Karnataka High Court
The Oriental Insurance Co.Ltd vs Geeta W/O Late Krishna And Ors on 16 June, 2022
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 16TH DAY OF JUNE 2022
BEFORE
THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR
MFA No.201229/2016 (MV)
BETWEEN:
THE ORIENTAL INSURANCE CO. LTD.,
THROUGH ITS DIVISION MANAGER,
DIVISION OFFICE, N.G. COMPLEX,
OPP: MINI VIDHAN SOUDHA,
GULBARGA-585102.
... APPELLANT
(BY SRI. SANJAY.M.JOSHI, ADVOCATE)
AND:
1. GEETA W/O LATE KRISHNA,
AGE: 37 YEARS, OCC: HOUSEWIFE,
2. AMAR S/O LATE KRISHNA,
AGE: 17 YEARS, OCC: STUDENT,
3. ATISH S/O LATE KRISHNA,
AGE: 15 YEARS, OCC: STUDENT,
4. AKANKSHA D/O LATE KRISHNA,
AGE: 13 YEARS, OCC: STUDENT,
5. ASHA D/O LATE KRISHNA,
AGE: 17 YEARS, OCC: STUDENT,
6. JAMUNABAI W/O GOVINDRAO,
AGE: 62 YEARS, OCC: NIL,
7. GOVINDRA S/O LATE GANAPATI,
AGE: 62 YEARS, OCC: NIL,
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ALL ARE R/O KUMBARWADA
BANK COLONY, BIDAR-585401.
8. P.RAMESH S/O BIKPATI PADAL,
AGED MAJOR, OCC: BUSINESS,
R/O H.NO.15-9-36, RAMANNAPETA,
WARANGAL,
ANDHRA PRADESH-506002.
... RESPONDENTS
(BY SMT. NEEVA M.CHIMKOD, ADV. FOR R1 TO R6 & R7;
V/O DATED 02.02.2017 NOTICE TO R8 IS DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, PRAYING TO
CALL FOR THE RECORDS IN MVC NO.32 OF 2014 ON THE FILE
OF PRL. DISTRICT & SESSIONS JUDGE, & PRL. MACT, BIDAR
AND SET ASIDE AND MODIFY THE JUDGMENT AND AWARD
DATED 12.04.2016 BY ALLOWING THIS APPEAL WITH COSTS
AND GRANT SUCH OTHER RELIEF AND FURTHER RELIEFS AND
ETC.
THIS APPEAL COMING ON FOR HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
This appeal is filed by the Insurance Company under Section 173(1) of the Motor Vehicles Act, 1988 ('MV Act' for short) challenging the judgment and award dated 12.04.2016 passed by the Principal Motor Accidents Claims Tribunal and Principal District and Sessions Judge, Bidar, ('Tribunal' for short) in MVC No.32/2014, whereby the Tribunal has partly allowed the claim petition filed by the claimants/respondents herein and awarded compensation of Rs.9,91,600/-, and apportioned the 3 negligence to the extent of 20% on the part of offending vehicle-Lorry and 80% to the vehicle-Maruti Car of the deceased, and accordingly awarded compensation of Rs.1,98,320/- to the claimants, which is 20% of total compensation amount awarded by it.
2. For the sake of convenience, the parties herein are referred as per the ranks occupied by them before the trial Court.
3. The brief factual matrix leading to the case are that, on 25.12.2005 the deceased along with friends was proceeding on Bidar to Hyderabad road in Maruti Car bearing Registration No.KA.04/M.4191 and at about 6.30 .am., when they reached near excise check-post, at that time a lorry bearing Registration No. AP.36/W.2489 came from opposite direction and as a result, they collided with each other and due to which, the deceased sustained fatal injuries. The deceased was travelling by sitting on left side of the car and the accident is because of actionable negligence on the part of the lorry driver. Hence, this claim petition came to be filed by 4 the legal heirs of the deceased, who are wife, minor children and parents of the deceased Krishna.
4. The respondent/Insurance Company contested the matter on the ground that, there is no negligence on the part of the driver of the offending vehicle (Lorry) and the charge sheet has been laid as against the driver of the car and hence, no liability can be fastened on the owner and driver of the lorry. Hence, the Insurance Company has disputed the liability and sought for dismissal of the claim petition.
