Karnataka High Court
Mohandas Nair S/O E Kumaran Nair vs M/S Vivek Transporters on 28 March, 2019
Author: B.V. Nagarathna
Bench: B.V. Nagarathna
R
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 28th DAY OF MARCH, 2019
PRESENT
THE HON'BLE MRS. JUSTICE B.V. NAGARATHNA
AND
THE HON'BLE MR. JUSTICE BELLUNKE A.S.
M.F.A. No.24179/2012 [ MV ]
Connected with
M.F.A. Nos.24180/2012, 24181/2012, 24182/2012,
24183/2012, 24184/2012, 24185/2012, 23566/2012,
23567/2012, 23568/2012, 101478/2014, 101479/2014,
101480/2014, 101481/2014, 101482/2014,
101483/2014 & 101484/2014 [MV]
IN M.F.A. No.24179/2012:
BETWEEN:
1. MOHANDAS NAIR
S/O. E. KUMARAN NAIR,
AGE: 40 YEARS, R/O: B. 302,
YOGESHWARA, CHS, KATEMANEVALI,
KALYAN (EAST),
MAHARASHTRA STATE - 421 306.
2. SMT. LATHIKA MOHANDAS NAIR,
W/O. MOHANDAS NAIR,
AGE: 36 YEARS, R/O: B. 302,
YOGESHWARA, CHS, KATEMANEVALI,
KALYAN (EAST),
MAHARASHTRA STATE - 421 306. ... APPELLANTS
-2- MFA No.24179/2012
& Connected cases
(BY SRI P.G. CHIKKANARAGUND, ADVOCATE)
AND:
1. M/S. VIVEK TRANSPORTERS,
H.NO.99, SECTOR 17,
GURGAUN, HARYANA STATE,
REP. BY ITS PROPRIETOR,
2. M/S. RELIANCE GENERAL INSURANCE CO. LTD.,
REGIONAL OFFICE, NO.28,
5TH FLOOR, SOUTHERN PORTION,
EAST WING, CENTURY BUILDING,
M.G. ROAD, BANGALORE.
REP. BY ITS REGIONAL MANAGER. ... RESPONDENTS
(BY SRI HARISH S. MAIGUR, ADVOCATE FOR R-1;
SRI NAGARAJ C. KOLLOORI, ADVOCATE FOR R-2)
THIS MFA IS FILED U/SEC. 173(1) OF MV ACT, 1988,
AGAINST THE JUDGMENT AND AWARD DATED 31.12.2011
PASSED IN MVC NO.30/2009 ON THE FILE OF THE MEMBER,
ADDITIONAL MACT, KUMTA, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
IN M.F.A. No.24180/2012:
BETWEEN:
AISHWARYA
D/O. MOHANDAS NAIR,
AGE: MINOR, AGED ABOUT 11 YEARS,
REP. BY HER NEXT FRIEND/MOTHER
SMT. LATHIKA MOHANDAS NAIR,
AGE: 36 YERAS,
R/O: B.302, YOGESHWARA, CHS,
KATEMANEVALI, KALYAN (EAST),
MAHARASHTRA STATE - 421 306. ... APPELLANT
(BY SRI P.G. CHIKKANARAGUND, ADVOCATE)
AND:
-3- MFA No.24179/2012
& Connected cases
1. M/S. VIVEK TRANSPORTERS,
H.NO. 99, SECTOR 17,
GURGAUN, HARYANA STATE,
REP. BY ITS PROPRIETOR.
2. M/S. RELIANCE GENERAL INSURANCE CO. LTD.,
REGIONAL OFFICE, NO.28,
5TH FLOOR, SOUTHERN PORTION,
EAST WING, CENTURY BUILDING,
M.G. ROAD, BANGALORE.
REP. BY ITS REGIONAL MANAGER. ... RESPONDENTS
(BY SRI G.N. RAICHUR, ADVOCATE FOR R-2;
SRI HARISH S. MAIGUR ADVOCATE FOR R-1)
THIS MFA IS FILED U/SEC. 173(1) OF MV ACT, 1988,
AGAINST THE JUDGMENT AND AWARD DATED 31.12.2011
PASSED IN MVC NO.31/2009 ON THE FILE OF THE MEMBER,
ADDITIONAL MACT, KUMTA, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
IN M.F.A. No.24181/2012:
BETWEEN:
SMT. LATHIKA MOHANDAS NAIR
W/O. MOHANDAS NAIR,
AGE: 36 YEARS, R/O: B.302,
YOGESHWARA, CHS,
KATEMANEVALI, KALYAN (EAST),
MAHARASHTRA STATE - 421 306. ... APPELLANT
(BY SRI P.G. CHIKKANARAGUND, ADVOCATE)
AND:
1. M/S. VIVEK TRANSPORTERS,
H.NO.99, SECTOR 17,
GURGAUN, HARYANA STATE,
REP. BY ITS PROPRIETOR.
-4- MFA No.24179/2012
& Connected cases
2. M/S. RELIANCE GENERAL INSURANCE CO. LTD.,
REGIONAL OFFICE, NO.28,
5TH FLOOR, SOUTHERN PORTION,
EAST WING, CENTURY BUILDING,
M.G. ROAD, BANGALORE.
REP. BY ITS REGIONAL MANAGER. ... RESPONDENTS
(BY SRI HARISH S. MAIGUR, ADVOCATE FOR R-1; R-2 SERVED)
THIS MFA IS FILED U/SEC. 173(1) OF MV ACT, 1988,
AGAINST THE JUDGMENT AND AWARD DATED 31.12.2011
PASSED IN MVC NO.32/2009 ON THE FILE OF THE MEMBER,
ADDITIONAL MACT, KUMTA, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
IN M.F.A. No.24182/2012:
BETWEEEN:
SRI MOHANDAS NAIR,
S/O. KUMARAN NAIR,
AGE: 40 YEARS, R/O: B.302,
YOGESHWARA, CHS,
KATEMANEVALI, KALYAN (EAST),
MAHARASHTRA STATE - 421 306. ... APPELLANT
(BY SRI P.G. CHIKKANARAGUND, ADVOCATE)
AND:
1. M/S. VIVEK TRANSPORTERS,
H.NO.99, SECTOR 17,
GURGAUN, HARYANA STATE,
REP. BY ITS PROPRIETOR.
2. M/S. RELIANCE GENERAL INSURANCE CO. LTD.,
REGIONAL OFFICE, NO.28,
5TH FLOOR, SOUTHERN PORTION,
EAST WING, CENTURY BUILDING,
M.G. ROAD, BANGALORE.
REP. BY ITS REGIONAL MANAGER. ... RESPONDENTS
-5- MFA No.24179/2012
& Connected cases
(BY SRI G.N. RAICHUR, ADVOCATE FOR R-2;
SRI HARISH S. MAIGUR ADVOCATE FOR R-1)
THIS MFA IS FILED U/SEC. 173(1) OF MV ACT, 1988,
AGAINST THE JUDGMENT AND AWARD DATED 31.12.2011
PASSED IN MVC NO.33/2009 ON THE FILE OF THE MEMBER,
ADDITIONAL MACT, KUMTA, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
IN M.F.A. No.24183/2012:
BETWEEN:
SMT. SUNITHA UNNIKRISHNAN
W/O. LATE UNNIKRISHNAN K. NAIR,
AGE: 35 YEARS, R/O: KUMARAN NIVAS,
POST: CHUNNANGAD,
OTTAPALAM, KERALA STATE. ... APPELLANT
(BY SRI P.G. CHIKKANARAGUND, ADVOCATE)
AND:
1. M/S. VIVEK TRANSPORTERS,
H.NO.99, SECTOR 17,
GURGAUN, HARYANA STATE,
REP. BY ITS PROPRIETOR.
2. M/S. RELIANCE GENERAL INSURANCE CO. LTD.,
REGIONAL OFFICE, NO.28,
5TH FLOOR, SOUTHERN PORTION,
EAST WING, CENTURY BUILDING,
M.G. ROAD, BANGALORE.
REP. BY ITS REGIONAL MANAGER.
3. SMT. LATHIKA MOHANDAS NAIR,
W/O. MOHANDAS NAIR,
AGE: 36 YEARS, R/O: B.302,
YOGESHWARA, CHS,
KATEMANEVALI, KALYAN (EAST),
MAHARASHTRA STATE - 421 306.
-6- MFA No.24179/2012
& Connected cases
4. THE NEW INDIA ASSURANCE CO. LTD.,
DIVISIONAL OFFICE, DHARWAD.
REP. BY ITS DIVISIONAL MANAGER. ... RESPONDENTS
(BY SRI R.R. MANE ADVOCATE FOR R-4;
SRI NAGARAJ C. KOLLOORI, ADVOCATE FOR R-2;
SRI HARISH S. MAIGUR, ADVOCATE FOR R1; R-3 SERVED)
THIS MFA IS FILED U/SEC. 173(1) OF MV ACT, 1988,
AGAINST THE JUDGMENT AND AWARD DATED 31.12.2011
PASSED IN MVC NO.34/2009 ON THE FILE OF THE MEMBER,
ADDITIONAL MACT, KUMTA, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
IN M.F.A. No.24184/2012:
BETWEEN:
SMT. SUNITHA UNNIKRISHNAN,
W/O. LATE UNNIKRISHNAN K. NAIR,
AGE: 35 YEARS,
R/O: KUMARAN NIVAS,
POST: CHUNNANGAD,
OTTAPALAM, KERALA STATE. ... APPELLANT
(BY SRI P.G. CHIKKANARAGUND, ADVOCATE)
AND:
1. M/S. VIVEK TRANSPORTERS,
H.NO.99, SECTOR 17,
GURGAUN, HARYANA STATE,
REP. BY ITS PROPRIETOR.
2. M/S. RELIANCE GENERAL INSURANCE CO. LTD.,
REGIONAL OFFICE, NO.28,
5TH FLOOR, SOUTHERN PORTION,
EAST WING, CENTURY BUILDING,
M.G. ROAD, BANGALORE.
REP. BY ITS REGIONAL MANAGER.
3. SMT. LATHIKA MOHANDAS NAIR,
-7- MFA No.24179/2012
& Connected cases
W/O. MOHANDAS NAIR,
AGE: 36 YEARS, R/O: B.302,
YOGESHWARA, CHS,
KATEMANEVALI, KALYAN (EAST),
MAHARASHTRA STATE - 421 306.
4. THE NEW INDIA ASSURANCE CO. LTD.,
DIVISIONAL OFFICE, DHARWAD.
REP. BY ITS DIVISIONAL MANAGER. ... RESPONDENTS
(BY SRI NAGARAJ C. KOLLORI ADVOCATE FOR R-2;
SRI R.R. MANE ADVOCATE FOR R-4;
SRI HARISH S. MAIGUR, ADVOCATE FOR R-1; R-3 SERVED)
THIS MFA IS FILED U/SEC. 173(1) OF MV ACT, 1988,
AGAINST THE JUDGMENT AND AWARD DATED 31.12.2011
PASSED IN MVC NO.35/2009 ON THE FILE OF THE MEMBER,
ADDITIONAL MACT, KUMTA, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
IN MFA NO.24185/2012:
BETWEEN:
1. SMT. SUNITHA UNNIKRISHNAN,
W/O. LATE UNNIKRISHNAN K. NAIR,
AGE: 35 YEARS, R/O: KUMARAN NIVAS,
POST: CHUNNANGAD, OTTAPALAM,
KERALA STATE.
2. MINOR SACHIN
S/O. LATE UNNIKRISHNAN K. NAIR,
AGE: 13 YEARS, MINOR,
REP. BY HIS NEXT FRIEND
MOTHER PETITIONER NO.1.
R/O: KUMARAN NIVAS,
POST: CHUNNANGAD, OTTAPALAM,
KERALA STATE.
3. E. KUMARAN NAIR
S/O. GOVINDAN NAIR,
AGE: 73 YEARS,
-8- MFA No.24179/2012
& Connected cases
R/O: KUMARAN NIVAS,
POST: CHUNNANGAD,
OTTAPALAM, KERALA STATE.
4. SMT. SUBHADRA NAIR
W/O. KUMARAN NAIR,
AGE: 65 YEARS,
R/O: KUMARAN NIVAS,
POST: CHUNNANGAD,
OTTAPALAM, KERALA STATE. ... APPELLANTS
(BY SRI P.G. CHIKKANARAGUND, ADVOCATE)
AND:
1. M/S. VIVEK TRANSPORTERS,
H.NO.99, SECTOR 17,
GURGAUN, HARYANA STATE,
REP. BY ITS PROPRIETOR.
2. M/S. RELIANCE GENERAL INSURANCE CO. LTD.,
REGIONAL OFFICE, NO.28,
5TH FLOOR, SOUTHERN PORTION,
EAST WING, CENTURY BUILDING,
M.G. ROAD, BANGALORE.
REP. BY ITS REGIONAL MANAGER.
3. LATHIKA MOHANDAS NAIR
W/O. MOHANDAS NAIR,
AGE: 36 YEARS, R/O: B.302,
YOGESHWARA, CHS,
KATEMANEVALI, KALYAN (EAST),
MAHARASHTRA STATE - 421 306.
4. THE NEW INDIA ASSURANCE CO. LTD.,
DIVISIONAL OFFICE, DHARWAD.
REP. BY ITS DIVISIONAL MANAGER. ... RESPONDENTS
(BY SRI HARISH S. MAIGUR, ADVOCATE FOR R-1;
SRI P.H. PAWAR ADVOCATE FOR R-2;
SRI R.R. MANE ADVOCATE FOR R-4; R-3 SERVED)
-9- MFA No.24179/2012
& Connected cases
THIS MFA IS FILED U/SEC. 173(1) OF MV ACT, 1988,
AGAINST THE JUDGMENT AND AWARD DATED 31.12.2011
PASSED IN MVC NO.36/2009 ON THE FILE OF THE MEMBER,
ADDITIONAL MACT, KUMTA, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
IN M.F.A. No.23566/2012:
BETWEEN:
NEW INDIA ASSURANCE CO. LTD.,
BY ITS DIVISIONAL MANAGER,
DIVISIONAL OFFICE, DHARWAD,
HEREIN REPRESENTED BY
NEW INDIA ASSURANCE CO. LTD.,
REGIONAL OFFICE,
MOTOR THIRD PARTY HUB OFFICE,
SRINATH COMPLEX, 2ND FLOOR,
NEW COTTON MARKET,
HUBLI - 580 029.
