Karnataka High Court
Thippayya S/O Raganna vs Srinivas S/O Raganna Setty And Ors on 14 December, 2021
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 14TH DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE M.G.S.KAMAL
MFA.No.30476/2013
C/W
MFA.No.30477/2013 (MV)
MFA.No.30476/2013
BETWEEN:
THIPPAYYA S/O RAGANNA
AGE: 29 YEARS OCC: BUSINESS
R/O: RAICHUR-584101. ... APPELLANT
(BY SRI. BASAVARAJ R. MATH, ADVOCATE)
AND:
01. SRINIVAS S/O RAGANNA SETTY
AGE: 28 YEARS OCC: BUSINESS
R/O: RAICHUR - 584 101.
02. MANJUNATHA S/O RAMAKRISHNA
AGE: MAJOR OCC: BUSINESS &
OWNER OF MOTOR CYCLE
NO.KA-36/W-2653
R/O: RAICHUR-584 101.
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03. THE BRANCH MANAGER
ORIENTAL INSURANCE CO. LTD.,
KATKAM KRISTAIAH COMPLEX
CITY TALKIES ROAD,
RAICHUR - 584 101. ... RESPONDENTS
(BY SMT. PREETI PATIL, ADVOCATE FOR R3
SRI. J. AUGUSTIN, ADVOCATE FOR R2
VIDE ORDER DATED 11.07.2013 NOTICE TO R1 AND
R3 ARE DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173 (1) OF THE M.V. ACT, PRAYING TO
CALL FOR RECORDS AND MODIFY THE IMPUGNED
JUDGMENT AND AWARD DATED 03.01.2013 PASSED BY
THE PRL. SENIOR CIVIL JUDGE AND CJM (ADDL. MACT),
RAICHUR IN MVC.NO.19/2012.
MFA.NO.30477/2013
BETWEEN:
KUMARI TANUJA D/O SRINIVAS
AGE: 04 YEARS OCC: MINOR UNDER THE GUARDIANSHIP
OF HER NATURAL MOTHER SMT. SANGEETHA W/O
SRINIVAS
AGE: 27 YEARS OCC; HOUSEHOLD
R/O: RAICHUR - 584 101.
... APPELLANT
(BY SRI. BASAVARAJ R. MATH, ADVOCATE)
AND:
01. SRINIVAS S/O RAGANNA SETTY
AGE: 28 YEARS OCC: BUSINESS
R/O: RAICHUR - 584 101.
02. MANJUNATHA S/O RAMAKRISHNA
AGE: MAJOR OCC: BUSINESS &
OWNER OF MOTOR CYCLE
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NO.KA-36/W-2653
R/O: RAICHUR-584 101.
03. THE BRANCH MANAGER
ORIENTAL INSURANCE CO. LTD.,
KATKAM KRISTAIAH COMPLEX
CITY TALKIES ROAD,
RAICHUR - 584 101.
... RESPONDENTS
(BY SMT. PREETI PATIL, ADVOCATE FOR R3
VIDE ORDER DATED 04.07.2013 NOTICE TO R1 AND
R2 ARE DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173 (1) OF THE M.V. ACT, PRAYING TO
CALL FOR RECORDS AND MODIFY THE IMPUGNED
JUDGMENT AND AWARD DATED 03.01.2013 PASSED BY
THE PRL. SENIOR CIVIL JUDGE AND CJM (ADDL. MACT),
RAICHUR IN MVC.NO.20/2012.
THESE APPEALS COMING ON FOR FINAL HEARING
THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
MFA.No.30476/2013 and MFA.No.30477/2013 are filed by the claimants aggrieved by the judgment and order dated 03.01.2013 passed in MVC.Nos.20/2020 and 19/2012 respectively by the Principal Civil Judge and CJM Additional MACT, at Raichur.