5. Having heard the arguments on both sides and after perusing the records, the Tribunal has allowed the claim petition in part and awarded compensation of Rs.1,98,320/- which is being 20% of total compensation to the claimants with interest at 6% pa., from the date of petition till the date of realisation by fastening the liability on Respondents No.1 & 2, holding that the driver of the lorry has contributed to cause of accident in question to an extent of 20%. Being aggrieved by this judgment and award, the appellant/Insurance Company has filed this appeal.
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6. Heard the learned counsel for the appellant- Insurance Company and the learned counsel for the respondents/claimants. Perused the records.
7. Learned counsel for the appellant would contend that the Tribunal has erred in fastening 20% of liability on the driver of the offending lorry on the basis of the sketch and the spot mahazar and the complaint allegations clearly establish that the accident is because of the actionable negligence on the part of the driver of the Car and the Tribunal could not have considered the principles of res ipsa loquitur, which is not applicable to the present case. Hence, he would seek for absolving the liability on the Insurer.
8. Per contra, learned counsel for respondents claimants would support the judgment and award of the Tribunal.
9. Having heard the arguments and after perusing the records, it is evident that the Tribunal has held that the claimants are entitled for compensation of Rs.9,91,600/-. However, the Tribunal came to the conclusion that the driver 6 of Maruti Car has contributed 80% to the accident. Since the insurer and owner of the car were not impleaded, the compensation was awarded only to the extent 20% of entitlement amount of Rs.9,91,600/-
10. According to the Tribunal, the driver of the lorry has contributed 20% and the car driver has contributed to an extent of 80%.
11. Learned counsel for the appellant has invited the attention of the Court to Ex.R1, wherein in respect of the same accident, the claim petition filed by other claimants in MVC No.137/2006, the Tribunal has dismissed the claim petition holding that the driver of the car was exclusively rash and negligent. However, on perusal of the said judgment award, it is evident that the Tribunal has not discussed the sketch or scene of offence and simply relied on the complaint and held that, in view of complaint allegations, the driver of the car was rash and negligent. But, in the instant case, the Tribunal has discussed this aspect in detail in Para No.19 and has also appreciated the scene of offence and held that the lorry was also moving in high speed in the curve and after 7 impact, the Maruti car was dragged to the extent of 20 feet. Hence, after assessing the evidence on these aspects in detail, on the basis of Exs.P1 to P4, the Tribunal has applied the principles of res ipsa loquitur and held that the Lorry driver has contributed 20% to the accident and hence, awarded 20% of compensation amount to the claimants.
12. The spot-mahazar establishes that the accident has occurred on the southern end. However, it is also evident that, though the allegations were that the lorry was stopped, but it is evident that, after impact, the car was dragged to the extent of 20 feet, which discloses that the lorry was also moving in high speed that too when it is approaching the curve. No doubt the charge sheet has been laid against the driver of the car and further complaint was also lodged against the driver of the car. But, the spot-mahazar also discloses that, there is certain contributory negligence on the part of the driver of the lorry, which was moving in high speed at the accident spot, which is a curve, in violation of rules of the Motor Vehicles Act. The Tribunal has taken the contributory negligence on the part of the driver of the Lorry 8 at 20%, which appears to be on higher side. Learned counsel for the appellant-Insurance Company would submit that, at the most, the driver would have contributed to the extent of 10% to the accident.
13. Looking to the facts and circumstances, the contributory negligence on the part of the driver of the lorry can be fixed at 15%.
14. There is no dispute regarding the quantum arrived by the Tribunal at Rs.9,91,600/-. However, considering the fact that the driver of the offending vehicle-Lorry has contributed 15% to the accident rather than 20%, the claimants are entitled for only 15% of Rs.9,91,600/-, which will work-out to Rs.1,48,740/-, in stead of 20% i.e., Rs.1,98,320/-. Hence, the appeal needs to be allowed partly. Accordingly, I proceed to pass the following:-
ORDER i. The appeal is allowed-in-part.
ii. The judgment and award dated 12.04.2016 passed by the Principal Motor Accident Claims Tribunal and the Principal District and Sessions Judge, Bidar, in MVC No.32/2014 is modified.9
iii. The appellants/claimants are held entitled for total compensation of Rs.1,48,740/-, which is 15% of Rs.9,91,600/-, as against 20% compensation which is awarded by the Tribunal.
iv. The apportionment and disbursement of award amount shall be as per the order of the Tribunal.
The statutory amount in deposit shall be transmitted to the concerned Tribunal.
Sd/-
JUDGE KGR*