REP. BY ITS AUTHORIZED SIGNATORY. ... APPELLANT
(BY SRI R.R. MANE, ADVOCATE)
AND:
1. SMT. SUNITHA UNNIKRISHNAN,
W/O. LATE UNNIKRISHNAN K. NAIR,
AGE: 35 YEARS, OCC: HOUSEHOLD,
R/O: KUMARAN NIVAS, POST: CHUNNANGAD,
OTTAPALAM, KERALA STATE.
2. M/S. VIVEK TRANSPORTERS,
R/O: H.NO.99, SECTOR 17,
GURGAUN, HARYANA STATE,
REPRESENTED BY ITS PROPRIETOR.
3. M/S. RELIANCE GENERAL INSURANCE CO. LTD.,
REGIONAL OFFICE, NO.28,
5TH FLOOR, SOUTHERN PORTION,
EAST WING, CENTURY BUILDING,
M.G.ROAD, BANGALORE.
- 10 - MFA No.24179/2012
& Connected cases
REP. BY ITS REGIONAL MANAGER.
4. SMT. LATHIKA MOHANDAS NAIR,
W/O. MOHANDAS NAIR,
AGE: 36 YEARS, R/O: B 302,
YOGEESHWARA CHS, KATEMANEVALI,
KALYAN (EAST), THANE,
MAHARASHTRA STATE - 121 306. ... RESPONDENTS
(BY SRI NAGARAJ C. KOLLOORI, ADVOCATE FOR R-3;
SRI HARISH S. MAIGUR, ADVOCATE FOR R-2;
R-1 AND R-4 ARE SERVED)
THIS MFA IS FILED U/S 173(1) OF MV ACT, 1988
AGAINST THE JUDGMENT AND AWARD DATED:31-12-2011
PASSED IN MVC NO.34/2009 ON THE FILE OF MEMBER, ADDL.
MACT, KUMTA, AWARDING THE COMPENSATION OF
RS.1,63,132/- WITH INTEREST AT THE RATE OF 6% P.A., FROM
THE DATE OF PETITION TILL THE DATE OF PAYMENT.
IN M.F.A. No.23567/2012:
BETWEEN:
NEW INDIA ASSURANCE CO. LTD.,
BY ITS DIVISIONAL MANAGER,
DIVISIONAL OFFICE, DHARWAD,
HEREIN REPRESENTED BY
NEW INDIA ASSURANCE CO. LTD.,
REGIONAL OFFICE,
MOTOR THIRD PARTY HUB OFFICE,
SRINATH COMPLEX, 2ND FLOOR,
NEW COTTON MARKET, HUBLI - 580 029.
REP. BY ITS AUTHORIZED SIGNATORY. ... APPELLANT
(BY SRI R.R. MANE, ADVOCATE)
AND:
1. SMT. SUNITHA UNNIKRISHNAN,
W/O. LATE UNNIKRISHNAN K. NAIR,
AGE: 35 YEARS, OCC: HOUSEHOLD,
- 11 - MFA No.24179/2012
& Connected cases
R/O: KUMARAN NIVAS, POST: CHUNNANGAD,
OTTAPALAM, KERALA STATE.
2. M/S. VIVEK TRANSPORTERS,
R/O: H.NO.99, SECTOR 17,
GURGAUN, STATE: HARYANA,
REPRESENTED BY ITS PROPRIETOR.
3. M/S. RELIANCE GENERAL INSURANCE CO. LTD.,
REGIONAL OFFICE, NO.28,
5TH FLOOR, SOUTHERN PORTION,
EAST WING, CENTURY BUILDING,
M.G. ROAD, BANGALORE.
REP. BY ITS REGIONAL MANAGER.
4. SMT. LATHIKA MOHANDAS NAIR,
W/O. MOHANDAS NAIR,
AGE: 36 YEARS, R/O: B.302,
YOGEESHWARA CHS, KATEMANEVALI,
KALYAN (EAST), THANE,
MAHARASHTRA STATE - 121 306. ... RESPONDENTS
(BY SRI HARISH S. MAIGUR ADVOCATE FOR R-2;
SRI NAGARAJ C. KOLLOORI, ADVOCATE FOR R-3;
R-1 AND R-4 ARE SERVED)
THIS MFA IS FILED U/S 173(1) OF MV ACT, 1988
AGAINST THE JUDGMENT AND AWARD DATED: 31-12-2011
PASSED IN MVC NO.35/2009 ON THE FILE OF MEMBER, ADDL.
MACT, KUMTA, AWARDING THE COMPENSATION OF
RS.1,55,000/- WITH INTEREST AT THE RATE OF 6% P.A., FROM
THE DATE OF PETITION TILL THE DATE OF PAYMENT.
IN M.F.A. No.23568/2012:
BETWEEN:
NEW INDIA ASSURANCE CO. LTD.,
BY ITS DIVISIONAL MANAGER,
DIVISIONAL OFFICE, DHARWAD,
HEREIN REPRESENTED BY
NEW INDIA ASSURANCE CO. LTD.,
- 12 - MFA No.24179/2012
& Connected cases
REGIONAL OFFICE,
MOTOR THIRD PARTY HUB OFFICE,
SRINATH COMPLEX, 2ND FLOOR,
NEW COTTON MARKET, HUBLI - 580 029.
REP. BY ITS AUTHORIZED SIGNATORY. ... APPELLANT
(BY SRI R.R. MANE, ADVOCATE)
AND:
1. SMT. SUNITHA UNNIKRISHNAN,
W/O. LATE UNNIKRISHNAN K. NAIR,
AGE: 35 YEARS, OCC: HOUSEHOLD,
R/O: KUMARAN NIVAS,
POST: CHUNNANGAD,
OTTAPALAM, KERALA STATE.
2. MINOR SACHIN
S/O. LATE UNNIKRISHNAN K. NAIR,
AGE: 13 YEARS, OCC: STUDENT,
MINOR REPRESENTED BY HIS NEXT FRIEND,
MOTHER, RESPONDENT NO. 1,
R/O: KUMARAN NIVAS, POST: CHUNNANGAD,
OTTAPALAM, KERALA STATE.
3. SRI E. KUMARAN NAIR
S/O. GOVINDAN NAIR,
AGE: 73 YEARS, OCC: HOUSEHOLD,
R/O: KUMARAN NIVAS, POST: CHUNNANGAD,
OTTAPALAM, KERALA STATE.
4. SMT. SUBHADRA NAIR
W/O. E. KUMARAN NAIR,
AGE: 65 YEARS, OCC: HOUSEHOLD,
R/O: KUMARAN NIVAS, POST: CHUNNANGAD,
OTTAPALAM, KERALA STATE.
5. M/S. VIVEK TRANSPORTERS,
R/O: H.NO.99, SECTOR 17,
GURGAUN, HARYANA STATE,
REPRESENTED BY ITS PROPRIETOR.
6. M/S. RELIANCE GENERAL INSURANCE CO. LTD.,
- 13 - MFA No.24179/2012
& Connected cases
REGIONAL OFFICE, NO.28,
5TH FLOOR, SOUTHERN PORTION,
EAST WING, CENTURY BUILDING,
M.G. ROAD, BANGALORE.
REP. BY ITS REGIONAL MANAGER.
7. SMT. LATHIKA MOHANDAS NAIR,
W/O. MOHANDAS NAIR,
AGE: 36 YEARS, R/O: B.302,
YOGEESHWARA CHS, KATEMANEVALI,
KALYAN (EAST), THANE,
MAHARASHTRA STATE - 121 306. ... RESPONDENTS
(BY SRI P.G. CHIKKANARAGUND, ADVOCATE FOR R1-R4, R7;
SRI P.H. PAWAR ADVOCATE FOR R-6;
SRI HARISH S.MAIGUR, ADVOCATE FOR R-5)
THIS MFA IS FILED U/S 173(1) OF MV ACT, 1988
AGAINST THE JUDGMENT AND AWARD DATED: 31-12-2011
PASSED IN MVC NO.36/2009 ON THE FILE OF MEMBER, ADDL.
MACT, KUMTA, AWARDING THE COMPENSATION OF
RS.74,11,000/- WITH INTEREST AT THE RATE OF 6% P.A.,
FROM THE DATE OF PETITION TILL THE DATE OF PAYMENT.
IN M.F.A. NO.101478/2014
BETWEEN:
RELIANCE GENERAL INSURANCE CO. LTD.,
REGIONAL OFFICE, NO.28, 5TH FLOOR,
SOUTHERN PORTION EAST WING,
CENTURY BUILDING, M.G. ROAD,
BANGALORE. NOW REP. BY ITS
AUTHORIZED SIGNATORY,
CTS NO.472-474, V.A. KALBURGI SQUARE,
DESAI CIRCLE,
DESHPANDE NAGAR, HUBLI. ... APPELLANT
(BY SRI NAGARAJ C. KOLLOORI, ADVOCATE)
AND:
1. MOHANDAS NAIR
- 14 - MFA No.24179/2012
& Connected cases
S/O. E. KUMARAN NAIR,
AGE: 38 YEARS, R/O. B.302,
YOGESHWARA, CHS,
KATEMANEVALI, KALYANA (EAST),
MAHARAHSTRA STATE.
2. SMT. LATHIKA MOHANDAS NAIR
W/O. MOHANDAS NAIR,
AGE: 38 YEARS, R/O. B.302,
YOGESHWARA, CHS,
KATEMANEVALI, KALYANA (EAST),
MAHARASHTRA STATE.
3. M/S. VIVEK TRANSPORTERS,
R/O. H.NO.99, SECTOR 17, GURGAUM,
HARYANA, HARRYANA STATE,
REP. BY ITS PROPRIETOR. ... RESPONDENTS
(BY SRI P.G. CHIKKANURGUND, ADVOCATE FOR R-1 TO R-2;
SRI HARISH S. MAIGUR, ADVOCATE FOR R-3)
THIS MFA IS FILED U/SEC. 173(1) OF MV ACT 1988,
AGAINST JUDGMENT AND AWARD DATED 31.12.2011, PASSED
IN MVC NO.30/2009 ON THE FILE OF THE ADDITIONAL MACT
KUMTA, AWARDING THE COMPENSATION OF RS.1,55,000/-
WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL
THE DATE OF DEPOSIT.
IN M.F.A. No.101479/2014:
BETWEEN:
RELIANCE GENERAL INSURANCE COMPANY,
REGIONAL OFFICE, NO.28, 5TH FLOOR,
SOUTHERN PORTION EAST WING,
CENTURY BUILDING, M.G. ROAD, BANGALORE.
NOW REPRESENTED BY ITS
AUTHORISED SIGNATORY,
CTS NO.472-474,
V.A. KALBURGI SQUARE, DESAI CIRCLE,
DESHPANDE NAGAR, HUBLI. ... APPELLANT
- 15 - MFA No.24179/2012
& Connected cases
(BY SRI NAGARAJ C. KOLLOORI, ADVOCATE)
AND:
1. AISHWARYA
D/O. MOHANDAS NAIR, MINOR,
AGE: 13 YEARS, R/O B.302,
YOGESHWARA, CHS, KATEMANEVALI,
KALYANA (EAST), MAHARAHSTRA STATE.
REP. BY HER NEXT FRIEND/MOTHER
SMT. LATHIKA MOHANDAS NAIR,
AGE: 33 YEARS.
2. M/S. VIVEK TRANSPORTS,
R/O. H.NO.99, SECTOR 17, GURGAUM,
HARYANA, HARRYANA STATE,
REP. BY ITS PROPRIETOR. ... RESPONDENTS
(BY SRI P.G. CHIKKANARGUND, ADVOCATE FOR R-1;
SRI HARISH S.MAIGUR, ADVOCATE FOR R-2)
THIS MFA IS FILED U/SEC. 173(1) OF MV ACT, 1988,
AGAINST JUDGMENT AND AWARD DATED: 31.12.2011, PASSED
IN MVC NO.31/2009 ON THE FILE OF THE ADDITIONAL MACT
KUMTA, AWARDING THE COMPENSATION OF RS.54,731/- WITH
INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL THE
DATE OF DEPOSIT.
IN M.F.A. No.101480/2014:
BETWEEN:
RELIANCE GENERAL INSURANCE COMPANY,
REGIONAL OFFICE, NO. 28, 5TH FLOOR,
SOUTHERN PORTION EAST WING,
CENTURY BUILDING,
M.G. ROAD, BANGALORE.
NOW REPRESENTED BY ITS
AUTHORISED SIGNATORY,
CTS NO.472-474,
V.A. KALBURGI SQUARE, DESAI CIRCLE,
DESHPANDE NAGAR, HUBLI. ... APPELLANT
- 16 - MFA No.24179/2012
& Connected cases
(BY SRI: NAGARAJ C. KOLLOORI, ADVOCATE)
AND:
1. SMT. LATHIKA MOHANDAS NAIR,
W/O. MOHANDAS NAIR,
AGE: 33 YEARS, R/O. B.302,
YOGESHWARA,
CHS, KATEMANEVALI,
KALYANA (EAST), MAHARAHSTRA.
2. M/S. VIVEK TRANSPORTS,
R/O. H.NO.99, SECTOR 17, GURGAUM,
HARYANA, HARRYANA STATE,
REP. BY ITS PROPRIETOR. ... RESPONDENTS
(BY SRI P.G. CHIKKANARGUND, ADVOCATE FOR R-1;
SRI HARISH S. MAIGUR, ADVOCATE FOR R-2)
THIS MFA IS FILED U/SEC.173(1) OF MV ACT 1988,
AGAINST JUDGMENT AND AWARD DATED:31.12.2011, PASSED
IN MVC.NO.32/2009 ON THE FILE OF THE ADDITIONAL MACT
KUMTA, AWARDING THE COMPENSATION OF RS.38,262/- WITH
INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL THE
DATE OF DEPOSIT.
IN M.F.A. NO.101481/2014
BETWEEN:
RELIANCE GENERAL INSURANCE COMPANY,
REGIONAL OFFICE, NO. 28, 5TH FLOOR,
SOUTHERN PORTION EAST WING,
CENTURY BUILDING, M.G. ROAD,
BANGALORE. NOW REP. BY ITS
AUTHORISED SIGNATORY,
CTS NO.472-474,
V.A. KALBURGI SQUARE, DESAI CIRCLE,
DESHPANDE NAGAR, HUBLI. ... APPELLANT
(BY SRI NAGARAJ C. KOLLOORI, ADVOCATE.)
- 17 - MFA No.24179/2012
& Connected cases
AND:
1. MOHANDAS NAIR
S/O. E. KUMARAN NAIR,
AGE: 42 YEARS, R/O. B.302,
YOGESHWARA, CHS, KATEMANEVALI,
KALYANA (EAST),
MAHARAHSTRA STATE.
