Karnataka High Court
The Oriental Insurance Co Ltd vs Bannemma W/O Late Basanna @ ... on 1 February, 2012
Equivalent citations: 2013 AAC 1463 (KAR), 2013 (2) AKR 298
Author: Jawad Rahim
Bench: Jawad Rahim
N IHtjjjLCQjjSI OF iflT
CIRCUIT BENCH AT DHARWAD
DATED imils THE 1 DA OF EFBRUAR/, 2012
EFORE
I HE FION'RLF MR H STICE iVJAD RAH1F2
I LA O zlG3Ijzuu9 IM'/x jw M M RuB. iiijzuii
iN MiCA. 21631J09:
El LEN
THE ORIENTAL INSURANCE CO [Tb
Age:
F B HE [RANCH MANAGER
DIE ER HOSIEL COMPLEX COL RT OAL
BELLAR"r' R/B ITS CHIEF REGIONA2 MANAGER
ORIENTAt INSURANCE CO FTD
EGTONA OFF E UM G C IP X
TMI\J ,f R IL) JB
APPELANT
Oly Sri c r RACHUR. ADS
IL
BAHNEIIIIA £T[ BASAND" A 1 I r;Er Lp
Al
iC DY ARC HE i D[D
tNO' A I
AHAH '
, Bt \N P I i VP A
N / A
Ti P. A AJ
F k T
1 I I t /
2
C
TN WARD GANGAVATI
ANCALI D/O BASANNA a BASAVANTEPPA
0CC STUDENT R0KILLAREA
STHVARD 3ANCAVATI
BASAYYA S 0 KALLAYYA
Age 35 YEARS
CC DRIVER OF LORRY NO KA-2a
R/O TIRLAPUR VILLAGE TQ NAVALGUNL
SURESH 5/0 YASHAVANTH JADHAV
Age 40 YEARS
0CC OWNER OF LORRY NO KA 25
R 0 GOKUL ROAD BESIDE C M M JOSHI EYE
HOSPItAL HUBLI
RFSP NDENI
By Sn B SHARANA BASAWA ADV FOR RI)
FlEA S FILED U/S 1 OF WC AC 988
FGAINSI IF E JUDGMENT AND AWAR TD 9/0 2008
PASSED IN MVC NO 116 008 ON THE ILL OF THE IVIL
CE SD A N V A T CANCAVI HI 4.WAPDIN
VPENS4TIO4 1 89 L N W
FE ROT I F
0
N V a
tEA
3
1
1
V HO IS THE NATURAL MOTHER OF THE
CHILDREN
KUMAR SOMA S 0 BASANNA tO LATE
BASAVANTHAPPA
AGED ABOUT 1OYEARC
MINOR R/BY CROSS-OBJECTOR NO 1
BANNFMMA W/O LATE BASANNA d BASAVAN HAP
WHO IS THE NATURAL MOTHER OF THE
CHILDREN
KUMARL ANJAL I D/O BASANNA a LATE
BASAVANT HAPPA
AGED ABOUT 9 YEARS,
MINOR R/BY CROSS OBJECTOR NOd
BANNEMMA W/O LATE BASANNA @ BASAVANTHAP
WHO IS THE NATURAL MOTHER OF THE
'dilL DREN NATURAL GUARD IAN
CROSS OBJECTOR
By S i B SHARANABASAWA ADV
AND
BASA'YA KAL A (A
A E ABO JT 38 YEARS
C ORIERO ORR NO
RAAPLR LLA F
A
R I
A
C
4
BELLARY.
RESPONDENTS
MFA./CROB. IS FILED U/O 47 RULE 22 OF CPC, R/W.
SEC.173(1) OF MV ACT, 1988, AGAINST THE JUDGMENT
AND ORDER DTD:09-O1-2009 PASSED IN
MVC.NO.116/2008 ON THE FILE OF THE CIVIL JUDGE
(SR.DN.) AND MEMBER, MACF, GANGAVATHI, AWARDING
THE COMPENSATION OF RS.1175,895/- WITH INTEREST
AT THE RATE OF 8% P.A. FROM THE DATE OF Pt I I I iON
TILL DEPOSIT.
THE APPEAL AND MFA.CROB. COMING ON FOR
HEARING ThIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
Insurer's appeal ainst the judgment questioning the direction of the Tribunal to Indemnify the insured to pay compensation to the claimants.
