Karnataka High Court
Bajaj Allianz General Insurance ... vs Ramesh Billava on 30 June, 2022
Bench: J.M.Khazi
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
M.F.A.NO.10653/2012 (MV)
C/W
M.F.A.NO.11298/2012 (MV)
M.F.A.NO.8003/2012 (MV)
M.F.A.NO.8004/2012 (MV)
M.F.A.NO.8005/2012 (MV)
M.F.A.NO.10653/2012
BETWEEN:
RAMESH BILLAVA
AGED ABOUT 23 YEARS
S/O THIMMAPPA POOJARY
R/O BASANA HITHLU,
THEGGARSE VILLAGE
KUNDAPURA TALUK
... APPELLANT
(BY SRI. NAZEEFA M MULLA, ADVOCATE FOR
SRI. PAVANA CHANDRA SHETTY H, ADVOCATE)
AND:
1. GANESH PRASAD
AGED ABOUT 37 YEARS
S/O HARI NARAYANA RAO
R/O KANCHANA AUTO MOBILES
NITTUR, UDUPI TALUK
2. BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.,
REP: BY DIVISIONAL OFFICE: UDUPI
REP: BY ITS DIVISIONAL MANAGER
2
3. RAJESH KARANTH (MAJOR)
P.W.D. CONTRACTOR
R/O ANANTHA NILAYA
UPPINAKUDRU
KUNDAPURA TALUK,
UDUPI DISTRICT
4. THE NEW INDIA INSURANCE CO. LTD.,
BRANCH OFFICE: KUNDAPURA
REP. BY ITS BRANCH MANAGER
...RESPONDENTS
(BY SMT. H.R.RENUKA, ADVOCATE FOR R2;
SMT. Y.ARUNA, ADVOCATE FOR R4;
NOTICE TO R1 AND R3 ARE D/W)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED
29.03.2012 PASSED BY THE FAST TRACK & MACT AT
KUNDPURA, IN MVC NO.710/2009 TO THE EXTENT OF
DISALLOWED CLAIM AND ALLOW THIS APPEAL BY ENHANCING
THE COMPENSATION, IN THE INTEREST OF JUSTICE.
M.F.A.NO.11298/2012
BETWEEN:
1. NIRMALA
AGED ABOUT 27 YEARS
W/O LATE PRABHAKAR K THOLAR
2. KARUNAKARA K THOLAR
AGED ABOUT 37 YEARS
S/O LATE KRISHNA MARAKALA
3. SUDHAKAR K THOLAR
AGED ABOUT 35 YEARS
S/O LATE KRISHNA MARAKALA
ALL ARE RESIDING AT BRAHMAVARA PETE
BRAHMAVARA, UDUPI TALUK - 576 101
... APPELLANTS
(BY SMT. NAZEEFA M MULLA, ADVOCATE FOR
SRI. PAVANA CHANDRA SHETTY H, ADVOCATE )
3
AND:
1. GANESH PRASAD
AGED ABOUT 37 YEARS
S/O HARI NARAYANA RAO
R/O KANCHANA AUTO MOBILES
NITTUR, UDUPI TALUK
2. BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.,
REP BY DIVISIONAL OFFICE: UDUPI
REP BY ITS DIVISIONAL MANAGER
3. RAJESH KARANTH (MAJOR)
P.W.D. CONTRACTOR
R/O ANANTHA NILAYA
UPPINAKUDRU
KUNDAPURA TALUK,
UDUPI DISTRICT
4. THE NEW INDIA INSURANCE CO LTD
BRANCH OFFICE: KUNDAPURA
REP BY ITS BRANCH MANAGER
...RESPONDENTS
(BY SMT. H.R.RENUKA, ADVOCATE FOR R2;
SMT. Y.ARUNA, ADVOCATE FOR R4;
R1 IS SERVED;
V/O/DTD 26.06.2014, NOTICE TO R3 IS D/W)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO SET
ASIDE THE JUDGMENT AND AWARD DATED 29.03.2012 PASSED
BY THE COURT OF FAST TRACK & MACT AT KUNDAPURA IN MVC
NO.711/2009 TO THE EXTENT OF DISALLOWED CLAIM AND
ALLOW THIS APPEAL BY ENHANCING THE COMPENSATION, IN
THE INTEREST OF JUSTICE.
M.F.A.NO.8003/2012
BETWEEN:
BAJAJ ALLAINZ GENERAL INSURANCE
COMPANY LTD.
