Karnataka High Court
The Legal Manager vs Shri N Govindaraju on 20 August, 2018
Author: Krishna S Dixit
Bench: Krishna S Dixit
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF AUGUST, 2018
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S DIXIT
MFA No.11019 OF 2010 (MV)
C/W
MFA No.11018 OF 2010 (MV)
IN M.F.A.No.11019/2010 (MV)
BETWEEN
THE LEGAL MANAGER,
IFFCO- TOKIO GENERAL INSURANCE CO. LTD,
NO.41, 2ND FLOOR, CRISTU COMPLEX,
LAVELLE ROAD,
BANGALORE - 560 001.
BY
IFFCO-TOKIO GENERAL INSURANCE CO. LTD,
KSCMF BUILDING, III FLOOR, III BLOCK,
NO.8, CUNNINGHAM ROAD,
BANGALORE - 560 052.
BY IT"S MANAGER. ... APPELLANT
(BY SRI. O MAHESH, ADVOCATE)
AND
1. SHRI N GOVINDARAJU,
AGED ABOUT 60 YEARS,
S/O. LATE NARASAPPA,
2. SMT. PARVATHAMMA
AGED ABOUT 51 YEARS,
W/O. N. GOVINDA RAJU
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BOTH ARE RESIDING AT
BEHIND MANJUNATH SAW-MILL,
CHOWDESHWARI NAGAR,
TEKAL MAIN ROAD, KOLAR TOWN
3. K. GOPALA KRISHNA,
MAJOR, S/O. KEMPANNA,
R/A. AT CHILLIGANAHALLI VILLAGE,
KYALANUR POST, KOLAR TALUK,
KOLAR DISTRICT.
4. N. NARAYANASWAMY,
MAJOR, S/O NARAYANAPPA,
R/A KOLAGANJANAHALLI VILLAGE,
SUGATUR POST, KOLAR TALUK,
KOLAR DISTRICT
5. CHAND PASHA,
MAJOR, S/O. PYAREJAN
R/A. C.RAHIM COMPOUND,
BANGARPET TOWN.
6. M.M THYAGARAJU,
MAJOR, S/O. K. MUDHURAJ,
NO. 2943, 1ST CROSS, 1ST MAIN ROAD,
NEW EXTENSION KOLAR.
7. THE NEW INDIA INSURANCE COMPANY LTD
BANGALORE MANSION, II FLOOR,
DODDAPET, KOLAR.
BY ITS MANAGER. ... RESPONDENTS
(BY SRI. N GOPALAKRISHNA, ADVOCATE FOR R1 & R2,
NOTICE TO R4 IS HELD SUFFICIENT V/O DATED
04.02.2015, R3, R5 & R6 ARE SERVED)
THIS MFA IS FILED U/S 173 (1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED: 17.8.2010 PASSED
IN MVC NO.1040/2009 ON THE FILE OF XVI ADDITIONAL
JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT,
BANGALORE CITY, AWARDING A COMPENSATION OF
Rs.6,06,000/- WITH INTEREST @ 6% P.A. FROM THE DATE
OF PETITION TILL REALISATION.
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IN M.F.A.No.11018/2010 (MV)
BETWEEN
THE LEGAL MANAGER,
IFFCO- TOKIO GENERAL INSURANCE CO. LTD,
NO.41, 2ND FLOOR, CRISTU COMPLEX,
LAVELLE ROAD,
BANGALORE - 560 001.
BY
IFFCO-TOKIO GENERAL INSURANCE CO. LTD,
KSCMF BUILDING, III FLOOR, III BLOCK,
NO.8, CUNNINGHAM ROAD,
BANGALORE - 560 052.
BY IT"S MANAGER. ... APPELLANT
(BY SRI. O MAHESH, ADVOCATE)
AND
1. SOMASHEKAR M. M.
AGED ABOUT 27 YEARS,
S/O K.M MUDURAJU,
R/A. NO. 2943, 1ST MAIN ROAD,
1ST CROSS, DOOMLIGHT CIRCLE,
KOLAR TOWN.
2. K. GOPALA KRISHNA,
MAJOR, S/O. KEMPANNA,
R/A. AT CHILLIGANAHALLI VILLAGE,
KYALANUR POST, KOLAR TALUK,
KOLAR DISTRICT.
