Karnataka High Court
The New India Assurance Company Limited vs Shri Yallappa Linga Basappa Totad on 24 November, 2023
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NC: 2023:KHC:42495
MFA No. 1097 of 2018
C/W MFA No. 1495 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE C.M.JOSHI
M.F.A. NO. 1097 OF 2018 (MV-D)
C/W
M.F.A NO. 1495 OF 2018 (MV-D)
IN M.F.A. NO.1097 OF 2018
BETWEEN:
LEGAL MANAGER,
SHRIRAM GENERAL INS. CO. LTD.,
NO.5/4, 3RD FLOOR,
S.V. ARCADE, BELEKALHALLI MAIN
ROAD, OPP BANNERGHATTA ROAD,
LIMB POST, BANGALORE 76.
...APPELLANT
(BY SRI PRADEEP B, ADVOCATE)
AND:
Digitally signed 1. SRI YALLAPPA LINGA BASAPPA TOTAD,
by T S
NAGARATHNA S/O. LINGA BASAPPA TOTAD,
Location: High NOW AGED ABOUT 65 YEARS.
Court of
Karnataka 2. GIRIJAVVA TOTAD,
W/O. YALLAPPA LINGA BASAPPA TOTAD,
NOW AGED ABOUT 57 YEARS,
BOTH ARE R/AT NO.463,
AT BELUR, BADAMI, BELUR,
BAGALKOT-587 114.
3. NEW INDIA ASSURANCE CO. LTD.,
T.P. CLAIMS HUB,
2ND FLOOR, MAHALAKSHMI CHAMBERS,
M.G. ROAD, BENGALURU-01.
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MFA No. 1097 of 2018
C/W MFA No. 1495 of 2018
4. T.K. SRINIVASAN,
MAJOR, NO.73/3, 1ST CROSS,
OILMILL ROAD,
AYYAPPA TEMPLE STREET,
ARIVIND NAGAR, BANGALORE 84.
5. NAGARAJU.A,
S/O. KARIBASAPPA,
MAJOR, D.NO.5-101, MAIN ROAD,
KANEKAL (M), ANANTHAPURA DIST,
ANDRA PRADESH STATE-515 124.
AND
NAGARAJU.A, S/O KARIBASAPPA,
MADAKARIYAPPA (V) POST,
CHITRADURGA-577 597.
...RESPONDENTS
(BY SRI K.T GURUDEVA PRASAD, ADVOCATE FOR R1 & R2;
SRI A RAVISHANKAR, ADVOCATE FOR R3;
R4 SERVED AND UNREPRESENTED
SERVICE OF NOTICE TO R5 IS HELD SUFFICIENT V/O DATED
12-12-2022)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 09.11.2017 PASSED IN MVC
NO.5279/2014 ON THE FILE OF THE VIII ADDITIONAL SMALL
CAUSES JUDGE, & XXXIII ACMM, MEMBER, MACT, BENGALURU,
(SCCH-5), AWARDING COMPENSATION OF RS.11,30,000/- WITH
INTEREST @9% P.A. FROM THE DATE OF PETITION TILL
REALIZATION.
IN M.F.A NO. 1495 OF 2018
BETWEEN:
THE NEW INDIA ASSURANCE COMPANY LIMITED,
TP CLAIMS HUB, 2ND FLOOR,
MAHALAKSHMI CHAMBERS,
M.G.ROAD, BEGNALURU-560 001.
REPRESENTED BY ITS MANAGER.
...APPELLANT
(BY SRI A RAVISHANKAR, ADVOCATE)
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MFA No. 1097 of 2018
C/W MFA No. 1495 of 2018
AND:
1. SHRI YALLAPPA LINGA BASAPPA TOTAD,
S/O. SHRI LINGA BASAPPA TOTAD,
AGED ABOUT 65 YEARS.
2. SMT. GIRIJAVVA TOTAD,
W/O. SHRI YALLAPPA LINGA BASAPPA TOTAD,
AGED ABOUT 53 YEARS.