DIVISIONAL OFFICE, UDUPI
4
BY ITS BRANCH MANAGER
REPRESENTED BY
BAJAJ ALLIANZ GENERAL INSURANCE
COMPANY LTD.,
NO.107, T.B.TOWERS,
MISSION ROAD, BANGALORE - 560 027
BY ITS ASST VICE PRESIDENT (CLAIMS)
... APPELLANT
(BY SMT. H R RENUKA, ADVOCATE)
AND:
1. RAMESH BILLAVA
S/O THIMMAPPA POOJARY
AGED ABOUT 23 YEARS
R/O BASANA HITHLU
THEGGARSE VILLAGE
KUNDAPURA TALUK - 576 101
2. GANESH PRASAD
S/O HARINARAYANA RAO
AGED ABOUT 37 YEARS
R/O KANCHANA AUTOMOBILES
NITTUR, UDUPI TALUK - 576 101
3. RAJESH KARANTH
ADULT
PWD CONTRACTOR
R/O ANANTHA NILAYA
UPPINAKUDRU
KUNDAPURA TALUK
UDUPI DISTRICT - 576 201
4. NEW INDIA ASSURANCE CO. LTD.
BRANCH OFFICE
KUNDAPURA - 576 201
BY ITS MANAGER
...RESPONDENTS
(BY SMT. Y.ARUNA, ADVOCATE FOR R4;
R1 TO R3 ARE SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
PRAYING TO ALLOW THIS APPEAL AND SETASIDE THE
5
JUDGMENT AND AWARD DATED 29.03.2012 IN MVC
NO.710/2009 PASSED BY THE FAST TRACK COURT AND MOTOR
VEHICLES ACCIDENT CLAIMS TRIBUNAL, KUNDAPURA
CONSEQUENTLY DISMISS THE CLAIM PETITION IN THE
INTEREST OF JUSTICE AND EQUITY.
M.F.A.NO.8004/2012
BETWEEN:
BAJAJ ALLIANZ GENERAL INSURANCE
COMPANY LTD
DIVISIONAL OFFICE, UDUPI
BY ITS BRANCH MANAGER
REPRESENTEE BY
BAJAJ ALLIANZ GENERAL INSURANCE
COMPANY LTD., NO.107, T B TOWERS
MISSION ROAD, BANGALORE - 560 027
BY ITS ASST VICE PRESIDENT (CLAIMS)
... APPELLANT
(BY SMT. H R RENUKA, ADVOCATE)
AND:
1. NIRMALA
W/O LATE PRABHAKAR K THOLAR
AGED ABOUT 27 YEARS
2. KARUNAKAR K THOLAR
S/O KRISHNA MARKALA
AGED ABOUT 37 YEARS
3. SUDHAKAR K THOLAR
S/O LATE KRISHNA MARKALA
AGED ABOUT 35 YEARS
R/O BRAMHAVARA PETE
BRAMHAVARA,
UDUPI TALUK - 576 101
4. GANESH PRASAD
S/O HARINARAYANA RAO
6
AGED ABOUT 37 YEARS
R/O KANCHANA AUTOMOBILES
NITUR
UDUPI TALUK - 576 101
5. RAJESH KARANTH
ADULT
PWD CONTRACTOR
R/O ANANTHA NILAYA
UPPINAKUDRU
KUNDAPURA TALUK
UDUPI DISTRICT - 576 201
6. NEW INDIA ASSURANCE CO LTD
BRANCH OFFICE
KUNDAPURA - 576 201
BY ITS MANAGER
...RESPONDENTS
(BY SMT. NAZEEFA M MULLA, ADVOCATE FOR
SRI. H.PAVANA CHANDRA SHETTY, ADV. FOR R1 TO R3;
SMT. Y.ARUNA, ADVOCATE FOR R6;
R4 AND R5 ARE SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
PRAYING TO ALLOW THIS APPEAL AND SETASIDE THE
JUDGMENT AND AWARD DATED 29.03.2012 IN MVC
NO.711/2009 PASSED BY THE FAST TRACK COURT AND MOTOR
VEHICLES ACCIDENT CLAIMS TRIBUNAL, KUNDAPURA
CONSEQUENTLY DISMISS THE CLAIM PETITION IN THE
INTEREST OF JUSTICE AND EQUITY.
M.F.A.NO.8005/2012
BETWEEN:
BAJAJ ALLIANZ GENERAL INSURANCE
COMPANY LTD.
