Karnataka High Court
The Divisional Manger, vs Shilpa D/O. Yamanappa on 13 October, 2020
Author: V. Srishananda
Bench: V. Srishananda
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IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 13TH DAY OF OCTOBER 2020
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
MFA NO.24822/2012 (MV) C/W
MFA NO.21510/2013 (MV)
IN MFA NO. 24822 OF 2012
BETWEEN
THE DIVISIONAL MANAGER,
BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LIMITED,
4TH FLOOR, KALBURGI MANSION,
LAMINGTON ROAD, HUBLI,
NOW REPRESENTED BY ITS
AUTHORISED SIGNATORY.
...APPELLANT
(By Sri. S. K. KAYAKAMATH, ADV.)
AND
1. SHILPA D/O. YAMANAPPA
AGE: 03 YEARS,
2. REKHA D/O. YAMANAPPA
AGE: 05 YEARS,
BOTH MINORS, REPRESENTED THEIR
NEXT FRIEND / GUARDIAN / NATURAL GRAND
FATHER SHANKRAPPA S/O. LIMBOJI,
AGE: 67 YEARS, OCC: COOLI,
R/O: GANGAMMA CAMP, KANAKAGIRI,
TQ: GANGAVATI, DIST: KOPPAL.
3. SHANKRAPPA S/O. LIMBOJI,
AGE: 67 YEARS, OCC: COOLIE,
R/O: GANGAMMA CAMP, KANAKAGIRI,
TQ: GANGAVATI, DIST: KOPPAL.
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4. SMT. JANAKAMMA W/O. SHANKRAPPA,
AGE: 62 YEARS, OCC: HOUSEHOLD WORK,
R/O: GANGAMMA CAMP, KANAKAGIRI,
TQ: GANGAVATI, DIST: KOPPAL.
5. MR. UPPAR HULAGAPPA S/O. UPPAR NAGAPPA,
AGE: 27 YEARS, OCC: DRIVER OF LORRY
BEARING REGN.NO.AP-36/W-4389,
R/O. H.NO. 116, SHIVARAM BADAVANE,
DAVANAGERE.
6. TIRUPATI G. S/O. MOGILI,
AGE: 50 YEARS, OCC: OWNER OF LORRY
BEARING REGN.NO.AP-36/W-4389,
R/O. H.NO. 5/105, MEROPALLI MULUGU,
WARANGAL (A.P.)
7. RAMESH S/O. PANDURANGA,
AGE: 26 YEARS, OCC: DRIVER OF
MAXICAB BEARING REGN.NO.KA-20/A-4039,
R/O. DHARNMASAGAR, TQ: HOSPET, DIST: BELLARY
8. NARAYAKARA HANUMANT,
S/O. NAYAKARA VENKAPPA,
AGE: 22 YEARS, OCC: OWNER MAXICAB
BEARING REGN.NO.KA-20/A-4039,
R/O: DHARNMASAGAR, TQ: HOSPET,
DIST: BELLARY.
9. THE DIVISIONAL MANAGER,
NEW INDIA ASSURANCE CO. LTD.,
OPP. OLD BUS STAND, DIST: BELLARY.
...RESPONDENTS
(BY SRI. B. SHARANABASAWA, ADV. FOR R1 TO R4
R5 & R7 NOTICE IS DISPENSED WITH
R6 & R8 ARE SERVED
SRI R.R. MANE, ADV. FOR R9.)
THIS MFA IS FILED UNDER SECTION 173(1) OF M.V. ACT,
1988, AGAINST THE JUDGMENT AND AWARD DATED
01.08.2012 PASSED IN MVC NO. 341/2010 ON THE FILE OF
THE SENIOR CIVIL JUDGE AND MEMBER, MACT, GANGAVATHI,
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AWARDING THE COMPENSATION OF RS.5,23,000/- WITH
INTEREST AT THE RATE OF 6% P.A. FROM THE DATE OF
PETITION TILL DEPOSIT.
IN MFA NO. 21510/2013
BETWEEN
1. KUM. SHILPA D/O YAMANAPPA
AGED: ABOUT 3 YEARS,
2. KUM. REKHA D/O YAMANAPPA
AGED: ABOUT 5 YEARS,
BOTH APPELLANTS' NO.1 AND 2 BEING
MINORS REPRESENTED BY THEIR,
NEXT FRIEND/GUARDIAN I.E.,
GRAND FATHER,
SRI. SHANKARAPPA S/O LIMBOJI,
AGED: ABOUT 57 YEARS,
OCC: COOLIE, R/O: GANGAMMA CAMP,
KANAKAGIRI, TQ: GANGAVATHI,
DIST: KOPPAL.
