Karnataka High Court
The Branch Manager vs Leelavathi on 24 November, 2023
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MFA No. 2334 of 2017
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. 2334 OF 2017 (MV-D)
BETWEEN:
THE BRANCH MANAGER,
ORIENTAL INSURANCE CO. LTD.,
BRANCH OFFICE,
JAYADEVA HOSTEL BUILDING,
B. H. ROAD, TIPTUR,
TUMKUR DISTRICT.
BY
THE ORIENTAL INSURANCE CO. LTD.,
REGIONAL OFFICE, 2ND FLOOR,
SUMANGALA COMPLEX,
LAMINGTON ROAD,
HUBLI-580 020. BY ITS MANAGER.
...APPELLANT
(BY SRI O MAHESH, ADVOCATE)
Digitally signed
by T S AND:
NAGARATHNA
Location: High
Court of
Karnataka 1. LEELAVATHI,
W/O. LATE JALANDAR @ JALANDARAPPA,
AGED ABOUT 37 YEARS.
2. SAHMALA K. J,
D/O LATE JALANDAR @ JALANDARAPPA,
AGED ABOUT 14 YEARS.
3. VASANTHKUMAR K.J,
S/O LATE JALANDAR @ JALANDARAPPA,
AGED ABOUT 12 YEARS.
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MFA No. 2334 of 2017
RESPONDENT NO.2 AND 3 MINORS,
BY M/G SMT. LEELAVATHI, RESPONDENT NO.1.
ALL ARE R/AT: KAKKEHALLI VILLAGE,
BAGURU HOBLI,
CHANNARAYAPATNA TALUK,
HASSAN DISTRICT-573 201.
4. JAYAMMA,
W/O LATE PUTTAIAH,
AGED ABOUT 67 YEARS,
R/AT: HULIYAPPANAPALYA,
KENTHERI POST, GANDASI HOBLI,
ARASIKERE TALUK,
HASSAN DISTRICT-573 201.
5. PURADE GOWDA, MAJOR,
S/O. RANGAPPA,
R/AT: ANATHI VILLAGE,
BAGURU HOBLI,
CHANNARAYAPATNA TALUK,
HASSAN DISTRICT-573 201.
...RESPONDENTS
(BY SRI GIRISH BABU, ADVOCATE FOR R1 TO R3;
SRI L.HARISH KUMAR, ADVOCATE FOR R4;
SRI LOKESH.K, ADVOCATE FOR R5)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 15.12.2016 PASSED IN MVC
NO.343/2015 ON THE FILE OF THE 4TH ADDITIONAL DISTRICT
& SESSIONS JUDGE, HASSAN DISTRICT, (SITTING AT
CHANNARAYAPATNA) AWARDING COMPENSATION OF
Rs.13,75,000/- WITH INTEREST @ 9% P.A. FROM THE DATE OF
PETITION TILL REALIZATION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT AND COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY THROUGH VIDEO CONFERENCING AT
KALABURAGI, THE COURT DELIVERED THE FOLLOWING:
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MFA No. 2334 of 2017
JUDGMENT
This appeal by the Insurance Company is directed
against the judgment and award dated 15.12.2016 passed
in MVC No.343/2015 by the learned IV Additional District
and Sessions Judge, Hassan District, (sitting at
Channarayapatna) awarding compensation of
Rs.13,75,000/- with interest @ 9% p.a. from the date of
petition till realization on account of the death of one
Jalandar in the road traffic accident.
2. Petitioner Nos.1 to 3, wife, minor daughter, son and
petitioner No.4, the mother of deceased Jalandar have filed
a claim petition before the Tribunal claiming compensation,
contending that when Jalandar was riding motorbike
bearing Reg.No.KA-13-Y-2486 on 20.04.2014 at 7.30 p.m.,
on Byrapura-Beechagondanahalli road, opposite to the
house of Shivegowda at Channarayapatna, another
motorbike bearing Reg.No.KA-13-W-9921, ridden by its
rider came in rash and negligent manner, dashed to vehicle
of deceased. As a result, he fell down and sustained injuries
and he succumbed to injuries on 21.04.2014 at 1.00 a.m.,
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at Govt. hospital, Tiptur. Petitioners spent Rs.1,00,000/- for
treatment, medicines, transportation of body, funeral,
obsequies and other incidental expenses. Petitioners were
depending on the income of deceased Jalandar who was
aged 42 years and earning Rs.12,000/- p.m., from
agriculture, sericulture and business. Due to his untimely
death, petitioner No.1 lost her consortium and other
petitioners have lost their love and affection and suffered
loss to their estate. Respondents being the insurer and
owner of the offending vehicle are jointly and severally
liable to pay the compensation of Rs.30,00,000/- with
interest.