DIVISIONAL OFFICE, UDUPI
BY ITS BRANCH MANAGER,
REPRESENTED BY
BAJAJ ALLIANZ GENERAL INSURANCE
7
COMPANY LTD., NO.107, T.B.TOWERS,
MISSION ROAD, BANGALORE - 560 027
BY ITS ASST. VICE PRESIDENT (CLAIMS)
... APPELLANT
(BY SMT. H R RENUKA, ADVOCATE)
AND:
1. RAVINDRA GANIGA
S/O NARAYANA GANIGA G
R/O SHANTHI NIVASA
THEGGARSE VILLAGE
BYNDOOR,
KUNDAPUR TALUK - 576 201
2. GANESH PRASAD
S/O HARINARAYANA RAO
AGED ABOUT 37 YEARS
R/O KANCHANA AUTOMOBILES
NITTUR, UDUPI TALUK - 576 101
3. RAJESH KARANTH
ADULT
PWD CONTRACTOR
R/O ANANTHA NILAYA
UPPINAKUDRU
KUNDAPURA TALUK
UDUPI DISTRICT - 576 201
4. NEW INDIA ASSURANCE CO. LTD.
BRANCH OFFICE
KUNDAPURA - 576 201
BY ITS MANAGER
...RESPONDENTS
(BY SMT. Y ARUNA, ADVOCATE FOR R4;
R1 TO R3 ARE SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
PRAYING TO ALLOW THIS APPEAL AND SETASIDE THE
JUDGMENT AND AWARD DATED 29.03.2012 IN MVC
NO.825/2009 PASSED BY THE FAST TRACK COURT AND MOTOR
VEHICLES ACCIDENT CLAIMS TRIBUNAL, KUNDAPURA
8
CONSEQUENTLY DISMISS THE CLAIM PETITION IN THE
INTEREST OF JUSTICE AND EQUITY.
THESE MFAs HAVING BEEN HEARD AND RESERVED ON
05.03.2022, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Since these appeals are arising out of common judgment,
they are clubbed together and decided by a common judgment.
2. MFA.No.10653/2012 and MFA.No.8003/2012 are
arising out of MVC.No.710/2009. Out of these
MFA.No.10653/2012 is filed by petitioner seeking enhancement,
whereas MFA.No.8003/2012 is filed by respondent No.2
Insurance Company i.e., Bajaj Allianz General Insurance
Company challenging the fixing entire liability on it.
3. MFA.No.11298/2012 and MFA.No.8004/2012 are
arising out of MVC.No.711/2009. While MFA.No.11298/2012 is
filed by the petitioners seeking enhancement,
MFA.No.8004/2012 is filed by Respondent No.2 Bajaj Allianz
General Insurance Company challenging the fixing of 90%
liability on it.
4. MFA.No.8005/2012 is arising out of judgment and
award in MVC.No.825/2009. It is filed by the claimant seeking
enhancement.
5. MVC.710/2009 was filed by the claimant Ramesh
Billava for the personal injury sustained by him, whereas
MVC.No.711/2009 was filed by the petitioners being the legal
representatives of deceased Prabhakar Tholar, who died in the
motor vehicle accident.
6. MVC.No.825/2009 is by the petitioner being the
owner, seeking the damages caused to the vehicle viz., motor
cycle bearing registration No.KA-20-U-3510 in the accident in
question.
7. FACTS: Brief facts giving rise to the filing of the
petitions are that on 14.05.2009 at about 6.45 p.m. deceased
Prabhahar K. Tholar was proceeding on motor cycle bearing
registration No.KA-20-U-3510 (hereinafter referred to as motor
cycle) with pillion rider Ramesh Billava (who is petitioner in
MVC.No.710/2009) from Tallur side towards Kundapura side.
Near Tallur Bridge on NH-17, Kundapura Taluk, a Santro car
bearing Chasis No.MALAA51HR9M404700 (hereinafter referred to
as Santro car), belonging to Ganesh Prasad and being driven by
its driver, in a rash or negligent manner came from Kundapura
side and dashed against the motor cycle. Due to the impact,
deceased Prabhakar Tholar fell on the road. At that time a Tipper
lorry bearing registration No.KA-20-B-255 (hereinafter referred
to as Tipper lorry) belonging to one Rajesh Karanth, being driven
by its driver in a rash or negligent manner came from Tallur side
and ran over the deceased Prabhakar Tholar. In the said
accident, Ramesh Billava and Prabhakar Tholar sustained
grievous injuries. Prabhakar Tholar succumbed to the injuries.
The motor cycle bearing registration No.KA-20-U-3510 was
completely damaged.
7.1 Inspite of prolonged treatment, Ramesh Billava is
not completely cured and he has suffered permanent partial
disability. Consequently, he is suffering loss of income.
7.2 Petitioners in MVC.No.711/2009 being the legal
representatives of Prabhakar Tholar have lost their bread winner
and as such seeking compensation.
