Karnataka High Court
Shriram General Insurance Co Ltd vs Sri.S.N.Narasimha Murthy on 8 August, 2018
Author: Krishna S.Dixit
Bench: Krishna S.Dixit
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 8TH DAY OF AUGUST, 2018
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
M.F.A. NO.1591/2014 c/w M.F.A.Nos.1590/2014 &
1592/2014
In M.F.A. NO.1591 OF 2014
BETWEEN
Shriram General Insurance Co. Ltd.
No.S-5, III Floor, Monarch Chambers,
Infantry Road, Bengaluru,
Now represented by
Legal Officer
Shriram General Insurance Co.Ltd.,
3rd floor, S & S Corner Building,
Opp: Bowring & Lady Curzon Hospital,
Shivaji Nagar,
Bengaluru-560001.
... APPELLANT
(BY SRI. A.N.Krishnaswamy, Advocate)
AND
1. Sri.S.N.Narasimha Murthy
@ Murthy,
S/o Narayanaswamy,
Now aged about 34 years,
R/at Siddepalli Village,
Gudimallelahalli Post,
Chintamani Taluk,
Chickballapur District, PIN:562101.
2
2. Smt.Stellamary
W/o Patric Babu, Major,
R/at #152-2, Arogyaswamy Mutt,
House, T C Palya, K R Puram,
Bengaluru-560036.
3. Managing Director
Andhra Pradesh State Road,
Transportation Corporation,
Musheerabad, Hyderabad,
Andhra Pradesh PIN:517501.
4. Sri O. Srikanth Reddy
S/o. O Venkatareddy,
Major, R/at D.No.1-5-547,
Balaji Colony,
Tirupathi, Chittor District,
Andhra Pradesh PIN:517501.
5. HDFC ERGO Gen. Ins. Co. Ltd.
I Floor, HM Geneva House,
# 14, Cunningham Road,
Bengaluru-560052.
... RESPONDENTS
(By Sri N.Gopal Krishna, Adv. for R1,
Sri D.Vijayakumar, Adv. for R3,
Sri H.S.Lingaraj, Adv. for R5,
R2 served unrepresented &
R4 dispensed with)
This MFA is filed u/s 173 (1) of M.V. Act against the
Judgment and Award dated:07.11.2013 passed in MVC
No.8154/2010 on the file of the 12th Additional Small Causes
Judge, Member, MACT, Bengaluru, awarding a compensation
of Rs.8,65,600/- with interest @ 6% p.a. from the date of
petition till realization of the entire award amount.
3
In M.F.A.No.1590/2014
BETWEEN
Shriram General Insurance Co. Ltd.
No.S-5, III Floor, Monarch Chambers,
Infantry Road, Bengaluru,
Now represented by
Legal Officer
Shriram General Insurance Co. Ltd.,
3rd floor, S & S Corner Building,
Opp: Bowring & Lady Curzon Hospital,
Shivaji Nagar,
Bengaluru-560001.
... APPELLANT
(BY Sri A.N.Krishnaswamy, Advocate)
AND
1. Sri.R.Anbu
S/o M.Ramappa,
Now aged about 31 years,
R/at No.31, Seegehalli Village,
Virogo Nagar Post,
Bengaluru-560014.
2. Smt.Stellamary
W/o Patric Babu, Major,
R/at No.152-2, Arogyaswamy Mutt,
House, T C Palya, K R Puram,
Bengaluru-56036.
3. Managing Director
Andhra Pradesh State Road,
Transportation Corporation,
Musheerabad, Hyderabad,
Andhra Pradesh PIN:517501.
4
4. Sri O.Srikanth Reddy
S/o. O Venkatareddy, Major,
R/at D.No.1-5-547, Balaji Colony,
Tirupathi, Chittor District,
Andhra Pradesh PIN: 517501.
5. HDFC ERGO Gen. Ins. Co. Ltd.
I Floor, HM Geneva House,
# 14, Cunningham Road,
Bengaluru-560052.
... RESPONDENTS
(By Sri N.Gopal Krishna, Adv. for R1,
Sri D.Vijayakumar, Adv. for R3
Sri H.S.Lingaraj, Adv. for R5,
R2 & R4 served unrepresented)
This MFA is filed u/s 173 (1) of M.V. Act against the
Judgment and Award dated:07.11.2013 passed in MVC
No.8153/2010 on the file of the XII Additional Small Causes
Judge, Member, MACT, Bengaluru, awarding a compensation
of Rs.3,12,435/- with interest @ 6% p.a. from the date of
petition till realization.
In M.F.A. NO.1592 OF 2014
BETWEEN
Shriram General Insurance Co. Ltd.
No.S-5, III Floor,
Monarch Chambers,
Infantry Road,
Bengaluru,
Now represented by
Legal Officer
Shriram General Insurance Co.Ltd.,
3rd floor, S & S Corner Building,
Opp: Bowring &
5
Lady Curzon Hospital,
Shivaji Nagar,
Bengaluru-560001.
... APPELLANT
(By Sri. A.N.Krishnaswamy, Advocate)
AND
1. Smt.Manjula @ Manjulamma
W/o Late Shanthappa @ Shanthmurthy,
Now aged about 28 years
2. Kum.Reshma @ Sushma
D/o Late Shanthappa @ Shanthmurthy,
Now aged about 11 years
3. Kum.Chandana
D/o Late Shanthappa @ Shanthmurthy,
Now aged about 9 years
4. Master Srikanth,
S/o Late Shanthappa @ Shanthmurthy,
Now aged about 7 years
5. Sri Munishamappa
S/o Late Muniyappa,
Now aged about 71 years
6. Smt.Subbamma
W/o Munishamappa,
Now aged about 66 years
Respondents 2 to 4 herein since minors
represented by their mother & natural
guardian, the 1st respondent herein.
