Karnataka High Court
Sri Yogesh Kumar Jain vs Smt Rajamma on 30 March, 2016
Author: Ram Mohan Reddy
Bench: Ram Mohan Reddy
MFA No.4413/12
-1-
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF MARCH 2016
BEFORE
THE HON'BLE MR.JUSTICE RAM MOHAN REDDY
M. F. A. NO. 4413 OF 2012 (MV)
BETWEEN:
SRI. YOGESH KUMAR JAIN
S/O CHAMPALAL JAIN
AGED ABOUT 40 YEARS
R/O BANGALORE ROAD
CHALLAKERE
...APPELLANT
(BY SRI.NANDISH PATIL, ADV.)
AND:
1. SMT. RAJAMMA
W/O RAJAPPA @ RAJANNA
AGED ABOUT 31 YEARS
2. DARSHAN
S/O RAJAPPA @ RAJANNA
AGED ABOUT 12 YEARS
3. DHANUSH
S/O RAJAPPA @ RAJANNA
AGED ABOUT 10 YEARS
4. GANGAMMA
W/O NINGAPPA
AGED ABOUT 56 YEARS
5. NINGAPPA
S/O RUDRAPPA
AGED ABOUT 60 YEARS
MFA No.4413/12
-2-
R2 AND R3 ARE MINORS REP. BY R1
ALL ARE AGRICULTURISTS
R/OF KARIKERE VILLAGE
CHALLAKERE TALUK
6. THE BRANCH MANAGER
INDIA ASSURANCE CO. LTD.
VIJAYSHREE, OPPOSITE TO NEHRU
UNION PARK, DAVANGERE ROAD
CHITRADURGA
... RESPONDENTS
(BY SRI. P. N. NANJA REDDY, ADV. FOR R1, R4 AND R5;
R2 AND R3 ARE MINORS REPRESENTED BY R1;
SRI. C.R. RAVISHANKAR, ADV. FOR
SRI. RAVI S.SAMPRATHI, ADV. FOR R6)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 7.2.2012 PASSED IN MVC
NO.60/2011 ON THE FILE OF SENIOR CIVIL JUDGE & MACT,
CHALLAKERE, AWARDING A COMPENSATION OF RS.3,86,500/-
WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL
DEPOSIT.
THIS MFA COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Owner-insured of the offending motor vehicle aggrieved by the finding fastening liability to pay compensation by the judgment and award dated 7/2/2012 in MVC No. 60/2011 of the Sr. Civil Judge & MFA No.4413/12 -3- MACT, Challakere, for short 'MACT', has presented this appeal.
2. The first submission of the learned counsel for the appellant is that the policy of insurance Ex.R6 recording the receipt of Rs.5,680/- towards "TP Premium" covers the risk of non fare paying passengers, for short 'NFPP', hence MACT was not justified in exonerating the insurer from the liability to pay the compensation for the death of one Rajappa, a passenger in the motor vehicle in question. This submission is opposed by the insurer of the motor vehicle stating that the TP Premium of Rs.5,680/- is meant to cover the risk of the owner against claims putforth by third parties and not by NFPP, while, coverage is available only if a premium of Rs.75/- is paid by the owner-insured. According to learned counsel, Ex.R6 does not disclose receipt of premium of Rs.75/- towards NFPP, hence risk MFA No.4413/12 -4- of the owner-insured as far as the deceased, an NFPP, is not available.
3. There is force in the submission of the learned counsel for the insurer. Ex.R6 does not disclose receipt of premium to NFPP since the column against such liability is kept blank, while, receipt of Rs.5,680/- is towards TP Premium and Rs.3,024/- towards OD Premium, Rs.897/- towards service tax, totaling to Rs.9,601/-. Since Rs.75/- is not paid as premium for NFPP, the liability is not covered insofar as such a passenger. The MACT was fully justified in fastening the liability on the owner to pay the compensation while exonerating the insurance company from such liability.