7.3 Similarly, petitioner in MVC.No.825/2009 i.e.,
Ravindra Ganiga, owner of the motor cycle having suffered
extensive damage to it is seeking compensation.
7.4 As the owner and insurer of Santro car and Tipper
lorry, respondents are jointly and severally liable to pay the
compensation.
8. Before the Tribunal, respondent Nos.1 and 3 being
the owners of the Santro car and Tipper lorry have remained
Ex-parte.
9. Respondent No.2 - Bajaj Allianz being the insurer of
the Santro car has admitted that the said vehicle is covered by a
valid policy, but its liability is subject to the terms and conditions
of the policy. It has denied that at the time of accident, the
driver of the Santro car was holding a valid and effective driving
license. It has taken up a specific defence that on the date of
accident, deceased Prabhakar Tholar who was riding the motor
cycle bearing registration No.KA-20-U-3510 drove the same in a
high speed, in a rash or negligent manner and after losing
control dashed against the Santro car coming from the opposite
side, as a result of which both of them fell down and the Tipper
lorry coming from opposite side in a high speed, in a rash of
negligent manner and unable to control ran over the motor
cycle. In the result, Prabhakar Tholar died and Ramesh Billava
was injured and the motor cycle was damaged. Therefore,
respondent No.2 is not liable to pay the compensation.
9.1 It has denied the nature of the injury sustained by
Ramesh Billava and that the same has resulted in permanent
partial disability affecting his income. It has also denied the
damage sustained by the motor cycle and that petitioner therein
is entitled for a compensation in a sum of Rs.30,000/-.
9.2 Respondent No.2 has also denied the age, income of
the deceased Prabhakar Tholar and that the petitioners in
MVC.No.711/2009 are entitled for compensation in a sum of
Rs.10,00,000/-.
10. Respondent No.4 i.e., the New India Assurance Co.
Ltd has appeared and filed written statement denying that the
accident occurred due to the rash or negligent driving by the
driver of the Tipper lorry.
10.1 In MVC.No.710/2009, respondent No.4 has admitted
that the rider of the motor cycle was riding the same cautiously
and it is the driver of the Santro car who drove the same in a
rash or negligent manner and dashed against the motor cycle
and caused the accident resulting in death, injury and damage to
the motor cycle and as such respondent No.4 is not liable to pay
the compensation. But, respondent No.4 has not stated from
which side to which side the motor cycle was moving.
10.2 However in MVC.No.711 and 825/2009, respondent
No.4 has pleaded that the rider of the motor cycle was
proceeding from Kundapur towards Byndur in a rash or negligent
manner and when it reached the place of incident, the driver of
the Santro car came from the opposite side in front of the Tipper
lorry which was proceeding from to Byndur to Kundapur side.
The rider of the motor cycle came on the wrong side of the road
and dashed against the Santro car. As a result of the impact the
rider and pillion rider fell on the road. The pillion rider died
instanteneously, before the Tipper lorry ran over him. The driver
of the Tipper lorry could not control the vehicle. Hence, the
driver of the motor cycle and Santro car are liable to pay the
compensation.
10.3 It has also denied the age, occupation, income of the
deceased Prabhakar Tholar. It has also denied the nature of the
injury sustained by petitioner Ramesh Billava and that it has
resulted in permanent partial disability affecting his income and
also the damage sustained by the motor cycle.
10.4 Respondent No.4 though admits the coverage of the
Tipper lorry, it has pleaded that its liability is subject to the
terms and conditions of the policy. However, it has disputed that
at the time of the accident, the driver of the Tipper lorry was
holding a valid and effective driving license and has sought for
dismissal of the claim petitions against it.
11. During the enquiry, in MVC No.710/2009, four
witnesses are examined as PWs-1 to 4 and Exs.P-1 to 21 are
marked and on behalf of the Insurer Ex.R-1 i.e., copy of the
policy is marked.
12. In MVC No.711/2009, one of the petitioner, viz.,
Sudhakar K. Tholar is examined as PW-1 and Exs.P-1 to 6 are
marked.
13. Similarly, in MVC No.825/2009, PWs-1 and 2 are
examined and Ex.P-1 to 10 are marked.
14. Vide the impugned judgment and award, the
Tribunal has come to the conclusion that being the drivers and
insurers of the Santro Car and Tipper Lorry, respondent Nos.1 to
4 are jointly and severally liable to pay the compensation. In
MVC No.710/2009 and 825/2009. The Tribunal has fixed 100%
liability on respondent Nos.1 and 2 being the owner and insurer
of the Santro Car.