3. SRI. SHANKARAPPA S/O LIMBOJI,
AGED: ABOUT 68 YEARS,
OCC: COOLIE, R/O: GANGAMMA CAMP,
KANAKAGIRI, TQ: GANGAVATHI,
DIST: KOPPAL.
4. SMT. JANAKAMMA W/O SHANKARAPPA,
AGED: ABOUT 62 YEARS,
OCC: COOLIE, R/O: GANGAMMA CAMP,
KANAKAGIRI, TQ: GANGAVATHI,
DIST: KOPPAL.
...APPELLANTS
(BY SRI. B. SHARANABASAWA, ADV. )
AND
1. SRI. TIRUPATHI G S/O MOGILI,
AGED: ABOUT 50 YEARS,
OCC: OWNER OF THE OFFENDING VEHICLE,
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R/O: H.4051-05, MEROPALLY, MULUGU,
WARANGAL (A.P.)
2. THE DIVISIONAL MANAGER,
BAJAJ ALLAINAZ GENERAL INSURANCE CO.LTD.,
4TH FLOOR, KALBURGI MANSION,
LAMINGTON ROAD, HUBLI,
DIST: DHARWAD.
3. NAYAKARA HANUMANTHA,
S/O NAYAKARA YANKAPPA,
AGED: ABOUT:22 YEARS,
OCC: OWNER OF MAXI CAB BEARING,
NO.KA-20/A-4039,
R/O: DHARAMASAGAR,
TQ: HOSPET, DIST: BELLARY.
4. THE DIVISIONAL MANAGER,
THE NEW INDIA ASSURANCE CO.LTD.,
OPP: OLD BUS STAND, BELLARY,
TQ AND DIST: BELLARY.
...RESPONDENTS
(BY SRI.S.K.KAYAKMATH, ADV. FOR R2.
SRI R.R. MANE, ADV. FOR R4
NOTICE TO R1 IS DISPENSED WITH.
R3 SERVED.)
THIS MFA FILED U/SEC.173(1) OF MV ACT, AGAINST THE
JUDGMENT AND AWARD DTD:01.08.2012 PASSED IN MVC
NO.341/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
MEMBER, MACT, GANGAVATHI, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
THESE APPEALS COMING ON FOR HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
These two appeals are filed challenging the validity of the judgment and award dated I August 2012 passed in MVC No.341/2010 on the file of Civil Judge (Sr.Dn) and MACT, Gadag (hereinafter referred to as "the Tribunal" for short).
2. The brief facts, which are necessary for disposal of the appeal are as under:
A claim petition came to be filed under Section 166 of the Motor Vehicles Act before the Tribunal contending that on 25.03.2010, Yamanappa, his wife and Shankarappa were traveling in a maxi cab vehicle bearing No.KA-20/A-4039 from Vaddarahalli village to Hospet. When the vehicle came near Hosapet-Bellary State Highway No.63 near Vaddarahalli village, at about 11.00 a.m., Yamanappa requested the driver of the maxi cab to stop the vehicle for the purpose of drinking water and accordingly, 4th respondent who is driver of the -6- maxi cab stopped the vehicle. Thereafter, Yamanappa and others got down from the backside of the vehicle. A lorry bearing NoAP-36/W-4389 came in a rash and negligent manner with high speed and dashed to the maxi cab from its hind side whereby, Yamanappa sustained grievous injuries and succumbed to the injuries on the spot. The claimants are the dependents of said Yamanappa seeking awarding of suitable compensation on the ground that they have lost their bread-winner.
3. In response to the notice issued, all the respondents appeared before the Tribunal and respondent Nos.3 to 6 filed written statement denying the petition averments in toto. Based on the rival contentions, the Tribunal raised the following issues:
"1. Whether the petitioner proves that on 3.03.2010 at about 11.00 a.m., on Hospet-
Bellary State Highway No.63 near
Vaddarhalli village, Taluk: Hospet,
Yamanappa died in a motor vehicle accident, -7- i.e., on account of rash and negligent driving of Lorry bearing No.AP-36/W-4389 and maxi cab bearing No.KA-20/A-4039 by the respondent No.1 and 4?
2. Whether the petitioners prove that they are entitled for the compensation?
3. What order? "
4. In order to prove the case of the claimants, the claimant got himself examined as PW.1 and another person by name Shankarappa who is the complainant and eye-witness to the incident. The claimants also relied on the documentary evidence which were exhibited and marked as Exs.P1 to P12. On behalf of the respondents, two witnesses were examined as R.Ws.1 and 2 and four documents were exhibited and marked as Exs.R1 to R4.
5. After hearing the parties and on perusal of the records, the Tribunal allowed the claim petition in part to the tune of Rs.5,23,000/- and directed that the compensation amount is to be paid by Respondents 3 -8- and 6 in the ratio of 50:50. It is that judgment which is under challenge by the claimants as well as the insurance company.
