Karnataka High Court
New India Assurance Co Ltd vs Smt.Mookambu on 3 August, 2018
Author: Krishna S Dixit
Bench: Krishna S.Dixit
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 03RD DAY OF AUGUST, 2018
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
M.F.A. NO.3560 OF 2009 (MV)
C/W
M.F.A NO.2201 OF 2009 (MV)
IN M.F.A. NO.3560 OF 2009:
BETWEEN:
NEW INDIA ASSURANCE CO LTD.,
BRANCH OFFICE, #10-214, P H ROAD,
OPP: DISTRICT COURT, CHITTUR DISTRICT,
ANDHRA PRADESH, REPRESENTED BY
DIVISIONAL MANAGER,
DIVISIONAL OFFICE, SRIRAM ARCADE,
OPP: HEAD POST OFFICE, UDUPI
NOW REPRESENTED BY ITS
REGIONAL MANAGER,
THE NEW INDIA ASSURANCE CO LTD.,
REGIONAL OFFICE, 2-B, UNITY
BUILDING ANNEXE, P.KALINGA RAO ROAD,
BENGALURU - 560 027.
... APPELLANT
(BY SRI.A.N.KRISHNA SWAMY, ADVOCATE)
AND:
1. SMT.MOOKAMBU,
W/O LATE JAYAPRAKASH,
NOW AGED 46 YEARS,
2
2. RAGHURAMA,
S/O LATE JAYAPRAKASH,
NOW AGED 27 YEARS,
3. MANJUNATHA,
S/O LATE JAYAPRAKASH,
NOW AGED 25 YEARS,
4. CHANDRASHEKARA,
S/O LATE JAYAPRAKASH,
NOW AGED 23 YEARS,
ALL R/O ULLOOR 11 VILLAGE,
KUNDAPURA TALUK,
NOW R/AT JANATHA COLONY,
CHERKADI VILLAGE,
UDUPI TALUK AND DISTRICT
5. SRIRAMULU.K,
S/O K.SULUGAPPA, MAJOR,
R/O B.KOTHAKOTA POST,
MADANAPALLE TALUK,
CHITTUR DISTRICT,
ANDHRA PRADESH
6. IMTHIYAZ AHAMED,
S/O SABJAN SAB,
MAJOR,
R/O MAZI, SUBEDARKERI,
SHIKARIPURA,
SHIMOGA DISTRICT.
7. UNITED INDIA INSURANCE CO LTD.,
P B NO.21, GOVINDA KRIPA TRUST BUILDING,
SAGAR, REPRESENTED BY
DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO LTD.,
DIVISIONAL OFFICE,
G B PANTH ROAD,
UDUPI.
3
... RESPONDENTS
(BY SRI.H.PAVANA CHANDRA SHETTY, ADVOCATE FOR
R.1 TO 4;
SRI.P.B.RAJU, ADVOCATE FOR R.7;
NOTICE TO R.6 IS DISPENSED WITH VIDE ORDER
DATED 25.09.2012)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 04.03.2009 PASSED IN
MVC NO.470/2008 ON THE FILE OF PRINCIPAL CIVIL
JUDGE (SR. DN.) AND ADDITIONAL MACT, UDUPI,
AWARDING A COMPENSATION OF RS.2,95,500/- WITH
INTEREST @ 8% P.A. FROM THE DATE OF PETITION TILL
REALISATION.
IN M.F.A NO.2201 OF 2009:
BETWEEN:
1. SMT.MOOKAMBU,
AGED ABOUT 46 YEARS,
W/O LATE JAYAPRAKASH,
2. RAGHURAMA,
AGED ABOUT 27 YEARS,
S/O LATE JAYAPRAKASH,
3. MANJUNATHA,
AGED ABOUT 25 YEARS,
S/O LATE JAYAPRAKASH,
4. CHANDRASHEKARA,
AGED ABOUT 23 YEARS,
S/O LATE JAYAPRAKASH,
ALL RESIDING AT ULLOOR 11 VILLAGE,
KUNDAPURA TALUK,
NOW R/AT JANATHA COLONY,
4
CHERKADI VILLAGE,
UDUPI TALUK AND DISTRICT
... APPELLANTS
(BY SRI.H.PAVANA CHANDRA SHETTY, ADVOCATE)
AND:
1. SRIRAMULU K, (MAJOR),
S/O K.SULUGAPPA,
R/O B. KOTHAKOTA POST,
MADANAPALLE TALUK,
CHITTUR DISTRICT,
ANDRA PRADESH.
2. NEW INDIA ASSURANCE CO LTD.,
BRANCH OFFICE 10-214,
P. H.ROAD, OPP: DISTRICT COURT,
CHITTUR DISTRICT, ANDHRA PRADESH,
REPRESENTED BY
DIVISIONAL OFFICE,
SRIRAM ARCADE,
OPP: HEAD POST OFFICE,
UDUPI BY ITS DIVISIONAL MANAGER
3. IMTHIYAZ AHAMED (MAJOR),
S/O SABJAN SAB,
MAZI, SUBEDARKERI,
SHIKARIPURA,
SHIMOGGA DISTRICT.