2. M/S. VIVEK TRANSPORTERS,
R/O. H.NO.99, SECTOR 17, GURGAUN,
HARYANA, HARRYANA STATE,
REP. BY ITS PROPRIETOR. ... RESPONDENTS
(BY SRI P.G. CHIKKANARGUND, ADVOCATE FOR R-1;
SRI HARISH S. MAIGUR, ADVOCATE FOR R-2)
THIS MFA IS FILED U/SEC.173(1) OF MV ACT, 1988,
AGAINST JUDGMENT AND AWARD DATED:31.12.2011, PASSED
IN MVC.NO.33/2009 ON THE FILE OF THE ADDITIONAL MACT
KUMTA, AWARDING THE COMPENSATION OF RS.69,566/- WITH
INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL THE
DATE OF DEPOSIT.
IN M.F.A. NO.101482/2014:
BETWEEN:
RELIANCE GENERAL INSURANCE COMPANY,
REGIONAL OFFICE, NO.28, 5TH FLOOR,
SOUTHERN PORTION EAST WING,
CENTURY BUILDING, M.G. ROAD,
BANGALORE. REP. BY ITS REGIONAL MANAGER,
NOW REPRESENTED BY ITS
AUTHORISED SIGNATORY,
CTS NO.472-474,
V.A. KALBURGI SQUARE, DESAI CIRCLE,
DESHPANDE NAGAR, HUBLI. ... APPELLANT
(BY SRI NAGARAJ C. KOLLOORI, ADVOCATE)
AND:
- 18 - MFA No.24179/2012
& Connected cases
1. SMT. SUNITHA
W/O. UNNIKRISHNAN,
W/O. LATE UNNIKRISHNAN K. NAIR,
AGE: 37 YEARS, R/O. KUMARAN NIVAS,
POST: CHUNNANGAD, OTTAPALAM,
KERALA STATE.
2. KUMAR SACHIN
S/O. LATE UNNIKRISHNAN K. NAIR,
AGE: 15 YEARS, R/O. KUMARAN NIVAS,
POST: CHUNNANGAD,
OTTAPALAM, KERALA STATE.
(RESPONDENT NO.2 IS BEING MINOR
REPRESENTED BY RESPONDENT NO.1
MOTHER AS MINOR GUARDIAN)
3. E. KUMARAN NAIR
S/O. GOVINDAN NAIR,
AGE: 75 YEARS, R/O. KUMARAN NIVAS,
POST: CHUNNANGAD, OTTAPALAM,
KERALA STATE.
4. SMT. SUBHADRA
W/O. E. KUMARAN NAIR,
AGE: 67 YEARS, R/O. KUMARAN NIVAS,
POST: CHUNNANGAD, OTTAPALAM,
KERALA STATE.
5. M/S. VIVEK TRANSPORTS,
R/O. H.NO.99, SECTOR NO.17, GURGAUM,
HARYANA, HARRYANA STATE,
REP. BY ITS PROPRIETOR.
6. SMT. LATHIKA MOHANDAS NAIR,
W/O. MOHANDAS NAIR,
AGE: 38 YEARS, R/O. B.302,
YOGGESHWARRA CHS,
KATEMANEVALI, KALYAN (EAST) THANE,
MAHARASHTRA STATE.
7. THE NEW INDIA ASSURANCE CO. LTD.,
- 19 - MFA No.24179/2012
& Connected cases
DIVISIONAL OFFICE, DHARWAD,
REP. BY ITS DIVISIONAL MANAGER. ... RESPONDENTS
(BY SRI P.G. CHIKKANARGUND, ADVOCATE FOR R1-R4 & R6;
SRI HARISH MAIGUR, ADVOCATE FOR R-5;
SRI R.R. MANE, ADVOCATE FOR R-7;
R-2 MINOR, REP. BY R-1)
THIS MFA IS FILED U/SEC.173(1) OF MV, ACT, AGAINST
JUDGMENT AND AWARD DATED:31.12.2011, PASSED IN
MVC.NO.36/2009 ON THE FILE OF THE ADDITIONAL MACT
KUMTA, AWARDING THE COMPENSATION OF RS.74,11,000/-
WITH INTEREST AT THE RATE OF 9% P.A. FROM THE DATE OF
PETITION TILL THE DATE OF DEPOSIT.
IN M.F.A. No.101483/2014:
BETWEEN:
RELIANCE GENERAL INSURANCE COMPANY,
REGIONAL OFFICE, NO. 28, 5TH FLOOR,
SOUTHERN PORTION EAST WING,
CENTURY BUILDING, M.G. ROAD,
BANGALORE. NOW REPRESENTED BY ITS
AUTHORISED SIGNATORY,
CTS NO.472-474,
V.A.KALBURGI SQUARE, DESAI CIRCLE,
DESHPANDE NAGAR, HUBLI. ... APPELLANT
(BY SRI NAGARAJ C. KOLLOORI, ADVOCATE)
AND:
1. SMT. SUNITHA W/O. UNNIKRISHNAN,
W/O. LATE UNNIKRISHNAN K. NAIR,
AGE: 32 YEARS, R/O. KUMARAN NIVAS,
POST: CHUNNANGAD, OTTAPALAM,
KERALA STATE.
2. M/S. VIVEK TRANSPORTERS,
R/O. H.NO.99, SECTOR NO.17, GURGAUM,
HARYANA, HARRYANA STATE,
REP. BY ITS PROPRIETOR.
- 20 - MFA No.24179/2012
& Connected cases
3. SMT. LATHIKA MOHANDAS NAIR,
W/O. MOHANDAS NAIR,
AGE: 38 YEARS, R/O. B.302,
YOGGESHWARRA CHS,
KATEMANEVALI, KALYAN (EAST), THANE,
MAHARASHTRA STATE.
4. THE NEW INDIA ASSURANCE CO. LTD.,
DIVISIONAL OFFICE, DHARWAD,
REP. BY ITS DIVISIONAL MANAGER. ... RESPONDENTS
(BY SRI P.G. CHIKKANARGUND, ADVOCATE FOR R-1 & R-3;
SRI HARISH S. MAIGUR, ADVOCATE FOR R-2;
SRI R.R. MANE, ADVOCATE FOR R-4)
THIS MFA IS FILED U/SEC.173(1) OF MV, ACT 1988,
AGAINST JUDGMENT AND AWARD DATED:31.12.2011, PASSED
IN MVC.NO.34/2009 ON THE FILE OF THE ADDITIONAL MACT
KUMTA, AWARDING THE COMPENSATION OF RS.1,63,132/-
WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL
THE DATE OF DEPOSIT.
IN M.F.A. No.101484/2014:
BETWEEN:
RELIANCE GENERAL INSURANCE COMPANY,
REGIONAL OFFICE, NO.28, 5TH FLOOR,
SOUTHERN PORTION EAST WING,
CENTURY BUILDING, M.G. ROAD,
BANGALORE. NOW REPRESENTED BY ITS
AUTHORISED SIGNATORY,
CTS NO.472-474,
V.A. KALBURGI SQUARE, DESAI CIRCLE,
DESHPANDE NAGAR, HUBLI. ... APPELLANT
(BY SRI NAGARAJ C. KOLLOORI, ADVOCATE)
AND:
1. SMT. SUNITHA
W/O. UNNIKRISHNAN,
- 21 - MFA No.24179/2012
& Connected cases
W/O.LATE UNNIKRISHNAN K. NAIR,
AGE: 32 YEARS, R/O. KUMARAN NIVAS,
POST: CHUNNANGAD, OTTAPALAM,
KERALA STATE.
2. M/S. VIVEK TRANSPORTS,
R/O. H NO. 99, SECTOR NO. 17,
GURGAUM, HARVANA, HARRYANA STATE,
REP. BY ITS PROPRIETOR.
3. SMT. LATHIKA MOHANDAS NAIR,
W/O. MOHANDAS NAIR,
AGE: 38 YEARS, R/O. B.302,
YOGGESHWARRA CHS, KATEMANEVALI,
KALYAN (EAST), THANE,
MAHARASHTRA STATE.
4. THE NEW INDIA ASSURANCE CO. LTD.,
DIVISIONAL OFFICE, DHARWAD,
REP. BY ITS DIVISIONAL MANAGER. ... RESPONDENTS
(BY SRI P.G. CHIKKANARGUND, ADVOCATE FOR R-1 & R-3;
SRI HARISH S.MAIGUR, ADVOCATE FOR R-2;
SRI R.R. MANE ADVOCATE FOR R-4)
THIS MFA IS FILED U/SEC.173/(1) OF MV ACT, 1988,
AGAINST JUDGMENT AND AWARD DATED: 31.12.2011, PASSED
IN MVC NO.25/2009 ON THE FILE OF THE ADDITIONAL MACT
KUMTA, AWARDING THE COMPENSATION OF RS.1,55,000/-
WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL
THE DATE OF DEPOSIT.
Reserved on : 18.12.2018;
Judgment pronounced on : 28.03.2019.
THESE APPEALS COMING ON FOR ADMISSION ON
18.12.2018 AND THE SAME HAVING BEEN HEARD AND RESERVED,
THIS DAY, BELLUNKE, J. PRONOUNCED THE FOLLOWING:
- 22 - MFA No.24179/2012
& Connected cases
JUDGMENT
Though these appeals are listed for orders, with the consent of learned counsel on both sides, they are heard finally and at length.
2. Miscellaneous First Appeal Nos.24179/2012, 24180/2012, 24181/2012, 24182/2012, 24183/2012, 24184/2012 and 24185/2012 have been filed by the claimants being aggrieved by the judgment and award dated 31.12.2011 passed by the Member, Additional Motor Accident Claims Tribunal, Kumta (hereinafter referred to as the 'Tribunal' for the sake of brevity), in M.V.C.Nos.30/2009, 31/2009, 32/2009, 33/2009, 34/2009, 35/2009 and 36/2009 respectively.
3. M.F.A.Nos.101478/2014, 101479/2014, 101480 / 2014, 101481/2014, 101482/2014, 101483/2014 and 101484/2014 have been filed by Reliance General Insurance Company aggrieved by the very same judgment and awards dated 31.12.2011 passed by the Tribunal in - 23 - MFA No.24179/2012 & Connected cases M.V.C.Nos.30/2009, 31/2009, 32/2009, 33/2009, 34/2009, 35/2009 and 36/2009 respectively.
4. M.F.A.Nos.23566/2012, 23567/2012 and 23568/2012 have been filed by New India Assurance Company assailing the judgment and award dated 31.12.2011 passed by the Tribunal in M.V.C.Nos.34/2009, 35/2009 and 36/2009 respectively.
5. For the sake convenience, the parties shall be referred to as per their status before the Tribunal.
6. Factual matrix of the aforesaid cases for the purpose of these appeals are as under:
On 12.11.2008, at about 8.00 p.m., the injured claimants along with other persons, three of whom died were proceeding in a Santro Car bearing registration No.MH-05/AJ-2719 from Mumbai towards Kottayam, driven by Mohandas Nair who is the first claimant in M.V.C.No.30/2009 and injured claimant in M.V.C.No.33/2009. According to the claimants, he was - 24 - MFA No.24179/2012 & Connected cases driving the said car in very slow and careful manner.
When they reached a place called Holegadde of Kumta taluk, on National Highway (N.H.17), a lorry bearing registration No.HR-55/E-8624 belonging to the first respondent was parked negligently by its driver during the course of his employment under the first respondent on the middle of the road without any indicator or parking light. That the driver of the car could not see the parked lorry and suddenly dashed to the hind portion of the said lorry. Due to the impact, Anushree and her father died on the spot and other inmates sustained grievous injuries.
That the accident in question occurred solely due to the negligent parking of the said lorry on the middle of N.H.17 by the driver of the 1st respondent without proper care, circumspection and vigil.
7. On account of the above said accident, while some of the inmates of the Santro car sustained injuries, the other inmates viz., Anushree, Savin and Unnikrishnan died on account of the serious injuries sustained by them. - 25 - MFA No.24179/2012
& Connected cases Since the accident had occurred due to rash and negligent act of the driver of the lorry bearing registration No.HR- 55/E-8624, respondents, i.e., owner and insurer of the lorry were sued by the injured claimants claiming compensation for the injuries suffered by them as well as by other claimants seeking compensation for the death of Anushree, Savin and Unnikrishnan.
8. The claimants in M.V.C.No.30/2009 contended that they had spent `15,000/- towards transportation of dead body of Anushree and spent `5,000/- towards funeral and obsequies ceremony. It is further contended that the deceased Anushree was five year old and she was a very intelligent and healthy child. Therefore, they sought a total compensation of `5,20,000/- on all the heads with interest at 12% p.a.
9. The claimant in M.V.C.No.31/2009 was admitted to K.M.C. Hospital, Manipal for further treatment and is said to have spent a sum of `25,000/-towards medical - 26 - MFA No.24179/2012 & Connected cases expenses. Therefore, she claimed a total compensation of `2,47,000/- on all the heads with interest at 12% p.a.
10. The claimant in M.V.C.No.32/2009 was treated as an inpatient till 26.12.2008 and even after discharge from the hospital, she took follow-up treatment and is said to have spent a sum of `40,000/- towards medical expenses. She was working as an Executive Assistant at Accenture services Private Ltd., at Mumbai and was drawing a monthly salary of `40,000/-. Therefore, she claimed compensation of `8,62,000/- on all the heads with interest at 12% p.a.
11. The claimant in M.V.C.No.33/2009 was treated as an inpatient till 05.12.2008. He is said to have spent a sum of `1,00,000/- towards medical treatment. He was working as an Excise Executive in M/s.SAM Engineering Pvt. Ltd., Mumbai, and drawing a monthly salary of `25,000/-. Therefore, he claimed a total compensation of `11,22,000/- on all heads with interest at 12% p.a. - 27 - MFA No.24179/2012 & Connected cases
12. The claimant in M.V.C.No.34/2009 was admitted to K.M.C. Hospital, Manipal, for further treatment. She underwent major surgeries. She is said to have spent more than `80,000/- towards medical expenses and she requires future medical assistance. Therefore, she claimed a total compensation of `4,02,000/- on all the heads with interest at 12% p.a.
13. The claimant in M.V.C.No.35/2009 claimed compensation for the death of her son, namely Savin. It was contended that the deceased Savin was aged five years at the time of accident. He was a hale and healthy child. The claimant has lost love, care and affection of the deceased. Therefore, she claimed a total compensation of `5,20,000/- on all the heads with interest at 12% p.a.