All r/at Siddepalli Village,
Gudimallelahalli Post,
Chintamani Taluk,
Chickballapur District. PIN-562101.
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7. Smt.Stellamary
W/o Patric Babu, Major,
R/at No.152-2, Arogyaswamy Mutt,
House, T C Palya, K R Puram,
Bengaluru-56036.
8. Managing Director
Andhra Pradesh State Road,
Transportation Corporation,
Musheerabad, Hyderabad,
Andhra Pradesh PIN:517501.
9. Sri O.Srikanth Reddy
S/o. O Venkatareddy, Major,
R/at D.No.1-5-547, Balaji Colony,
Tirupathi, Chittor District,
Andhra Pradesh PIN: 517501.
10. HDFC ERGO Gen. Ins. Co. Ltd.
I Floor, HM Geneva House,
# 14, Cunningham Road,
Bengaluru-560052.
... RESPONDENTS
(By Sri N.Gopal Krishna, Adv. for R1 to R4 & R6,
Sri D.Vijayakumar, Adv. for R8,
Sri O. Mahesh, Adv. for R10 &
R7 & R9 served unrepresented)
This MFA is filed u/s 173 (1) of M.V. Act against the
Judgment and Award dated:07.11.2013 passed in MVC
No.8155/2010 on the file of the XII Additional Small Causes
Judge, Member, MACT, (SCCH-8) Bengaluru, awarding a
compensation of Rs.10,12,000/- with interest @ 6% p.a. from
the date of petition till realization of deposit.
These Appeals are coming on for Admission, This Day,
The Court Delivered The Following:-
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JUDGMENT
These three appeals by the insurer of the offending lorry in question challenges the judgment and award dated 07.11.2013 made by MACT, Bengaluru (SCCH-08) allowing M.V.C.Nos.8153, 8154 and 8155 of 2010 whereby three different sums of compensation i.e., Rs.3,12,435/-, Rs.8,65,600/- and Rs.10,12,000/- respectively have been awarded with interest at the rate of 6% per annum.
2. The fact that the accident happened on 24.06.2010 because of collision between APSRTC bus bearing registration No.AP-03-Y-2773 and the lorry bearing registration No.KA-53-5297 near Mudigere village on Bengaluru-Chennai NH-04 road, is not in dispute. It is also not in dispute that the accident resulted in death of one person and grievous injuries to claimants; there is also no, challenge to the quantum of compensation awarded in these three claim petitions, arising from the very same accident. What is challenged by the appellant herein is as to the finding 8 of the MACT that the lorry in question was exclusively responsible for the accident.
3. Learned counsel for the insurer of the offending lorry submits that there is wealth of evidentiary material on record to show that it was a case of composite negligence, which the MACT has not addressed. Banking upon the deposition of PW2, who was the cleaner of the lorry and who was the claimant in MVC 8154/2010, learned counsel submits that there is negligence attributable to the driver of APSRTC bus too. He also shows the contents of the Spot Sketch at Ex.P4 to substantiate his case of composit negligence.
4. Per contra, learned counsel appearing on the other side submits that all the witnesses have deposed as to the negligence of the driver of the lorry in question. No reason is assigned as to why lorry driver was not put to witness box. The spot sketch that describes the accident does not support the case of contributory or composite negligence attributable 9 to the driver of APSRTC bus. Lastly, he submits that the Tribunal being the expert body has considered the matter in the right perspective and has recorded the finding that the driver of truck was rash and negligent and this resulted into the accident. So arguing, the counsel seeks dismissal of the appeal.
5. I have heard the learned counsel for the insurer of offending lorry and the learned counsel appearing on the other side.
6. I have perused the appeal papers and the copies of the LCR made available at the Bar. Assessment of composite negligence is a difficult task. It involves some reasonable amount of guess work, by its very nature. In the absence of contemporaneous video graphing of entire roads and traffic as been done in the advanced countries, the issue of composite negligence has to be addressed more on the principle of probability than of accuracy. Keeping this in the mind, this Court has addressed the issue of composite negligence. 10
7. PW2, the claimant in M.V.C. No.8154/2010 was the cleaner of the lorry in question. He is injured too. He has spoken about the negligence of driver of APSRTC bus, although the other witnesses have implicated the driver of lorry in question. The version of PW2 to some extent supports the hand sketch of the accident which is marked as Ex.P4, is not disputed by any of the witness. Thus it remains unchallenged in its veracity.
8. A contention is specifically taken by the insurer of lorry in question in its Written Statement as to the complicity of driver of APSRTC bus. Regard being had to the evidentiary material on record, this Court is of the considered opinion that there was a composite negligence leading to the accident between driver of the lorry in question and the driver of APSRTC bus, roughly in the ratio of 70:30. Accordingly, liability is to be apportioned by and between these two.
9. *These appeals partly succeed; the judgment and award are modified apportioning the liability between the *Corrected Vide Chamber Order Dated 16.02.2019 11 appellant-insurer of the offending lorry bearing Registration No.KA-03-5297 and the insurer of APSRTC bus bearing Registration No. AP-03-Y-2773 in the ratio of 70:30. It is made clear that this apportionment does not prejudice the right of the claimant to recover the compensation from anyone or both of them on the principle of 'joint and several liability' of the joint tortfeassors.
10. Lastly, the amount in deposit in the Registry along with the LCRs shall be transmitted to the Jurisdictional MACT for disbursal of compensation to the claimants, forthwith.
Costs made easy.
Sd/-
JUDGE HA/NMS