Karnataka High Court
Sri Kariyappa K vs The Branch Manager on 13 November, 2024
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MFA No. 3786 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
MISCELLANEOUS FIRST APPEAL NO. 3786 OF 2014 (MV-D)
SRI. KARIYAPPA K.,
S/O. KARIGOWDA,
AGED ABOUT 50 YEARS,
R.AT. NO.341 MANGALA ROAD,
KOTHATHI VILLAGE, KOTHATHI HOBLI,
MANDYA TALUK-571 401.
... APPELLANT
(BY SRI. MARI GOWDA, ADVOCATE)
AND
1. THE BRANCH MANAGER,
UNITED INDIA INSURANCE CO. LTD.,
M.C. ROAD,
Digitally signed by
MANDYA-571 401.
CHANDRASHEKAR
LAXMAN
KATTIMANI
Location: HIGH 2. SMT. SHIVAMMA,
COURT OF
KARNATAKA
W/O. LATE KARIYAIAH @ SRINIVAAS,
AGED ABOUT 47 YEARS,
3. KUM. LAKSHMI S.K.
D/O. LATE. KARIYAIAH @ SRINIVAS,
AGED ABOUT 24 YEARS,
4. SRI. S.K. SRINIVAS,
S/O. LATE KARIYAIAH @ SRINIVAS,
AGED ABOUT 20 YEARS,
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MFA No. 3786 of 2014
THE RESPONDENT NO. 2 TO 4 ARE
RESIDENT OF SABBANAHALLY VILLAGE,
C.A. KERE HOBLI, MADDUR TALUK,
MANDYA DISTRICT-571401.
...RESPONDENTS
(BY SRI. G.M. ANANDA, ADVOCATE FOR R2 TO R4;
SRI. O. MAHESH, ADVOCATE FOR R1)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 28.01.2014
PASSED IN MVC NO.1241/2012 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND MACT, MADDUR, AWARDING A
COMPENSATION OF RS.4,51,000/- WITH INTEREST @ 6% P.A.
FROM THE DATE OF PETITION TILL ITS REALISATION OF
DEPOSIT.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 06.11.2024 AND COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT', THIS DAY, THIS COURT,
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
CAV J U D G M E N T
CORAM: HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
In this appeal, the owner of the vehicle has
challenged the dismissal of the claim petition against the
Insurance Company by the Senior Civil Judge and MACT,
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Mandya (for short, 'Tribunal') in M.V.C.No.1241/2012 by
the judgment and award dated 28.01.2014.
2. Rank of the parties shall be referred to as per
their status before the Tribunal.
3. Briefly stated facts of the case are, on
18.06.2012 at about 7.30 a.m., one Kariyaiah, the
husband of the first petitioner and father of the petitioner
Nos.2 to 6 while walking on Sabbanahalli-Hittanahalli road
near the land of Shanubhog while crossing the road,
motorcycle bearing No.KA-11/V-1340 dashed against him,
due to which, he fell down and sustained injuries. He was
treated at District Hospital, Mandya, NIMHANS, Bengaluru
and at Victoria Hospital, Bengaluru. In spite of treatment,
he was succumbed to death. Petitioners as the
dependants of the deceased have approached the Tribunal
for grant of compensation of Rs.20,00,000/-.
4. The respondents opposed the claim petition by
filing their written statement. The owner of the motorcycle
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contended that he had obtained policy of insurance and
same is in force, second respondent being the insurer is
liable to indemnify his liability. The Insurance Company
has contended that the vehicle in question was not
insured, the rider of the motorcycle had no valid licence
and it has no liability to indemnify the insured.
5. The Tribunal after taking evidence and hearing
both the parties, allowed the claim petition assessing
compensation of Rs.4,51,000/- with interest at 6% p.a.
directing the owner of the motorcycle to pay the
compensation while dismissing the claim against the
insurance company. Aggrieved by the same, the owner of
the motorcycle is before this Court on various grounds.
6. Heard the arguments of Sri G.M.Ananda,
learned counsel for petitioners, Sri Marigowda, learned
counsel for owner of the vehicle and Sri O.Mahesh, learned
counsel for Insurance Company.