14. The claimants in M.V.C.No.36/2009 claimed compensation for the death of Unnikrishnan. The deceased was working as a Supervisor in Mills Bowley Concrete Products at Dubai, U.A.E. and was drawing monthly salary of 7,000 Dirhams. Therefore, they claimed a total - 28 - MFA No.24179/2012 & Connected cases compensation of `1,20,40,000/- on all the heads with interest at 12% p.a.
15. The respondent/owner of the lorry, though served with summons, did not contest the petitions and hence, he was placed ex parte in all the cases. Respondent No.2 - Reliance Insurance Company appeared through its counsel and filed its written statement. Apart from the formal denials, the respondent No.2 - Reliance Insurance Company contended that the claimants had to prove that the vehicle in question was insured with the respondent as on the date of accident. The liability, if any, on this respondent was subject to terms and conditions of the policy. It had to be proved that the driver of the lorry had a valid driving licence as on the date of the accident. The owner of the lorry violated the statutory terms and conditions of the policy, as the driver of the lorry had no effective driving licence as on the date of accident. That the accident had not taken place as alleged in the petitions. The age, income of the injured as well as - 29 - MFA No.24179/2012 & Connected cases deceased persons was not admitted. It denied that the deceased died on account of injuries sustained in the accident. Therefore, it prayed for dismissal of all the petitions.
16. The Tribunal framed the following issues in the respective claim petitions and conducted a common trial of the cases:
ISSUES IN M.V.C. No.30/2009
1. Whether the petitioners prove that deceased minor Anushree died due to the road traffic accident referred in para No.22 of the petition?
2. Whether the petitioners further prove that the accident has occurred due to the negligence of the driver of lorry bearing Reg. No.HR-55/E-
8624?
3. Whether the respondent No.2 proves that the accident has occurred due to the negligence of the driver of the Car?
4. Whether the petitioners are entitled for compensation as claimed in the petition? If yes, what is the quantum and from whom?
5. What order or award?
- 30 - MFA No.24179/2012
& Connected cases ISSUES IN M.V.C.No.31/2009
1. Whether the petitioner proves that she has sustained injuries mentioned in column No.11 of the petition in the accident referred in para No.22 of the petition?
2. Whether the petitioner further proves that the said accident has occurred due to the negligence of the driver of the lorry bearing Reg. No.HR-55/E-8624?
3. Whether the respondent No.2 proves that the accident has occurred due to the negligence of the driver of the Car?
4. Whether the petitioner is entitled for compensation as claimed in the petition? If yes, what is the quantum and from whom?
5. What order or award?
The issues framed in M.V.C.Nos.32/2009 and 33/2009 are similar which are as follows:
ISSUES
1. Whether the petitioner proves that he/she has sustained injuries mentioned in column No.11 of the petition in the accident referred in para No.22 of the petition?- 31 - MFA No.24179/2012
& Connected cases
2. Whether the petitioner further proves that the said accident has occurred due to the negligence of the driver of the lorry bearing Reg. No.HR 55/E-8624?
3. Whether the respondent No.2 proves that the accident has occurred due to the negligence of the driver of the Car?
4. Whether the petitioner proves his/her age, occupation and income?
5. Whether the petitioner is entitled for compensation as claimed in the petition? If yes, what is the quantum and from whom?
6. What order or award?
ISSUES IN M.V.C.No.34/2009
1. Whether the petitioner proves that she has sustained injuries mentioned in column No.11 of the petition in the accident referred in para No.22 of the petition?
2. Whether the petitioner further proves that the said accident has occurred due to the negligence of the driver of the lorry bearing Reg. No.HR 55/E 8624?
3. Whether the respondent No.2 proves that the accident has occurred due to the negligence of the driver of the Car?
- 32 - MFA No.24179/2012
& Connected cases
4. Whether the respondent No.4 proves that it is not liable to pay any compensation for the reasons stated in para 4 and 5 of the petition?
5. Whether the petitioner proves her age and occupation?
6. Whether the petitioner is entitled for compensation as claimed in the petition? If yes, what is the quantum and from whom?
7. What order or award?
ISSUES IN M.V.C.No.35/2009
1. Whether the petitioners prove that deceased Savin died due to the road traffic accident referred in para 22 of the petition?
2. Whether the petitioner further proves that the said accident has occurred due to the negligence of the driver of the lorry bearing Reg. No.HR-55/E 8624?
3. Whether the respondent No.2 proves that the accident has occurred due to the negligence of the driver of the Car?
4. Whether the respondent No.4 proves that it is not liable to pay any compensation for the reasons stated in para 4 and 5 of the written statement?
- 33 - MFA No.24179/2012
& Connected cases
5. Whether the petitioner is entitled for compensation as claimed in the petition? If yes, what is the quantum and from whom?
6. What order or award?
ISSUES IN M.V.C.No.36/2009
1. Whether the petitioners prove that deceased Unnikrishnan died due to the road traffic accident referred in para 22 of the petition?
2. Whether the petitioner further proves that the accident has occurred due to the negligence of the driver of the lorry bearing Reg.No.HR-55/E 8624?
3. Whether the respondent No.2 proves that the accident has occurred due to the negligence of the driver of the Car?
4. Whether the respondent No.4 proves that it is not liable to pay any compensation for the reasons stated in para 4 and 5 of the written statement?
5. Whether the petitioners prove the age, occupation and income of the deceased?
6. Whether the petitioner is entitled for compensation as claimed in the petition? If yes, what is the quantum and from whom?
7. What order or award?
- 34 - MFA No.24179/2012
& Connected cases
17. After hearing both sides, the Tribunal held that owner and insurer of lorry were liable to pay compensation and directed them to pay compensation in M.V.C.Nos.30, 31, 32 and 33/2009. In M.V.C.Nos.34, 35 and 36/2009, the Tribunal apportioned negligence in the following ratio:
owner of the lorry to pay 75% compensation and owner of the car liable to pay 25% of the compensation.
18. Being aggrieved by the said judgment and awards, the claimants, the insurer of lorry as well as the insurer of the car have filed their respective appeals.
19. M.F.A.No.24179/2012 is filed by the claimants in M.V.C.No.30/2009, who are parents of the deceased for the death of their child. It is contended that the deceased
- minor girl was hale and healthy at the time of accident. She was intelligent and good in her studies. The Tribunal failed to notice that the deceased was aged about five years. The Tribunal has awarded a meager compensation of `54,500/-. The appellants are parents of the minor girl - 35 - MFA No.24179/2012 & Connected cases and they have lost the love, care and affection of their deceased daughter. The Tribunal has committed an error in not considering the age of the child and that she would have earned an income for the family in future. Thereby, the Tribunal erred in not granting just compensation. It is contended that this Court in various cases has awarded compensation of `4,00,000/- for the death of a minor child aged between 5-10 years. The Tribunal has failed to grant any compensation towards medical expenses, transportation of dead body, funeral expenses etc. Compensation awarded on the heads of "loss of estate", "loss of love and affection" is also very low. Therefore, they have sought enhancement of compensation.
20. M.F.A.No.24180/2012 is filed assailing the quantum of compensation awarded in M.V.C.No.31/2009 in respect of minor child Aishwarya. Thus, as a result of the accident, the minor claimant has lost her educational prospects. Though the claim was for `3,62,000/-, the Tribunal has awarded only a sum of `54,731/-. The - 36 - MFA No.24179/2012 & Connected cases marriage prospects of the injured has been affected. The minor claimant took treatment as an inpatient from 12.11.2008 to 17.11.2008. The compensation awarded under the head medical expenses is also on the lower side. Therefore, the appellant/claimant has sought for enhancement of compensation.
21. M.F.A.No.24181/2012 is filed by the claimant in MVC No.32/2009. The appellant/ claimant was injured in the aforesaid accident. The appellant contends that the Tribunal has failed to consider the injuries and multiple abrasions sustained by her on her body. Claimant suffered a lot of pain and agony. The Tribunal has awarded a meager compensation towards the medical expenses and also on other heads. The claimant has spent more than `40,000/- towards treatment. Disability suffered by the claimant has not been properly assessed even though there was enough evidence on record. Therefore, the claimant has sought for modification of judgment and award of the Tribunal.
- 37 - MFA No.24179/2012
& Connected cases
22. M.F.A.No.24182/2012 is filed by the claimant in M.V.C.No.33/2009. It is contended that the Tribunal has failed to consider the injuries sustained by him in the accident. The Tribunal has failed to consider the disability suffered by the claimant to the extent of 10% to particular limb and 15% to the whole body. The Tribunal failed to consider the grievous injuries suffered by him and has awarded a meager compensation under the head, pain and suffering. The compensation awarded under medical expenses is also very low, which is against the facts and evidence on record.
23. M.F.A.No.24183/2012 is filed by the claimant in M.V.C.No.34/2009. It is contended that the claimant had suffered fracture and permanent disability. The Tribunal has awarded a very meager compensation of `1,63,132/- as against `4,02,000/- claimed by the claimant. The claimant had undergone treatment in K.M.C. Hospital, Manipal from 13.11.2008 to 03.12.2008. The amount awarded under medical expenses, attendant charges etc. - 38 - MFA No.24179/2012 & Connected cases are all very low. The claimant had spent more than a lakh of rupees towards medical expenses.
24. M.F.A.No.24184/2012 is filed by the claimant in M.V.C.No.35/2009. The claimant had claimed compensation in respect of death of her minor son in the accident. The Tribunal has awarded a meager compensation of `1,55,000/-. It is contended that in the case of death of a minor child, this Court has awarded compensation of `4,00,000/-. It is further contended that the claimant has spent more than `20,000/- towards transportation of dead body and funeral expenses. The Tribunal committed an error in granting meager compensation. Therefore, the claimant has sought for enhancement of compensation.
25. M.F.A.No.24185/2012 is filed by the claimants in M.V.C.No.36/2009 for the death of Unnikrishnan, who was the husband of first appellant, father of second appellant and son of third and fourth appellants. It is contended that the deceased Unnikrishnan was working in - 39 - MFA No.24179/2012 & Connected cases a foreign company at Dubai. The work certificate has been produced at Ex.P-14. The documents at Ex.P-27 to P-32 were also produced to show that the deceased was getting a salary of `78,000/- per month. It is contended that the Tribunal has wrongly assessed the income of the deceased at `45,500/-. The Tribunal has not at all added any amount towards future prospects to the income of the deceased as per the law laid down by the Apex Court in the case of Santosh Devi vs. National Insurance Company Ltd. reported in 2012 ACJ 1428 and that the Tribunal has awarded very meager compensation under all the heads.
26. All the claimants in their respective appeals have urged a common contention that the Tribunal committed an error in fastening only 75% liability on second respondent driver of the lorry on the ground that there was contributory negligence on the part of the driver of the car as well as lorry and fastened 25% on the part of the driver and owner of the car. According to the - 40 - MFA No.24179/2012 & Connected cases appellants - claimants, the evidence on record clearly shows that there was no road flag or indicator or parking light as per Section 122 of Motor Vehicle Act, 1988 (hereinafter referred to as "the Act", for the sake of convenience). Therefore, the claimants have prayed that the entire liability ought to be fastened on the driver of the lorry only.
27. M.F.A.Nos.23566/2012, 23567/2012 and M.F.A.No.23568/2012 have been filed by New India Assurance Co. Ltd., challenging the judgment and award of the Tribunal in M.V.C.Nos.34/2009, 35/2009 and 36/2009. It is contended that the claimants in all the cases had attributed the entire negligence on the driver/owner of the lorry for having parked the lorry on the middle of the road without any indicator or parking light. That the lorry was parked on a National Highway without tail-lights or blinkers or self-radiating triangles or guard or lamps or any other device to warn other motorists, which was the sole reason for the accident. The driver of the car could not have - 41 - MFA No.24179/2012 & Connected cases avoided the accident as the parked lorry was not visible during the night hours at 8.00 p.m., when the accident had occurred. It is further contended that the prosecution of the driver of the car was proved to be erroneous and thereby the driver of the car was acquitted in the criminal case lodged against him.
28. It is further contended that the lorry had already met with an accident and was left on the road without taking any precaution. The driver of the car could not have tried to avoid the collision by applying brakes as the lorry had been parked at the spot coming in the way of the car on N.H.No.17. Therefore, fixing negligence on the driver of the car to an extent of 25% is erroneous. The owner of the car and victims of the accident cannot be considered as joint tort feasors. The Tribunal ought to have saddled the entire liability on the owner and insurer of the lorry in question. It is further contended that the seating capacity of the Santro car is 4+1 whereas the driver of Santro car had seated seven persons at the time - 42 - MFA No.24179/2012 & Connected cases of the accident and thereby had violated the conditions of the policy and also relevant provisions of the Law. Though four inmates filed M.V.C.Nos.30, 31, 32 and 33/2009 before the Tribunal, the Tribunal has not clubbed these four cases with M.V.C.Nos.34, 35 and 36/2009 and that there is miscarriage of justice. The persons were carried in the car against its seating capacity. Therefore, liability of this insurer cannot be apportioned between the said insurer and owner of the car with that of owner and insurer of the lorry. Therefore, the said insurer has prayed to allow its appeals and set aside the judgment and award of the Tribunal.
29. On the other hand, M.F.A.Nos.101478, 101479, 101480, 101481, 101482, 101483 and 101484 of 2014 have been filed by Reliance General Insurance Company Ltd., challenging the judgment and award of the Tribunal in M.V.C.Nos.30 to 36/2009 on the aspect of liability as well as on quantum of compensation awarded by the Tribunal. It is contended that the accident had occurred - 43 - MFA No.24179/2012 & Connected cases due to the sole negligence on the part of the driver of Santro car bearing registration No.MH-05/AJ-2719. It is further contended that on the date of accident, the policy issued to the lorry bearing registration No.HR-55/E-8624 was not in force, since the policy issued to the lorry stood cancelled as being void ab initio because the cheque, which was issued by the owner of the lorry towards the premium amount, came to be dishonoured. This aspect has not at all been considered by the Tribunal. Therefore, the liability, if any, be saddled on the owner and insurer of the car only. Alternatively, it is contended that the compensation awarded by the Tribunal in all the cases under all heads is exorbitant and hence, prayed to reduce the same.
30. Thus, being dissatisfied with the judgment and award passed by the Tribunal, respective claimants as well as insurance companies have preferred these appeals. - 44 - MFA No.24179/2012
& Connected cases
31. We have heard learned counsel for the respective parties at length and perused the material on record as well as original record.