2. Appeal and cross-objection are admitted and taken up for final disposal by consent.
3. From what learned counsel of both sides have adverted, the genesis of appeals is a motor vehicle accident on 26.06.2007 involving a motor cycle bearing No.KA 37/L1346 and a stationery lorry bearing No. KA 25/8235 tn which the rider of the motor cycle Basanna suffered injuries and died The pillion rider diSO died in the said accident The legal heirs of \ ictims lodged claim seeking ompen ation 4 The insured miner o he iehi Ic did not dispute claim averments regarding act of negligence attributed to the dnver of the lorry in question The insurer of the vehicle vho appellant nerein en usly opposed the hum f r tly on the ground that ac dent has not occ irred n the manner averred in the pet ti n and econd y yen f a e nvol g t e r n uesto it as tlydtet co egien tr I ide r hi e d r r ro a nt t n e e 6 accident was as a result of culpable negligence of the motor cyde rider in which no act of even actionable negligence could be attributed to the lorry driver.
5. In support of these pleas, they have referred to police Investigation report in which the rider of motor cycle Basanna was indicted and arraigned for the offences under Sections 279 and 304A of I.P.C. vide Ex.P-2. Since he was dead, the charge abated. They used the final report Ex.P 2 in its support and supplemented it referring to Ex.P-3 panchanama, Ex.P-4 sketch and Ex.P-5 I.M.V. report.
6. The learned Member of the Tribunal considering the evidence of the daimants through P.W.1 Yamanappa P.W.2 Devamma, P.W.3 Basavaraj in M.V.C. 115/2008 and as also P.W.1 Bannemma and P.W.2 Basavaraj in M.V.C. No. 116/2008 opined, such evidence spelled out negligence on the part of the lorry driver In parking the vehlde without the parking lights and other warning signals, and therefore, he was negligent. It absolved the motor cycle rider of contributory negligence and directed a I.) hat th quantified oripen,aton be discharqe b, t'e wisurer that is venously questioned n th s appe na n d t n e r C a h na iterate I the pleas ad anced before the trial ot r and eeks citations ,upport to his contention n the following decisions (I) Raj Rarsi and others vs Oriental Insurance Co Ltd and others reported in 2009 Kant MAC 622 (SC) ofl' (II) Smt. Nasreen Uanu and others vs The Divisional Managei, New India Assurance Co Limited Beflary and others 2009 Kant N A C 241 Kant) a ft r cii bock d 4 09 8
9. At this juncture, it is necessary that we address the question raised by learned counsel, Sri Raichur regarding maintainability of the cross-objection.
10. In the decision cited by him, the learned single Judge of this court has taken the view that in an appeal flied by the insurer questioning its liability, cross-objection by the claimant for enhancement Is not maintainable. To form such opinion, learned single Judge has referred to the decision of the Division Bench ruling of this court in the case of SAVITRI BAI .v. DODDAPPA AND ANOTHERS (1981 AD 422) where the Division Bench opined that the insurance company being not a party to the proceedings In the claim petition and as it has limited defence to avoid liability only on the question of contravention of terms of the policy, In an appeal preferred by it on that ground, cr6ss-objection filed by the claimant for enhancement is not maintainable.
11. The judgment in the case of SAVITHRI BAI was rendered In the year 1981 refenlng to the repealed Motor 9 Vehicles Act. But due to change of law as amended by Act No.59 of 1988, a special provision in Section 170 has been engrafted in the Motor Vehicles Act to enable the insurance company to apply to the Tribunal for being Impleaded In the proceedings to contest the daim on all grounds that are available to the insured owner of the vehicle in question. The decision of the Division Bench is with reference to Section 110 of the repealed provision and the limited defence of insurer to hold cross objection appeal for enhancement was not maintainable.
12. Section 149 undoubtedly restricts the right of defence of the insurance company except to seek avoidance of liability on ground of alleged violatIons of terms and conditions of the policy. But once the insurance company applies to be impleaded under Section 170 of the Act, it becomes a party to the proceedings. And on being impleaded acquIres right to resist the claim on all grounds that are available to the insured/owner of the vehicle.
13. Besides, this issue shall not hold us for long in view of the decision of a larger Bench of the apex court in 10 the case of UNITED INDIA INSURANCE COMPANY UNITED vs. SHILA DAnA & OTHERS (2011 AC) 2729) wherein the apex court, referring to the changed position of law relating to grant of compensation, has affirmatively held that It is not necessary for the insurance company to apply for leave under SectIon 170 of the Act to contest the claim petition on all grounds if it has been impleaded by the claimant and brought Into the party array as respondent. In other words, if the insurance company has been brought into the party array in the claim petition as one of the respondents, the apex court held It becomes a party to the proceedings and Is entitled to resist the claim on all grounds, Irrespective of whether It has applied for permission under Section 170 of the Act.