3. N. NARAYANASWAMY,
MAJOR, S/O NARAYANAPPA,
R/A KOLAGANJANAHALLI VILLAGE,
SUGATUR POST, KOLAR TALUK,
KOLAR DISTRICT
4. CHAND PASHA,
MAJOR, S/O. PYAREJAN
R/A. C.RAHIM COMPOUND,
BANGARPET TOWN.
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5. M.M THYAGARAJU,
MAJOR, S/O. K. MUDHURAJ,
NO. 2943, 1ST CROSS, 1ST MAIN ROAD,
NEW EXTENSION KOLAR.
6. THE NEW INDIA INSURANCE COMPANY LTD
BANGALORE MANSION, II FLOOR,
DODDAPET, KOLAR.
BY ITS MANAGER. ... RESPONDENTS
(BY SRI. N GOPALAKRISHNA, ADVOCATE FOR R1,
NOTICE TO R3 IS HELD SUFFICIENT V/O DATED
13.10.2014, R2, R4 & R5 SERVED,
SRI.RAJASHEKARA, ADVOCATE FOR R6)
THIS MFA FILED U/S 173 (1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED: 17.8.2010 PASSED IN
MVC NO.1039/2009 ON THE FILE OF XVI ADDITIONAL
JUDGE, MACT, BENGALURU, AWARDING A
COMPENSATION OF RS.2,22,000/- (2,22,000-
22,000=2,00,000 AFTER DEDUCTING 10% CONTRIBUTORY
NEGLIGENCE) WITH INTEREST @ 6% P.A. FROM THE DATE
OF PETITION TILL REALISATION.
THESE MFAs COMING ON FOR HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
The appeal in MFA No.11018/2010 and appeal in MFA No.11019/2010 by the Insurer challenges the judgment and award dated 17.08.2010 made by MACT, Bangalore City (SCCH-14) allowing M.V.C.No.1039/2009 and M.V.C.No.1040/2009 whereby, two sums of compensation i.e., Rs.2,22,000/- and Rs.6,06,000/- -5- have been awarded with interest at the rate of 6 % per annum. Challenge is essentially on the ground of contributory/comparative negligence and also the award being on the higher side.
2. In the vee hours of new year day i.e., on 01.01.2009, two vehicles i.e., one Indica Car bearing Registration No.KA-07-4987 and another Tata Sumo Vehicle bearing Registration No.KA-29-M-930, had head-on collision on Kolar-Bangalore Road near Narasapura-Eastern side bye-pass; due to the rash and negligent driving of the offending Tata Sumo Vehicle, the said accident is stated to have happened; as a consequence, the Claimant in M.V.C.No.1039/2009 was grievously injured and one Mr.Girish, who had sustained fatal injuries, succumbed thereto. The injured filed M.V.C.No.1039/2009 and the L.Rs of the deceased filed M.V.C.No.1040/2009 seeking compensation. The claim was resisted by the Insurer by filing Written Statement. -6-
3. To prove the claim, the driver of the Indica Car i.e., Claimant in M.V.C.No.1039/2009 was examined as PW.1 and one Mr.N. Govindaraju i.e., the father of the deceased Girish being the Claimant in M.V.C.No.1040/2009 was examined as PW.2. In their evidence, 21 documents came to be marked as per Exhibits P1 to P21 which inter alia comprised of the Charge Sheet, Medical Records, Election Identity Card, etc. From the side of the respondents, one Mr.Muralidhar an official of the appellant-Insurance Company was examined as RW.1 and another Mr. Chidambaram an official of New India Assurance Company Limited, was examined as RW.2. In their evidence also, five documents came to be marked which inter alia consisted of MLC Extract, Insurance Policy and Investigation Report.
4. The MACT, after looking to the pleadings of the parties and after assessing the evidence on record, has passed these judgment and awards, which are put in challenge in these appeals.
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5. The learned Panel Counsel for the appellant- Insurer vehemently contends that a specific plea as to fraud and duplication was taken up in the Written Statement; in the accident in question, the Tata Sumo vehicle was not involved at all; in any event, the rash and negligent driving is exclusively attributable to the other vehicle namely Indica Car; the compensation awarded is on the higher side. So stating, the counsel prays that this appeal be allowed.
5A. The learned counsel for the Claimants, per contra, submits that there is absolutely no material to say that the claim is founded on fraud or fabrication; the contributory negligence in the ratio of 90:10 is rightly adjudged by the MACT; the submissions made by the Insurer even if taken with face value will not absolve the liability of the Insurer; and lastly, the compensation awarded is just and reasonable. So stating, the counsel prays for dismissal of these appeals.