6. Learned counsel, appearing for the insurance company vehemently contended that the Tribunal committed a gross error in allowing the claim petition and saddling the liability on the Insurance Company. Sri.S.K.Kayakmath further contended that as per the complaint averments, deceased was traveling in the maxi cab by standing on the footboard on the hind side of the maxi cab which has been totally ignored by the Tribunal and therefore, the appeal is to be allowed. He further contended that the driver of the lorry did not possess a valid permit to ply the lorry and therefore, the lorry driver plied the lorry beyond permit conditions and the permit of offending lorry clearly indicated that lorry should not have plied from Andhra Pradesh state and the accident having occurred in the Karnataka state, there is a clear violation of the policy condition and -9- therefore, the finding recorded by the Tribunal that the Insurance Company of the offending lorry is liable to pay the compensation is incorrect and sought for allowing the appeal. Further, the Insurance Company canvassed that the offending lorry had plied beyond permit conditions and having regard to the fact that the accident has occurred in Karnataka state, there is a clear violation of the policy condition which has been ignored by the Tribunal while passing the impugned judgment.
7. Per contra, the learned counsel for the claimants vehemently contended that the Tribunal did not take into consideration the relevant materials on record while awarding compensation and the contested award is on the lower side and sought for enhancement of the compensation.
8. In view of the rival contentions of the parties, the following points would arise for consideration: -10-
i) Whether the Insurance Company proves that finding recorded by the Tribunal that Insurance company of the offending lorry is liable to pay compensation to the extent of 50% is erroneous?
ii) Whether the claimants have made out a case for enhancement of compensation?
9. The answer to the above points is in the negative for the following:
REASONS
10. There is material discrepancy on record as is contended by the learned counsel for the Insurance Company as to the genuineness of the accident. While in the complaint, it has been specifically mentioned that deceased was standing on the footboard. In the claim petition it has been mentioned that while getting down from the maxi cab for the purpose of drinking water, the accident has occurred.
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11. Insofar as the discrepancy as to the complaint averments and the petition averments, the Insurance Company cross-examined eye-witness-P.W.2 by contending that deceased was standing on the footboard of maxi cab and as such, the accident has occurred on account of the same is denied by P.W.3. No other independent evidence is made available on record to show that deceased was standing on the footboard. No doubt in the complaint filed by P.W.2, there is a mention that the deceased was standing on the footboard. Admittedly, P.W.2 is an illiterate person. Who drafted the complaint is not forthcoming on record. Insurance Company itself suggested that he is not an eye-witness to the incident as he was admittedly sitting inside the maxi cab. Under these circumstances, discrepancy pointed out is rightly taken into consideration by the Tribunal while holding that the driver of the offending lorry is responsible for the accident. Further, chargesheet also came to be filed against the driver of the lorry.
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12. Insofar as the violation of permit conditions is concerned, this Court inn the case of THE MANAGER, UNITED INDIA INSURANCE COMPANY LIMITED vs. DURGAMMA SHANKARAPPA AND ANOTHER reported in ILR 2016(3) AKR 130 has held that violation of the permit conditions would only lead to imposition of fine under the Motor Vehicles Act and it should not come in the way of awarding compensation. Durgamma's case is further considered in the Division Bench's ruling of this Court in UNITED INDIA INSURANCE CO. LTD., BY ITS DIVISIONAL MANAGER vs. SANDHYA in MFA No.102428/2017 (D.D. 07.06.2019). The Division Bench also noted the principles of law enunciated in NATIONAL INSURANCE COMPANY LIMITED vs. CHALLA BHARATHAMMA AND OTHERS (2004) 8 SCC
517) and came to the conclusion that mere violation of the policy conditions would not ipso facto result in violation of policy conditions despite denying the liability by the Insurance Company.
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13. Accordingly, this Court is of the opinion that the finding recorded by the Tribunal that the Insurance Company of the offending lorry is liable to pay 50% of the compensation needs no interference. Insofar as the appeal filed by the claimants is concerned, the Tribunal has awarded a compensation of Rs.5,23,000/-.
14. Learned counsel for the appellant has contended that the amount of compensation awarded by the Tribunal is on the lower side. As law existed as on the day of passing the award, the Tribunal has followed the principles of law which was in force at relevant point of time and allowed the compensation amount of Rs.5,23,000/-. Having regard to the discrepancies pointed out with regard to the nature of accident, this Court is of the opinion that the quantum of compensation awarded by the Tribunal is just and proper. Accordingly, it needs no interference.
15. In view of the foregoing discussion, following order is passed:
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ORDER Both the appeals are meritless and are hereby dismissed. No order as to costs.
Amount in deposit is directed to be transferred to the Tribunal.
Insurance Company is directed to pay/deposit the compensation within six weeks from the date of receipt of a copy of this order.
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JUDGE bnv