14. In the instant case, there is no dispute appellants hereIn were impleaded as respondents in the claim petition on its own volition and therefore, in view of the dictum of the apex court, it is a party to the proceedings. This becomes important for the purpose of deciding whether the cross-objection Is maintainable. Undoubtedly, it is a & 11 result of benefit provided by Order XU Rule 22, C.P.C. which reads thus:
22. Upon hearing respondent may object to decree as if he had preferred a separate appeal:
Any respondent, though he may not have appealed from any part & the decree, may not only support the decree but may also state that the finding against him in the court below in respect of any Issue ought to have been in his favour; and may also take any cross-objection to the decree which he could have taken by way of appeal provided he has filed such objection in the appellate court within one month from the date of service on him or his pleader & notice & the day fixed for hearing the appeal, or within such further time as the appellate court may see fit to allow.
Explanation: A respondent aggrieved by a finding of the court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect & the decree in so far as it is based on that finding, notwithstanding that by reason & the decision of the court on any other finding which is sufficient for the decision of the suit, the decree is, wholly or in part, in favour of that respondent.
Form of objection and provisions applicable thereto:
Such cross-objection shall be in the form of a memorandum, and the provisions of Rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto.
(Omitted by Act 104 of 1976) Where in any case in which any respondent has under this rule filed a memorandum of objection, the original apeai is withdrawn or is dismissed for default, the objection so filed may 12 ievertheless be heard and determined aftc.r such notice ot the other oarties as the court thinks fit.
The pruv ciont relating to appeals b n'i'gent oer:ons shall, ;o far ac they can e made apolit able, aix,l to ar otjects i' t.n$e Pu rje.
I . Therefore, it attac hes no fetters. It givec statutorily gives right of appeal to the respondent in the appeal preferred by the adversary to raise tross objections against the decree impugned in the dppeal to vent out his grievance against finding on any issue against him. or denial of any benefit. Rule 22 of Order XLI, C.P.C. does not contain any restriction to permit cross objection
16. h t erefore if we hold that the grounds of aapeal are the test to deude whether the cr255 objertion ls to be allo'bed r no', ,'. w'li he rawriting the pr'wis'on of Order Vj fcflia 22; .r .no .c Rt'ic 22 doer not 'rneort any i-?St .rtinr. 'in the. rçrt or he rG% ,,bjertr. w'- appeal rnf pofl ' n 1 det tj, lt"v.cnn t Ned by r:K i •,pg flu, 1 cr tnp A" 4,Jc;nI..nhj iii' 4'.rsr', ., • ark' ; uiij. j,c 'ru fu • .:: T Itr •:,.
-- f'. . •)J r. --.L(t a. _./ • '. j n '.q.n F) .i I, 13 insurance company's right of appeal being limited the claimant cannot seek enhancement through cross objections in such appeal Having impleaded itself to question the claim on all grounds as a party to the proceedings the insurance company enlarges its right of defence which permits it to contest on all grounds available to the owner It stands at par with any other party in the proceeding and has a right to question the award on all grounds available In this view, the judgment cited by the learned counsel would not be applicable and in view of the decision of the larger Bench of the apex court and nspectus f provisions of Sections 149 170 and 173 of tt e Moto Veh dc Act the r ght o the r ss bjecto to eek han em nt annot be i taileci t hi osei ati n e t bjectio e I a h ha he a t cia b r j ab 14 victims were riders of a motorcycle, and the unfortunate incident has occurred in the night at 11.30 p.m. The situs is highway; width of the road Is 30'. The right road margin measured from the position of the lorry was 16' and the lorry had occupied the remaining 14'. It is also not in dispute the driver of the lorry was its custodian. Having parked it, it was incumbent on him to have displayed parking light or hazard light which is mandatory under the rules. He did not adhere to these provisions and had left the vehicle abandoned without warning. There is no evidence to show the area was sufficiently lit to see the stationary vehicle. The motorcycle rider was proceeding in the same direction in which the vehicle was parked at night at night.
18. Thus, we have here two classes of vehides, viz., a lorry-heavy vehicle and a motorcyde-two wheeler. No doubt the statement of witnesses show the rider rammed into the stationary vehicle creating a serious impact after colliding and sufferpd injuries. Had not the vehicle been there, the unfortunate victim would have been saved. 15 Thus taking into consideration the position of the lorry parked covering more than 14' leaving only 16' on the right side Is undoubtedly an act of negligence.
19. The concept of contributory negligence is based on the doctrine of equal contribution, that means, the act of negligence could be measured by the act of omission and also that of commission. In the instant case, what we have to examine is, whether the motorcycle riders could have expected the vehicle to be parked to avoid colliding with It? Since the place where it was parked, no motorist could have expected it, the question of the rider applying sufficient caution does not arise. The precautIon which the insurance company expected the motorcycle riders to take was not possible as they could not have expected the vehicle parked. But so far as the driver and Insurer of the iorry is concerned, he ought to have been conscious of the fact that he was abandoning the vehicle on the road which had virtually covered half the width and it was possible that motorists will find it difficult to negotiate it if there is oncoming traffic. Even otherwise, he should have been S I6 conscious of the fact that he was causing obstruction in free flow of traffic. Balancing the two, the person who Is responsible for indulging in the act of commission has to be held liable rather than the person who had indulged in omission. The fact that the driver of the lorry who was the custodian of the vehicle had parked it without flashing warning sign or hazard light has to be taken as a act of negligence which attracts the provisIon of SectIon 279, I.P.C. even though the lorry was stationary.