BOTH ARE PARENTS OF THE DECEASED
SHRI PRAKASH TOTAD AND ARE
R/AT: NO.463, BELUR, BADAMI,
BAGALKOTE DISTRICT-587 114.
3. SHRI T. K. SRINIVASAN,
MAJOR,NO.73/3, 1ST CROSS,
OIL MILL ROAD-AYYAPPA TEMPLE STREET,
ARAVINDANAGAR, BENGALURU-560 084.
4. SHRIRAM GENERAL INSURANCE COMPANY LIMITED,
3RD FLOOR, SV ARCADE,
NO.5/4, BELLIKALI MAIN ROAD,
IMM POST, BENGALURU-560 076.
5. SHRI A.NAGARAJU,
S/O. SHRI KARIBASAPPA,
MAJOR, NO.5-101, MAIN ROAD,
KANEKAL (M) POST,
ANANTHAPUR DISTRICT,
ANDHRA PRADESH-515 871.
ALSO AT
MADAKARIPURA (V) POST,
CHITRADURGA-577 501.
...RESPONDENTS
(BY SRI K.T GURUDEV PRASAD, ADVOCATE FOR R1 & R2;
R3 SERVED AND UNREPRESENTED;
SRI B. PRADEEP, ADVOCATE FOR R4)
SERVICE OF NOTICE TO R5 IS HELD SUFFICIENT V/O DATED
12-12-2022)
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MFA No. 1097 of 2018
C/W MFA No. 1495 of 2018
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 09.11.2017 PASSED IN MVC
NO.5279/2014 ON THE FILE OF VIII ADDITIONAL SCJ & XXXIII
ACMM MEMBER-MACT, BENGALURU, AWARDING A
COMPENSATION OF RS.11,30,000/- WITH INTEREST @ 9% P.A.
FROM THE DATE OF PETITION TILL ITS REALIZATION.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT AND COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THROUGH VIDEO CONFERENCING AT KALABURAGI,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These appeals by the Insurance Companies are
directed against the judgment and award dated 09.11.2017
passed in MVC No.5279/2014 by the learned VIII Additional
SCJ and XXXIII ACMM and Member-MACT, Bengaluru,
awarding a compensation of Rs.11,30,000/- with interest @
9% p.a. from the date of petition till its realization on
account of the death of one Prakash Totad in the road
traffic accident, fastening liability on both the insurance
companies in the ratio of 50:50.
2. The parties would be referred to as per their
rankings before the Tribunal for the sake of convenience.
3. It is the case of the petitioners, who are parents of
one Prakash Totad, who died in the road traffic accident
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that occurred on 21.10.2014 at about 5.45 a.m., that when
their deceased son was proceeding in Eicher Canter bearing
Reg.No.KA-03-D-8891 as a Travel Co-ordinator in
Professional Courier, near Marulappanahalli on Sira-Tumkur
Road, NH-48, the driver of the above said Canter drove it in
rash and negligent manner with high speed and dashed
against Lorry bearing Reg.No.KA-16-B-1091, which was
parked on the right side of the road due to tire burst
resulting in his death at the spot. Further it is the case of
the petitioners that the body was shifted to General
Hospital, Sira and they have performed funeral and
obsequies by spending an amount of Rs.50,000/- and also
spent a sum of Rs.50,000/- towards transportation of dead
body. It is the case of the Petitioners that, deceased was
working as Travel Co-ordinator (OTC) and getting a salary
of Rs.12,000/- p.m. and therefore, they sought for
compensation of Rs.25,00,000/- from respondents.
4. After service of summons, respondents No.1 and 3
have appeared before the Tribunal through counsels and
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filed their respective objection statements. In spite of
service of summons, Respondent No.2 and 4 remained
absent, hence they were placed exparte.
