Karnataka High Court
United India Insurance Co Ltd vs Smt V Anitha Gangadhara W/O Late S ... on 17 October, 2012
Bench: N.K.Patil, B.S.Indrakala
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`IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 17TH DAY OF OCTOBER, 2012
:PRESENT:
THE HON'BLE MR. JUSTICE N.K. PATIL
AND
THE HON'BLE MRS. JUSTICE B.S. INDRAKALA
M.F.A.No. 6708/2008 (MV)
A/w. MFA CROB 43/2010
IN MFA No. 6708/2008 (MV)
BETEWEEN
UNITED INDIA INSURANCE CO., LTD.,
HOSUR DO, (TAMILNADU STATE),
THROUGH ITS REGIONAL OFFICE,
SHANKARANARAYANA BUILDINGS,
NO.25, M.G. ROAD, BANGALORE-01,
REP. BY ITS MANAGER,
SRI M. GOPINATHA RAO.
... APPELLANT
(BY SRI. B.C. SEETHARAMA RAO, ADVOCATE)
AND
1. SMT. V. ANITHA GANGADHARA
W/O. LATE S. GANGADHARA
AGED ABOUT 40 YEARS,
2. SRI VISHWAS
S/O. LATE S. GANGADHARA
AGED ABOUT 18 YEARS,
3. KUMARI G. SWATHI,
D/O. LATE S. GANGADHARA
AGED ABOUT 12 YEARS,
2
SINCE MINOR, REP. BY HER MOTHER
THE FIRST RESPONDENT HEREIN.
... RESPONDENTS
(BY SRI N.S. BHAT, ADVOCATE FOR R1 AND R3; R2 SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 27.09.2007
PASSED IN MVC NO.7450/2004 ON THE FILE OF III
ADDITIONAL JUDGE AND MEMBER, Motor Accident Claims
Tribunal, BANGALORE, SCCH-18, AWARDING A COMPENSATION
OF RS.5,90,000/- WITH INTEREST AT 6% P.A. FROM THE DATE
OF PETITION TILL REALISATION.
MFA CROB No.43/2010 (MV)
BETEWEEN
1. SMT. V. ANITHA GANGADHARA
W/O. LATE S. GANGADHARA
AGED ABOUT 42 YEARS,
2. SRI VISHWAS
S/O. LATE S. GANGADHARA
AGED ABOUT 20 YEARS,
3. KUMARI G. SWATHI,
D/O. LATE S. GANGADHARA
AGED ABOUT 14 YEARS,
CROSS-OBJECTOR NO.3 IS MINOR
REPRESENTED BY HER MOTHER
V. ANITHA GANGADHARA-CROSS OBJECTOR 1
ALL ARE R/AT NO.106/1,
KODIHALLI, HAL II STAGE,
ULSOOR POST,
BANGALORE-560 008
... CROSS OBJECTORS
(BY SRI N.S. BHAT, ADVOCATE)
AND
THE MANAGER
UNITED INDIA INSURANCE CO., LTD.,
REGIONAL OFFICER,
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SHANKARANARAYANA BUILDINGS,
NO.25, M.G. ROAD, BANGALORE-560 001,
... RESPONDENT
(BY SRI B.C. SEETHARAMA RAO, ADVOCATE)
THIS MFA CROB IS FILED UNDER ORDER 41 RULE 22 OF
CPC AGAINST THE JUDGMENT AND AWARD DATED 27.09.2007
PASSED IN MVC NO.7450/2004 ON THE FILE OF III
ADDITIONAL JUDGE AND MEMBER, MACT, BANGALORE, PARTLY
ALLOWING THE CLAIM PETITIONFOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THE M.F.A. AND MFA CROB COMING ON FOR FINAL
HEARING THIS DAY, N.K. PATIL, J., DELIVERED THE
FOLLOWING:
:J U D G M E N T:
The instant appeal and cross objection are arising out of the impugned judgment and award dated 27.09.2007 passed in MVC No. 7450/2004 on the file of the III Additional Judge and Motor Accident Claims Tribunal, Bangalore (SCCH-18), (hereinafter referred to as 'Tribunal' for short).