20. The record of investigation which comprises FIR and final report (charge sheet) filed under Section 173,cr.P.C. shows the investIgating officer has mechanically raised the charge for the offence under the provisions of under Section 279 and 304, I.P.C. against the riders of the motorcycle only on the basis that the lorry In question was stationary. It is evident he has presumed the driver of the lorry cannot be proceeded for negligence as he was not In the process of driving the vehicle. He was not Investigated whether parking of the lorry covering a substantial portion of the road without taking proper precautions was an act of 17 negligence or not. Consequent to this improper investigation, one of the deceased riders was arraigned as accused, but as he died, the charge abated.
21. While dealing with daims for compensation by victims of such accidents, though report is filed by the investigating officer will be relevant for consideration, yet the Tribunal Is not preduded from deciding the question of negligence in an action under Section 166 of the Motor Vehicles Act.
22. For the reasons discussed above, I am satisfied claimant's evidence proved there was no negligence In the driving of the motorcycle rider and culpable negligence has to be fastened on the lorry driver.
23. Learned counsel, Sri B.N.Raichur, though has reiterated the plea advanced before the trial court that the motorcycle riders have to be held responsible for contributory negligence, In view of the decisions of the apex court In the case of (I) Raf Rani and others vs. Oriental Insurance Co. Ltd. and others, [2009 Kant 18 '1 A C 6'' "C' and ii Cpp rree Oenz' n4 otbrc s The Divisional Manaqer New India Assurance o I mited t3ella md others 009 Kant 4A 241 (Kant) 24 1 have examined the actual mat i ike to onsideration in rendition of those judgments S In the first decision the motorcycle ider was held to have contnbuted to the accident by negligence because there WdS d tad n cllisnr kett een the jehttlat Thaf not the fa t the present ase len e F at decision s not appl abe e e th tha e y d te a t p a (9 overtake the lorry parked in the same direction. That is not so in the present case. In this view, the decisions are not applicable.
27. ComIng to quantification, the claimants' grievance Is, the award Is too meagre. Cross-objections are by the wife and children of Basanna. He was a school teacher In a Government school as evidenced from his salary certlficate-Ex.P1O. He was drawing a salary of Rs.9,858/-. The Tribunal has taken it at Rs.9,758/- adjusting towards professional tax, and reduced it by 1/3w to quantify loss of dependency. They seek enhancement relying on the benefit of the decision in the case of SARLA VERMA .vs. DELHI TRANSPORT CORPORATION & OTHERS (2009(6) 5CC 121). The insurance company strongly opposes this request. The second ground is, 1/3w should th 114 not have been taken, it should have been as proved dependents are four. This is also opposed.
28. The fact that the deceased was in permanent employment is not in dispute. Therefore, he had an a4 opportunity of career progression, prospects of promotion and better earning. If we take his salary as Rs9,86O/, for the purpose of determining loss of dependency, as he was around 40 years of age, 50% of it had to be added to his salary to fix his income. If we do that, Rs4,980/ has to be added to Rs9,86O/ which comes to RsJ4,840/, out of which deducting Rs2O0/- towards professional tax, it comes to RsJ4,640/.
29. The next question is, whether 1/3 has to be deducted or 1/4tn? No doubt the decision permits 1 w f 4 / dependents are more than four. Since it is a case where we have also orovided for career proaression, i/3' may be justified. At that rate, it comes to Rs9,760/ pm. Annually it vould be RsJ,i7,120/. The multiplier applicable is 15, and thus, loss of dependency would be Rs1 76 8OO/ Tn hc H tn bn idcH Rs'5 OOO/ w Inc w e wwarcis lOsS ct consuruun. Rs1O,OOO/ to each of the claimants 2 to 4 and Rs2OOOO/ towards loss to e..state and Rs2O,OOO/ towards funeral expenses. Apart from this, they are also entitled to Rs6O,671/-
'1 awarded by the I nbunal towards medical expenses In all the claimants are entitled to enhanced compensation of Rs.18,92,471/.
30 In the result the appeal filed by the insurance company viz M l.A 21631 09 fails, and M I- A Crob 191/11 is allowed, enhancing compensation from Rs 11,79.800/ to Rs,18,92,4fl/- It shall carry interest at the rate fixed by the Tnbunal and the amount shall be apportioned as follows' Claimant no 1 wife) 40° laimants 2 to 4 hddren 20 ea F 'icy arc er titled t proporti r at iterect 1 art o lt ayac ia ar a d pt tt d