations clearly establish

that the accident is because of the actionable negligence on

the part of the driver of the Car and the Tribunal could not

have considered the principles of res ipsa loquitur, which is

not applicable to the present case. Hence, he would seek for

absolving the liability on the Insurer.

8. Per contra, learned counsel for respondents

claimants would support the judgment and award of the

Tribunal.

9. Having heard the arguments and after perusing

the records, it is evident that the Tribunal has held that the

claimants are entitled for compensation of Rs.9,91,600/-.

However, the Tribunal came to the conclusion that the driver

of Maruti Car has contributed 80% to the accident. Since the

insurer and owner of the car were not impleaded, the

compensation was awarded only to the extent 20% of

entitlement amount of Rs.9,91,600/-

10. According to the Tribunal, the driver of the lorry

has contributed 20% and the car driver has contributed to an

extent of 80%.

11. Learned counsel for the appellant has invited the

attention of the Court to Ex.R1, wherein in respect of the

same accident, the claim petition filed by other claimants in

MVC No.137/2006, the Tribunal has dismissed the claim

petition holding that the driver of the car was exclusively rash

and negligent. However, on perusal of the said judgment

award, it is evident that the Tribunal has not discussed the

sketch or scene of offence and simply relied on the complaint

and held that, in view of complaint allegations, the driver of

the car was rash and negligent. But, in the instant case, the

Tribunal has discussed this aspect in detail in Para No.19 and

has also appreciated the scene of offence and held that the

lorry was also moving in high speed in the curve and after

impact, the Maruti car was dragged to the extent of 20 feet.

Hence, after assessing the evidence on these aspects in detail,

on the basis of Exs.P1 to P4, the Tribunal has applied the

principles of res ipsa loquitur and held that the Lorry driver

has contributed 20% to the accident and hence, awarded 20%

of compensation amount to the claimants.

12. The spot-mahazar establishes that the accident

has occurred on the southern end. However, it is also evident

that, though the allegations were that the lorry was stopped,

but it is evident that, after impact, the car was dragged to the

extent of 20 feet, which discloses that the lorry was also

moving in high speed that too when it is approaching the

curve. No doubt the charge sheet has been laid against the

driver of the car and further complaint was also lodged

against the driver of the car. But, the spot-mahazar also

discloses that, there is certain contributory negligence on the

part of the driver of the lorry, which was moving in high speed

at the accident spot, which is a curve, in violation of rules of

the Motor Vehicles Act. The Tribunal has taken the

contributory negligence on the part of the driver of the Lorry

at 20%, which appears to be on higher side. Learned counsel

for the appellant-Insurance Company would submit that, at

the most, the driver would have contributed to the extent of

10% to the accident.

13. Looking to the facts and circumstances, the

contributory negligence on the part of the driver of the lorry

can be fixed at 15%.

14. There is no dispute regarding the quantum arrived

by the Tribunal at Rs.9,91,600/-. However, considering the

fact that the driver of the offending vehicle-Lorry has

contributed 15% to the accident rather than 20%, the

claimants are entitled for only 15% of Rs.9,91,600/-, which

will work-out to Rs.1,48,740/-, in stead of 20% i.e.,

Rs.1,98,320/-. Hence, the appeal needs to be allowed partly.

Accordingly, I proceed to pass the following:-

ORDER

i. The appeal is allowed-in-part.

ii. The judgment and award dated 12.04.2016 passed by the Principal Motor Accident Claims Tribunal and the Principal District and Sessions Judge, Bidar, in MVC No.32/2014 is modified.

iii. The appellants/claimants are held entitled for total compensation of Rs.1,48,740/-, which is 15% of Rs.9,91,600/-, as against 20% compensation which is awarded by the Tribunal.