15. However, in MVC No.711/2009, it has fixed 90%
liability on respondent Nos.1 and 2 being the owner and insurer
of the Santro Car and 10% liability on respondent Nos.3 and 4
being the owner and insurer of the Tipper Lorry.
16. In MVC No.710/2009, the Tribunal has granted
compensation in a sum of Rs.1,66,000/- to the petitioner for the
personal injury sustained by him as detailed below:
Heads Amount
In Rs.
Compensation towards pain and 35,000
agony
Compensation towards medical 50,000
expenses, Conveyance, special
diet, nourishment, and attendant
charges
Compensation towards loss of 16,000
income during treatment period
Compensation towards future 65,000
loss of income or future loss of
earning capacity
Compensation towards future -Nil-
medical expenses
TOTAL 1,66,000
17. In MVC No.711/2009, the Tribunal has granted
compensation in a sum of Rs.7,05,000/- to the LR's of deceased
- Prabhakar Tholar as detailed below:
Heads Amount
In Rs.
Compensation towards loss of 6,80,000
dependency
Compensation towards loss of 10,000
estate
Compensation towards loss of 10,000
consortium
Compensation towards funeral 5,000
expenses/medical expenses
TOTAL 7,05,000
18. Similarly, in MVC No.825/2009, the Tribunal has
granted compensation in a sum of Rs.27,710/- to the damage
sustained by the motor cycle bearing registration No.KA-20-U-
3510 as detailed below:
Market value 30,000
Sale consideration/wreck value 8000
TOTAL 22,000
Incidental charges awarded to the petitioner
Surveyor fees 2,210
Shifting 1,000
Conveyance and other charges 2,500
TOTAL 22,000 + 5,710
GRAND TOTAL 22,000+ 5710 = 27,710/-
19. In MFA 11298/2012 and 10653/2012, the learned
counsel representing the petitioners submitted that the
compensation granted by the Tribunal under all the heads are on
the lower side and it requires enhancement and has sought for
enhancement of the same.
20. In MFA.No.8003, 8004 & 8005/2012, the learned
counsel representing respondent No.2 Insurance company
argued that in MVC No.711/2009 the Tribunal has erred in
fastening the liability to the extent of 90% on it, while directing
respondent No.4 to pay only 10%. The Tribunal ought to have
applied the theory of Res Ipso Loquitor. The manner in which
accident occurred is sufficient to hold that it occurred on account
of rash or negligent act on the part of driver of the Tipper lorry.
It has failed to observe that on account of collusion between
Santro car and the motor cycle, the rider and pillion rider did not
suffer any fatal injury. Had the driver of Tipper lorry maintained
safe distance, the accident would have been avoided. The
evidence placed on record establish the fact that the entire
negligence is on the part of the Tipper Lorry.
20.1 She would further submit that the Tribunal has failed
to notice that at the earliest available opportunity, the petitioner
has stated in the complaint that the Tipper lorry was coming
behind the car and subsequently, he has changed the version
saying that the Tipper lorry was following the motor cycle. The
statement is changed subsequently to fix the entire liability on
the part of the driver of the Santro Car. The finding of the
Tribunal is not based on evidence and as such, it is perverse.
The fixing of 90% liability on the Santro Car is contrary to the
evidence placed on record. The findings of the Tribunal that the
driver of the Tipper lorry had maintained safe distance is not
based on evidence.
21. Heard arguments of both sides and perused the
record.
22. The undisputed facts are that at the place of
incident, the road runs from North to South i.e., towards South it
goes to Kundapura and towards North it goes to Tallur and
Byndur. Some of the witnesses have referred to it as Tallur and
some of witnesses have referred to as Byndur. It is also
undisputed fact that the place of occurrence is the Eastern
portion of the said road. With reference to the vehicles coming
from Kundapur to Tallur, the place of incident is on the wrong
side, whereas for the vehicles from Tallur towards Kundapur, the
place of occurrence is on the correct side i.e., with reference to
the vehicles coming from Tallur to Kundapur it is on the extreme
left side and therefore the driver of those vehicles would not be
at fault.
23. This fact assumes importance in view of the fact that
initially the complainant claim that the motor cycle on which
injured Ramesh Billava and Prabhakar Tholar were traveling was
plying from Kundapura to Tallur in which case, it was the rider of
the motor cycle who was at fault, as he was on the wrong side of
the road, on which he was proceeding. However, by giving a
further statement, he has changed his version by saying that the
deceased Prabhakar Tholar and injured Ramesh Billava were
coming from Tallur side and the Santro car was came from
Kundapura side and dashed against the motor cycle and Tipper
which was following the motor cycle ran over the deceased who
fell on the road on account of impact by the Santro car.