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6. I have heard the learned counsel for the Insurer and the learned counsel for the Claimants and I have perused the appeal papers and also papers from the original LCR.
7. The contention of the learned counsel for the Insurer that it is a case of contributory/comparative negligence is substantiated to a certain extent by the factors such as:
(a) PW.1 the driver of Indica Car i.e., the Claimant in M.V.C.No.1039/2009 was drunk when he was admitted to the hospital in the early morning of the eventful day; the inmates of the car admittedly being friends, were all below the age group of 30; it was a new year dawn and all they were returning from Bangalore;
the Claimant of the Indica Car also had hit a pole by the road side; the IMV Report at Exhibit P5 also mentions about the nature of the damage done to the body of the car and lastly; no explanation is offered for not examining the first informant who had lodged the FIR at 7:30 AM i.e., four hours after the accident. Thus, -9- concrete case of contributory/comparative negligence is established.
8. Now the question is of determining the accident of contributory/composite negligence attributable to these two offending vehicles involved in the accident. The court keeps in mind the difficulty of the task of ascertaining the ratio of contribution. The difficulty, however, cannot deter such determination which has to be made on the basis of the proved facts and the inferences that are drawable from the same. Regard being had to the totality of the circumstances, this court is of the considered opinion that the ratio of contributory negligence should be 65:35 as between the Tata Sumo Vehicle bearing Registration No.KA-29-M-930 and the Indica Car bearing Registration No.KA-07-4987. To that extent, the finding of the MACT which had fixed the ratio of 90:10 is altered.
9. The next contention that the compensation awarded is on the higher side although was put-forth
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very elaborately, the same does not find substance/support from the evidentiary material on record; as rightly submitted by the learned counsel for the Claimants, for the nature of injuries sustained by the Insurer/Claimant in M.V.C.No.1039/2009, a compensation of Rs.2,22,000/- cannot, by any standard be stated to be on the higher side. Similarly, the compensation in a sum of Rs.6,06,000/- awarded to the L.Rs of the deceased Girish in M.V.C.No.1040/2009 is also just and reasonable. Therefore, the contention as to award being excessive is liable to be rejected.
10. The contention of the learned counsel for the Claimants that a case of contributory/comparative negligence is essentially again on the principle of joint tortfeasors and therefore, the same is confined to the joint tortfeasors and that the determination of ratio of contributory negligence as between two offending vehicles, cannot dilute the right of the innocent injured such as the inmate of the offending vehicles to recover
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the damages/compensation from both the tortfeasors or any of the tort feasors, is substantiated by the judgment of the Apex Court in the case of Khenyei Vs. New India Assurance Co. Ltd (2015) 9 SCC 273.
Paras 22 to 22.3 read as under:
"22. What emerges from the aforesaid discussion is as follows:
22.1. In the case of composite negligence, the plaintiff/claimant is entitled to sue both or any one of the joint tortfeasors and to recover the entire compensation as liability of joint tortfeasors is joint and several.
22.2. In the case of composite negligence, apportionment of compensation between two tortfeasors vis-à-vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them.
22.3. In case all the joint tortfeasors have been impleaded and evidence is sufficient, it is open to the court/Tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tortfeasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of the payment to the plaintiff/claimant to the extent it has
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satisfied the liability of the other. In case both of them have been impleaded and the apportionment/extent of their negligence has been determined by the court/Tribunal, in the main case one joint tortfeasor can recover the amount from the other in the execution proceedings."
In the above circumstances, both the appeals are allowed; the judgment and award to the extent of apportionment of liability are modified determining the contributory negligence of these two offending vehicles namely Tata Sumo Vehicle bearing Registration No.KA-29-M-930 and Indica Car bearing Registration No.KA-07-4987, in the ratio of 65:35.
However, it is made clear that this ratio has nothing to do with the right of the Claimants in M.V.C.No.1040/2009 in the sense he can recover the entire compensation from both or any of them, of course subject to Insurer's right to pay and recover from the concerned.
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The amount in deposit shall be transmitted along with the LCR to the jurisdictional MACT for disbursal of the compensation to the Claimants, forthwith.
Costs made easy.
Sd/-
JUDGE cbc