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02. The brief facts leading upto filing of the present appeals are that on 07.05.2011 at about 10.30 p.m. when the minor claimant Kumari Tanuja (appellant in MFA.No.30477/2013) was returning towards her house along with her father and uncle (appellant - Thippayya in MFA.No.30476/2013) on the their motorcycle bearing Reg.No.KA-36-W-2653 which was being ridden by the respondent No.1 - father of the minor - appellant and due to sudden crossing of a pig on the road, the rider of the motorcycle suddenly applied the brake. Due to which he lost control over the motorcycle. As a result, the minor claimant and her uncle - Thippayya fell down on the road and sustained injuries. The claimants were shifted to OPEC Hospital at Raichur for treatment. However, the minor claimant was shifted to Rainbow Hospital, at Hyderabad and Thippayya shifted to Kamineni Hospital at Hyderabad. They spent huge amount for their treatment. A case was registered in a Crime No.65/2011 before the Traffic police station against the respondent No.1.
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03. Thereupon, the claim petitions were filed in MVC.No.20/2012 on behalf of the minor claimant and MVC.No.19/2012 was filed on behalf of the Thippayya on the premise that they were hale and healthy prior to the accident. That the said Thippayya was aged about 28 years and earning `.10,000/- per month by doing business and was contributing the same to the family welfare. Due to the injuries suffered they are facing hardship and not able to carry out daily routine work as earlier. That the accident in question had occurred on account of rash and negligent riding by respondent No.1 and respondent No.2 is the owner of the vehicle and respondent No.3 is the insurance company. Hence, respondents are jointly and severally liable to pay the compensation. Hence, sought for compensation.
04. Upon service of notice, the respondents No.1 to 3 appeared through their counsel, the respondent No.2 and 3 filed their written statements and respondent No.1 adopted the written statement of the respondent No.2, 6 wherein they have denied the allegation leveled against them. It is contended that the respondent No.1 was having driving license and the policy was also in force as on the date of accident. There is no breach of terms and conditions of the policy. Hence, sought for dismissal of the claim petition.
05. The respondent No.3 - Insurance Company denied the age, income, occupation and expenditure incurred by the injured persons. It is contended that the claim made by the claimants is exorbitant. That the accident had occurred on account of sole negligence on the part of the respondent No.1 who had violated the terms and conditions of the policy by carrying two persons as a pillion rider. Hence, sought for dismissal of the claim petition.
06. The Tribunal on the basis of the pleadings framed the issues and recorded the evidence. The claimant in MFA.No.30476/2013 has been examined himself as PW.1 and one Smt. Sangeetha has been examined as 7 PW.2 and they were exhibited 82 documents as per Exs.P.1 to Ex.P.82. On behalf of the respondents one U. Jayarama has been examined as RW.1 and got exhibited two documents marked as Ex.R.1 and Ex.R.2.
07. The Tribunal on appreciation of the oral and documentary evidence held that the accident had occurred on account of rash and negligent riding of the rider of the motorcycle causing injuries to the claimants. Consequently, held that the claimant in MVC.No.20/2012 is entitled for a sum of Rs.79,517/-, while claimant in MVC.No.19/2012 is entitled for a sum of `.2,45,786/- along with interest at the rate of 6% p.a.
08. However, while fixing the liability, the Tribunal taken into consideration the judgment of this Court in the case of P. S.Somaiah and another vs. Director, Bangalore Diary and others, reported in AIR 2003 KAR 258, and held that by carrying two pillion rider one who is child in front of the rider, the rider had contributed the accident. Therefore, the Tribunal fixed 60% negligence on 8 the part of the respondent No.1 and 40% on the part of the respondent No.3.
09. Being aggrieved by the aforesaid judgment and order the claimants are before this Court seeking enhancement of the compensation as well as well questioning the liability fixed by the Tribunal.
10. The learned counsel for the claimants reiterating the grounds urged in the appeal memos submitted that the Tribunal erred in not taking into consideration the nature of the injuries suffered by the claimants. It is further submitted that a minor had suffered splain injury grade III/V and Hemoperitonium injuries and she was admitted in the Hospital for treatment. Considering the injuries sustained and age of the minor - claimant, the award of compensation at `.79,517/- is on lower side.
11. Similarly, he submitted that the claimant - Thippayya has also suffered multiple injuries over face, 9 upper eyelid and right thigh and x-ray skull revealed fracture of right zygoma, fracture or right orbitred lateral wall, inferior wall and floor and fracture of left zygoma and maxilla and he was admitted in the Hospital for treatment. Hence, sought for enhancement of the compensation.
