Karnataka High Court
The New India Assurance Co. Ltd., vs Smt. Shrimanti W/O Dattu Chambar on 23 September, 2020
Author: V.Srishananda
Bench: V. Srishananda
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IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 23RD DAY OF SEPTEMBER 2020
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
M.F.A. NO.23046/2011(MV)
BETWEEN
THE NEW INDIA ASSURANCE CO. LTD.,
BY ITS DIVISIONAL MANAGER,
DIVISIONAL OFFICE, CLUB ROAD,
BELGAUM. REPRESENTED BY NEW INDIA
ASSURANCE CO.LTD., REGIONAL OFFICE,
MOTOR THIRD PARTY HUB OFFICE,
SRINATH COMPLEX, 2ND FLOOR,
NEW COTTON MARKET, HUBLI-580029,
REPRESENTED BY ITS AUTHORISED SIGNATORY
IS ASSISTANT MANAGER.
...APPELLANT
(BY SRI.RAVINDRA R. MANE, ADVOCATE
APPEARED THROUGH V/C)
AND
1. SMT. SHRIMANTI W/O DATTU CHAMBAR
AGE: 45 YEARS, OCC: HOUSEHOLD,
R/O KANKANWADI,
TQ. RAIBAGDIST. BELGAUM,
NOW RESIDING AT UGAR K.H., TAL: ATHANI.
2. SRI. MAHALING S/O VIRUPAKSH KOUJALAGI,
AGE: 33 YEARS, OCC: BUSINESS,
R/O TUKKANATTI,
TQ. GOKAK DIST. BELGAUM,
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3. THE DIVISIONAL CONTROLLER
KARNATAKA STATE ROAD,
TRANSPORTCORPORATION,
CHIKODI, BELGAUM
(OWNER OF BUS BEARING NO.KA-23/F-215)
...RESPONDENTS
(BY SRI VITTHAL S. TELI, ADVOCATE FOR R1,
SRI SHIVAKUMAR S. BADAWADAGI, ADV. FOR R3
R2 SERVED BUT UNREPRESENTED)
THIS MFA IS FILED UNDER SECTION 173(1) OF M.V. ACT,
AGAINST THE JUDGMENT AND AWARD DATED 18-03-2011
PASSED IN MVC NO. 586/2008 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND MEMBER, ADDL.MACT, ATHANI, AWARDING
THE COMPENSATION OF RS. 3,66,130/- WITH INTEREST AT
THE RATE OF 6% P.A., FROM THE DTE OF PETITION TILL ITS
REALISATION.
THIS MFA COMING ON FOR ORDERS THIS DAY, COURT
DELIVERED THE FOLLOWING:
JUDGMENT
Though this matter is listed for orders today, with the consent of both the parties, matter is taken up for final disposal.
2. Brief facts, which are necessary for disposal of appeal are as under:
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2.1. A claim petition came to be filed under Section 166 of the Motor Vehicles Act contending that on 15.01.2008 at about 9.30 p.m. the claimant and others were proceeding towards Sogal in a Minidoor Rickshaw bearing No.KA-49/560. When the rickshaw reached near Hirenandi I.B., a KSRTC bus bearing No.KA-23/F-215 came in a rash and negligent manner in opposite direction and dashed against the rickshaw resulting in an accident, whereby the inmates of the rickshaw sustained injuries including the claimant.
Claimant was shifted to Dr.Rajkumar Koppa Orthopedic Surgeon, wherein she was admitted for 48 days as inpatient and spent about Rs.1,50,000/- towards medical expenses. It is further contended that as an agriculture coolie, she was earning Rs.5000/- p.m. and because of the accident, she is unable to carry on the work and thus sought for suitable compensation.
3. In pursuance to the notice, respondents no.1 to 3 appeared before the Tribunal and respondent No.1 -4- did not contest the petition further. Respondents No.2 and 3 filed detailed objection statements denying the petition averments in toto.
4. Based on the rival contentions of the parties, the Tribunal has framed the following issues.
1. Whether the petitioner proves that she sustained injuries in the motor-vehicle accident which took place on 15.1.2008 due to the rash and negligent driving of the driver of Mini-door Rickshaw bearing No.KA-49/560 and KSRTC bus bearing No.KA-23/F- 215 by its driver?
2. Whether the respondent No.2 proves that the accident has taken place due to the rash and negligent driving of the KSRTC bus bearing no.KA- 23/F-215 by its driver?
3. Whether the petitioner is entitled for compensation?
If so, for how much amount and from whom?
4. What order or award?
5. In order to prove the claim petition averments, claimant got examined herself as PW.1 and one Smt.Parvati an eyewitness-injured in the same accident and doctor who treated the claimant got examined as -5- PWs.2 and 3 and claimant relied on documentary evidence which were exhibited and marked as Exs.P.1 to P.91. On behalf of Insurance Company, certified copies of award in three MVC cases and copy of insurance policy are marked as Exs.R.1 to R.4.
6. On cumulative consideration of the oral and documentary evidence on record, the Tribunal allowed the claim petition in part granting compensation to the tune of Rs.3,66,130/- with interest at the rate of 6% p.a., from the date of petition till realization. In the impugned judgment, all the respondents were directed to pay the compensation. However, respondents No.1 and 2, who are owner and insurer of the auto were jointly held liable to pay 50% of the adjudged compensation and remaining 50% was ordered to be paid by the respondent No.3.
7. It is that judgment, which is under challenge in this appeal.
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8. Learned counsel, appearing for the appellant- Insurance Company vehemently contended that in other claim petitions, the Tribunal fastened the liability on the KSRTC but in the present case, the Tribunal has fastened the liability on the Insurance Company of the auto which is incorrect and sought for modification of the impugned judgment.
9. The owner of the auto and the claimant have not challenged the impugned judgment and as such it has become final as against them.
10. On behalf of KSRTC Sri.S.S.Badawadagi appeared and admits that in other claim petitions, Tribunal has fastened the liability on KSRTC. However, he submits that since the auto was also insured, the impugned judgment be maintained by dismissing the appeal.
11. In view of the rival contentions of the parties, the sole point that would arise for consideration is: -7-
Whether the direction issued by the Tribunal in the impugned judgment to pay 50% of the adjudged compensation by the Insurance Company of the auto is erroneous?
12. The answer to the above point is in affirmative for the following:
REASONS
13. Insurance Company has produced copies of judgments passed by the Tribunal in other claim petitions in MVC 489/2008, 493/2008 and 494/2008, which were marked as Exs.R.1 to R.3. In the said MVC cases, Tribunal has fastened the liability on KSRTC. Those claim petitions were also arising out of the very same accident.
14. No reason is forthcoming in the impugned judgment as to why in the impugned judgment the Tribunal ordered 50% of the adjudged compensation to be paid by the Insurance Company.
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15. It is also pertinent to note that KSRTC did not challenge its liability to pay 50% of the compensation in respect of other claim petitions.
16. Under these circumstances, there is sufficient force in the argument advanced on behalf of the appellant that in the present case also 50% of compensation fastened on the Insurance Company is to be paid by KSRTC. Accordingly the point is answered and the following order is passed:
ORDER The appeal is allowed.
In modification of the award passed by Tribunal, 50% of the adjudged compensation which was ordered to be paid by the appellant-Insurance Company is now ordered to be paid by KSRTC.
Amount in deposit, if any, is ordered to be returned to Insurance Company. -9-
KSRTC shall pay the compensation within six weeks' from the date of receipt of a certified copy of this order.
Sd/-
JUDGE Sh