32. Learned counsel for the appellants/claimants, Sri P.G. Chikkanaragund, submitted that the happening of the accident in question is not in dispute. That the claimants, by placing the material evidence on record, have proved the negligent act of the driver of the offending lorry. The drivers of both the vehicles may be joint tort feasors. Therefore, the claimants are at liberty to recover the compensation from any of the joint tort feasors. Reliance Insurance company, insurer of lorry has failed to prove that the cheque issued towards payment of premium had bounced. As far as the motor car is concerned, there is no defence. The said vehicle was covered under a valid insurance policy as on the date of accident. There is also no evidence on record to show that none of the drivers had any valid driving licence as on the date of accident. When - 45 - MFA No.24179/2012 & Connected cases all these factors stand proved, the claimants are entitled for just compensation.
33. It is further submitted by learned counsel for the appellants/claimants that the Tribunal has erred in not awarding just compensation that was due to the appellants/claimants. The Tribunal erred in awarding a very meager compensation in the case of death of minor children. The Tribunal has not rightly assessed the income of the deceased Unnikrishnan who was working in a foreign country. The Tribunal has not properly assessed the medical evidence on record and thereby committed error in assessing the disability suffered by the respective injured/claimants.
34. Learned counsel also furnished a chart describing the status of the respective claimants and compensation awarded by the Tribunal. The same is extracted herein below:
" (a) In M.F.A.No.24179/2012 arising out of M.V.C.No.30/2009 the Tribunal has awarded - 46 - MFA No.24179/2012 & Connected cases compensation of `1,55,000/- for the death of their minor child aged 5 years.
(b) In M.F.A.No.24180/2012 arising out of M.V.C.No.31/2009, the Tribunal has awarded compensation of `54,731/- to the minor claimant for the injuries sustained in the accident.
(c) In M.F.A.No.24181/2012 arising out of M.V.C.No.32/2009, the Tribunal has awarded compensation of `38,262/- to the claimant for the injuries sustained in the accident.
(d) In M.F.A.No.24182/2012 arising out of M.V.C.No.33/2009, the Tribunal has awarded compensation of `69,566/- to the claimant for the injuries sustained in the accident.
(e) In M.F.A.No.24183/2012 arising out of M.V.C.No.34/2009, the Tribunal has awarded compensation of `1,63,132/- to the claimant for the injuries sustained in the accident.
(f) In M.F.A.No.24184/2012 arising out of M.V.C.No.35/2009, the Tribunal has awarded compensation of `1,55,000/- to the claimant for the death of her minor child aged five years.
(g) In M.F.A.No.24185/2012 arising out of M.V.C.No.36/2009, the Tribunal has awarded compensation of `74,11,000/- to the claimants for the death of Unnikrishnan. "- 47 - MFA No.24179/2012
& Connected cases
35. Learned counsel for the claimants vehemently argued that the accident occurred on account of the negligent act of the driver of the lorry. The lorry was parked on the middle of the road. It was pitch dark and there were no safety measures taken by the driver of lorry. There was no indication whatsoever for vehicles proceeding behind the parked lorry and therefore the accident occurred. However, learned counsel submitted that the claimants are entitled to recover compensation from any one of the joint tort feasors.
36. Per contra, learned counsel Sri.Nagaraj C.Kolloori for Reliance General Insurance Co. Ltd., who has also filed the appeals against the judgment and award, drew our attention to the spot mahazar at Ex.P-3. Relying on the said document, he vehemently submitted that the lorry was parked on the extreme left side of the road. The said vehicle is a container lorry. Said vehicle had covered only two feet of the tar road on the road side and it was not parked in the middle of the road as alleged. The said - 48 - MFA No.24179/2012 & Connected cases vehicle had already met with an accident and hence it was not under the control of its owner or driver. Since a case was registered, it was under the police custody. Therefore, the vehicle could not be removed from the spot. There was sufficient light and visibility for the car driver to see the parked lorry. That, the car being driven at high speed by its driver, it resulted in the accident and left side of the car was damaged and that further proves that negligence was on the part of the driver of the car. Claimants have not impleaded the driver of the car in three claim cases. Even then, the Tribunal has come to the conclusion that there was only 25% negligence on the driver of the car. Therefore, this finding of the Tribunal is erroneous. That in other cases 100% negligence has been attributed to the driver of the lorry, which is not correct.
37. It is further contended that policy bearing No.131538233413003, which was issued by the company in respect of the lorry, was void ab intio from the date of its issuance as the cheque issued towards payment of - 49 - MFA No.24179/2012 & Connected cases premium had bounced. Despite the fact of bouncing of cheque being informed to the owner of the lorry, he had not paid the premium. Therefore, the liability of the Reliance General Insurance Company stands extinguished and the insurer is not at all liable to satisfy the award. Therefore, learned counsel prayed to dismiss the petitions as against the said insurer.
38. Learned counsel Sri.R.R.Mane for New India Assurance Co. Ltd., on the other hand, submitted that the accident had occurred solely on account of negligent act of the driver of the lorry. The lorry was parked without any indicators on, thereby violating road safety regulations as well as the provisions of the Motor Vehicle Act and Rules. If there was any indication of the parking of the lorry, the accident in question would not have happened at all. In four cases, this insurer has not been made a party and the liability has been fastened on the driver, owner and insurer of the lorry. Therefore, learned counsel prayed to saddle the liability to pay compensation entirely on the insurer of - 50 - MFA No.24179/2012 & Connected cases the lorry only and prayed to allow the three appeals to the extent of setting aside the judgment and award holding this insurer was not liable to pay the compensation to the claimants.
39. Learned counsel for the parties relied upon various rulings in support of their contentions during the course of their arguments.
40. We have given our anxious consideration to the submissions made by learned counsel for the respective parties. In our opinion, the following points would arise for consideration:
" 1) Whether the accident, which took place on 12.11.2008, involving the motor car bearing registration No.MH-05/AJ-2719 and lorry bearing registration No.HR-55/E-8624, was on account of the rash and negligent act of any one of the drivers of the vehicles or whether it was on account of composite negligence on the part of the respective vehicle drivers?
2) Whether the appellant-Reliance Insurance Company proves that the cheque issued by - 51 - MFA No.24179/2012 & Connected cases the respondent No.1/owner of the lorry towards premium had bounced and therefore, the said insurance company is not at all liable to satisfy the awards?
3) Whether the appellants/claimants prove that they are entitled for enhancement of compensation? If yes, what is the quantum to which they are entitled to and from whom they are entitled to recover the same?
4) What order? "
41. Before discussing the points for consideration, it is necessary to discuss the law that is applicable in such a situation with regard to the manner in which compensation could be claimed by the victims of an accident involving more than one vehicle.
42. On the aforesaid point, it is necessary to refer to a Full Bench judgment of this Court in the case of Karnataka State Road Transport Corporation, by its Managing Director vs. Arun @ Aravind and others reported in ILR 2004 KAR 26 (Arun @ Aravind). In the said authority, it is held as under:
- 52 - MFA No.24179/2012
& Connected cases "14. In view of the above discussion, we answer the referred question by holding that the Full Bench decision in GANESH's case does not require any reconsideration. It is seen that in an accident case, generally the Insurance Company is liable to pay compensation as per the terms of the policy. But, when the accident is on account of composite negligence of two or more vehicles, the claimant is entitled to proceed against any of the tort-feasors for full compensation for the injuries suffered or the death caused, as the liability is joint and several. The question of apportionment does not arise, if the other joint tort-feasor has not been impleaded as party. However, after ascertaining and impleading the other joint tort-feasor as a party, the tort-feasor can exercise his right of contribution in accordance with law. In other words, when the other joint tort feasor is not a party, the Tribunal should refrain from giving any finding about apportionment or negligence, in the absence of other tort feasor, to avoid any exercise in futility and leave the said question of liability of joint tort feasors to be adjudicated, if the joint tort feasor who satisfies the award is able to - 53 - MFA No.24179/2012 & Connected cases find out the name of the other joint tort feasor and seeks to exercise right of contribution in accordance with law.
43. Further, we also refer to the decision of the Hon'ble Supreme Court in the case of Khenyei vs. New India Assurance Co. Ltd. & Ors reported in 2015 ACJ 1441, (in Civil Appeal No.4244/2015 and connected matters), wherein it has been held as under:
"What emerges from the aforesaid discussion is as follows:
(i) In the case of composite negligence, Plaintiff/claimant is entitled to sue both or any one of the joint tort feasors and to recover the entire compensation as liability of joint tort feasors is joint and several.
(ii) In the case of composite negligence, apportionment of compensation between two tort feasors vis-à-vis the Plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them.
(iii) In case all the joint tort feasors have been impleaded and evidence is sufficient, it is open to the court/tribunal to determine - 54 - MFA No.24179/2012 & Connected cases inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tort feasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the Plaintiff/claimant to the extent it has 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 main case one joint tort feasor can recover the amount from the other in the execution proceedings.
(iv) It would not be appropriate for the court/tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tort feasors. In such a case, impleaded joint tort feasor should be left, in case he so desires, to sue the other joint tort feasor in independent proceedings after passing of the decree or award."
44. Therefore, in those cases in which the insurer of the motor car was not made as a party (and negligence has been fastened on the car driver to an extent of 25% in - 55 - MFA No.24179/2012 & Connected cases those cases where it was made a party) the claim petitions cannot be dismissed as contended by the learned counsel for the appellant - New India Assurance Company, if it is held to be a case of composite negligence on the part of the respective vehicle drivers.
45. The principles of law enunciated above would answer the contention urged by the counsel for the appellant -insurance company namely, New India Assurance Co. Ltd., particularly with regard to non- impleading of the driver and owner of the motor car in four of the claim petitions. When two or more vehicles are involved in an accident, drivers and owners of the said vehicles are joint tort feasors. In this case, the names of joint tort feasors were known to the claimants as well as respondents because the injured and the deceased persons were inmates of the car, which dashed against the stationed lorry. However, they did not implead the driver and insurer of the car in four cases (M.V.C. Nos.30, 31, 32 and 33/2009). In other cases (M.V.C.Nos.34, 35 and - 56 - MFA No.24179/2012 & Connected cases 36/2009), they impleaded the driver of the motor car and the insurer and in those cases, the Tribunal has fastened 75% negligence on the driver of the lorry and 25% on the driver of the motor car. Therefore, in four cases, motor car driver, owner and insurer were not made parties. In such a case, the appellants-claimants would be entitled for the entire compensation amount from the other joint tort feasor i.e., the driver, owner and insurer of the lorry in question. The joint tort feasor who satisfies the entire award can seek relief by exercising right of subrogation from the other tort feasor to the extent to which he was made liable to pay compensation in excess of percentage of the negligence saddled on it. Therefore, merely on the ground that the driver of the car was not impleaded in the instant claim petitions, the claimants cannot be denied the compensation. In fact, the Tribunal should have ordered for impleading the said car driver, owner and insurer by exercising power under Order I Rule 10 of C.P.C. Therefore, the non-impleadment of the driver, owner and insurer of the car in four claim petitions does not in any - 57 - MFA No.24179/2012 & Connected cases way exonerate them if it is found that the driver of the car was also negligent in causing the accident in question. Reg. POINT No.1:
46. Now, we shall proceed to examine the findings of the Tribunal with regard to rash and negligent act of the drivers of both the vehicles in question in order to ascertain as to whether the accident occurred on account of rash and negligent act of the lorry driver or whether the driver of the car also contributed to the accident. The undisputed facts are that on the fateful day i.e., on 12.11.2008, at about 8.00 p.m., the inmates of the Santro car were proceeding on N.H.17. At that time, lorry bearing registration No.HR-55/E-8624 was parked on the left side of the road. The time of occurrence of the accident is 8'o clock in the night. The car hit the lorry from behind and that is how the accident had occurred. It is also on record and we were also appraised at the time of arguments, the fact that the lorry in question had also met with an accident earlier and the rear portion of the lorry did not - 58 - MFA No.24179/2012 & Connected cases have any indicators or any blinking lights on, so as to indicate that a big container vehicle was stationed on the left side of the road covering a portion of the road. The accident in question had occurred in the month of November at a time when there was pitch darkness.
47. Learned counsel for the Reliance Insurance Company drew our attention to the spot mahazar. Based on the spot mahazar learned counsel strongly submitted that the container lorry in question had occupied only two feet of the tar road and rest of the body of the vehicle was on the extreme left side of the road. Therefore there was no negligence on the part of the lorry driver. The container lorry measures atleast 8 feet in width and 30 feet in length. Admittedly, it was transporting motor cars. The panchanama also discloses that on account of the accident caused to the said vehicle, no indicator was visible to the vehicles coming behind it. Further, the driver of the container lorry had not installed and switched on any red light sign or other signal to warn that the vehicle was a - 59 - MFA No.24179/2012 & Connected cases stranded one. It is also mentioned in the panchanama that after looking at the container lorry parked on the road, the driver of the car appears to have applied brake and there were brake marks on the road. In spite of that the car dashed to the container lorry. The front portion of the car was extensively damaged.
48. Learned counsel for Reliance Insurance Company submitted that the lorry in question was stranded on account of an earlier accident caused with another vehicle. The said vehicle was under the control of the police and hence, the driver cannot be held liable for the accident of the Santro car. But it is important to observe that immediately after an accident, the vehicle is required to be removed from the spot at the cost of the owner of the vehicle. If the owner allows the same to be stranded, even if on the left side of the road, it would still pose danger to the vehicles coming behind it, particularly, when no indicator is switched on. The accident had taken place at 8.00 p.m. in the month of November and at that hour, - 60 - MFA No.24179/2012 & Connected cases there would be darkness. Hence, suitable steps had to be taken by the driver of the lorry. But no precautionary measures were taken by the lorry driver to indicate that to the other vehicles coming behind the lorry that it was stranded on the road. A statutory duty was cast on the lorry driver to take all safety measures indicating the presence of lorry, which was parked on the road. Merely because it occupied only two feet width of the tar road, would not by itself absolve the driver of the lorry of his negligence.
49. It was also submitted that the vehicle in question was parked at that place since several days prior to the date of accident. That also goes to show that the driver or the owner of the vehicle were not diligent in removing the vehicle from that spot. Having regard to the nature of the vehicle that was parked on the left side of the road definitely it can be said that it was hazardous to other vehicular traffic. It is in utter violation of all safety measures by parking such a huge lorry on the National - 61 - MFA No.24179/2012 & Connected cases Highway without lights or blinking indicators or self- radiating triangles or guard or any other device which could warn other motorists coming behind the parked lorry. Definitely, the instant case is one of total negligence on the part of the driver of the lorry.