2. By its judgment and award, the Tribunal has awarded a sum of Rs. 5,90,000/- with interest at 6% p.a., from the date of petition till realization as against the claim made by the claimants for a sum of Rs.50,00,000/-, on account of the death of the deceased in the road traffic accident. 4
3. It is specific case of the insurer that the second application filed under Section 166 of MV Act cannot be maintained and is liable to be set aside on the ground that, during the life time of the deceased the deceased himself had filed an application under Section 166 for the injuries sustained in the road traffic accident and the same was allowed by awarding some compensation. Whereas, the learned counsel appearing for the Cross-Objectors contended that, there is no prohibition for filing second claim petition under Section 166 of MV Act in the light of the judgment of Full Bench reported in 1990(3) Kar. L.J. (Suppl.) 605 (High Court) in the case of Kannamma v. Deputy General Manager, KSRTC and submits that the quantum of the compensation awarded by the Tribunal is inadequate and requires enhancement.
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4. In brief, the facts of the case are:
The cross-objector No.1 is the wife and cross- objector Nos.2 and 3 are the son and daughter of the deceased Gangadhara. They filed a claim petition under Section 166 of MV Act before the Tribunal claiming Rs.50,00,000/- on account of the death of the deceased due to the injuries sustained in the road traffic accident that occurred on 11.05.2001, at about 3.30 p.m., near Papanna's Grapes Garden, Hattibele, NH7. At the time of accident the deceased was aged about 40 years, hale and healthy and was earning Rs.44,000/- per month by working as a Marketing Manager in MRF Pre-trades. Due to his un-timely death, the claimants are facing great mental shock and pecuniary loss. They have lost their beloved family member and the only breadwinner. It is the further case of the cross-objectors that, their life has become jeopardized due to the untimely death of the deceased in the accident. Therefore, they were 6 constrained to file claim petition against the owner and insurer of the offending vehicle.
After service of notice to the insurer, they appeared through counsel and filed detailed objection statement denying the petition averments in column No.1 to 14 and 22, for want of strict proof. The compensation claimed by the claimants is highly excessive, exorbitant and specifically contended that, the second claim petition is not maintainable as already during the life time of the deceased, the deceased had filed a claim petition in MVC No.109/2002 under Section 166 of the MV Act before the Tribunal and the Tribunal had awarded the compensation in a sum of Rs.6,38,496/-. Insurer has admitted the issuance of policy and its validity as on the date of accident. They also contended that, the Legal representatives of the deceased i.e. cross objectors were also brought on record in the said petition. Therefore this petition is hit by the 7 principles of resjudicata. There was no fault on the rider of said vehicle in question. On the other hand, deceased was at fault. Insurer has sought permission under Section 170 of the MV Act and prayed that the claim petition is liable to be dismissed as mis- conceived.
On the basis of the pleadings of the parties, the Tribunal has framed the following issues:
1. Whether the petitioner prove that, Sri S. Gangadhara had succumbed due to Motor Vehcile Accident that was taken place on 11.05.2001, at about 3.30 p.m., near Papanna's Grapes Garden, Hattibele, NH7, due to user of motorcycle bearing No. TN-
29/Q-2853, being ridden by its rider, in an actionable negligence?
2. Whether the petitioners prove that they are entitled for the claim compensation amount as prayed for? If so, against whom?
To substantiate their case, the cross-objectors have examined the 1st cross-objector as PW1 and 8 relied upon the documents marked at Exs.P1 to P22. The 1st respondent has not adduced any oral and documentary evidence. The 2nd respondent has also not adduced oral evidence, but it has relied upon the copy of insurance policy at Ex.R1 and by filing IA No.2 Under Section 170 has sought permission to raise the defence available to respondent No.1-owner and the said application was allowed. Both the sides closed their respective evidence. The Tribunal after hearing the learned counsel appearing for both the parties, considering the oral and documentary evidence available on file and taking into consideration the age, avocation and death of the deceased in the road traffic accident answered issue No. 1 in the affirmative, issue No.2 partly in affirmative and issue No.3 as per the final order and awarded a compensation of Rs. 5,90,000/- with 6% interest per annum from the date of petition till its realisation. Being dissatisfied with the impugned judgment and award passed by the 9 Tribunal, both the insurer and the cross-objectors have presented the appeal and cross objection seeking appropriate reliefs as stated supra.
