Karnataka High Court
The Manager vs Sri S Manjappa on 10 October, 2023
Bench: C M Joshi
-1-
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MFA No. 8332 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE C M JOSHI
MISCELLANEOUS FIRST APPEAL NO. 8332 OF 2017 (MV-D)
BETWEEN:
THE MANAGER,
THE ORIENTAL INSURANCE CO. LTD,
BRANCH OFFICE, THILUVALLI COMPLEX
OPP: ARUNA TALKIES,
P.B. ROAD DAVANAGERE
THROUGH ITS
HUBBALLI REGIONAL OFFICE,
SUMANGALA COMPLEX,
OPP: HDMC LAMINGTON ROAD,
HUBBALLI 580 020.
REPRESENTED BY ITS DEPUTY MANAGER
...APPELLANT
(BY SRI S V HEGDE MULKHAND, ADVOCATE - VC)
AND:
Digitally signed 1 . SRI S MANJAPPA,
by T S
NAGARATHNA S/O LATE GIDDA RANGAPPA,
Location: High AGED ABOUT 53 YEARS,
Court of
Karnataka COOLEE.
2 . SMT. RUDRAMMA,
W/O MANJAPPA,
AGED ABOUT 48 YEARS,
BOTH ARE R/O: NAVILEHALL VILLAGE,
CHANNAGIRI TALUK,
DAVANAGERE DISTRICT-577 544.
3 . A.M. RUDRESH,
S/O A.S. MAHADEVAPPA,
-2-
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MFA No. 8332 of 2017
MAJOR IN AGE,
R/O SIDDANAMATA VILLAGE,
CHANANGIRI TALUK,
DAVANAGERE DISTRICT-577 552.
4 . A C VEERAPPA,
S/O CHANNABASAPPA,
MAJOR IN AGE,
R/O SIDDANAMATA VILLAGE,
CHANNAGIRI TALUK,
DAVANAGERE DISTRICT-577 552.
...RESPONDENTS
(BY SRI H DEVENDRAPPA, ADVOCATE FOR R1- R2;
SRI BASAVARAJA POOJAR.S, ADVOCATE FOR R3, R4
[ABSENT])
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 28.07.2017 PASSED IN MVC
NO.876/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
MACT, CHANNAGIRI, AWARDING COMPENSATION OF
RS.7,38,000/- WITH INTEREST @ 6% 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, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal by the Insurance Company is directed
against the judgment and award dated 28-7-2017 passed
in MVC No.876/2014 by the learned Senior Civil Judge and
MACT, Channagiri, whereby a sum of Rs.7,38,000/- has
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MFA No. 8332 of 2017
been awarded to the petitioners as compensation on
account of the death of the deceased Kumar in the road
traffic accident.
2. It is the case of the petitioners that, on 7-1-2014
at about 12.00 p.m. when their son Kumar was going on a
motor cycle bearing No.KA.17.EL.4339 from Navilehall
village towards Santhebennur, the respondent No.1 drove
the tractor bearing No.KA.17.T.6071-6072 belonging to
respondent No.2 in a rash and negligent manner and
dashed against the motorcycle of Kumar. As a result,
Kumar suffered grievous injuries and died while being
taken to the hospital. It was further submitted that,
deceased was aged about 25 years, was the sole bread
earner of the family, earning Rs.7,000/- per month.
Further, they contended that the tractor trailer was
insured with respondent No.3. Therefore, they filed the
claim petition claiming compensation of Rs.20,00,000/-
from the respondent Nos. 1 to 3.
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MFA No. 8332 of 2017
3. On issuance of notice by the Tribunal, respondent
Nos. 1 to 3 have appeared before the Tribunal.
Respodnent Nos. 1 and 2 filed their objection statement
contending that the petition is not maintainable and is
liable to be dismissed on the ground that the accident
occurred due to negligence of deceased and further
submitted that the Tractor trailer were insured with the
respondent No.3 and if the Court comes to conclusion that
petitioners are entitled for compensation, then the liability
has to be fastened on respondent No.3 and prayed to
dismiss the petition.
4. The respondent No.3- Insurance Company has
filed the objection statement contending that the accident
was due to the rash and negligent driving of the deceased
and he was not having a valid driving licence and also
insurance. It was further contended that, police have filed
charge sheet against the deceased and he had been
arrayed as accused No.2 and therefore, it is not at all
liable to indemnify the respondent No.2 and that the
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MFA No. 8332 of 2017
claim is highly exorbitant. It was further contended that
the tractor driver was falsely implicated to claim monetary
benefits and the tractor has been used for non-agricultural
purpose, there was breach of policy conditions and hence,
prayed to dismiss the petition.
5. The Tribunal on the basis of the above pleadings,
framed appropriate issues and the petitioner No.1 was
examined as PW1, and Exs.P1 to P9 were marked in
evidence. Respondents have examined two witnesses as
RWs- 1 and 2 and got marked Exs. R1 to R3.
6. After hearing the arguments, the Tribunal awarded
compensation of Rs.7,38,000/- to the petitioners under
the following heads together with interest at 6% p.a. and
directed the insurance Company to deposit the same.
Loss of dependency Rs.6,48,000/-
Consortium Rs. 30,000/-
Loss of affection Rs. 40,000/-
Funeral expenses Rs. 20,000/-
Total Rs.7,38,000/-
7. Being aggrieved by the said judgment and award,
the Insurance Company has approached this Court in
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appeal contending that, the Tribunal has not considered
the facts borne out of the police papers, wherein the
deceased was found to be a contributor for the negligence
since he did not possess a valid driving licence to drive
the motor cycle and that there were two pillion riders on
the motor cycle.