50. It has to also be borne in mind that motor car driver had applied brake and brake marks have also been found on the road. This would indicate that the driver of the motor car has tried to avoid hitting the lorry, but ultimately could not do so. It is also important to note that the lorry, which was stranded on the left side of the road, was lying there since several days prior to the accident. Therefore, there was no negligence on the part of the car driver in not noticing the stranded vehicle. Had the lorry had the indicators on, so as to indicate that it was parked on the side of the road, the car driver, with the help of headlights, could have noticed the lorry from a distance and could have avoided the accident. Therefore, the Tribunal was not right in fastening 25% negligence on - 62 - MFA No.24179/2012 & Connected cases the motor car driver and quantifying 75% liability on the driver, owner and insurer of the lorry. Therefore, in those cases where it is held that the motor car driver was also negligent in causing the accident to an extent of 25%, we find reason to interfere as the said finding does not take into consideration the total negligence on the part of the driver of the lorry as discussed above.
51. Learned counsel for the insurer of the motor car viz., the New India Assurance Company Limited, submitted that where the motor car insurance company, driver or owner were not impleaded as respondents, the petition should have been dismissed on that count by the Tribunal. In this case, we have found that the lorry driver was solely negligent in causing the accident. It is not a case of composite negligence. Therefore, the injured or the legal heirs of the deceased, who have suffered on account of the accident, can recover compensation from the joint tort-feasor namely, driver of the lorry and its owner are vicariously liable. Hence, point No.1 is answered in favour - 63 - MFA No.24179/2012 & Connected cases of claimants and the New India Assurance Co. Ltd., and against Reliance Insurance Co. Ltd. It is held that there was no negligence on the part of the driver of the car and that the driver of the lorry was negligent resulting in the accident. This is not a case of composite negligence. Reg. POINT No.2:
52. The appellant - Reliance General Insurance Company in MFA.No.101480/2014 has taken a strong contention that the cheque issued by respondent No.1 lorry owner towards payment of premium had bounced; the said fact was intimated to the owner of the lorry and accordingly they had cancelled the policy. Hence, the said insurance company was not at all liable to satisfy the awards in question.
53. In order to substantiate this plea, the insurance company had examined RW.1, its official and has relied on Ex.R.1-the bounced Cheque, Ex.R.2-bank memo, Ex.R.3- copy of the notice issued by it to the first respondent and Ex.R4-the notice issued to Regional Transport Authority. It - 64 - MFA No.24179/2012 & Connected cases is admitted by him in the cross-examination that, he was working in Bangalore office; the vehicle in question was insured by its company and the policy was issued by Gurgoan Branch at New Delhi. He did not deny that the first respondent was having a fleet of transport vehicles. He has not produced the policy copy. It is admitted that the there is no document to show that the cheque, which had been returned without encashment, was issued in respect of the cover note which they had issued for this container lorry in question. Further, there is no document to show that Exs.R3 and R4 were actually served on the respondent. Though they had the RPAD card, it is said to have been misplaced with other files that was not produced before the tribunal. It is admitted that the cheque issued pertains to the cover note number mentioned on the back side of the cheque at Ex.R1. But that does not tally with the cover note that was issued in respect of the vehicle which met with an accident. The cover note bearing No.200702418353 was in force till 14.12.2008 and it was issued in respect of the vehicle - 65 - MFA No.24179/2012 & Connected cases involved in this case. But the cover note mentioned on the back side of the cheque does not contain the aforesaid cover note number. Therefore, absolutely there is no evidence on record to show that the cheque that was issued towards the premium was indeed the cheque that was issued in respect of this vehicle which met with an accident. There is also no evidence on record to show that the non-encashment of cheque and cancellation of the policy was duly intimated to the owner of the vehicle in question. Therefore, we hold that the insurance company is liable to satisfy the award that has been fastened against the driver and owner of the container lorry bearing registration No.HR-55/E 8624. Fastening of liability on the insurance company which had issued cover note for the container lorry registration No.HR-55/E 8624 is hence affirmed. Accordingly for the above said reasons we answer point No.2 in the negative.
- 66 - MFA No.24179/2012
& Connected cases REG. POINT No.3:
54. In these appeals, the claimants have sought for enhancement of compensation awarded by the Tribunal.
(a) MFA No.24179/2012 : MVC.No.30/2009 :
55. This claim petition is filed under Section 163-A of the Act. This is a case of death of a five year old girl who was studying in second standard. The claimants are the parents of the deceased girl. The Tribunal has awarded global compensation of `1,55,000/-. Learned counsel for the appellants relying on the decision of the Hon'ble Supreme Court in the case of Kishan Gopal and others vs. Lala and others reported in 2013 ACJ 2594, contended that the deceased boy in the said case was aged about 10 years. The deceased boy was found to be assisting his parents in agricultural work. Having regard to the drastically falling rupee value, the Hon'ble Supreme Court assessed the income of the deceased at `30,000/-
per annum and adopting '15' multiplier, compensation of `4,50,000/- plus `50,000/- towards conventional heads - 67 - MFA No.24179/2012 & Connected cases was granted. Hence, learned counsel has sought enhancement of compensation in this case to `5,00,000/-.
56. In this case, the deceased is a minor girl of five years age and being of a tender age, she could not have been of any assistance to her parents so as to earn any income as such. By relying on the judgment of the Hon'ble Supreme Court in RESHMA KUMARI AND OTHERS Vs. MADAN MOHAN AND ANOTHER reported in 2013 ACJ 1253, wherein the Hon'ble Supreme Court has elucidated on the considerations to be made in the case of death of children who are below the age of 15 years, we assess the notional income of the deceased minor child at `15,000/- per annum as per clause 6(a) of the Second Schedule dealing with non-earning persons and the multiplier of '15' is applied, having regard to the fact that the deceased was aged only five years. Thus, the compensation would be `2,25,000/- [`15,000/- x '15' ]. Further, we deem it just and proper to award a sum of `2,000/- towards funeral - 68 - MFA No.24179/2012 & Connected cases expenses and a sum of `2,500/- towards loss of estate. The break up is as follows:
Sl. Amount
Heads of compensation
No. awarded
1 Loss of dependency `2,25,000/-
2 Funeral expenses `2,000/-
3 Loss of estate `2,500/-
TOTAL : `2,29,500/-
57. Thus, the appellants are entitled for total compensation of `2,29,500/-, which shall carry interest at the rate of 6% per annum from the date of the accident till realisation.
(b) In MFA No.24180/2012 : MVC.No.31/2009 :
58. The injured in this case is an eight year old girl. She suffered the following injures i.e., 1) abrasion over cheek below the left lower eye-brow, 2) bleeding from left eye and 3) fracture of left maxilla bone, 4) closed head injury with diffuse cerebral edema as per Exs.P-8 and 9-- the discharge summary and wound certificate. - 69 - MFA No.24179/2012
& Connected cases
59. Based on the evidence on record, the nature of injuries suffered by injured, nature of treatment taken and considering the age of the injured who was eight years old girl etc., the Tribunal has awarded compensation of `54,731/- on all the heads. No doctor was examined to prove that the girl has suffered any permanent disability as such. Though the Tribunal found that the injured was shifted from Maharashtra State to Kumta and then to a Hospital at Manipal for treatment, in the absence of any documentary evidence, only conveyance allowance of `8,000/- was granted by the Tribunal; towards pain and suffering `45,000/- and towards medical expenses `1,731/- was awarded.
60. Therefore, having regard to the facts and circumstances and nature of injuries suffered by the injured girl, we find that the compensation awarded under the head of pain and suffering in a sum of `45,000/- for the three injuries stated in the wound certificate appears to be a little low. Therefore, an additional sum of `10,000/- - 70 - MFA No.24179/2012
& Connected cases on the head of pain and suffering is granted. The discharge summary shows that the claimant was in-patient from 13.11.2008 to 17.11.2008. Hence, on other heads, i.e., conveyance, attendant charges, transportation and other incidental expenditure, compensation is enhanced to `20,000/- and towards loss of amenities `10,000/- is granted. The break up is as under:
Sl. Amount
Heads of compensation
No. awarded
1 Pain and suffering `55,000/-
2 Medical expenses `1,731/-
Conveyance, attendant
3 charges, transportation and `20,000/-
other incidental expenses
4 Loss of amenities `10,000/-
TOTAL : `86,731/-
Therefore, the petitioner in MVC.No.31/2009 would be entitled for total compensation of `86,731/- and the enhanced compensation would be `32,000/-. The enhanced compensation shall carry interest at the rate of 6% per annum from the date of claim petition till the date of realisation.
- 71 - MFA No.24179/2012
& Connected cases
(c) MFA No.24181/2012 : MVC.32/2009 :
61. So far as this case is concerned, the claimant suffered only two injuries i.e. open head injuries with CSF, Rhinorrhoea with facial soft tissue injury. CT Scan showed moderate diffuse hemispherical edema with compression with the ventricle and basal cistern. On all the heads, including pain and suffering, medical expenses and incidental charges, the Tribunal has awarded `38,262/-.
The wound certificate pertaining to this petitioner is marked at Ex.P.15. As per the wound certificate, the injuries are termed as simple injuries. There is no permanent disability as such. There is also no medical evidence to show that she required any future treatment etc. The reasons stated by the Tribunal regarding non- awarding of loss of income is sustainable in law. In the absence of evidence of loss of income during the treatment period, the Tribunal has not awarded compensation as she must have availed leave from her employer and even some of the medical expenses as per Ex.P.10 is said to have - 72 - MFA No.24179/2012 & Connected cases been reimbursed. However, we note that the claimant was an in-patient from 13.11.2008 to 26.11.2008 on account of the head injury with cerebral edema. Therefore, the compensation awarded by the Tribunal requires a slight modification and the petitioner is entitled for a limited enhancement. In the circumstances, we re-assess the compensation as under:
Sl. Amount
Heads of compensation
No. awarded
1 Pain and suffering `35,000/-
2 Medical expenses `5,262/-
Conveyance, attendant
3 charges, special diet and `20,000/-
other incidental expenses
TOTAL : `60,262/-
Therefore, the petitioner in MVC.No.32/2009 would be entitled for total compensation of `60,262/- and the enhanced compensation shall carry interest at the rate of 6% per annum from the date of claim petition till the date of realisation.
- 73 - MFA No.24179/2012
& Connected cases
(d) MFA No.24182/2012: MVC.No.33/2009 :
62. This petitioner in this case is said to have suffered the following injuries: 1) Multiple lineal lacerated wounds with extensor tendon injury over left ring finger,
2) Intra-articular comminuted fracture of proximal phalanx left 2nd toe, closed head injury with diffuse axonal injury with left parital III nerve injury with fracture of left maxilla. Ex.P.16-wound certificate, Ex.P.19-discharge summary and Ex.P.25-original out patient records file are relied upon. He was also found to be an inpatient from 13.11.2008 to 21.11.2008. The Tribunal has awarded `40,000/- towards pain and suffering, `11,566/- towards medical expenses as per the medical bills. Though it found that he was working and earning `21,750/- per month, the Tribunal has not awarded any amount towards loss of income and also holding that Ex.P.18 shows that the medical bills are reimbursed. Since, there is no loss of pay, the Tribunal has not awarded compensation on the head of loss of income. Towards conveyance allowance, - 74 - MFA No.24179/2012 & Connected cases attendant's charges and special diet, etc., `8,000/- has been awarded.
63. The disability certificate issued by Dr.Ashok Yeraguddi showed that the petitioner has sustained loss of flexion movement of meta tarsal phalanx joint and proximal inter phalanx joint at 2nd left toe - 5%, decreased in grip strength at left hand - 5%, decreased vision in left eye and weakness at left eye muscle.
64. PW.3-the doctor has been examined to prove the disability suffered by the petitioner. As per his evidence there is permanent disability to the left upper limb of 5% and left lower limb of 5% and whole body disability of 15%. There is also decrease in the power of vision. The disability certificate is at Ex.P.22. That there is no evidence on record to show that he has resigned from his job due to accidental injuries as till the month of May- 2010 he had worked and received salary. Since disability was found to be only 5% to upper and lower limbs, the Tribunal found that he is not entitled for compensation on - 75 - MFA No.24179/2012 & Connected cases the head of disability. The future medical expense for five years is also taken into consideration. In all, a sum of `69,566/- has been awarded.
65. Having regard to the nature of injuries suffered and the treatment which the petitioner might have undergone for the injuries, we find that the compensation granted to the petitioner under the head of conveyance and incidental charges, and future unhappiness is on the lower side. Hence, the compensation under the head of conveyance and incidental charges is enhanced to `20,000/- and compensation under the heads of loss of amenities and future unhappiness & inconvenience is enhanced to `50,000/-. The break up is as under:
Sl. Amount
Heads of compensation
No. awarded
1 Pain and suffering `40,000/-
2 Medical expenses `11,566/-
Conveyance, attendant
3 charges, special diet and other `20,000/-
incidental expenses
Loss of amenities and future
4 `50,000/-
unhappiness & inconvenience
TOTAL : `1,21,566/-
- 76 - MFA No.24179/2012
& Connected cases
Therefore, the petitioner in MVC.No.33/2009 would be entitled for total compensation of `1,21,566/- and the enhanced compensation shall carry interest at the rate of 6% per annum from the date of claim petition till the date of realisation.
(e) MFA No.24183/2012: MVC.No.34/2009 :
66. In this appeal, the appellant has suffered closed fracture of surgical neck of left humerus and pan facial fracture (right and left mandible, rami). She was in-patient from 13.11.2008 to 03.12.2008 in Kasturba Hospital. The Tribunal has awarded total compensation of `1,63,132/-.
67. The Tribunal has considered the wound certificate-Ex.P.12, discharge summary-Ex.P.7, medical certificate issued by K.M.C.Hospital-Ex.P.8. In addition to that, the nature of treatment given to the petitioner has also been considered by the Tribunal. Having regard to the said facts, the Tribunal has awarded compensation of `45,000/- on the head of pain and suffering. - 77 - MFA No.24179/2012
& Connected cases
68. We have also considered the material on record and nature of treatment undergone by the petitioner. That a surgery was conducted and implants were fixed to the humerus bone and that was removed, then staples were also removed. Left humerus abduction splint was applied. She has also suffered deep cut lacerated wounds. She has taken treatment at several Hospitals. Therefore, we find that the compensation awarded by the Tribunal on the head 'pain and suffering' is on lower side. Having regard to all the aforesaid facts and the medical documents available on record, we find that this petitioner could be awarded a sum of `60,000/- in place of `45,000/-towards pain and suffering.
69. So far as the compensation awarded by the Tribunal on the head of medical expenses, the same is based on the documentary evidence and hence, sustainable in law, facts and evidence on record.
