Karnataka High Court
The Divisional Manager vs Sharda W/O Sharnappa Pujari Ors on 16 September, 2020
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 16TH DAY OF SEPTEMBER, 2020 R
BEFORE
THE HON'BLE MR.JUSTICE P.KRISHNA BHAT
M.F.A.NO.30327/2012 (MV)
BETWEEN:
The Divisional Manager,
United India Insurance Co. Ltd.,
Jawali Complex, Super Market,
Gulbarga.
... Appellant
(By Sri.S.S.Aspalli, Advocate)
AND:
1. Sharda W/o Sharnappa Pujari,
Age: 40 years, Occ: Household,
2. Mallamma D/o Sharnappa Pujari,
Age: 20 years, Occ: Student,
3. Pradhani S/o Sharnappa Pujari,
Age: 19 years, Occ: Nil,
4. Mahesh S/o Sharnappa Pujari,
Age: 17 years, (Minor) Occ: Nil,
U/G of Petitioner No.1 Sharda,
All R/o Ganwar Tq. Jewargi,
District Gulbarga.
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5. Chand Patel S/o Khasim Patel,
Age: Major, Occ: Owner of Truck
R/o Hongunta, Tq. Chittapur,
District Gulbarga.
... Respondents
(Smt. Sharada R. Patil, Advocate for R1 to R4;
R5 is served)
This MFA is filed under Section 173(1) of the
M.V.Act, praying to call for the records in MVC
No.312/2007 on the file of the Civil Judge (Sr.Dn.) &
MACT, Jewargi dated 22.07.2011, set aside the
judgment and award dated 22.07.2011 in MVC
No.312/2007 passed by the Civil Judge (Sr.Dn.) &
MACT, Jewargi, by allowing the above appeal in the
interest of justice and equity.
This MFA coming on for final hearing this day, the
Court delivered the following:
JUDGMENT
This is an insurer's appeal being aggrieved by the fastening of liability to pay compensation on it by the learned Senior Civil Judge & MACT at Jewargi in MVC 3 No.312/2007 by the judgment and award dated 22.07.2011.
2. The brief facts insofar as they are necessary for the disposal of the present appeal are that on 20.08.2006 at about 10.30 p.m. when the deceased was proceeding on a scooter bearing registration No.KA-32- E-8979 as the rider, the offending truck bearing registration No.MWU-3459 which was carrying logs of wood extending beyond the lorry chassis, was proceeding ahead without displaying indicators and it suddenly applied brake, on account of which the deceased crashed on to the truck resulting in his death. The learned Tribunal after examining the wife of the deceased as PW.1 and marking Ex.P.1 to P.8 among which Ex.P.3 was the charge sheet, allowed the claim petition in part awarding a compensation of Rs.4,09,600/- with interest at 6% p.a. fixing the liability to pay the same on the appellant insurance company. 4
3. it is urged on behalf of the appellant- insurance company in this appeal that even though charge sheet is filed against the driver of the offending truck bearing registration No.MWU -3459, the complaint at Ex.P.2, the FIR at Ex.P.1 and spot panchanama at Ex.P.4 show that the lorry was parked on the left side of the road and deceased came on a two wheeler with two pillion riders and due to his own rash and negligent act crashed on to the truck resulting in his death. He placed reliance on decisions reported in (2009) 1 Karnataka Accident Claims Journal 251 (Kar) (The Oriental Insurance Company Ltd.,Bangalore Vs. Chennappa Shettigar and Others), 2009 ACJ 925 (National Insurance Company Ltd. Vs. Rattani and Others), 2009 (4) T.A.C. 385 (S.C.) (Raj Rani and Others Vs. Oriental Insurance Co. Ltd. and Others) in support of his contention.
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4. I have heard Smt. Sharada R.Patil, learned counsel for the claimants.
5. In this case, Ex.P.3 charge sheet is against the driver of the lorry. Learned counsel for the appellant has placed heavy reliance on Ex.P.2, the complaint lodged in the criminal case and also Ex.P.4 which is the spot panchanama. It is no doubt stated in Ex.P.2 complaint that the complainant was a pillion rider in the two wheeler which was driven by the deceased and there was one more pillion rider on the same and further it is stated therein that on account of rash and negligent driving of the two wheeler it had dashed against the parked lorry which was carrying logs of wood. The charge sheet Ex.P.3 which was filed after investigation shows that the offending lorry bearing registration No.MWU-3459 at about 10.40 p.m. had suddenly applied brake and on account of the same, the two wheeler driven by the deceased had crashed on to 6 the same. It is specifically stated that the truck in question was carrying long logs of wood and it was not bearing any reflector or indicator. The fact that the accident had taken place during night time is beyond question.
6. In Channappa Shettigar's case the facts disclose that it was a claim petition filed under Section 163-A of the Motor Vehicles Act, 1988 (for short 'M.V.Act') and negligence has no bearing in a claim for compensation filed under the said provision of law. Moreover, it was a collision of Tempo Trax against a parked lorry. Similarly in Raj Rani's case referred to by the learned counsel for the appellant, a Maruthi car had crashed on to a parked lorry. It is common knowledge that four wheelers are having better lighting facility and in such a situation even if the parked vehicles are not having reflectors or not having indicators, it is possible even during night time for such drivers of four wheelers 7 to notice a parked vehicle unless they are negligent themselves in the first case. In this case, the vehicle involved is a two wheeler and the offending vehicle is a truck which was carrying logs of wood which according to Ex.P.3 charge sheet was extending beyond the chassis. Further, the Insurance Company has not examined the driver of the lorry to explain as to in what circumstances the accident had taken place. In that view of the matter, I am of the view that the decisions relied on by the learned counsel has no application to the facts of this case. Further, in view of the above peculiar facts of this case and in the face of clear material to show that the offending vehicle was not displaying parking lights or brake lights and reflectors which is not dislodged by the appellant by producing cogent evidence, there is no ground whatsoever to find fault with the finding of the learned Tribunal that the driver of the truck bearing registration No.MWU 3459 was negligent and on account of the same accident had 8 taken place. A vehicle like the offending truck especially while carrying long logs of wood on their chassis are required to take certain precautions and in the absence of the same they are in violation of sections 122 and 126 of the M.V. Act, 1988 which gives rise to a claim for compensation by the affected persons. Under such circumstances, I do not find any good grounds to accept the contentions put forth by the learned counsel for the appellant. Accordingly, it is rejected. In the view as above, the appeal is devoid of merits. Hence, the following:
ORDER The above appeal is dismissed. Statutory amount deposited by the appellant- insurance company shall be transmitted to the Tribunal.
Sd/-
JUDGE NSP