5. Respondent No.1-New India Assurance Company
Limited, insurer of Eicher canter, in its objection statement
denied petition averments but admitted issuance of policy of
insurance in favour of Respondent No.2 in respect of Eicher
Canter bearing Reg.No.KA-03-D-8891 and if there is any
liability to pay the compensation, it is subject to terms and
conditions of the policy. It also contended that, the driver of
the above said vehicle did not possess valid and effective
driving licence and deceased was traveling as unauthorized
occupant and not as a cleaner or representative of owner of
goods or during the course of employment and prayed to
dismiss the claim petition filed against it.
6. Respondent No.3-Shriram General Insurance
Company Limited, insurer of the lorry in its objection
statement admits that, it had issued Goods Carrying
Commercial Vehicle Package Policy bearing
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No.10003/31/14/538594 valid from 05.12.2014 till
04.12.2015 and if there is any liability to pay the
compensation, it is subject to terms and conditions of the
policy. Further it denied all other petition averments and
prayed to dismiss the claim petition filed against it.
7. On the basis of the above pleadings, the Tribunal
framed appropriate issues and petitioner No.1 examined
himself as PW1 and Exs.P1 to P14 were marked. He
examined one witness as PW2. On behalf of respondents, 3
witnesses were examined as RWs 1 to 3 and Exs.R1 to R10
were marked.
8. The Tribunal after hearing both the parties,
awarded compensation of Rs.11,30,000/- (Rs.10,00,000/-
towards loss of dependency, Rs.1,00,000/- towards loss of
love and affection and Rs.15,000/- each towards loss of
estate and funeral expenses) and directed respondent Nos.
1 and 3 to deposit the same in the ratio of 50:50.
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9. Being aggrieved by the said judgment and award,
the respondent Nos. 1 and 3, Insurance Companies of both
the vehicles are before this Court in appeals.
10. MFA No.1097/2018 is filed by respondent No.3-
Shriram General Insurance Company Limited, contending
that the Tribunal committed an error in taking the Future
prospects at 40% though deceased was not on a stable job.
It is submitted that the Tribunal committed an error in
fixing negligence of both the vehicles at 50% and in fact
the driver of the Eicher Canter vehicle was the sole
contributor of the negligence. It is contended that the rate
of interest awarded by the Tribunal is also on the higher
side and it should have granted interest at 6% p.a. and
therefore, the appeal be allowed.
11. MFA No.1495/2018 is filed by respondent No.1-
New India Assurance Company Limited, contending that,
the Tribunal had failed to appreciate that the vehicle insured
by the appellant i.e., Eicher Canter Goods vehicle was
owned by one Srinivasan and it was not the case of the
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petitioners that it was owned by or hired by M/s.
Professional Couriers. It is contended that the Tribunal
failed to appreciate that there was no employer and
employee relationship between the deceased and the owner
of the vehicle and that the Tribunal failed to appreciate that
the deceased Prakash was not an authorised passenger on
the said vehicle. It is contended that a gratuitous passenger
in a goods vehicle is not covered under the policy under
Section 147(2) of the Motor Vehicles Act and the Tribunal
failed to appreciate the evidence of PW2-Rangaswamy. It is
contended that PW2 never stated that as on the date of the
accident, the deceased was working in the said Professional
Couriers and there is no documentary evidence available to
show that he was an employee of Professional Couriers. It is
contended that all the evidence that was led was in the year
2011, the deceased Prakash was working at Professional
Couriers, if at all if he was working as on the date of the
accident it could have produced the salary certificate as well
as pay slip etc. It is contended that the deceased was not
traveling as a representative of goods the police papers
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produced by the petitioners as well as the statement of the
brother of the deceased made before the police show that
deceased had left the job six months prior to the date of
accident. Therefore, it is contended that the Tribunal has
failed to appreciate that the deceased was a gratuitous
passengers on the goods vehicle and the documents
produced by the petitioners themselves show that he was a
gratuitous passenger.
