Karnataka High Court
The New India Assurance Co. Ltd vs Smt.Zainab W/O Late Shabbir ... on 31 July, 2024
Author: N.S.Sanjay Gowda
Bench: N.S.Sanjay Gowda
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MFA No. 201521 of 2017
C/W MFA No. 201391 of 2017
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 31ST DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE N.S.SANJAY GOWDA
MISCL. FIRST APPEAL NO.201521 OF 2017 (MV-D)
C/W
MISCL. FIRST APPEAL NO.201391 OF 2017 (MV-D)
IN MFA NO.201521/2017:
BETWEEN:
THE ORIENTAL INSURANCE CO. LTD.,
BY ITS BRANCH MANAGER,
OFFICE AT K.K. COMPLEX,
CITY TALKIES ROAD, RAICHUR,
NOW REPRESENTED BY
THE SENIOR DIVISIONAL MANAGER,
THE ORIENTAL INSURANCE CO. LTD.,
Digitally signed
1ST FLOOR, N.G. COMPLEX, MAIN ROAD,
by RENUKA KALABURAGI.
Location: HIGH
COURT OF ...APPELLANT
KARNATAKA
(BY SRI SANJAY M. JOSHI, ADVOCATE)
AND:
1. SMT. ZAINAB BROCHAWALA
W/O LATE SHABBIR BROCHAWALA,
AGE: 51, OCC: HOUSEHOLD,
2. RASHEEDA
D/O LATE SHABBIR BROCHAWALA ,
AGE: 24 YEARS, OCC: STUDENT,
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MFA No. 201521 of 2017
C/W MFA No. 201391 of 2017
BOTH ARE R/O. BRESTWARPET,
NEAR CITY TALKIES RAICHUR,
BOTH ARE R/O BABA NAGAR,
TQ. DIST: VIJAYAPUR-586101.
3. SRI PULLAIAH S/O PITCHAIAH,
AGE: MAJOR, OCC: LORRY DRIVER,
R/O. H.NO.3-8-223/1, PRAKASHANAGAR,
KAMMAM A.P-507001.
4. SRI B. VEERA SWAMY S/O VENKAIAH,
AGE: MAJOR, OCC: NILL,
R/O. H.NO.2-99, YERUPALAM VILLAGE,
YERUPALEM MANDALAMA,
KAMMAM, DIST: A.P-507001.
5. THE NEW INDIA ASSURANCE CO.LTD.,
BY ITS BRANCH MANAGER,
BRANCH AT GUNJ ROAD,
RAICHUR-584101.
...RESPONDENTS
(BY SRI BASAVARAJ R. MATH, ADV. FOR R1 AND R2;
SRI S. S. ASPALLI, ADV. FOR R5;
NOTICE TO IN RESPECT OF R3 AND R4 IS DISPENSED
WTIH)
THIS MFA IS FILED U/S. 173(1) OF MV ACT, PRAYING TO
PRINCIPAL DISTRICT JUDGE AND MACT, AT RAICHUR, ON
THE FILE OF MVC NO.89/2016, DECIDED ON 21.06.2017, AND
SET ASIDE THE SAID JUDGMENT AND AWARD, IN SO FAR AS
THE LIABILITY OF RS.5,08,000/- (BEING 50% OF THE
AWARDED COMPENSATION) IS SADDLED UPON THE
APPELLANT INSURANCE COMPANY.
IN MFA NO.201391/2017 :
BETWEEN:
THE NEW INDIA ASSURANCE CO. LTD.,
BY ITS BRANCH MANAGER,
BRANCH GUNJ ROAD,
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MFA No. 201521 of 2017
C/W MFA No. 201391 of 2017
RAICHUR,
NOW REPRESENTED BY ITS
DVNL. MANAGER.
...APPELLANT
(BY SRI S.S. ASPALLI, ADVOCATE)
AND:
1. SMT. ZAINAB
W/O LATE SHABBIR BROCHAWALA,
AGE: 51, OCC: HOUSEHOLD WORKS,
2. RASHEEDA
D/O LATE SHABBIR BROCHAWALA,
AGE: 24 YEARS, OCC: STUDENT,
BOTH ARE R/O. BRESTWARPET,
NEAR CITY TALKIES, RAICHUR -584101.
3. SRI PULLAIAH S/O PITCHAIAH,
AGE: MAJOR, OCC: LORRY DRIVER,
R/O. H.NO.3-8-223/1,
PRAKASH NAGAR,
KAMMAM A.P-507001.
4. SRI B. VEERA SWAMY S/O VENKAIAH,
AGE: MAJOR, OCC: NILL,
R/O. H.NO.2-99,
YERUPALAM VILLAGE,
YERUPALEM MANDALAMA,
KAMMAM, DIST: A.P-507001.