70. The compensation of `9,000/- awarded under the head loss of income during the period of treatment is - 78 - MFA No.24179/2012 & Connected cases concerned, the same is clarified stating that the petitioner being housewife and there would be loss of income during the period of treatment on account of engaging the service of household work, we assess the same at the rate of `3,000/- per month and hence, the compensation of `9,000/- awarded under this head by the Tribunal is undisturbed.
71. The Tribunal, taking into consideration Ex.P.38- disability certificate and considering the facial injury, has found that the whole body disability is to an extent of 23%. The doctor has also been examined as PW.3. Photograph at Ex.P39 is also produced to show that there was disfiguration i.e., a scar on the face. Wound certificate is produced at Ex.P.12. Therefore, the Tribunal has awarded `20,000/- towards future unhappiness and inconvenience.
72. Since the disability is not shown to be affecting her daily life, compensation has not been awarded on that ground. Having regard to the disfiguration and - 79 - MFA No.24179/2012 & Connected cases unhappiness suffered, we find that compensation can be increased to `40,000/- on the head of loss of amenities and future unhappiness & inconvenience due to disfigurement on face and reduction in the shoulder movement. Thus, the compensation granted to the petitioner under all heads is re-assessed in the following manner:
Sl. Amount
Heads of compensation
No. awarded
1 Pain and suffering `60,000/-
2 Medical expenses `81,132/-
Loss of income during laid up
period on account of engaging
3 the services for the house `9,000/-
work at the rate of `3,000/-
per month
Conveyance, attendant
4 charges, special diet and other `20,000/-
incidental expenses
Loss of amenities and loss of
future unhappiness and
5 `40,000/-
inconvenience due to
disfigurement on face
TOTAL : `2,10,132/-
The petitioner is entitled to enhanced compensation of `2,10,132/- and the enhanced compensation shall carry - 80 - MFA No.24179/2012 & Connected cases interest at the rate of 6% per annum from the date of claim petition till the date of realisation.
(f) MFA No.24184/2012: MVC.No.35/2009 :
73. This is a case of death of a child aged five years. The claimants are the parents of the deceased girl. The Tribunal has awarded a global compensation of `1,55,000/-. Learned counsel for the appellants relying on the decision of the Hon'ble Supreme Court in the case of Kishan Gopal and others vs. Lala and others, reported in 2013 ACJ 2594, have contended that the said decision may be followed in the instant case. In the said case the deceased boy was aged about ten years. The deceased boy was found to be assisting his parents in agricultural work. Having regard to the drastically falling rupee value, the Hon'ble Supreme Court assessed the income of the deceased at `30,000/- per annum and adopting 15 multiplier, compensation of `4,50,000/- plus `50,000/- towards conventional heads was granted. Hence, learned - 81 - MFA No.24179/2012 & Connected cases counsel sought enhancement of compensation in this case to `5,00,000/-.
74. In this case, the deceased is a minor girl of five years age and being of a tender age, she could not have been of any assistance to her parents so as to earn any income as such. But, in the present case, the claim petition has been filed under Section 166 of the Act. Hence, we assess the notional income of the deceased minor child at `15,000/- per annum and apply the multiplier of '15', having regard to the fact that the deceased was aged only five years. Thus, the compensation under the head of loss of dependency would be `2,25,000/-.
75. Further, a sum of `80,000/- (`40,000/- to each parent) is awarded towards loss of love and affection as per the latest dictum of the Hon'ble Supreme Court in MAGMA GENERAL INSURANCE CO. LTD. Vs. NANU RAM ALIAS CHUHRU RAM AND ANOTHER reported in 2018 ACJ 2782.
- 82 - MFA No.24179/2012
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76. Further, we deem it just and proper to award a sum of `15,000/- towards funeral expenses and a sum of `15,000/- towards loss of estate. Thus, the appellants are entitled for total compensation of `3,35,000/- which shall carry interest at the rate of 6% per annum from the date of claim petition till realistion. The break up is as under:
Sl. Amount
Heads of compensation
No. awarded
1 Loss of dependency `2,25,000/-
2 Loss of love and affection `80,000/-
3 Funeral expenses `15,000/-
4 Loss of estate `15,000/-
TOTAL : `3,35,000/-
(g) MFA No.24185/2012: MVC.No.36/2009 :
77. The petitioners are the wife, son and parents of the deceased, who died in the accident. He was said to be aged about 40 years, working as Supervisor in Bowley Concrete Products at Dubai in U.A.E., drawing monthly income of `78,000/-. To prove that he was working in the said Company in Dubai Ex.P.9, Exs.P.14 to P16 were - 83 - MFA No.24179/2012 & Connected cases produced. To prove the income of the deceased Exs.P.17 to P23, Exs.P.25 to 28 were produced. PW.2 was also examined to prove the documents.
78. After appreciating the evidence on record, the Tribunal came to a conclusion that the basic salary of the deceased as on the date of death was 3,500/- dirhams per month. On perusal of Exs.P.17, 25 and 26, the income of the deceased is assessed at 6117 Dirhams. The age of the deceased is held to be 41 years as on the date of accident. After applying multiplier '14', the Tribunal has awarded compensation towards loss of dependency at `73,71,000/- (by converting the Dirhams into Indian Rupees i.e., 1 Dirham = `13/- on 12/11/2008 being date of accident). But the claimants have contended that as per the salary certificate issued at Ex.P.17 income of the deceased was 6,117 Dirhams per month.
79. The Tribunal does not appear to have awarded any compensation towards future prospects on the income of the deceased. Having regard to the age of the deceased, - 84 - MFA No.24179/2012 & Connected cases claimants are entitled to compensation towards future prospects on his monthly income that the deceased would have earned had he been alive. As per the decision of the Hon'ble Supreme Court National Insurance Company vs. Pranay Sethi reported in AIR 2017 SC 5157, the claimants/appellants are entitled to 30% future prospects in this Case. In this case, 30% of monthly income of the deceased would be 1835.1 Dirhams. The income of the deceased including future prospects would be 7952.1 Dirhams [6117+1835.1 = 7952.1]. After deducting 1/4th (1988 Dirhams) from the income of the deceased towards personal expenses, the net income of the deceased would be 5964.075 Dirhams, that has to be multiplied by '14' multiplier. The exchange rate of one dirham is found to be `13 INR as on 12/11/2008, the date of accident. Thus, the monthly income in terms of Indian rupees is `77,532/- [5964 dirhams x `13/- ] and the annual income is `9,30,384/-. By applying the multiplier of '14', the appellants/claimants are entitled to compensation towards - 85 - MFA No.24179/2012 & Connected cases loss of dependency at `1,30,25,376/- (5964 dirhams x `13 x 12 x '14').
80. The Tribunal has awarded `25,000/- towards funeral expenses & transportation of dead body; towards loss of love and affection to petitioner No.2, `5,000/-; and towards loss of consortium to petitioner No.1 `10,000/-, which requires re-assessment.
81. Therefore, on the head of "loss of parental consortium" to petitioner No.2, a sum of `40,000/- is awarded and a sum of `40,000/- is awarded to petitioner No.1 towards "loss of spousal consortium" to petitioner No.2. Further, a sum of `40,000/- each is awarded to petitioner Nos.3 and 4 towards loss of love and affection. In addition, a sum of `15,000/- is awarded towards loss of estate and a sum of `15,000/- is awarded towards funeral expenses. Thus, the compensation is re-assessed as under:
- 86 - MFA No.24179/2012
& Connected cases Sl. Amount Heads of compensation No. awarded Loss of dependency:
1 `1,30,25,376/-
(5964 dirhams x `13 x 12 x '14') Towards loss of spousal 2 consortium to petitioner `40,000/-
No.1 Towards loss of parental 3 consortium to petitioner `40,000/-
No.2 Towards loss of love and affection to petitioner 4 `80,000/-
Nos.2 and 3 @ `40,000/-
each 5 Funeral expenses `15,000/-
6 Loss of estate `15,000/-
TOTAL : `1,32,15,376/-
82. Accordingly, we quantify the compensation payable to the petitioners at `1,32,15,376 which shall carry interest at the rate of 6% per annum from the date of accident till realistion.
83. With regard to apportionment, petitioner No.1 is widow, petitioner No.2 is minor son and petitioner Nos.3 and 4 are parents of the deceased. Therefore, 40% of the total compensation is ordered to be apportioned in favour of petitioner No.1 and 40% in favour of petitioner No.2 and - 87 - MFA No.24179/2012 & Connected cases remaining 20% is ordered to be apportioned in favour of petitioner Nos.3 and 4 equally.
84. 75% of the compensation awarded to petitioner No.1 shall be deposited in any Post Office or Nationalized Bank Fixed Deposit for an initial period of ten years. She shall be entitled to draw periodical interest accrued on the said deposit. The balance compensation shall be released to her, after due identification.
85. The entire compensation with proportionate interest awarded to the minor son, in the event he has not yet attained majority, shall be deposited in any Post Office or in any Nationalized Bank until he attains the age of majority. After the son attains the majority, 75% of the compensation amount with accrued interest shall be deposited in any postal office deposit or in any nationalized bank for a further period of ten years. He shall be entitled to draw periodical interest accrued on the said deposit. The balance compensation shall be released to him after due identification.
- 88 - MFA No.24179/2012
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86. The parents of the deceased shall be entitled to receive the compensation due to them on the same being deposited before the Tribunal after depositing 50% of the same in any Post Office or in a Nationalized Bank, for an initial period of five years.
87. Apportionment and disbursement of all the cases in which the compensation has been enhanced except in M.F.A.No.24185/2012, shall be as per the award of the Tribunal.
88. In the result, the following order is passed:
ORDER
(i) The appeals filed by the claimants namely MFA Nos.24179, 24180, 24181, 24182, 24183, 24184 and 24185 of 2012 succeed in part;
(ii) MFA Nos.23566, 23567 and 23568 of 2012 are allowed. The amount in deposit before this Court be refunded to the appellant-insurer in these appeals;- 89 - MFA No.24179/2012
& Connected cases
(iii) MFA Nos.101478, 101479 101480, 101481, 101482, 101483 and 101484 of 2014 are dismissed;
(iv) The appellant - Reliance General Insurance Company Limited is directed to satisfy the awards by paying the enhanced compensation to the respective respondents-claimants within a period of twelve weeks from today;
(v) The amount in deposit made by the appellant-Reliance General Insurance Company Limited in the aforesaid appeals shall be transmitted to the Tribunal forthwith;
(vi) Parties to bear their respective costs;
(BELLUNKE A.S.) JUDGE - 90 - MFA No.24179/2012 & Connected cases Per NAGARATHNA J.
89. I have had the benefit of reading the judgment of brother Bellunke J. and concur with the same, but wish to add this supplementary opinion.
90. It is not in dispute that on 12/11/2008, at 08.00 p.m., Santro car bearing registration No.MH-05/AJ-2719 proceeding from Mumbai towards Kottayam dashed against lorry bearing registration No.HR-55/E-8624 belonging to the first respondent, which was parked on National Highway No.17 (NH17) at a place called Holegadde, Kumta Taluk, Uttara Kannada District. The contention of the claimants is that the driver of the car could not see the parked lorry and dashed to the hind portion of the lorry. It is the claimants' contention that the accident occurred solely due to the negligent parking of the lorry on the highway by the first respondent/driver without taking due care. Some of the passengers of the Santro car sustained injuries while two minor children, - 91 - MFA No.24179/2012 & Connected cases Anushree and Savin as also Unnikrishnan who died on account of serious injuries sustained by them.
91. The insurer of the lorry contended that the accident had occurred on account of negligent driving of the car. Secondly, it was contended that on account of there being non-payment of premium, the insurance policy issued in respect of the lorry in question was cancelled. It was contended that the cheque issued towards payment of premium had bounced and the insurer had cancelled the policy. In the circumstances, it was contended that the insurance company is not liable to satisfy the awards.
92. On the question of liability to satisfy the awards, two points would arise for consideration. The first is, whether there was negligence on the part of the driver and owner of the lorry, in which event, the insurer of the lorry would be responsible to satisfy the award or whether there was negligence also on the part of the driver of the Santro car and therefore, it was a case of composite negligence or whether the driver of the car only was negligent in causing - 92 - MFA No.24179/2012 & Connected cases the accident? If it is held that there was negligence on the part of the driver and owner of the lorry, whether its insurer is liable to satisfy the awards or it has to be exonerated on account of non-payment of premium leading to cancellation of the policy covering the lorry, is the second question which arises for consideration.
93. Though a detailed discussion has been made on the aforesaid points by Hon'ble brother Bellunke J., and I agree with his conclusions, nevertheless, I would seek to highlight on the first point with reference to the provisions of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act" for short) and the Central Motor Vehicles Rules, 1989 (hereinafter referred to as "the Rules" for short) and the relevant judgments.
REG. POINT NO.1:
94. Section 122 of the Motor Vehicles Act, 1988 deals with leaving vehicles in dangerous position. It states that no person in charge of a motor vehicle shall cause or allow the vehicle or any trailer to be abandoned or to remain at rest on any public place in such a position or in - 93 - MFA No.24179/2012 & Connected cases such a condition or in such circumstances as to cause or likely to cause danger, obstruction or undue inconvenience to other users of the public place or to the passengers. The owner of the vehicle has the right to drive the vehicle on the road and also the right to park the vehicle, but the parking of the vehicle cannot cause any danger or obstruction to other passers-by or passengers. This is a restriction on the road to park the vehicle. The aforesaid restriction on the road to park a vehicle is a reasonable restriction and emanates from a duty to take care. In Kumari Jyothi & Others vs. Mohd. Usman Ali & Others, [ILR 2002 KAR 893] (Kumari Jyothi), a Co- ordinate Bench of this Court found that the lorry in the said case was parked in the middle of NH9 with a full load of sugarcane with no signs or indicators with regard to parking of the lorry on the road; that, normally, when any vehicle had to be parked on account of break down, atleast some stones would be kept around the vehicle to give some signal or warning to others. In the said case, that was not done and that there were also well grown trees - 94 - MFA No.24179/2012 & Connected cases and it was difficult to see the parked lorry. Referring to Section 122 of the Act, the Division Bench held that the driver of the parked lorry was alone to be blamed as he had parked the lorry in the middle of the road without any sign or indications for the other road users. That the Tribunal therein was not justified in placing the blame to an extent of 50% each on the driver of the lorry and the motorcyclist and that the driver of the lorry was solely negligent.