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MFA No. 3786 of 2014
7. It is contended by the learned counsel for
owner of the vehicle that the accident took place while the
deceased was crossing the road. He was responsible for
the accident and complete negligence was on the part of
the deceased. This aspect has not been considered by the
Tribunal. The rider of the motorcycle was holding effective
driving licence and the policy of insurance was in force at
the time of accident. It is the bounden duty of the
insurance company to indemnify the liability on the part of
the owner. The Tribunal has committed an error in
fastening the liability against the owner.
8. It is contended by the learned counsel for
Insurance Company that when the complaint was filed, the
rider was shown as first respondent who is the owner of
the motorcycle. During investigation, it was brought out
that one Shivalilngegowda S/o. Manchegowda was the
rider of the motorcycle, since he was not holding driving
licence, he has absconded and for this reason, the
investigation is culminated in filing of 'C' report. However,
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the identity of the rider is not established and the driving
licence of the rider is not placed before the Tribunal. Even
if the policy was in force, the absence of effective driving
licence is a fundamental breach and on this ground the
insurance company can avoid its liability. Hence, the
Tribunal has rightly observed that the owner has to pay
the compensation and he argued in support of the
impugned judgment.
9. Per contra, learned counsel for petitioners has
contended that the accident was of the year 2012. The
deceased was being an agriculturist earning more than
Rs.9,000/- p.m. but the Tribunal has considered the
notional income of the deceased at Rs.4,500/-p.m. Even a
person with no proof of income for the year 2012, would
have earn not less than Rs.7,000/- p.m. The deceased was
aged 51 years and future prospects has to be considered.
The same was also not considered by the Tribunal and
sought for exercise of suo motu powers to enhance the
compensation. It is further contended that in the
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complaint, it is stated that the owner was riding the
motorcycle. During the investigation, it is stated that one
Shivalingegowda S/o. Manchegowda was riding the
motorcycle. The owner of the vehicle has produced his
driving licence as well as of Shivalingegowda S/o.
Manchegowda irrespective of the outcome of the
investigation. Both the owner and the rider of the
motorcycle were holding effecting driving licence and
therefore insurance company has to indemnify the liability
on the part of the owner of the motorcycle.
10. I have given my anxious consideration to the
arguments addressed to both sides and perused the
records.
11. The appellant has urged three grounds. Firstly,
contributory negligence, secondly, liability of the Insurance
Company to indemnify the owner and thirdly, the quantum
of compensation.
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Re: Contributory negligence:
12. The averments made in the complaint go to
show that near the land of Shanubhog at Sabbanahalli-
Hittanahalli road, the deceased was crossing the road
when the accident took place. The evidence placed on
behalf of the petitioners did not point out that the
deceased was cautiously crossing the road. PW-1 is the
wife of the deceased and she was not an eyewitness. PW-
2 Manchalingegowda is an eyewitness to the incident
whose testimony points out that the accident took place
while the deceased was crossing the road. Ex.P-4/spot
mahazar points out that the width of the road is 10 feet
and accident took place on the middle of the road. This
clearly goes to show that the deceased also contributed for
the accident. On perusal of the impugned judgment, there
is discussion about contributory negligence. The evidence
if taken into consideration, the contribution on the part of
the deceased for the accident can be taken at 40% and
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that of the rider of the motorcycle at 60%. Accordingly,
dispute regarding contributory negligence is answered.
Re: Liability:
13. As regarding liability is concerned, on careful
perusal of the complaint, it is pertinent to note that the
first respondent is shown as owner-cum-rider of the
motorcycle. The Investigating Officer was examined
before the Court as RW-2. RW-2-S.C. Gangadharaswamy,
Circle Police Inspector of K.M. Doddi points out that during
investigation, he ascertained one Shivalingegowda S/o.
Manchegowda was the rider of the motorcycle and not the
owner of the vehicle. RW-3, Kariyappa is the owner of the
motorcycle whose evidence points out that he himself was
riding the motorcycle and his brother-in-law
Shivalingegowda was the pillion rider. The deceased was
crossing the road in zigzag due to which motorcycle hit
against him. The cross-examination clearly points out that
Shivalingegowda S/o. Manchegowda was the rider of the
motorcycle and not RW-3.