24. It is pertinent to note that in its written statement
respondent No.2 in all the three cases has pleaded that the rider
of the motor cycle rode the same in a rash or negligent manner
and after losing control dashed against the Santro car which was
coming on the opposite side and in the result both rider and the
pillion rider fell on the road and come under the Tipper lorry,
which also came in a high speed. However, respondent No.2 has
not chosen to plead from which direction to which direction the
motor cycle was coming and similarly Santro car as well as
Tipper lorry was proceeding from which direction to which
direction.
25. In the written statement, respondent No.2 has not
chosen to contradict the contention of the petitioners that the
motor cycle was plying from Tallur side towards Kundapura side
and Santro car was coming from Kundapur side towards Tallur
side and thereby the contention of the petitioners that the
Santro car which was coming from the opposite side of the
motor cycle was on the wrong side and it was at fault.
26. However, in MVC.No.710/2009 respondent No.2 i.e,
the insurer of the Tipper lorry has pleaded that the rider of the
motor cycle was driving the same slowly and cautiously and the
driver of the Santro vehicle came in the rash of negligent
manner and dashed against the motor cycle.
27. On the contrary in MVC.No.711/2009 and 825/2009
the respondent No.4 has pleaded that the rider of the motor
cycle came from Kundapura side and was proceeding from
Byndur (Tallur side) in a rash or negligent manner and when it
reached the place of incident, Santro car came from opposite
side and was proceeding in front of the Tipper lorry from Byndur
towards Kundapur side. It is also pleaded that rider of the motor
cycle was on the wrong side of the road and dashed against the
Santro car, as a result of the accident, the rider as well as the
pillion rider fell on the road and came under the Tipper lorry
which was following the Santro car.
28. Consequently, the defence taken by respondent No.4
in these two sets of petitions is contradictory to each other.
Since, respondent Nos.2 and 4 have failed to take definite stand
as to the direction in which the motor cycle, Santro car as well
as Tipper lorry were proceeding, they have unable to cross-
examine the witnesses who are examined in favour of the
petitioners and prove that it was the rider of the motor cycle
who was at fault and accident occurred due to his rash or
negligence. Consequently, the Tribunal as well as this Court is
not left with any other alternative but to accept that so far as the
personal injury sustained by Ramesh Billava and the damage
caused to the motor cycle i.e., MVC.No.710/2009 and 825/2009
are concerned, the driver of the Santro car was at fault and
consequently, respondent No.2 being the insurer is liable to pay
the compensation.
29. Now coming to the petition filed in
MVC.No.711/2009, with respect to the death of Prabhakar
Tholar. The Tribunal has held that the driver of the Santro car
was primarily responsible for causing his death and therefore
saddled the liability of 90% negligence on it and remaining 10%
negligence is attributed to the driver of the Tipper lorry. It is not
in dispute that after collision between the motor cycle and the
Santro car both the rider as well as pillion rider fell down.
Fortunately, the pillion rider fell on the Eastern side of the road,
but unfortunately, deceased Prabhakar Tholar fell on the
Western side towards the road and the Tipper lorry ran over him.
A faint attempt is made on behalf of respondent No.4 by
suggesting that even before the Tipper lorry ran over deceased
Prabhakar Tholar, he was already dead. However, petitioner in
MVC.711/2009, who is the pillion rider and complainant who is
an eye witness have denied the said suggestion and deposed
that after the Tipper lorry ran over him, deceased succumbed to
the injury.
30. Now the question is whether there was any
negligence on the part of Tipper lorry and if so whether he could
have avoided the accident. During the course of his evidence,
PW-4 the driver of the Tipper lorry in MVC.No.710/2009 has
deposed that at the time of accident, he was driving the Tipper
lorry at the speed of 30 km per hour. He has stated that since
the accident occurred suddenly, though he applied brakes, he
could not stop the Tipper lorry and thereby prevent it from
running over the deceased. It is relevant to note that there are
no rules as to what exactly the distance is required to be
maintained between two vehicles. It all depends upon the nature
of the vehicle, whether it is loaded or empty, the traffic in the
particular area, whether it has rained, etc., depending upon
which the driver is required to take a decision as to the distance
which he is required to maintain between him and the vehicle
going ahead of him. He should keep in mind the exigencies
which may occur and ready to act by keeping his reflexes sharp.
He should know how much distance is required to stop the
vehicle in case of such emergency. Had PW-4 Satisha who was
driving the Tipper lorry maintained the required distance
between him and the two wheeler which was going in front of
him, he would have certainly succeeded in applying brakes and
avoided running over it. The very fact that he could not do so
goes to show that he was not careful enough to maintain the
requisite speed and distance. For this reason only along with the
driver of the Santro car he was also charge sheeted.