95. Reference could also be made to the judgment of the Gujarat High Court in Premlata Nilamchand Sharma vs. Hirabhai Ranchhodbhai Patel, [1983 ACJ 290] and the judgment of the Delhi High Court in Pushpa Rani Chopra vs. Anokha Singh, [1975 ACJ 396], wherein it has been held that where the place was dark and the vehicle was parked without any sign or indication to warn other road users, negligence is on the driver of the parked vehicle and not the driver of any vehicle which dashes into such parked vehicle.
- 95 - MFA No.24179/2012
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96. Similarly, in the case of New India Assurance Co. Ltd. vs. Asha Prasad & others, [2011 ACJ 2641], another Co-ordinate Bench of this Court has held that the driver of the truck had parked the vehicle without giving any indication such as parking light as signal and the accident occurred around 1.30 a.m. At that time, the place was completely dark as there was no street light. Further, from the perusal of the recitals of the mahazar or panchnama therein, it was clear that the deceased had tried his best to avoid the accident by applying brakes which was supported by the tyre marks found on the road to the extent of 50 ft. and inspite of it, he could not avoid the collision and as a result he rammed his car against the truck. In the said case, the Tribunal, on the basis of the fact that there were brake marks on the road, had apportioned negligence to an extent of 25% on the driver of the car and 75% on the driver of the offending vehicle (truck), which was affirmed by this Court, but in the aforesaid judgment, there is no reference to the earlier - 96 - MFA No.24179/2012 & Connected cases judgment of the Division Bench of this Court in the case of Kumari Jyothi.
97. In the context of a highway, persons traveling on a highway could proceed at a faster pace than in a city or town unless there is a traffic restriction or other obstruction to slow down. Hence, any vehicle, which is parked on the highway without any sign or indication with regard to its parking, must take care regarding the parking of the vehicle so that it does not cause any obstruction to the other passengers on the highway. In the case of Nirmal Bhutani & others vs. Haryana State & another, [AIR 1983 Punjab and Haryana 188: 1983 ACJ 640], where a road roller was parked on the road without any sign or indication with regard to its standing there and the place was particularly dark, it was held that the road roller standing on the road in such a manner was a grave and unexpected hazard for road users and it constituted a breach of duty of care which was owed by the driver of the road roller to other road users. It was - 97 - MFA No.24179/2012 & Connected cases held that the accident was caused due to negligence of the driver of the road roller in leaving it parked unmarked on the main highway. It was further held that where a motor vehicle is left parked on a highway in such a manner that it constitutes a hazard or danger to the road users, the onus must be held to be upon one who seeks to avoid liability arising from the accident with such vehicle, to establish that despite such parking of the motor vehicle, the accident took place due to a fault or negligence of the other party or such other party could have avoided the accident by reasonable care and caution.
98. Further, in the case of Shashikala Swain & others vs. Md. Khairuddin & another, [AIR 2000 Orissa 52: 2001 ACJ 1638], reference has been made to Section 122 of the Act and the duty cast on the driver of a stationary vehicle on a public place so as not to cause any danger, obstruction or undue inconvenience to the users of public place and also to the other passengers. - 98 - MFA No.24179/2012
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99. Further, under Section 126 of the Act, no person driving or in charge of a motor vehicle shall cause or allow the vehicle to remain stationary in any public place, unless there is in the driver's seat a person duly licensed to drive the vehicle or unless the mechanism has been stopped and a brake or brakes applied or such other measures taken as to ensure that the vehicle cannot accidentally be put in motion in the absence of the driver. Section 127 has been amended with effect from 14/11/1994, wherein it states that where any motor vehicle is abandoned or left unattended, on a public place for ten hours or more or is parked in a place where parking is legally prohibited, its removal by a towing service or its immobilization by any means including wheel clamping may be authorised by a police officer in uniform having jurisdiction. Sub-section (2) of Section 127 states that where an abandoned, unattended, wrecked, burnt or partially dismantled vehicle is creating a traffic hazard, because of its position in relation to the public place, or its physical appearance is causing impediment to the traffic, - 99 - MFA No.24179/2012 & Connected cases its immediate removal from the public place by a towing service may be authorised by a police officer having jurisdiction. Sub-section (3) of Section 127 states that where a vehicle is authorised to be removed under sub- section (1) or sub-section (2) by a police officer, the owner of the vehicle shall be responsible for all towing costs, besides any other penalty. Section 127 of the Act is an enabling provision which empowers a police officer to tow away an abandoned, unattended, wrecked, burnt or partially dismantled vehicle, which is creating a traffic hazard at the expense of the owner, but that does not imply absence of duty on the part of the owner and driver of the vehicle, which is left unattended in a public place. A duty is cast on the driver as well as the owner of such a vehicle to ensure that such a vehicle is towed away as immediately as practicable and not left abandoned or unattended, particularly on a highway where vehicles are permitted to move at a faster pace than on other roads. In the alternative, some other form of external lighting ought to have been provided so as to give an indication - 100 - MFA No.24179/2012 & Connected cases about the parked lorry, until a vehicle, which is stationed/parked due to a break down or if it has met with an accident is towed away, it is necessary that the said vehicle does not become dangerous to other vehicles. For that precautions, under Section 122 read with the relevant Rules have to be followed by the driver and owner of the stationed vehicle, particularly on a highway.
100. The display of lights of motor vehicles is generally regulated by statute. Under Rule 109 of Central Motor Vehicles Rules, 1989, every motor vehicle, other than motor cycles and three-wheeled invalid carriages shall be provided with one white or amber coloured parking light on each side in the front. In addition to the front lights, two red parking lights, one on each side in the rear shall be provided. The front and rear parking lights shall remain lit even when the vehicle is kept stationary on the road. The proviso states that rear lamps can be the same as the rear lamps referred to in sub-rule (2) of Rule
105. Sub-rule (2) of Rule 105 states that every motor - 101 - MFA No.24179/2012 & Connected cases vehicle, other than three-wheeler, shall also carry two lamps (hereinafter referred to as the rear lamp) showing to the rear a red light visible in the rear from a distance of one hundred and fifty-five metres; lamp, which may be the rear lamp or some other device, illuminating with a white light the whole of the registration mark exhibited on the rear of the vehicle, including a construction equipment vehicle, so as to render it legible from a distance of fifteen metres to the rear. Sub-rule (5) of Rule 105 states that in the case of a transport vehicle, the rear light may be fixed at such level as may be necessary to illuminate the registration mark. In sub-rule (6) of Rule 105, it is stated that every heavy goods carriage, including trailers, shall be fitted with a red indicator lamp of size of thirty centimeters by ten centimeters on the extreme rear-most body cross- beam and in case of a vehicle not constructed with body in the rear, the indicator lamp shall be fitted near the right, rear light above the rear number plate. Under Rule 107, it is stated that every goods vehicle, including trailer and semi-trailer, other than three-wheelers and vehicles with - 102 - MFA No.24179/2012 & Connected cases overall width not exceeding 2.1 metres, shall be fitted with two white lights at the top right and left corners showing white light to the front and two red lights at the top right and showing red light to the rear. The lights shall remain lit when the vehicle is kept stationary on the road during night and at the time of poor visibility. Provided that in the case of goods carriage without a full body in the rear, provision for fitting of the top light at the rear shall not be necessary.
101. Revisiting the facts of this case, it is noted that on 12/11/2008, at about 8.00 p.m., the Santro car which was proceeding on NH17 dashed against the stationary lorry, which was parked on the highway towards the left side of the road. The car hit the lorry from behind. Having regard to the aforesaid mandatory requirements, it is noted in the sections of the Act as well as relevant Rules and also the judgments referred to above, it is held that the driver of the lorry was in breach of duty to take care and was thus negligent. In the absence of any indication - 103 - MFA No.24179/2012 & Connected cases by way of lights to indicate that the container lorry was stationed on the left side of the road by covering a portion of the road, the accident had occurred. Secondly, the accident occurred at 8.00 p.m. in the month of November when it was dark on the National Highway. The driver of the Santro car was proceeding on the left side of the road of the highway and could not see the container lorry parked on the left side of the road as there were no lights indicating that the said vehicle had been parked. Therefore, there was negligence on the part of the lorry driver in parking the lorry on the highway without any light. Assuming for a moment that the lights of the lorry were non-functional on account of the fact that it had earlier met with an accident, then all efforts should have been made to remove/tow away the lorry at the earliest possible time. The same not having been done clearly give rise to an inference that the driver and owner of the lorry did not discharge their duty to take care and were therefore negligent in causing the accident. - 104 - MFA No.24179/2012
& Connected cases
102. No negligence can be attributed to the driver of the car as on a National Highway the vehicles would normally move at a greater speed than on an ordinary road or on a road in a city or a town. On account of there being no indication whatsoever that the container lorry was parked towards the left side of the road, the driver of the car who was also proceeding on the left side could not imagine or gauge or expect that there was a vehicle that was parked towards the left side of the road. In the absence of the driver of the car being aware about the parking of the lorry towards left side of the road and the car also proceeding towards the left side of the road, it hit the lorry from behind. Even if the car was proceeding at a moderate speed, the driver could not have avoided the stationed lorry which was unattended and without any light or indicator on so as to indicate to the drivers of the vehicles proceeding in the same direction that the lorry was parked to avoid hitting the lorry. In fact, in the instant case the brake marks on the road as noted in the panchnama would indicate that the driver of the vehicle - 105 - MFA No.24179/2012 & Connected cases has tried his best to avoid a collision with the lorry, but could not do so. Thus, total negligence was on the driver of the lorry to have left it unattended and without any parking lights on, which is in violation of the duty cast under the Act as well as in common law. Hence, there being a breach of duty to take care, it is held that the driver and owner of the lorry were totally negligent and committed a tortuous act in causing the accident and that there was no composite negligence nor contributory negligence on the part of the driver of the car. In the result, the driver, owner and insurer of the car are exonerated from their liability to satisfy the awards. Hence, point No.1 is answered in favour of the claimants and New India Assurance Co. Ltd., and against the driver/owner and insurer of the lorry. Reg. POINT No.2:
103. As far as the liability of the insurer of the lorry to satisfy the awards is concerned, the further contention is with regard to the alleged cancellation of the - 106 - MFA No.24179/2012 & Connected cases policy cover note bearing No.200702418353 and as a result the insurer of the lorry not being liable to satisfy the award.
104. In New India Assurance Co. Ltd. vs. Rula & others, [2000 ACJ 630], it has been observed in paragraph No.9 as under:
"9. Thus, any contract of insurance under Chapter 11 of the Motor Vehicles Act, 1988 contemplates a third party who is not a signatory or a party to the contract of insurance but is, nevertheless, protected by such contract. As pointed out by this Court in New Asiatic Insurance Co. Ltd. v. Pessumal Dhanamal Aswani, 1958-65 ACJ 559 (SC), the rights of the third party to get indemnified can be exercised only against the insurer of the vehicle. It is thus clear that the third party is not concerned and does not come into the picture at all in the matter of payment of premium. Whether the premium has been paid or not is not the concern of the - 107 - MFA No.24179/2012 & Connected cases third party who is concerned with the fact that there was a policy issued in respect of the vehicle involved in the accident and it is on the basis of this policy that the claim can be maintained by the third party against the insurer."
105. It has been further held that subsequent cancellation of the insurance policy on the ground that the cheque through which premium was paid was dishonoured, would not affect the rights of the third party which had accrued on the issuance of the policy on the date on which the accident occurred. If on the date of the accident, there was a policy of insurance in respect of the vehicle in question, the third party would have a claim against the insurance company and the owner of the vehicle would have to be indemnified in respect of the claim of that party. Subsequent cancellation of insurance policy on the ground of non-payment of premium would not affect the rights already accrued in favour of the third party. - 108 - MFA No.24179/2012
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106. In National Insurance Co. Ltd. vs. Balkar Ram & others [2013 ACJ 2416], the Hon'ble Supreme Court held that the defence of the insurance company that the policy of insurance was not valid since the cheque had been dishonoured prior to the accident would not exonerate them from making the payment of compensation.
107. Reliance could also be placed on United India Insurance Co. Ltd. vs. Laxmamma & others, [2012 ACJ 1307 (SC)], wherein it has been held that the insurance company is liable to satisfy the award if the intimation with regard to dishonour of the cheque and cancellation of policy is communicated to the policy holder after the date of the accident.
108. In the instant case, it is an admitted fact that the cover note bearing No.200702418353 was issued in respect of the lorry in question which was in force till 14.12.2008. The accident occurred on 12.11.2008. The contention of the insurer of the lorry namely Reliance - 109 - MFA No.24179/2012 & Connected cases General Insurance Company through its counsel is that the premium amount was not paid by the owner of the lorry and therefore, there was cancellation of the policy. There are no documents to show that the cheque which had bounced was indeed issued in respect of the aforesaid cover note. The cheque which is produce as Ex.R-1 mentions the cover note number which does not tally with the aforesaid cover note or for that matter, the cheque was issued in respect of the offending lorry which met with the accident. Therefore, there is no proof of the fact that the cheque that was issued by the owner of the lorry was indeed in respect of the premium or the consideration for the issuance of the policy in respect of the lorry in question. In the circumstances, it is held that the insurance company has failed to prove that the cover note issued in respect of the lorry in question had been cancelled on account of non-payment of premium.
109. Having regard to the aforesaid decisions, it is held that the appellant insurer, namely Reliance General - 110 - MFA No.24179/2012 & Connected cases Insurance Company is liable to satisfy the awards in the instant case.
Reg. POINT No.3:
110. On the issue regarding award of compensation and the enhancement thereof, I agree with the assessment made by Hon'ble Bellunke J., and do not wish to state anything in that regard.
(B. V. NAGARATHNA)
JUDGE
ORDER OF THE COURT
(i) The appeals filed by the claimants
namely MFA Nos.24179, 24180,
24181, 24182, 24183, 24184 and
24185 of 2012 succeed in part;
(ii) MFA Nos.23566, 23567 and 23568 of 2012 are allowed. The amount in deposit before this Court be refunded - 111 - MFA No.24179/2012 & Connected cases to the appellant-insurer in these appeals;
(iii) MFA Nos.101478, 101479 101480, 101481, 101482, 101483 and 101484 of 2014 are dismissed;
(iv) The appellant - Reliance General Insurance Company Limited is directed to satisfy the awards by paying the enhanced compensation to the respective respondents-claimants;
(v) The amount in deposit made by the appellant-Reliance General Insurance Company Limited in the aforesaid appeals shall be transmitted to the Tribunal forthwith;
(vi) Parties to bear their respective costs;
Sd/-
JUDGE Sd/-
JUDGE Naa/EM/mvs