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14. The evidence of the Investigating Officer makes
it clear that RW-3 was not the rider of the motorcycle at
the time of accident. It is pertinent to note that a notice
under Section 133 was caused to the owner of the vehicle
by the Investigating Officer wherein before the
Investigating Officer, the owner has given clear statement
that one Shivalingengowda S/o. Manchegowda was the
rider of the motorcycle. Once the owner of the vehicle
states before the Investigating Officer that
Shivalingegowda S/o. Manchegowda was the rider of the
motorcycle, in order to escape from paying compensation,
the owner cannot make contrary statement before the
Tribunal.
15. Unfortunately, no charge sheet was filed against
the said Shivalingegowda or against the owner of the
motorcycle. The Investigating Officer has filed 'C' report
but till today outcome of 'C' report remains the same. In
this regard, report of the Superintendent of Police, Mandya
was called and the report is made available. The owner of
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the vehicle claims that even if Shivalingegowda is
accepted as the rider of the motorcycle, he was holding
valid driving licence. A copy of the driving licence is made
available before this Court. The same was referred to the
Superintendent of Police, Mandya for verification and
report is received that the person whose driving licence is
produced was not the rider of the motorcycle at the time
of accident. This goes to show that the owner of the
vehicle tried to prove third person as the rider of the
motorcycle. The report of the Investigating Officer makes
it clear that he was not the rider and the rider is still
absconding. No evidence is placed on record to show the
identity of the rider as well as his driving licence. When
the identity of the rider itself is under cloud, it is the duty
on the part of the owner of the vehicle to establish the
same.
16. The Investigating Officer has produced MLC
extract issued by Prashant Nursing Home, Mandya. Its
entries goes to show that on 18.06.2012, Shivalingegowda
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was brought and admitted to the hospital by his relative
with a history of fall from two wheeler at about 9.00 a.m.
when his vehicle was ridden, it fell on the wet road near
their field. Whereas the accident took place on 18.06.2012
at 7.30 a.m. It means that Shivalingegowda had met with
an accident near his field not on the road. Then he cannot
be the rider of the vehicle in question, which caused the
accident on the road. Hence, report of the Investigating
Officer is very clear that the driving licence produced by
the owner of the motorcycle or that of the rider is not
acceptable. The Tribunal has considered that the driving
licence of the rider has not been produced and hence
insurance company cannot be fastened with the liability to
indemnify the insured and rightly dismissed the claim
petition. Hence, the owner of the motorcycle has to pay
the compensation.
Re: Quantum:
17. The petitioners claim that the deceased was
aged 51 years at the time of accident and earning
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Rs.9,000/- p.m. from coconut business but there is no
proof of income. The notional income that is taken in Lok
Adalath cannot be the guiding principle for assessing the
compensation. The Tribunal based on the evidence has
assessed the income of the deceased at Rs.4,500/- p.m.,
deducted 1/3rd towards personal expenses and assessed
Rs.3,96,000/- towards loss of dependency and also under
conventional heads assessed the compensation at
Rs.15,000/- towards funeral expenses, Rs.15,000/-
towards loss of estate, Rs.10,000/- towards loss of
consortium to the wife and Rs.15,000/- towards loss of
love and affection to the petitioners No.1, 4 and 6. The
total compensation assessed at Rs.4,51,000/-.
18. Having regard to the notional income of
Rs.7,000 /- being taken in Lok Adalath and also the
principles laid down in the judgment of the Hon'ble
Supreme Court in the case of National Insurance
Company Limited Vs. Pranay Sethi and others1 is applied
1
(2017) 16 SCC 680
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and if the compensation is re-assessed with 40% of
contributory negligence against the deceased, the
compensation assessed by the Tribunal is just
compensation and there is no need for revision of the
compensation. Apart from it, the petitioners have not filed
any appeal seeking enhancement of compensation. It is
the appeal filed by the owner of the motorcycle. Under
such circumstances, it is not proper to exercise any suo
motu powers.
19. In view of the above discussions, while
answering the above points, the appeal filed by the owner
of the motorcycle is devoid of merits, in the result, the
following:
ORDER
Appeal is dismissed.
Sd/-
(T.G. SHIVASHANKARE GOWDA)
JUDGE
NAA