31. Even though PW-4 Satisha has deposed that he was
driving the Tipper lorry slowly and cautiously, he has not
deposed what was the distance between him and the motor
cycle so as to ascertain whether he had maintained safe distance
between his vehicle as well as the motor cycle. Had he
maintained the said distance, he would have certainly avoided
the Tipper lorry passing over the deceased. In that event at the
most deceased would have sustained injuries and would have
survived.
32. Admittedly, in the mahazar there is no reference to
any marks for the Tipper lorry having applied brake. In the
circumstances, I am of the considered opinion that both driver of
the Santro car as well as the Tipper lorry are equally responsible
for the accident and therefore, they have equally contributed
towards the accident and as such the liability should be
distributed between them equally. Consequently, I hold that the
Tribunal has erred in saddling the responsibility of 90% liability
on respondent No.2 being the insurer of the Santro car and
fixing only 10% liability on the respondent No.4 being the
insurer of the Tipper lorry. To this extent the appeal filed by
respondent No.2 is to be allowed. However, the appeals filed by
respondent No.2 so far as fixing the entire liability in
MVC.No.710/2009 and 825/2009 are concerned, I find no reason
to interfere.
33. Now coming to the quantum of compensation
granted in MVC.No.710/2009 under following heads:
34. Pain and sufferings: It is a case of personal injury
sustained by the pillion rider. At the time of accident, he was 20
years old. He was stated to be a coolie. Though he was stated to
be earning Rs.6,000/- p.m., in the absence of any evidence to
establish the said fact, the Tribunal has rightly taken his monthly
income as Rs.4,000/-. As per the injury certificate at Ex.P4, he
has sustained three simple injuries and two grievous injuries. He
was in-patient for 15 days. Taking into consideration these
aspects the Tribunal has granted compensation in a sum of
Rs.35,000/- under the head pain and suffering. I find no reason
to interfere with the same.
35. Medical expenses, conveyance, special diet,
nourishment and attendant charges: Based on the bills produced
by the petitioner and having regard to the fact that he was under
treatment for a period of four months, the Tribunal has granted
compensation in a sum of Rs.50,000/- under the head medical
expenses, conveyance, special diet, attendant charges and I find
no reason to interfere with the same.
36. Loss of income during laid up period: The Tribunal
has granted compensation in a sum of Rs.16,000/- under the
head loss of income during laid up period. Having regard to the
fact that the petitioner has sustained two grievous injuries
including fracture, it would be reasonable to expect that he was
under treatment for a period of four months. At the rate of
Rs.4,000/- p.m. the compensation granted in a sum of
Rs.16,000/- is reasonable and adequate and I find no reason to
interfere with the same.
37. Loss of amenities to life: The Tribunal has not
granted any compensation under the head loss of amenities of
life. Taking into consideration the fact that he has suffered two
grievous injuries which are fractures and the period during which
he was under treatment and having regard to the fact that
incident is of the year 2009, it would reasonable to grant
compensation in a sum of Rs.20,000/- under the head loss of
amenities of life.
38. Loss of future income: The Tribunal has granted
compensation in a sum of Rs.65,000/- under this head at the
rate of Rs.4,000/- p.m. and with 18 as a multiplier and taking
the percentage of the disability of whole body at 6%. However,
while calculating the loss of future income, the Tribunal has not
taken into consideration the future prospects. Since the
petitioner was aged 20 years at the time of accident and he was
a coolie, as per the decision of Magma General Insurance Co.
Ltd, case, 40% of his income is required to be added to
calculate the future loss of income. 40% of Rs.4,000/- comes to
Rs.1,600/- and therefore, the monthly income is required to be
taken at Rs.5,600/-. With the multiplier 18 and 6% disability of
the whole body, the compensation under the head loss of future
income is 5,600 x 12 x 18 x 6% = Rs.72,576/-.
39. Thus, petitioner in MVC.No.710/2009 is entitled for
total compensation in a sum of Rs.1,93,576/- as against
Rs.1,66,000/- granted by the Tribunal. Of course petitioner is
entitled for interest at 6% p.a as detailed below:
Heads Amount granted Amount
by the Tribunal granted by this
In Rs. Court
In Rs.