5. The learned counsel appearing for the appellant-insurer Sri B.C. Seetharama Rao at the outset submitted that, the second claim petition filed by the legal representatives of the deceased/cross- objectors herein is not maintainable and it is hit by principles of resjudicata. To substantiate his contention, he has pointed out and submitted that the deceased Gangadhara himself had filed a claim petition in MVC No. 109/2002 and during pendency of the said claim petition he died leaving behind the cross-objectors and the same was allowed awarding compensation towards conveyance, nourishing food and attendant charges, medical expenses and loss of estate. It has taken a specific stand in its written statement that, second claim petition is not maintainable and hits resjudicata and to that effect, 10 no appropriate issue has been framed and the Tribunal proceeded without recording specific stand taken by the insurer and therefore such order cannot be sustained and is liable to be set aside and the matter requires re-consideration afresh by the Tribunal.
6. Per contra the learned counsel appearing for the cross-objectors interalia contended that, the impugned judgment and award passed by the Tribunal is just and proper and after due appreciation of the oral and documentary evidence available on record. The objection raised by the insurer is that, the second claim petition is not maintainable by the legal representatives of the deceased in view of the judgments of the Full Bench and also Division Bench of this Court in the case reported in 1990(3) Kar.LJ (Supp.) 605 (High Court) in the case of Kannamma v. Deputy General Manager, K.S.R.T.C. and also in MFA No.1271 of 2005 (MV) dated 08.06.2010. In 11 the light of the above, the second claim petition filed under Section 166 of MV act on account of the death of the deceased in the road traffic accident is maintainable. However, he fairly submits that the stand taken by the insurer in its objection statement is that, there is no appropriate issue as such framed has been considered and the claim petition is hit by the principles of resjudicata and second claim petition is maintainable. The judgment and award passed by the Tribunal may set aside and the matter may be remitted back to the Tribunal for reconsideration afresh, for framing necessary point on the stand taken by the learned counsel appearing for the insurer.
7. After careful consideration of the submission of the learned counsel appearing for both the parties and after perusal of the impugned judgment and award passed by the Tribunal, it is manifest on the face of the judgment that, the Tribunal has committed an error and irregularity in 12 passing the impugned judgment and award, resulting in miscarriage of justice. It is not in dispute that, the specific stand of the appellant-insurer in its objections statement was that the claim petition filed by deceased Gangadhara in MVC No.109/02 was still pending and after his death his legal representatives were brought on record and hence the petition was hit by resjudicata. There was no fault on the rider of the vehicle in question. Therefore, the Tribunal ought to have framed necessary issue for consideration to decide whether the claim petition under Section 166 of MV Act filed by the legal representatives of the deceased after death of the deceased Gangadhara was maintainable?. Without framing the issue for consideration the Tribunal has proceeded to conclude without giving an opportunity to the parties to substantiate their case and it is not in dispute that the claim petition filed in MVC No.109/2002 was allowed. As huge sum was spent towards medical 13 expenses, loss of estate, funeral expenses and other incidental expenses, the matter requires re- consideration. Proceeding on the basis of the pleadings available without going through the stand taken by the respective parties is not justifiable. Therefore, we are of the considered opinion that, the said impugned judgment and award passed by the Tribunal is not sustainable and it is liable to be set aside without going through further on merits, as matter requires re-consideration.
8. In the light of the facts and circumstances of the case as referred above the instant appeal filed by the insurer and cross-objection filed by the cross objectors are allowed. The impugned judgment and award dated 27.09.2007 passed in MVC No. 7450/2004 on the file of the III Addl. Judge and Motor Accident Claims Tribunal, Bangalore is hereby set aside and the matter stands remitted back to the Tribunal for reconsideration and to pass appropriate 14 order in accordance with law after providing opportunity of hearing to the parties and dispose of the matter expeditiously within 8 months from the date of filing the application to be filed by the parties. Appellant-insurer and claimants-cross-objectors shall file necessary application for producing additional evidence to substantiate their stand within four weeks from the date of receipt of a copy of the judgment. The Tribunal is directed to pass appropriate order in compliance of the direction issued as referred above.
The appellant-insurer and the claimants/cross objectors are directed to be present before the Tribunal personally or through their counsel before the jurisdictional Tribunal Magistrate on 19.11.2012 and collect the further date of hearing.
Registry is directed to return the entire LCR to the jurisdictional Tribunal forthwith. 15
The amount in deposit by the appellant-insurer is directed to be refunded to the appellant, through its authorised officer of through its counsel forthwith.
Office to draw the award accordingly.
Sd/-
JUDGE Sd/-
JUDGE Sbs*