Karnataka High Court
The New India Assurance Co Ltd vs Farooq Pasha@ Farooq on 12 June, 2018
Author: P.S.Dinesh Kumar
Bench: P.S. Dinesh Kumar
1
MFA No.7742/2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF JUNE, 2018
BEFORE
THE HON'BLE MR. JUSTICE P.S. DINESH KUMAR
MISCELLANEOUS FIRST APPEAL NO.7742 OF 2015
BETWEEN:
THE NEW INDIA ASSURANCE CO LTD.
NO.9, 2ND FLOOR, MAHALAKSHMI CHAMBERS
M G ROAD, BENGALURU - 560 001
REPRESENTED BY ITS MANAGER ...APPELLANT
(BY SRI S.V.HEGDE MULKHAND, ADVOCATE)
AND:
1. FAROOQ PASHA @ FAROOQ
S/O RAHAMATHULLA
AGED ABOUT 48 YEARS
2. MAMTAJ
W/O FAROOQ PASHA @ FAROOQ
AGED ABOUT 35 YEARS
3. RUKASANA
D/O FAROOQ PASHA @ FAROOQ
AGED ABOUT 23 YEARS
4. TANZIM
S/O FAROOQ PASHA @ FAROOQ
AGED ABOUT 19 YEARS
ALL ARE R/O NO.26,
IBM CROSS, NEW GURAPPANAPALYA
BANNERUGHATTA ROAD,
BENGALURU - 560 029
2
MFA No.7742/2015
OLD R/O NO.621,
30TH B CROSS, 28TH MAIN
TILAKNAGAR, JAYANAGAR
BENGALURU - 560 001
5. H.R.SHREEDHAR
S/O RUDRAIAH H.N
MAJOR
R/O HALASINA NAGENAHALLI
GUBBI TALUK
TUMKUR DISTRICT - 611 770 ...RESPONDENTS
(BY SRI FAYAZ SAB B.G., ADVOCATE FOR R5;
R1 TO R4-SERVED BUT UNREPRESENTED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT,
AGAINST THE JUDGMENT AND AWARD DATED 08.07.2015
PASSED IN MVC NO.5759/2013 ON THE FILE OF THE III
ADDITIONAL SENIOR CIVIL JUDGE, MEMBER, MACT, COURT OF
SMALL CAUSES, BENGALURU, AWARDING A COMPENSATION OF
RS.5,34,750/- WITH INTEREST @ 9% P.A. FROM THE DATE OF
PETITION TILL THE DATE OF REALIZATION.
THIS MFA COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:-
JUDGMENT
This appeal by the insurer is directed against common order dated 08.07.2015, passed in MVC Nos.5759 & 5760/2013 on the file of III Additional Senior Civil Judge, Member, MACT, Court of Small Causes, Bengaluru, so far as it relates to MVC No.5759/2013.
3MFA No.7742/2015
2. For the sake of convenience, parties shall be referred to as per their status before the trial Court.
3. Heard Shri S.V.Hegde Mulkhand, learned Counsel for the appellant and Shri Fayaz Sab B.G., learned Counsel for respondent No.5. Respondents No.1 to 4, though served have remained unrepresented.
4. Briefly stated the facts of the case are, a tempo bearing registration No.KA-03-C-871 was insured by the appellant insurer. On 25.6.2013, it collided with a motor cycle bearing registration No.KA-05-HR-9841 coming from the opposite side on which three persons were traveling. The rider of the motor cycle succumbed to the injuries sustained. The legal representatives of deceased and one of the pillion riders presented their respective claim petitions 4 MFA No.7742/2015 and the same have been decided by the common impugned order.
5. Parents of the deceased have been awarded a sum of Rs.7,13,000/- and the injured rider has been awarded a sum of Rs.2,93,000/-. The Tribunal held contributory negligence on the part of the rider and pillion riders at 25%.