3. On issuance of notice, the respondent Nos.1 and 2
have appeared through their counsel.
4. Respondent No.1-Insurance Company of the
offending motorbike resists the claim denying the petition
averments. However, it admits issuance of policy to the
offending motorbike on material date, and time. It pleads
that deceased sustained injury due to his self fall and there
was no nexus between the death of deceased and the
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insured motorbike; and as such 1st Respondent is not liable
to pay the compensation. Therefore, it prayed to dismiss
claim petition. Respondent No.2 though represented
through his advocate has not filed written statement.
5. On the basis of the above pleadings, the Tribunal
has framed appropriate issues and petitioner No.1
examined herself as PW1, one witness was examined as
PW.2 and Exs.P1 to P19 were marked in evidence. No oral
evidence was adduced by respondent No.1, however, copy
of insurance policy is marked as Ex.R1.
6. The Tribunal after hearing both the sides and after
considering the material available, has partly allowed the
petition, directed the Insurance Company to pay a
compensation of Rs.13,75,000/- together with interest at
9% p.a. under different heads as below:
Loss of dependency Rs.12,60,000/-
Loss of consortium to petitioner No.1 Rs. 30,000/-
Loss of filial love to petitioner No.4 Rs. 20,000/-
Loss of estate to petitioner Nos. 2 and Rs. 40,000/-
Funeral, obsequies and other expenses Rs. 25,000/-
including transportation of dead body.
Total Rs.13,75,000/-
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7. The said judgment and award is under challenge
in this appeal by the Insurance Company.
8. On issuance of notice by this Court, respondent
Nos. 1 to 6 appeared through their respective counsels
before this Court and on admitting the appeal, the Tribunal
records have been secured.
9. Heard the arguments by learned counsel appearing
for the appellant-Insurance company, learned counsel
appearing for respondent Nos. 1 to 3, 4 and 5 and perused
the Tribunal records.
10. The learned counsel appearing for the appellant-
Insurance Company contended that the investigation made
by the Investigating Officer is full of loopholes and
therefore, the accident itself is in doubt. He pointed out
that the seizure panchanama at Ex.P4 do not contain the
time when it was conducted. He contends that the spot
mahazar shows that the motor cycle of the deceased was
not found at the spot. It is contended that the spot mahazar
was prepared on 22-4-2014 but the sketch of the spot
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which is at Ex.P5 do not mention the date and it do not
contain the signatures of the panchas. He points out that
the IMV report produced at Ex.P8 mention that the
requisition for such examination was received on 7-6-2014
and on the same day at 3.45 p.m. the inspection was done
by the Senior Inspector of Motor Vehicles and it was nearly
one and half months after the date of the accident. He
further contended that after passing of the impugned award
by the Tribunal, the Insurance Company has investigated
the matter and came to know that there was collusion
between respondent No.1 and claimants. Therefore, he
contends that Exs.P 2 to 5 are fabricated and concocted and
the vehicle belonging to respondent No.1 was falsely
implicated with the case. Alternatively, he contends that
there was contributory negligence on the part of the
deceased as it was a head on collision. Hence, he submits
that the impugned judgment and award is liable to be set
aside.
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11. Per contra, learned counsel for the petitioners
contend that in the cross-examination of PW1 nothing is
suggested regarding the collusion with the respondent No.1
and about the fallacies in the investigation. He contends
that there was no contention of the contributory negligence
before the Tribunal on behalf of the respondent No.2-
Insurance Company. It is contended that the Insurance
Company did not opt to summon the IO and therefore, such
a contention cannot be contended for the first time in the
appeal.
12. A perusal of the Exs.P1 and P2 i.e., FIR and
complaint disclose that the petitioner No.1/PW1 came to
know about the accident through one Shankaranna.
Immediately, he rushed to the spot and found that the
deceased had fallen down with injuries and the accused was
also present at the spot. The pillion rider of the motor cycle
of the respondent No.1 i.e., Jayaram was also present and
he also has suffered injuries. All of them were shifted to
Government hospital Tiptur in an ambulance. There, the
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deceased died at about 1.00 a.m. The complaint was lodged
when the police visited the Government Hospital, Tiptur and
the complaint was written in front of the mortuary of the
Government hospital Tiptur.
