Karnataka High Court
New India Assurance Co Ltd vs Sri. Maruthi on 4 March, 2013
Author: H.S.Kempanna
Bench: H.S.Kempanna
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 4TH DAY OF MARCH, 2013
BEFORE
THE HON'BLE MR.JUSTICE H.S.KEMPANNA
MISCELLANEOUS FIRST APPEAL NO.5910/2007 (MV)
C/W.
MISCELLANEOUS FIRST APPEAL NO.5911/2007(MV)
IN MFA NO.5910/2007
BETWEEN:
New India Assurance Co. Ltd.,
Represented by Deputy Manager,
Mission Road, Bangalore-27,
Representing New India
Assurance Co. Ltd., Dharwar.
- Appellant
(By Sri.Sharanappa S.Koliwad for M/s. B. C.
Seetharama Rao, Advs.)
AND:
1. Sri.Maruthi, Major,
S/o.Ramachandra Jadhav
Vijaya Road, Dharwad.
2. Sri.Mainuddin Bhavee, Major,
Driver of Truck MEZ-5962,
R/at: Bailhongal,
Belgaum District.
(Deleted as per Court Order.)
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3. Sri.Gopal Rao, Major,
S/o.Mahadevappa Rajput,
Owner of the Truck MEZ-5962,
R/at: Dharwad Road,
Bailhongal.
4. Oriental Insurance Co. Ltd.,
Represented by Branch Manager,
Near Bus Stand, Bailhongal.
5. Smt.Kamalawwa, Major,
6. Shankaragouda, Major,
7. Saroja, Major,
8. Prakash, Minor,
9. Veda, Minor,
10. Channabasawwa, Minor,
11. Shaila, Minor,
12. Smt.Dakshayani, Major,
Respondents No.8 to 11 are minors
Represented by 5 t h respondent.
Respondents No.5 to 12 are residing at
Tavaramalihalli, Tq: Savanur,
Dist: Dharwad.
- Respondents
(By Sri.C.S.Benni, Advocate, for R.4.)
(Sri.Madan Mohan M. Khannur, Advocate, for R.5
to R.12.)
(R.2 and R.3 - Notice dispensed with.)
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This Miscellaneous First Appeal is filed u/s.
173(1) of MV Act, against the judgment and award
dated 15.11.2006 passed in MVC No.875/1995 on
the file of the Civil Judge (Sr.Dn.) and Addl.
MACT, Haveri, awarding a compensation of
Rs.2,89,000/- with interest @ 6% p.a. from the
date of petition till realisation.
IN MFA NO.5911/2007
BETWEEN:
New India Assurance Co. Ltd.,
Represented by Deputy Manager,
Mission Road, Bangalore-27,
Representing New India
Assurance Co. Ltd., Dharwar.
- Appellant
(By Sri.Sharanappa S.Koliwad for M/s. B. C.
Seetharama Rao, Advs.)
AND:
1. Sri.Maruthi, Major,
S/o.Ramachandra Jadhav
Vijaya Road, Dharwad.
2. Sri.Mainuddin Bhavee, Major,
Driver of Truck MEZ-5962,
R/at: Bailhongal,
Belgaum District.
(Deleted as per Court Order.)
3. Sri.Gopal Rao, Major,
S/o.Mahadevappa Rajput,
Owner of the Truck MEZ-5962,
R/at: Dharwad Road,
Bailhongal.
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4. Oriental Insurance Co. Ltd.,
Represented by Branch Manager,
Near Bus Stand, Bailhongal.
5. Babusab Sabisab Ramankop
@ Nadaf, Major,
R/at: Hirenarti Plot,
Kundagol Taluk, Dharwad District.
- Appellants
(By Sri.C.S.Benni, Advocate, for R.4.)
(Sri.Mutalik Desai, Advocate, for R.5.)
(R.2 and R.3 - Notice dispensed with.)
This Miscellaneous First Appeal is filed u/s.
173(1) of MV Act, against the judgment and award
dated 15.11.2006 passed in MVC No.797/1995 on
the file of the Civil Judge (Sr.Dn.) and Addl.
MACT, Haveri, awarding a compensation of
Rs.14,250/- with interest @ 6% p.a. from the date
of petition till realisation.
These appeals coming on for admission this
day, the Court delivered the following judgment.
JUDGMENT
These two appeals preferred by the appellant - Insurance Company are directed against the common judgment and award dated 15.11.2006 passed in MVC Nos. 875/1995 and 797/1995 on the file of the Motor Accident Claims Tribunal, Haveri. Apart from these two claim :5: petitions, the Tribunal had also disposed of two other claim petitions namely, MVC Nos. 842/1995 and 991/1995 under the same Judgment and Award.
The brief facts of the case are:-
The respondent/claimants in these two appeals, the claimants in MVC No.991/1995 and the deceased in MVC No.842/1995 on 15.11.1991 were travelling in the lorry bearing registration No.KA-25/859. The said lorry met with an accident involving another lorry bearing No.MEZ-5962, which resulted in the death of one K.K. Anjeneya Dodamani and injuries to the others, who are travelling in the lorry bearing No.KA-25/859. The LRs of the deceased K.K. Dodamani and injured who are the claimants in these two petitions filed their respective claim petitions, claiming compensation before the Tribunal, against the owners and also the insurer of both the lorries involved in the accident.