12. In the light of the above contentions raised by
both the Insurance Companies, it is necessary to look into
the question as to whether the deceased was gratuitous
passenger or he was an employee of Professional Couriers
travelling with the goods as a representative of the owner
of goods?
13. The perusal of the testimony of PW2 Rangaswamy
show that the deceased Prakash was working in his
company as OTC as a Travel Coordinator since 2011. He
also states in his affidavit that the deceased was drawing
the salary of Rs.8,000/- with Rs.500/- as daily conveyance,
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food and other expenses and Rs.600/- per month towards
the phone charges. It is relevant to note that nowhere in
his affidavit, PW2 states that as on the date of the accident,
the deceased was working as a Travel Coordinator at
Professional Couriers. In cross-examination by the learned
counsel for respondent No.1-New India Assurance Company
Limited, he states that he is working in Professional
Couriers HR department, and the salary to the employees
will be credited to their bank accounts. He admits that he
has not produced any document to show that the deceased
was working in said Company as on the date of the
accident. It is also elicited that they have both biometric
and manual Attendance register and those particulars are
available in the Company. He also states that there will be
entry in trip sheet and log sheet regarding the timings of
the vehicle used to leave the company premises and reach
their destination. He also states that there will be records
to show as to at what time the vehicle had left to its
destination etc. He admits that no such documents are
produced by him. It is interesting to note that though it was
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suggested to him that the deceased was traveling in an
unknown lorry as a passenger, there is no suggestion to the
effect that the deceased was not working in Professional
Couriers as on the date of the accident. Nevertheless, the
burden was on the petitioners.
14. In Ex.P9 is the Appointment Order issued by
Professional Couriers to the deceased Prakash Totad.
Curiously, it is dated 31-12-2011, but it does not mention
what is the salary. The monthly gross remuneration is
stated to be 'as mentioned in the Welcome Letter'. The said
Welcome Letter is not produced by the petitioners. It is also
relevant to note that the bank account details of deceased
Prakash are also not produced by the petitioners.
Therefore, there is no positive evidence on behalf of the
petitioners to establish that as on date of the accident
deceased Prakash Thotad was working at Professional
Couriers. So also there was no positive evidence to show
that Eicher Canter Vehicle was on contract with Professional
Couriers from respondent No.2-T.K.Srinivasan and that the
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deceased was traveling in the said vehicle as representative
of the owner of the goods.
15. The learned counsel appearing for the respondent
No.1-New India Assurance Company Limited, has pointed
out that Ex.R8 is the statement made by the brother of the
deceased before the police on 21-10-2014. In the said
statement, he had stated that the deceased Prakash was
working for last 5-6 years at Professional Couriers and
about 7-8 months prior to the accident, Prakash had left
Professional Couriers and was staying in a room of his
brother Eerappa. He had stated that about 2 months prior
to the accident, the deceased had been to his village Belur
of Badami Taluka. Thus, the statement made by brother of
the deceased show that the deceased had left the
Professional Couriers about 7-8 months prior to the
incident.
16. In addition to the above documents, the inquest
mahazar produced by the petitioners at Ex.P4 discloses that
the Investigating Officer had recorded the statement of one
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Parappa Shivaputrappa wherein, he had stated that
deceased had left the job at Professional Couriers and on
20-10-2014 at about 11.45 p.m. he had boarded the Eicher
Canter vehicle belonging to Professional Couriers at Haveri
to go to Bengaluru. It is also relevant to note that another
witness Basavaraj has also stated that the deceased has
boarded the said Eicher Canter Vehicle belonging to
Professional Couriers from Haveri to go to Bengaluru. None
of these witnesses have stated that the deceased was
working at Professional Couriers as on the date of the
accident. Both these witnesses have also stated that the
deceased had left the job and about 2 months back he had
returned to his village at Beluru, Badami Taluk. Therefore,
there is specific evidence which show that deceased was not
working at Professional Couriers as on the date of the
accident.