4. UNITED INDIA INSURANCE CO. LTD.,
P B NO.21, GOVINDA KRIPA TRUST BUILDING,
SAGAR, REPRESENTED BY
DIVISIONAL OFFICE,
G.B.PANTH ROAD, UDUPI
BY ITS DIVISIONAL MANAGER.
... RESPONDENTS
(BY SRI.S.MUBARAK BASHA, ADVOCATE FOR R.1;
SRI.C.R.RAVISHANKAR, ADVOCATE FOR R.2;
5
SRI.P.B.RAJU, ADVOCATE FOR R.4;
NOTICE TO R.3 IS D/W V/O DATED 06.12.2010)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 04.03.2009 PASSED IN
MVC NO.470/2008 ON THE FILE OF PRINCIPAL CIVIL
JUDGE (SR.DN.) AND ADDITIONAL MACT, UDUPI,
ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS COMING ON FOR FINAL HEARING
THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
This appeal by the insurer challenges the judgment and award dated 04.03.2009 made by the Addl. MACT, Udupi, allowing M.V.C.No.470/2008, whereby a compensation of Rs.2,95,500/- has been awarded with 8 % interest thereon.
2. In a vehicular accident, that happened on 10.06.2005, because of allegedly composite negligence of two vehicles, Mini Tempo bearing Registration No.KA-15/2010 and lorry bearing Registration No.KA-01/AD-8786, one Mr.Jayaprakash sustained fatal injuries and succumbed to the same. The claim for 6 compensation raised by the L.Rs of the deceased in M.V.C.No.470/2008, was stoutly opposed by the insurer by filing the Written Statements.
3. To prove the claim, the claimants had examined Raghurama as PW.1 and got marked six documents which included the Charge Sheet and the Post Mortem Report. From the side of the Insurer, although none was examined, the Insurance Policy issued by the appellant herein was marked as Exhibit R2. Looking to the pleadings of the parties and the evidentiary material on record, the MACT has entered the judgment and award that are put in challenge by the insurer.
4. The learned counsel for the insurer Sri.A.N. Krishna Swamy firstly contends that in a case of composite negligence, obviously involving two vehicles, the issue as to the composite negligence has to be addressed by the MACT notwithstanding the text of sub-section (2) of Section 163-A of the Motor Vehicles Act, 1988 inasmuch as the same has not been foreclosed. The foreclosure operates only in favour of the claimants and not qua the 7 multiple offending vehicles. He contends that this aspect having not been adverted to by the MACT, the impugned judgment and award to that extent, are flawsome.
5. The learned counsel for the insurer secondly contends that the claim was admittedly under Section 163-A of the Act and therefore, the MACT could not have awarded compensation under the conventional heads beyond Rs.9,500/- whereas in this case, the MACT has awarded Rs.55,500/-. He brings to my notice the Second Schedule to the Act wherein, at Item No.3, the maximum amount payable under the conventional heads is limited to Rs.9,500/-.
6. The learned counsel for the claimants, per contra, contends that the law being an organic institution of Society, has marched and in the judgment of the Apex Court in the Pranay Sethi's case (AIR 2017 SC 5157), the new norms have been evolved and therefore, the same should be made available to the benefit of the claimants and therefore, he submits that what has been awarded by the MACT as compensation in a sum of Rs.55,500/- is 8 justifiable. However, with regard to the plea of composite negligence, the counsel submits that he is not much concerned with the same inasmuch as, such a plea even if be allowed, will not topple his the Apple Cart.
7. I have heard the learned counsel for the insurer and the learned counsel for the claimants. I have perused the records.
8. The contention of the insurer that even in respect of a claim arising under Section 163-A, there has to be adjudication of the issue as to the involvement of multiple vehicles, finds support on the principle of 'joint tort feasors liability'. Sub-section (2) of Section 163-A is founded on 'no fault principle' so far as the claimants are concerned. That does not bar the jurisdiction of the MACT to address the issue of composite negligence, which in the present case has not been done. Therefore, to that extent, the impugned judgment is vulnerable.
9. The contention of the learned counsel for the appellant-insurer that the ratio of Pranay Sethi's Case is 9 inapplicable because of the text and context of Section 163-A read with Second Schedule, has force. The learned counsel banking upon Para 37 of the judgment of Apex Court in the case of Reshma Kumari and others (2013) 9 SCC 65, submitted that the ratio in Pranay Sethi's Case as to the principle of addition to the income of the deceased is attracted to the proceedings under Section 163-A. The argument lacks jurisprudential force. I do not find anything in the said judgment supportive of the said contention.
10. In the above circumstances, the insurer's appeal is favoured in part; the matter so far as it relates to the issue of composite negligence attributable to the drivers of the two offending vehicles involved, stands remanded to the MACT for consideration afresh, after hearing both the sides and for making an appropriate award qua the Insurers.
11. So far as the respondents/claimants are concerned, the impugned judgment and award are left intact except to the extent of scaling down the 10 compensation Rs.55,500/- awarded under the Conventional Heads to Rs.9,500/-. The impugned judgment and award are accordingly modified by reducing the compensation from Rs.2,95,500/- to Rs.2,40,000/-.
12. It is open to the claimants to take appropriate proceedings for any other relief, in accordance with law.
The entire amount in deposit along with LCR be transmitted to the MACT for immediate disbursal to the claimants.
Costs made easy.
Sd/-
JUDGE CBC