2. After the petitions came to be filed, they were contested by the respective insurers of the said two lorries involved in the accident, namely, KA-25/859 - the appellant :6: Insurance Company and MEZ-5962 - respondent No.4/the insurer of the said lorry, in these appeals. Both the insurers of the said two lorries, inter alia contended that the accident in question has not taken place on account of rash and negligent driving of the driver of the lorry insured with them, on the other hand, it took place on account of the rash and negligent driving of the lorry insured with the opposite Insurance Company. Therefore, they contended that, as the accident has not taken place on account of rash and negligent driving of the lorry by its driver insured with them, they are not liable to pay any compensation.
3. At the trial, the claimants examined themselves as PWs. 1 to 3 and got marked Exs. P1 to P53 and P1 to P5 respectively insofar as these two petitions involved in these two appeals. On behalf of the respondent - insurers, they did not choose to lead any evidence.
4. The Tribunal, on considering the evidence and the documents placed on record, came to the conclusion that the accident has occurred on account of the contributory negligence of the drivers of both the lorries and accordingly, :7: by its impugned judgment and award, fastened the liability on the appellant-insurer to the extent of 75% and 25% the respondent No.4 - Insurance Company-the insurer of the other lorry bearing No. MEZ-5962, apart from awarding compensation to the claimants.
5. The appellant-Insurance Company, that is the insurer of the lorry bearing No.KA-25/859, being aggrieved by the liability fastened on them to the extent of 75% have preferred these two appeals.
6. The learned Counsel for the appellant - Insurance Company contended, the Tribunal has erred in fastening the liability on the appellant to the extent of 75% despite there being no evidence to show that the claimants were travelling in the lorry as authorised persons. He contended, the material on record reveals, at the time of accident the claimants in these two petitions were unauthorised passengers. This Court, in the connected appeals, namely MFA No.5913/2007 connected with MFA No.5917/2007 has held that the injured and the deceased who were travelling in the lorry insured with them were unauthorised passengers :8: and accordingly, allowed their appeal and has set aside the liability fastened on them by the Tribunal by the judgment dated 19.11.2012. Therefore he contends, in view of the said finding recorded by this Court in the connected appeals, as these appeals also arise out of the very same common judgment and award involved in the said two appeals, the liability fastened on them to the extent of 75% to be set aside by allowing the appeals.
7. Per contra, the learned Counsel appearing for the contesting respondent/claimants did not dispute the position of this Court having set aside the liability fastened on the appellant in the connected appeals, which has been preferred against the common judgment and award involved in these two appeals.
8. Likewise, Sri. C. S. Benni, learned Counsel appearing for respondent No.4-the insurer of the other lorry namely, MEZ5962, did not dispute the said factual position and also contended that, the liability fixed on their Insurance Company to the extent of 25% has been satisfied and further, as no further liability has been fastened on :9: them, the Court may proceed to pass the orders as it has been done in the connected matters.
9. It is the case of the claimants that they were travelling in the lorry bearing No.KA-25/859 as on the date of the accident. It met with an accident involving another lorry bearing No.MEZ-5962 which resulted in the death of one Krishnakumar Anjaneya Dodmani and injuries to the present respondents/claimants and others. Since the accident occurred on account of the rash and negligent driving of the driver of both the lorries involved in the accident, insurers of both the lorries are jointly and severally liable to pay the compensation.
10. Both the insurance companies appeared and contested the claim petitions filed by the respective claimants. They contended that the accident has not taken place on account of the rash and negligence of the driver of the lorry insured with them, on the other hand, : 10 : it has taken place due to the negligent driving of the lorry insured with the opposite insurance companies. Therefore, they are not liable to pay any compensation. Accordingly, they sought for dismissal of the petition.
11. The Tribunal, on considering the entire material on record, came to the conclusion that the accident has taken place on account of the contributory negligence of the drivers of both the lorries and it apportioned the negligence at the ratio of 75% on the appellant and 25% on respondent No.4-insurance company i.e., the insurer of the lorry bearing No.MEZ- 5962.
12. This Court in the connected two appeals viz., M.F.A. Nos.5913/2007 and 5917/2007, which appeals had been preferred by the appellant/Insurer against the common judgment and award arising out of the same accident, has held that sofar as the claimants travelling in the lorry insured with the appellant herein, they were : 11 : unauthorised passengers. Accordingly, it set aside the liability fastened on the appellant-insurance company to the extent of 75% on them, by judgment dated 19.11.2012. This factual position of disposal of the appeals is not disputed by either of the counsel appearing for the respective parties viz., the claimants and also the 4th respondent-insurance company. Since the grievance of the appellant-insurance company is that the claimants being unauthorised passengers in the lorry insured with them, no liability could be fastened, as has been done by the Tribunal and as the said finding of the Tribunal has been set aside by this Court in the connected appeals as aforesaid, I have no hesitation in holding that the respondents/claimants in these two appeals, who were travelling in the lorry which has been insured with the appellant, are unauthorised passengers and thereby the impugned judgment and award fastening the liability on the appellant to the extent of 75% cannot be sustained and : 12 : deserves to be set aside. Insofar as the liability of 25% fastened on respondent No.4 is concerned, since it was not disputed by the learned counsel and as he also fairly submitted that they have satisfied the award to that extent i.e., 25%, appeals preferred by the appellant- insurance company deserves to be allowed.
Accordingly, both the appeals are allowed. The impugned judgment and award fastening the liability to the extent of 75% on the appellant-insurance company is set aside. The liability of payment of the said compensation is fastened on the 1st respondent-owner of the lorry bearing Reg. No.KA-25/859.
Registry is directed to refund the statutory amount in both the appeals to the appellant-insurance company.
Sd/-
JUDGE gab/kms