6. Feeling aggrieved by the quantum of contributory negligence, the insurer has filed this appeal.
7. Shri S.V.Hegde Mulkhand, learned Advocate for the Insurer adverting to Ex.P4, the sketch of accident spot, submitted that the width of the road is 30 ft. The accident has occurred at a spot which measures 12 ft. from the edge of the road on eastern side. The tempo was traveling north to south. The sketch clearly shows that the motor cycle was 5 MFA No.7742/2015 moving on the right hand side of the road at a distance of 18 ft from the western side edge of the road.
8. In support of his contention, he placed reliance on a division bench judgment of this Court in the case of P.S. Somaiah Vs. Director, Bangalore Diary, reported in AIR 2003 KAR 258 and contended that contributory negligence of the motor cycle at 25% held by the Tribunal is incorrect as the rider of the motor cycle was highly negligent. With these submissions, he prayed for allowing this appeal.
9. The claimants though served have remained unrepresented. Respondent No.5-owner of the vehicle is represented by an advocate but he is absent.
10. Ex.P4 is the sketch prepared by the police. The road runs north to south. The width of the road 6 MFA No.7742/2015 is 30 ft. The accident has occurred at a distance of 18 ft. when measured from western edge. This means that the tempo driver was driving on the left hand side but the motor cycle rider had crossed 3ft. from the middle of the road. The Tribunal, on appreciation of evidence, has recorded a finding that three persons were travelling in the motor cycle. However, the contributory negligence has been assessed at 25% on the part of the motor cycle.
11. In the case of P.S.Somaiah supra, relied upon by Shri S.V.Hegde Mulkhand, contributory negligence on the part of the rider of the motor cycle was fixed at 60% and 40% on the pillion riders. This Court refused to interfere with the apportionment and negligence at 60% on the rider of the motor cycle by holding thus:
"1. We have heard the appellants' learned Counsel as also the respondents' learned Counsel in these group of appeals. At the very outset, it is necessary for us to indicate the righteous indignation of this Court with 7 MFA No.7742/2015 regard to the total and thoroughly illegal practice that is rampant on the roads in the State whereby throwing caution to the winds and with total disregard for the elementary concept of safety, any number of children are indiscriminately loaded on to two wheelers whether it is in front, in the arms or minor children of different ages as a result of which the provisions of Sec. 128 of the Motor Vehicles Act are breached and disregarded with total callousness. This Court has, times without number brought it to the notice of police and the Traffic Control Authorities that necessary steps be taken to enforce the provisions of Sec.128 of the M.V. Act which reads as follows:
"123. Safety measures for drivers and pillion riders- (1) No driver of a two-wheeled motor- cycle shall came more than one person in addition to himself on the motor-cycle and no such person shall be carried otherwise than sitting on a proper seat securely fixed to the motor-cycle behind the driver's seat with appropriate safety measures. (2) In addition to the safety measures mentioned in sub-section (1), the Central Government may, prescribe other safety measures for the drivers of two-
wheeled motor-cycles and pillion riders thereon."
12. In the case on hand, the Tribunal has recorded a specific finding in paragraph No.27 that three persons were travelling on the motor cycle. However, negligence on the part of the rider of the motor cycle has been fixed at 25%. Shri Hegde Mulkhand is right in his submission that the Division Bench of this Court in similar set of facts has approved 8 MFA No.7742/2015 of negligence at 60% attributable to the rider of the motor cycle. Following the said judgment, it would be just and appropriate to hold negligence on the part of the motor cycle at 60%.
13. Resultantly, this appeal merits consideration and hence the following order:
(1) The appeal is allowed in part;
(2) Negligence on the part of the rider of the motor cycle is held at 60%. Consequently, the liability of the appellant-Insurer is limited to 40%. The compensation awarded by the Tribunal is at Rs.7,13,000/- in MVC No.5759/2013.
Insurer's 40% liability works out to Rs.2,85,200/- with 6% interest from the date of petition till realization.
(3) Insurer has deposited Rs.2,05,898/- in this Court. The said amount with interest if any accrued thereon shall be sent to the Tribunal for 9 MFA No.7742/2015 disbursement in terms of the conditions prescribed in the award.
(4) Insurer is directed to deposit the balance amount with interest computed at 6% interest within four weeks from the date of receipt of copy of this order.
Appeal allowed part. No costs.
Sd/-
JUDGE Yn.