Karnataka High Court
National Insurance Co Ltd vs Sri Narayana @ Monappa Shetty on 14 July, 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF JULY 2017
BEFORE
THE HON'BLE MR. JUSTICE N.K. SUDHINDRARAO
M.F.A.No.607/2014 (MV)
BETWEEN
NATIONAL INSURANCE CO., LTD.,
MUDABIDARI BRANCH,
THROUGH ITS REGIONAL OFFICE
NO.144, SUBHARAM COMPLEX
M.G.ROAD, BENGALURU - 560 001
REPRESENTED BY ITS
ASSISTANT MANAGER SMT.KALAVATHI.
...APPELLANT
(BY SRI B C SEETHARAMA RAO, ADVOCATE)
AND
1. SRI NARAYANA @ MONAPPA SHETTY
AGED ABOUT 75 YEARS
H/O LATE SUNDARI SHEDTI
2. SRI SHAMBU SHETTY
AGED ABOUT 48 YEARS
3. SRI RAMESH SHETTY
AGED ABOUT 45 YEARS
4. SMT.SHASHIKALA SHETTY
AGED ABOUT 43 YEARS
5. SMT. SHOBHA SHETTY
AGED ABOUT 39 YEARS
6. SRI NITHYANANDA SHETTY
AGED ABOUT 38 YEARS
2
7. SMT.CHANDRIKA SHETTY
AGED ABOUT 34 YEARS.
RESPONDENTS 2 TO 4 ARE THE
CHILDREN OF LATE
SMT.SUNDARI SHEDTHI
ALL ARE RESIDENTS OF KULOOR HOUSE
IRAVAILU VILLAGE & POST
VIA:MOODBIDRI, MANGALURU TALUK.
8. MR.DAVID SOLEMEN
AGED ABOUT 39 YEARS
S/O MR.SOLEMEN
R/AT KALAL BUILDING
NEAR AMBESH HOTEL
P.B.ROAD, VIDYANAGARA HUBLI.
(OWNER OF LORRY No.KA.25/C-324)
9. THE BRANCH MANAGER
FUTURE GENERAL INDIA
INSURANCE CO., LTD.,
HUBLI BRANCH
2ND FLOOR, KALBURGI
LAND MARK
OPP:T B GIRLS HIGH SCHOOL
DESHPANDENAGAR, HUBLI
(INSURER OF LORRY No.KA.25/C-324)
10. SMT.SANDHYA P SHETTY
AGED ABOUT 33 YEARS
W/O LATE PURUSHOTHAMA SHETTY
RESIDENT OF JOTILOTTY HOUSE
KALLABETTU, MOODBIDRI
MANGALORE.
(OWNER OF TEMPO TRAX
No.KA.19/B-4076)
...RESPONDENTS
(BY SRI O MAHESH, ADVOCATE FOR R-9
R-1 TO R-8 & R-10 ARE SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:28.10.2013
3
PASSED IN MVC No.541/2011 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND AMACT, KARKALA, AWARDING
COMPENSATION OF RS.1,40,000/- WITH INTEREST 8% P.A
FROM THE DATE OF PETITION TILL REALIZATION.
THIS MFA COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal by National Insurance Company Limited is directed against the Judgment and award, dated 28.10.2013 passed in MVC No.541/2011 by the Senior Civil Judge and Additional MACT, Karkala, granting compensation of Rs.1,40,000/- together with interest @ 8% p.a. from the date of petition till the date of realization, stating that the liability to pay compensation may be fixed on respondent Nos. 8 and 9 (in the appeal memorandum, Respondent No.8 is one Mr.David Solemen who is Respondent No.1 and Respondent No.9 is Respondent No.2, Branch Manager, Future general India Insurance Company Limited before the Tribunal). 4
2. In order to avoid confusion and overlappings, parties are referred to with reference to their respective rankings as stood in the Tribunal.
3. Initiating proceeding in MVC No. 541/2011 by claimants was due to an incident that said to have taken place on 18.11.2009 at about 3.45 a.m. when 1st petitioner's wife and mother of petitioner Nos. 2 to 7 Smt. Sundari Shedthi was traveling as a passenger along with relatives by engaging Thoofan Force Classic Four wheeler bearing Registration No.KA.19.B.4076 from Mangalore to Hubli. When the vehicle was near Kavalalli Badigona of Masthikatte village, Ankola, Tata LPT Transportation Lorry bearing Registration No.KA.25.C.324 driven from opposite direction in a rash and negligent manner and dashed against the vehicle in which the wife of 1st petitioner was traveling. Due to the impact Smt.Sundari Shedthi sustained injuries and died at the spot. She was hale and healthy prior to the accident and was staying along with the petitioners and managing the entire household affairs 5 of the family and was earning Rs.25,000/- per month from agricultural estate and other averments regarding loss of dependency and sought for compensation of Rs.20,00,000/-.
4. 2nd respondent, insurer of the Lorry bearing Registration No.KA.25.C.324 filed statement of objections stating that the petition was not maintainable and driver was no where responsible for the accident.
5. The learned Member after considering the material available framed issues on the accident, negligence, injury and entitlement of compensation.
6. The Tribunal considered the salary of deceased as Rs.2,250/- per month, 1/3rd of the same is deducted and Rs.90,000/- is awarded towards loss of dependency and also awarded Rs.60,000/- towards conventional heads.
7. Thus before adverting on the other aspects of the case, .it is necessary to mention that reading of Issue 6 No.1 would indicate that its contents, onus of proving the same is on the vehicle bearing Registration No.KA.19.B.4076 that the negligence is on the part of the driver of Lorry bearing Registration No.KA.25.C.324.
8. Moreover, reading of issues makes out that the negligence is on the driver of lorry or the incident caused due to negligence of KA.25.C.324 and the burden of proving is on the petitioners. However, issue is framed as lorry bearing Registration No.KA.25.C.324 and tracks number is also mentioned and the proof expected from the petitioners is to establish the negligence by the lorry, the number mentioned therein is of Tempo tracks. Finally, without giving reasons, the learned Member hold drivers of both the vehicles are negligent by 50%. In the circum\stances, considering the averments, framing of issues, wrong mentioning of registration number and holding both vehicles and their Insurance Companies liable are not proper. In the circumstances the finding of the Tribunal fixing the liability on both the insurance 7 Company, framing issues on negligence of one lorry and apportioning between the two is not proper and the matter is to be adjudicated by reframing the issue on the materials available on record or if necessary to issue summons for recalling the witnesses who have been already examined or other witnesses who is relevant in the context of the matter on behalf of the petitioners or the respondents.
9. In the context and circumstances of the case, the judgment and award passed by the Tribunal is liable to bet set aside and the matter is to be remanded.
10. Accordingly, appeal filed by the appellant is allowed.
The impugned judgment and award dated 28th October 2013 passed in MVC No.541/2011 by the Senior Civil Judge and Additional MACT, Karkala, is hereby set aside and matter is remanded to the jurisdictional Tribunal for reconsideration afresh.
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The learned Member shall reframe the issues on the materials available on file or if necessary issue summons for recalling the witnesses who have been already examined or other witnesses who is relevant in the context of the matter on behalf of the petitioners or respondents.
Since matter is of the year 2011 and accident is of the year 2009, it may be disposed of within an outer limit of not more than six months from the date of receipt of a copy of this judgment.
The amount in deposit shall be returned to the Insurance Company on proper identification.
Sd/-
JUDGE tsn*