Pain and agony 35,000 35,000
Towards medical expenses, 50,000 50,000
Conveyance, special diet,
nourishment, and attendant
charges
Towards loss of income 16,000 16,000
during treatment period
Towards future loss of 65,000 72,576
income or future loss of
earning capacity
Towards amenities of life -Nil- 20,000
TOTAL 1,66,000 1,93,576
40. Now coming to the quantum of compensation in
MVC.No.711/2009. Though the petitioners who are legal
representatives of deceased Prabhakar Tholar have contended
that he was earning Rs.15,000/-p.m, they have not produced
any evidence to establish the said fact. In the absence of the
same and having regard to the fact that incident is of the year
2009, the Tribunal has correctly taken the income of the
deceased as Rs.5,000/-p.m. Since he was aged 28 years at the
time of accident, the appropriate multiplier is 17. Similarly, as he
was in a private employment, 40% of his income is required to
be added towards future loss of income. 40% of Rs.5,000/-
comes to Rs.2,000/- and therefore, the notional income is
required to be taken at Rs.7,000/- p.m. With the 17 as multiplier
and after deducting 1/3rd towards the personal and living
expenses, 2/3rd is required to be taken into consideration
towards loss of dependency. With these components the
compensation under the head loss of dependency is 7,000 x 12 x
17 x 2/3 = Rs.9,52,000/- as against Rs.6,80,000 granted by the
Tribunal. Since there are three dependents, the compensation
under the head loss of consortium at the rate of Rs.40,000/- per
head comes to Rs.1,20,000/-. Therefore, the compensation
under the head loss of consortium is enhanced to Rs.1,20,000/-
as against Rs.10,000/- granted by the Tribunal. When major
compensation is granted under the head loss of dependency,
under the conventional head of loss of estate and funeral
expenses, Rs.15,000/- each is to be granted and accordingly,
the compensation under the head loss of estate and funeral
expenses is enhanced to Rs.15,000/- each.
41. Thus, in all petitioners are entitled for a total
compensation in a sum of Rs.11,02,000/- as against
Rs.7,05,000/- granted by the Tribunal as detailed below:
Heads Amount Amount
granted by the granted by this
Tribunal Court
In Rs. In Rs.
Compensation towards loss of 6,80,000 9,52,000
dependency
Compensation towards loss of 10,000 15,000
estate
Compensation towards loss of 10,000 1,20,000
consortium
Compensation towards funeral 5,000 15,000
expenses/medical expenses
TOTAL 7,05,000 11,02,000
Amount liable to be paid by Rs.5,51,000/- each
respondent Nos.2 and 4 is
42. Since the driver of the Santro car and Tipper lorry
are held to be equally responsible for causing the accident and
50% each of the contributory negligence is saddled on them,
Respondent No.2 and 4 being the insurers of the respective
vehicles are liable to pay compensation in a sum of
Rs.5,51,000/- each with interest at 6% p.a.
43. Now coming to the compensation granted in MVC
825/2009. Looking to the photographs produced by the
petitioner, it is quite evident that not much damage has been
caused to the motor cycle in question. In spite of it the Tribunal
has taken into consideration the market value of the two wheeler
at Rs.30,000/- and sale consideration of the wreck of vehicle at
Rs.8,000/-. Similarly the surveyor's fees of Rs.2,210/-shifting
charges at Rs.1000/- and conveyance and other charges at
Rs.2,500/-. In all the Tribunal has rightly granted compensation
in a sum of Rs.27,710/-. I find now reason interfere with the
same.
44. Thus from the above discussion, I hold that there is
no scope for interference with the quantum of compensation
granted in MVC.No.825/2009 and accordingly the appeal filed
against the said judgment and award by the petitioner is liable to
be dismissed, accordingly I proceed to pass the following order:
ORDER
(i) MFA.No.8003/2012 filed by respondent No.2 is
dismissed. MFA.No.10653/2012 is allowed in
part. Appellant/petitioner is entitled for
compensation in a sum of Rs.1,93,576/- as
against Rs.1,66,000/- with interest at 6% p.a.
from the date of petition till realization (minus
the amount already paid/deposited).
(ii) MFA.No.8004/2012 filed by respondent No.2 is
dismissed. MFA.No.11298/2012 is allowed in
part. Appellants/petitioners are entitled for
compensation in a sum of Rs.11,02,000/- as
against Rs.7,05,000/- granted by the Tribunal,
with interest at 6% p.a. from the date of
petition till realization (minus the amount
already paid/deposited).
(iii) MFA.No.8005/2012 is dismissed.
(iv) The respondent Nos.2 and 4 are liable to
deposit 50% each within a period of six weeks
from the date of this order.
(v) The registry is directed transmit the trial court
record along with copy of this judgment
forthwith.
Sd/-
JUDGE
RR