4. It is next contended that the deceased was traveling on the footboard of the motor vehicle at his own risk and being negligent, contributed to the accident and death, which aspect of the matter the MACT did not notice.
MFA No.4413/12-5-
5. Whether the deceased was traveling on the footboard of the motor vehicle, too, contributed to the negligence, the cause of the accident, is a pure question of fact, which ought to have emanated from a plea of contributory negligence, if advanced by the insured and the insurer of the offending motor vehicle. In the facts and circumstances, having not done so in the written statement, coupled with the fact that neither issue with respect to contributory negligence is framed by the MACT, nor evidence adduced in support of such a plea, the plea advanced for the first time in this appeal is unavailable and the MACT was fully justified in attributing actionable negligence to the driver of the motor vehicle, the cause of the accident.
6. Reference may be made to the decision of the Division Bench of this court in M.N.RAJAN AND OTHERS VS. KONNALI KHALID HAJI AND ANOTHER1 whence considering the pleading on whom the burden of proof is MFA No.4413/12 -6- placed and standard of proof expected to establish "contributory negligence", the Bench of which, RMRJ was the companion judge, observed that there was no merit in the alternate plea of the owner and the insurer of the lorry that it was a case of contributory negligence and therefore the liability to pay the entire compensation could not be fastened on the owner and the insurer of the lorry because the plea of contributory negligence was not taken in the written statement filed by the insurer and the insured. Such observation was based upon the decision in PANDIAN ROADWAYS CORPORATION, MADURAI VS. KARUNANITHI AND ANOTHER2, wherein it was observed that the plea of contributory negligence should be taken in the written statement before the Claims Tribunal. So also was the view of Rajasthan High Court in M/S YATAYAT NIGAM, UDAIPUR VS. UNION OF INDIA3. In GENERAL MANAGER, BANGALORE 1 MFA No.5673/2001 DD 07.08.2003 2 AIR 1982 MAD 104 3 AIR 1983 RAJ 17 MFA No.4413/12 -7- TRANSPORT SERVICE VS. N.NARASIMHIAH AND OTHERS4, another Division Bench of this court observed that it will not be a valid defence to say that the person injured was also negligent unless it is shown that the person injured had made it extremely difficult for the other to avoid the accident. In SHARADA BAI VS. KARNATAKA STATE ROAD TRANSPORT CORPORATION5, a Division Bench observed that if the tort-feasor's negligence or breach of duty is established as causative of the damage, the onus is on him to establish the victim's contributory-negligence by substantial or co-operating cause and in order to establish such defence, the propounder of that defence must prove, first, that the victim failed to take reasonable care of himself or, in other words, such care as a man of ordinary prudence would have done and that was a contributory-cause for the accident. So also is the view of the Apex Court in PRAMODKUMAR RASIKBHAI JHAVERI VS. KARMASEY 4 1976 ACJ 379 MFA No.4413/12 -8- KUNVARGI TAK AND OTHERS6 following the decision in SWADLING VS. COOPER7 of Lord Hailsham. Useful to refer to the decision of the Apex Court in MUNICIPAL CORPORATION OF GREATER BOMBAY VS. LAXMAN IYER AND ANOTHER8 and the commentary over 'Duty of Care' and 'Standard of Care' as found in WINFIELD AND JOLOWICZ ON TORT (18TH EDITION).
7. Suffice it to state that in SMT. INDIRA NEHRU GANDHI VS SHRI RAJ NARAIN9, the Constitution Bench of the Apex Court, while disapproving a finding of 'a defacto agency' recorded by the Allahabad High Court, which was neither set up nor was subject matter of an issue, reiterated the well recognized principle that 'no amount of evidence could be looked into on a case not really set up'.
5 ILR 1987 KAR 2730 6 (2002)6 SCC 455 7 1931 AC 1 Page 9 8 (2003)8 SCC 731 9 AIR 1975 SC 2299 MFA No.4413/12 -9- Appeal devoid of merit, is dismissed. The amount in deposit is directed to be transmitted to MACT, forthwith.
SD/-
JUDGE Rd/-