8. On issuance of notice, the respondent Nos.1 to 4
have appeared through their counsels.
9. On admitting the appeal, the Tribunal records
have been secured and the arguments by learned counsel
for the appellant-Insurance Company and respondent Nos.
1 and 2 were heard. Counsel for respondent Nos. 3 and 4
did not appear to advance his arguments.
10. The learned counsel appearing for the appellant-
Insurance Company would contend that after the
investigation the police had filed the chargesheet against
the driver of the tractor as well as the deceased Kumar. It
is submitted that the Tribunal has not at all bestowed its
attention on the evidence on record and it has fastened
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MFA No. 8332 of 2017
the entire liability upon the appellant-Insurance Company.
He submits that the deceased was on the wrong side of
the tractor and atleast 50% of the negligence should have
been attributed to the deceased.
11. Per contra, learned counsel for respondent Nos. 1
and 2 would submit that there is collision between the
tractor and the motor cycle which were moving in opposite
direction. Therefore, the negligence was apparently by the
driver of the tractor and as such, the judgment and award
passed by the Tribunal has to be sustained.
12. The fact that there was an accident involving the
motor cycle ridden by deceased Kumar bearing Reg. No.
KA.17-EL-4339 and the tractor trailer bearing
Reg.Nos.KA.17.T.6071-6072 driven by respondent No.1 is
not in dispute. So also the learned counsel appearing for
the appellant has submitted that the appellant-Insurance
Company do not dispute the quantum of the compensation
determined by the Tribunal. Therefore, it is only the
question of contributory negligence which is in dispute.
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13. A perusal of the impugned judgment discloses
that there is absolutely no appreciation of the evidence
available on record in the form of Exs.P1 to P9. The
Tribunal has not bestowed its attention as to whether
there is any contributory negligence by the deceased?
14. A perusal of Exs.P1 and P2 which are the FIR and
the complaint would show that the deceased Kumar was
riding the motor cycle with one Anjaneya and Thippesha
as pillion riders. Ex.P3 which is the chargesheet shows that
apart from the respondent No.1, driver of the vehicle, the
deceased Kumar and the owner of the motor cycle were
arrayed as the accused. It also discloses that the rider of
the motor cycle, Kumar, son of Manjappa died due to the
injuries suffered in the accident. Thus, the investigation
papers would show that the deceased Kumar was also
prosecuted for negligent driving, but however, the case
abated against him.
15. A perusal of the spot mahazar produced at Ex.P4
coupled with the sketch of the spot produced at Ex.R2
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show that while the deceased Kumar was riding the motor
cycle with two pillion riders from Giriyapura towards
Hirekogluru, he was moving at the center of the road and
while the tractor was coming from the opposite direction,
accident occurred on the left side for the tractor driver.
There is no reason available on record to show why the
motor cyclist went on the extreme right side of the road.
Therefore, even the chargesheet papers also disclose that
there was negligence on the part of the rider of the motor
cycle.
16. The testimony of PW-1, who also happens to be
the complainant before the police show that he pleads
ignorance about the manner in which the accident
occurred. He pleads ignorance about the allegations made
in the chargesheet but denies any negligence of the
deceased. No other eye witness of the accident is
examined by either of the parties. RW1 happens to be the
official of the Insurance Company and RW2 is none else
than the owner of the tractor. Therefore, when the
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MFA No. 8332 of 2017
available evidence in the form of the police papers are
appreciated, it is evident that the accident had occurred on
the right side of the road for the motor cyclist. The report
of the Motor Vehicles Inspector produced at Ex.P8 shows
that there were damages on the left side view mirror and
the handle bar of the motor cycle was twisted. There were
no damages to the tractor. In cases involving tortfeasance
the principles of res ipsa Loquitor come into play and may
be applied.
17. Considering the fact that the deceased Kumar
was also not having a valid driving licence and he had
allowed two pillion riders which was also not permissible,
and also the fact that the motor cycle had suffered
damages on the left side, this Court comes to the
conclusion that there was contributory negligence on the
part of the deceased. In the considered opinion of this
Court, the contributory negligence on the part of the
deceased Kumar was to the extent of 40% and on the part
of the driver of the tractor was 60%.
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MFA No. 8332 of 2017
18. In view of the above discussion, the appeal
deserves to be allowed in part. The quantum of the
compensation determined by the Tribunal is not disputed
by the appellant. Therefore, out of the compensation of
Rs.7,38,000/-, the petitioners are entitled for 60% i.e.
Rs.4,42,800/- together with interest. Hence, the following:
ORDER
(i) The appeal filed by the Insurance
Company is allowed in part.
(ii) The impugned judgment and award
passed by the Tribunal is modified by fixing
contributory negligence on the part of the
deceased-Kumar at 40% and as such, petitioners
are entitled for a compensation of Rs.4,42,800/-
instead of Rs.7,38,000/- together with interest at
6% p.a. from the date of petition till its realization.
(iii) The appellant- Insurance company is
directed to deposit the compensation amount
within four weeks from today.
(iv) Rest of the order of the Tribunal remains
unaltered.
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(v) The amount which is in deposit shall be
transmitted to the Tribunal forthwith. If the amount
deposited by the appellant-Insurance Company is
in excess of entitlement of the petitioners as above,
the same shall be refunded to the appellant-
Insurance company.
Sd/-
JUDGE
tsn*