17. Thus, this explains as to why petitioners could not
produce any documents to show that deceased was working
in Professional Couriers as on the date of the accident and
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why they did not produce the pay particulars, salary
certificate etc., issued by Professional Couriers. Curiously,
PW2 also does not say in his affidavit evidence that as on
the date of the accident deceased was working at
Professional Couriers. He also does not mention in his
affidavit that the deceased was traveling in the vehicle
belonging to his Company/Employer as a representative of
the goods. He also does not mention that the deceased was
on duty as on the date of the accident. All these aspects
clearly establish that the deceased was not under the
employment of Professional Couriers even though the said
vehicle was used by Professional Couriers. Perhaps, the
deceased boarded the Eicher Canter Vehicle at Haveri to go
to Bengaluru, with the acquaintance of the driver of the said
vehicle. Obviously, the deceased was not the representative
of the goods as on the date of the accident. Under these
circumstances, this Court holds that the evidence on record
show that the deceased was not an employee of
Professional Couriers as on the date of the accident and he
was a gratuitous passenger in the said vehicle.
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18. The Tribunal had not bestowed its attention on
Ex.R8 and inquest panchanama produced by the petitioners.
It is evident that the Tribunal had not critically analyzed the
evidence of the petitioners and also that of PW2, where
there was no positive evidence to show that deceased was
an employee of the professional couriers as on the date of
accident.
19. The learned counsel appearing for respondent
No.1-New India Assurance Company submits that in view of
the decision in the case of National Insurance Co. Ltd. v.
Cholleti Bharatamma 1, wherein, it is observed as below:
"11. The effect of the 1994 Amendment came up
for consideration in National Insurance Co.
Ltd. v. Baljit Kaur [(2004) 2 SCC 1] wherein this
Court following Asha Rani [(2003) 2 SCC 223]
opined that the words "injury to any person" would
only mean a third party and not a passenger
travelling on a goods carriage whether gratuitous or
otherwise. The question came up for consideration
again in National Insurance Co. Ltd. v. Bommithi
Subbhayamma [(2005) 12 SCC 243] wherein upon
taking into consideration a large number of
decisions, the said view was reiterated.
12. Yet again in New India Assurance Co.
Ltd. v. Vedwati [(2007) 9 SCC 486] this Court held:
(2008) 1 SCC 423
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"9. ... The difference in the language of 'goods
vehicle' as appearing in the old Act and 'goods
carriage' in the Act is of significance. A bare reading
of the provisions makes it clear that the legislative
intent was to prohibit goods vehicle from carrying
any passenger. This is clear from the expression 'in
addition to passengers' as contained in the definition
of 'goods vehicle' in the old Act. The position
becomes further clear because the expression used
'goods carriage' is solely for the carriage of 'goods'.
Carrying of passengers in a goods carriage is not
contemplated in the Act. There is no provision similar
to Clause (ii) of the proviso appended to Section 95
of the old Act prescribing requirement of insurance
policy. Even Section 147 of the Act mandates
compulsory coverage against death of or bodily
injury to any passenger of 'public service vehicle'.
The proviso makes it further clear that compulsory
coverage in respect of drivers and conductors of
public service vehicle and employees carried in
goods vehicle would be limited to liability under the
Workmen's Compensation Act, 1923 (in short 'the
WC Act'). There is no reference to any passenger in
'goods carriage'.
10. The inevitable conclusion, therefore, is that
provisions of the Act do not enjoin any statutory
liability on the owner of a vehicle to get his vehicle
insured for any passenger travelling in a goods
carriage and the insurer would have no liability
therefor."
Xxxx xxxx xxxx
Xxxx xxxx xxxx
20. In this case, the High Court had proceeded on
the basis that they were gratuitous passengers. The
admitted plea of the respondents themselves was
that the deceased had boarded the lorry and paid an
amount of Rs 20 as transport charges. It has not
been proved that the deceased was travelling in the
lorry along with the driver or the cleaner as the
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owner of the goods. Travelling with the goods itself
does not entitle anyone to protection under Section
147 of the Motor Vehicles Act."