12. He further referring to liability, submitted that it is settled principle of law that merely riding of three persons on a motorcycle without there being any evidence to the effect that the said triple-riding had resulted in the accident, the same cannot be held to be an act of negligence. Therefore, he submits that the judgment and order passed by the Tribunal is required to be set-aside.
13. The learned counsel for the insurance company justifying the judgment and order passed by the Tribunal as just and proper submitted that there is no material evidence placed by the claimants to justify the claim of claimants. The Tribunal taking into consideration this aspect of the matter awarded a just and proper compensation and there is no need to interfere with 10 judgment and order passed by the Tribunal. Adverting to the liability, the learned counsel submits that since, rider of the motorcycle - respondent No.1 was carrying minor child and Thippayya had contributed for occurrence of accident. This aspect of the matter has been rightly taken into consideration by the Tribunal, warranting no interference. Hence, sought for dismissal of the appeals.
14. Heard the learned counsel for the parties and perused the records.
15. The points that would arise for consideration are that:
I. Whether the claimants have made out a case for enhancement of compensation?
II. Whether the claimants have made out a case for interference in the judgment and order passed by the Tribunal with regard to fixing the liability at 60% on the rider of the motorcycle and at 40% on the insurance Company?11
16. The accident in question involving the motorcycle is not in dispute. That the minor and Thippayya had suffered injuries in the accident is also not in dispute. The rider of the motorcycle was admittedly carrying minor child and Thippayya who is brother on the motorcycle. Though it is contended by the Insurance Company that three persons were traveling on motorcycle resulted in violation of the terms and conditions of the insurance policy, but no material evidence is placed or elicited that the rider of the motorcycle by carrying three persons contributed for occurrence of accident.
17. As per the decision of the Hon'ble Supreme Court in the case of Mohammed Siddique and another vs. National Insurance Company Limited and others reported in (2020) 3 SCC 57, mere triple-riding on a motor-cycle cannot be held to have contributed for occurrence of accident unless it is established by leading cogent evidence to that effect. At the most, the same would amount to violation of provisions of traffic rules. In 12 the case referred to by the Tribunal in P.S.Somaiah and another vs. Director, Bangalore Diary and others, reported in AIR 2003 KAR 258, it was specifically established by the facts on record therein that the rider of the motorcycle had not taken precaution in respect of incoming motorcycle and was on a wrong side while over- taking the motorcycle. In the instant case, no such evidence of any nature whatsoever is produced establishing the cause of accident being the triple-riding. Therefore, under the facts and circumstances of the case and in the light of the judgment of the Hon'ble Apex Court in the case of Mohammed Siddique and another supra, the apportionment of negligence at 60% and 40% made by the Tribunal is without there being any material evidence, as such same cannot be sustained.
18. Adverting to the issue with regard to quantum of compensation, considering the nature of injuries and age of the minor, an amount of `.79,517/- awarded by the Tribunal is enhanced to `.1,00,000/- along with interest at 13 the rate of 6% p.a. The compensation awarded by the Tribunal in respect of claimant - Thippayya at `.2,45,7786/- along with interest at the rate of 6% p.a. is maintained, as it is just and proper without there being any interference.
19. In the result, the following;
ORDER
(i) The MFA.No.30476/2013 and
MFA.No.30477/2013 filed by the appellants - claimants are partly allowed.
(ii) The judgment and order dated 03.01.2013 passed in MVC.No.20/2012 and MVC.No.19/2012 by the Principal Senior Civil Judge and CJM and Additional MACT, at Raichur, are modified.
(iii) The claimant in MVC.No.20/2012 is held
entitled for a total compensation of
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`..01,00,000/- together interest at the rate of 6% p.a. from the date of claim petition till payment.
(iv) The claimant in MVC.No.19/2012 is held entitled for a total compensation of `..02,45,786/- together interest at the rate of 6% p.a. from the date of claim petition till payment.
(v) In view of findings of this Court with regard to liability, the respondent No.3 -
insurance company is directed to pay compensation with interest at the rate of 6% p.a. from the date of claim petition till the date of payment, within a period of two months from the date of receipt of certified copy of this judgment.
Sd/-
JUDGE KJJ