5. THE ORIENTAL INSURANCE CO.LTD.,
BY ITS BRANCH MANAGER,
OFFICE AT K.K. COMPLEX,
CITY TALKIES ROAD, RAICHUR-584101.
...RESPONDENTS
(BY SRI BASAVARAJ R. MATH, ADV. FOR R1 AND R2;
R4 AND R5 -SERVED; APPEAL STAND DISMISSED AGAINST
R3)
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MFA No. 201521 of 2017
C/W MFA No. 201391 of 2017
THIS MFA IS FILED U/S. 173(1) OF MV ACT, PRAYING TO
SET ASIDE THE JUDGMENT AND AWARD DATED 21.06.2017 IN
MVC NO.89/2016 PASSED BY THE PRL. DISTRICT JUDGE AND
MACT RAICHRU BY ALLOWING THE ABOVE APPEAL IN THE
INTEREST OF JUSTICE AND EQUITY.
THESE APPEALS COMING ON FOR ORDERS THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE N.S.SANJAY GOWDA
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE N.S.SANJAY GOWDA)
These two appeals are filed by the Insurance
Companies.
2. In respect of an accident which took place
between a car (insured by the appellant in
M.F.A.No.201521/2017) and a truck (insured by the
appellant in M.F.A.No.201391/2017), the Tribunal has
awarded a sum of `10,16,000/- to the claimants.
3. The claimants have accepted the award
inasmuch as they have not preferred an appeal.
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4. The only question to be considered in these
appeals is as to 'whether the insurer of a Truck is to
be made liable or the insurer of the Car is to be made
liable ?'
5. The Tribunal by the impugned order has
made the insurer of the Car and the Truck liable to the
extent of 50% each. As a consequence, both
Insurance Companies are before this Court challenging
the fixation of liability on them.
6. The insurer of the Car contends that the
accident occurred was solely due to the negligence of
on the part of the Truck driver and hence, the insurer
of the Truck could not be liable.
7. The insurer of the Truck on the other hand
contends that the police after investigation had
formed an opinion that the driver of the Car was rash
and negligent and had caused the accident and they
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had also proceeded to file an abated charge-sheet
against the driver of the deceased Car and therefore
the fixation of liability on the insurer of the Truck to an
extent was incorrect.
8. In an accident involving a Car and a Truck,
the best witnesses to talk about the rash and
negligence would obviously be the drivers of the car
and the Truck. In this case, the driver of the Car was
killed in the accident and hence the question of
examining him would not arise. Admittedly, the driver
of the Truck was available and yet neither the insurer
nor the owner of the Truck chose not to examine the
driver. In my view, the evidence of the Truck driver
would have been a direct piece of evidence and would
clearly demonstrate as to who was rash and negligent.
9. The argument that the police have made an
investigation and laid a charge-sheet against the
driver of the Car who was killed in the accident and
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therefore negligence is to be attributed to him cannot
be accepted.
10. It is settled law that even the statements
made in the FIR and in the charge-sheet are to be
established before the court in the manner known to
law and merely because the investigating agency has
formed an opinion regarding negligence of one party,
that cannot be conclusive evidence and those
statements would bind the Tribunal. Since there is
absolutely no evidence forthcoming from the best
source of evidence i.e., the driver of the Truck an
adverse inference would have to be drawn and it will
have to be held against him that the driver of the
Truck was liable for the accident.
11. It also have to be kept in mind that in an
accident between a smaller vehicle and a larger
vehicle, there is always an implied presumption that
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the larger vehicle could have avoided the accident and
it would therefore have to accept responsibility.
12. In that view of the matter, in my view, it
would be appropriate to hold that the driver of the
Truck was responsible for the accident and thereby
fasten the liability on the insurer of the Truck i.e., the
appellant in M.F.A.No.201391/2017.
13. Consequently, M.F.A.No.201521/2017 filed
by the Insurer of the Car is allowed and the liability
fastened on it is set-aside.
14. M.F.A.No.201391/2017 is dismissed and it is
made clear that the Insurer of the Truck i.e., the
appellant in M.F.A.No.201391/2017 would be entirely
liable for payment of compensation.
The appeals are accordingly disposed of.
The amount in deposit by the insurer of the Car
in M.F.A.No.201521/2017 shall be refunded to it.
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The amount in deposit by the insurer of the Truck
shall be transferred to the Tribunal for disbursement
in terms of the award.
Sd/-
(N.S.SANJAY GOWDA)
JUDGE
SN
CT: VD