13. Ex.P3- panchanama of the spot and the seizure
show that it was conducted on 22-4-2014 at about 1.00
p.m. and the spot was shown by the eye witness
Shankaregowda. The damages suffered to the vehicle
bearing No. KA.13.W.9921 was also noted in the
panchanama. The said vehicle was also seized under the
said mahazar at Ex.P3.
14. Ex.P4 is the seizure panchanama of the vehicle
bearing No.KA.13.Y.2486 and it was conducted on 26-4-
2014. The damages to the said vehicle were also mentioned
in the said mahazar. The mahazar discloses that the holder
Sannegowda produced the said vehicle at the police station.
No-doubt, the time of the mahazar is kept blank.
15. Ex.P5- the sketch shows that the date and time is
not mentioned and it do not contain the signature of the
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panchas. It is relevant to note that the sketch was prepared
by the Investigating Officer for the purpose of the
investigation and non-mentioning of the time and date and
not obtaining the signature of the panchas cannot be a
ground for the Insurance Company to say that the
investigation is not proper. The investigation was for the
purpose of prosecuting the criminal negligence by the
accused. Obviously, the accused Purade Gowda, who was
driving the motor cycle bearing No.KA.13.W.9921 was
alleged of driving the same in negligent manner as per the
chargesheet.
16. These documents clearly establish that the
accident occurred on the eastern side at a distance of about
2 feet from the edge of the tar road. The road is about 12
feet wide and the deceased was moving from Byrapura
towards Beechagondanahalli which was in a down gradient.
For the accused/respondent No.1, it was an up-gradient. It
is evident that the deceased was on the wrong side of the
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road. The reason for riding the motor cycle on the wrong
side road was not available on record.
17. By applying the principles of res-ipsa-loquitor, it
can be said that there was negligence on the part of the
deceased also. When the road is straight and no reasons
are forthcoming in the investigation papers as to why the
deceased was on the extreme right side of the road, it has
to be held that there was contributory negligence on the
part of the deceased. No reasons are forthcoming on the
part of the petitioners to show the circumstance which
forced the deceased to go on the extreme right side of the
road. Therefore, considering the facts and circumstances of
the case, it would be proper to attribute 25% as
contributory negligence of the deceased. Obviously, the
Tribunal has not bestowed its attention to the contents of
Ex.P3 and the sketch at Ex.P5.
18. The other contention of the learned counsel for the
appellant-Insurance Company that there was collusion
between the petitioners and the respondent No.1 is not
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based on any evidence which is available on record. The
alleged investigation by the Insurance Company subsequent
to the award passed by the Tribunal is not placed before the
Court. Though the learned counsel for the appellant argued
that the material eye witnesses of the accident have turned
hostile to the prosecution in the criminal case, such
evidence is not available before the Court and such
evidence was not placed before the Tribunal also. There is
nothing on record to show that the respondent No.2-owner
of the offending vehicle and the petitioners had colluded to
make unlawful gain.
19. The Tribunal had considered the RTC extracts
produced at Exs.P10 to P14, milk cards at Exs.P15 and 16
and also the wages fixed under the Minimum Wages Act and
came to the conclusion that the income of the deceased was
Rs.10,000/- per month.
20. The learned counsel for the appellant-Insurance
Company has not disputed the quantum of the
compensation amount. After deducting 25% towards the
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contributory negligence from the assessed compensation of
Rs.13,75,000/-, the petitioners are entitled for
Rs.10,31,250/-. Therefore, the appeal deserves to be
allowed in part. Hence, the following:
ORDER
(i) The appeal filed by the Insurance
Company is allowed in part.
(ii) The judgment and award passed in MVC
No.343/2015 dated 15-12-2016 passed by the
Tribunal is hereby modified.
(iii) The petitioners/claimants are entitled for
a sum of Rs.10,31,250/- instead of
Rs.13,75,000/- along with interest at 9% p.a.
from the date of petition till realization.
(iv) The other conditions of the Tribunal
regarding the apportionment and fixed deposit
remain unaltered.
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(v) The amount in deposit shall be
transmitted to the concerned Tribunal forthwith.
Sd/-
JUDGE
tsn*