20. The Apex Court has held that the Insurance
Company need not cover the risk of a gratuitous passenger
as it is not statutorily covered. A perusal of the insurance
policy produced at Ex.R5 show that only cleaner and driver
are covered under the policy. Thus viewed from any angle,
the liability cannot be fastened on the Insurance company.
21. The decision of Apex Court of Khenyei v. New
India Assurance Co. Ltd.,2 lays down as below:
"22. What emerges from the aforesaid discussion
is as follows:
22.1. In the case of composite negligence, the
plaintiff/claimant is entitled to sue both or any one of
the joint tortfeasors and to recover the entire
compensation as liability of joint tortfeasors is joint
and several.
22.2. In the case of composite negligence,
apportionment of compensation between two
tortfeasors vis-à-vis the plaintiff/claimant is not
permissible. He can recover at his option whole
damages from any of them.
22.3. In case all the joint tortfeasors have been
impleaded and evidence is sufficient, it is open to the
court/Tribunal to determine inter se extent of
composite negligence of the drivers. However,
determination of the extent of negligence between
the joint tortfeasors is only for the purpose of their
(2015) 9 SCC 273
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inter se liability so that one may recover the sum
from the other after making whole of the payment to
the plaintiff/claimant to the extent it has satisfied the
liability of the other. In case both of them have been
impleaded and the apportionment/extent of their
negligence has been determined by the
court/Tribunal, in the main case one joint tortfeasor
can recover the amount from the other in the
execution proceedings.
22.4. It would not be appropriate for the
court/Tribunal to determine the extent of composite
negligence of the drivers of two vehicles in the
absence of impleadment of other joint tortfeasors. In
such a case, impleaded joint tortfeasor should be
left, in case he so desires, to sue the other joint
tortfeasor in independent proceedings after passing
of the decree or award.
22. In a case on hand, it is to be noted that deceased
Prakash Totad had nothing to do with the negligence.
Deceased Prakash was travelling in the Eicher Canter as
gratuitous passenger and therefore, for petitioners, it is a
case of composite negligence. Under these circumstances,
the liability has to be fastened upon tortfeasers.
23. The petitioners contended that the accident
occurred due to the negligence of both the vehicles. A
perusal of the FIR, chargesheet and other police papers
produced at Ex.P1 and spot mahazar produced at Ex.P2
show that the accident had occurred on the National
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Highway and the lorry belonging to respondent No.2 insured
by respondent No.1 had parked on the right side of the lane
leading to Sira. It is pertinent to note that the lorry was
parked by the side of the median. Obviously, the lorry
should have been parked with the indicators so as to
caution the drivers of the vehicles coming from behind.
After investigation, the chargesheet has been filed by the
police against both the drivers. It is relevant to note that
the accident had occurred at about 5.45 a.m. Thus, it is
evident that the lorry driver as well as the Eicher Canter
driver had not exercised caution while driving the vehicle.
The Tribunal after examining all the material on record has
come to the conclusion that each of the drivers contributed
50% towards the negligence. This Court also does not find
any reason to differ with the conclusions reached by the
Tribunal in this regard. Hence, the negligence on the part
of each of the tortfeaser, i.e., the drivers of both the
vehicles is held to be 50% each.
24. The learned counsel appearing for respondent
No.3-Sriram General Insurance Company Limited contended
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that the quantum of the compensation awarded by the
Tribunal is on the higher side. The decision in the case of
National Insurance company Limited vs. Pranay Sethi
and others3 rendered by the Constitution Bench of the
Apex Court lays down that in a case of persons having a
stable job, the future prospects is to be considered at 50%
and for self employed, it is to be considered at 40%.
Evidently, as on the date of the accident, deceased was not
working with the Professional Couriers and there is no
evidence to show his salary. Therefore, notional income has
to be considered. By applying the guidelines issued by the
Apex Court in the case of National Insurance Company
Limited Vs. Pranay Sethi and others referred supra, 40%
has to be added towards future prospects and loss of
dependency has to be calculated. The Tribunal has
considered all these aspects and has awarded a sum of
AIR 2017 SC 5157
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Rs.9,99,600/- which is rounded off to Rs.10,00,000/- under
the head of 'loss of dependency'.
25. The Tribunal has also awarded a sum of
Rs.1,00,000/- towards loss of love and affection, which
appears to be on the higher side. Therefore, the said
amount under the head of 'loss of love and affection' is
restricted to Rs.50,000/-. Hence, the total compensation
entitled by the petitioners is calculated as below:
1 Loss of dependency Rs. 10,00,000/-
2 Loss of Love and Affection Rs. 50,000/-
3 Loss of Estate Rs. 15,000/-
4 Funeral Expenses Rs. 15,000/-
Total Rs.10,80,000/-
26. Coming to the question of liability, as discussed
supra, it is a case of composite negligence for the
petitioners. Therefore, all the tortfeasers are liable to pay
the compensation to the petitioners jointly and severally.
Since both the tortfeasers are arrayed as respondents in the
present case, the interse liability has to be decided and as
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such this Court found that each of the tortfeasers has
contributed 50% each. Respondent No.1 has established
that the deceased Prakash Totad was gratuitous passenger
on the vehicle and therefore, it did not cover the risk of the
injury suffered by gratuitous passenger as a statutory
liability. There being no specific coverage for a gratuitous
passenger travelling in a goods vehicles as laid down by the
Apex Court in the case of Cholleti Bharatamma referred
supra, the respondent No.1 has to be absolved from the
liability to indemnify the owner of the Eicher canter goods
vehicle.
27. In the result, the respondent Nos. 2, 3 and 4 are
liable to pay the compensation to the petitioners. The
respondent No.3 has to indemnify the liability of respondent
No.4, for, the policy was in force and valid. Therefore, it is
the respondent Nos. 2 and 3 who have to satisfy the award.
In view of the decision in the case of Khenyei v. New India
Assurance Co. Ltd., referred supra, the petitioners are at
liberty to recover the compensation amount from
respondent Nos. 2 or 3. In case, respondent No.3 pays the
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entire compensation amount to the petitioners, it will be at
liberty to recover the same from respondent No.2.
28. In that view of the matter, the appeal filed by
respondent No.1 deserves to be allowed. Since the
compensation is reassessed and reduced by Rs.50,000/-,
the appeal filed by the respondent No.3 is to be allowed in
part.
29. Sofar as interest is concerned, the Tribunal has
relied on several decisions of the Apex Court and therefore,
no interference is required in the same. Hence, the
following:
ORDER
(i) MFA No.1097/2018 is allowed and MFA
No.1495/2018 is allowed in part.
(ii) The petitioners are entitled for
compensation of Rs.10,80,000/- along with
interest at the rate 9% p.a., from the date of
petition till its deposit before the Tribunal.
(iii) The petition as against the respondent
No.1 -New India Assurance Company stands
dismissed. Respondent Nos.2 to 4 are jointly and
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NC: 2023:KHC:42495
severally liable to pay the compensation to the
petitioners.
(iv) Respondent No.3 is liable to indemnify
the respondent No.4.
(v) The interse liability between the
respondent Nos. 2 and 3 is held to be 50% each.
In case, the respondent No.3 pays the entire
compensation amount, it is at liberty to recover
the same from respondent No.2 by executing the
award.
(vi) The apportionment and the fixed
deposit as ordered by the Tribunal remain
unaltered.
(vii) The deposit if any, made by the
appellant-New India Assurance Company Limited
is ordered to be refunded to it and the deposit
made by the Shriram General Insurance
Company Limited is ordered to be transmitted to
the Tribunal forthwith.
Sd/-
JUDGE
tsn*
