Karnataka High Court
Ina India Limited vs Smt Krishnaveni on 23 December, 2020
Equivalent citations: AIRONLINE 2020 KAR 2462
Bench: Alok Aradhe, H T Narendra Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF DECEMBER 2020
PRESENT
THE HON'BLE MR.JUSTICE ALOK ARADHE
AND
THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD
MFA NO.1360 OF 2017(MV)
C/W
MFA No.1361 OF 2017(MV)
IN MFA NO1360/2017
BETWEEN:
INA India Limited,
No.14, 13th Cross, 6th Sector,
HSR Layout, Bangalore-560 102,
A Company represented by Its Director.
.... Appellant
(By Sri.S.R.Sreeprasad, Adv.)
AND
1. Smt. Krishnaveni,
Aged about 28 years,
Wife of Late Menakarao.
2. Ms.Ramya,
Aged about 12 years,
D/o Late. Menakarao.
3. Mr. Charan,
2
Aged about 2 years 8 months
S/o of late Menakarao.
Since Respondents No.2 & 3 are
Minors represented by mother
Respondent No.1 as a natural
Guardian.
4. Ms. Potamma,
Wife of Ramamurthy,
Aged about 42 years,
All residents of No.1-73,
Jagannadhapuram,
Mandasa, Srikulam District,
Andhra Pradesh,
Presently residing at
No.249, 1st Main,
Chowdeswari Layout,
8th Mile, Jalahalli Cross,
Bangalore-560 058.
5. The New India Assurance
Company Limited,
Mahalakshmi Complex, M.GRoad,
Opp: Metro Railway Station,
Bangalore-560 001.
Represented by its Branch Manager.
6. The National Highway
Authority of India,
G5 & 6, Sector 10,
Dwaraka, New Delhi-110075.
Represented by its authorized,
Signatory.
7. Navayuga Toll,
3
NHNo.4, Nelamangala,
Bangalore.
Represented by its Manager.
...Respondents
(By Sri.A.N.Krishnaswamy, Adv. for R5:
Sri. M.V.Kini, Adv. for R6:
R1 to R4 and R7 are served and
unrepresented)
This MFA is filed under Section 173(1) of MV Act
against the judgment and award dated:24.03.2015
passed in MVC No.4055/2013 on the file of the 5th
Additional Small Causes Judge & 24th ACMM, Member,
MACT, Bengaluru, awarding compensation of
Rs.17,44,000/- with interest at 6% p.a. from the date
of petition till realization.
IN MFA 1361/2017
BETWEEN
INA India Limited,
No.14, 13th Cross, 6th Sector,
HSR Layout, Bangalore-560 102,
A Company represented by
Its Director.
.... Appellant
(By Sri.S.R.Sreeprasad, Adv.)
AND
1. Sri. Janaki Rao @ Raju,
4
S/o Late. Ramamurthy,
Aged about 38 years,
Residents of No.1-73,
Jagannadhapuram
Mandasa Srikulam District,
Andhara Pradesh.
Presently residing at
At No.249, 1st Main,
Chowdeswari Layout,
8th mile, Jalahalli Cross,
Bangalore-560 058.
2. The New India Assurance
Company Limited,
Mahalakshmi Complex,
M.G.Road,
Opp: Metro Railway Station,
Bangalore-560 001,
Represented by its
Branch Manager.
3. The National Highway
Authority of India,
G5 & 6, Sector 10,
Dwarka, New Delhi-110075,
Represented by its
Authorized signatory.
4. Navayuga Toll,
NH No.4, Nelamangala,
Bangalore,
Represented by its Manager.
...Respondents
(By Sri. A.N.Krishnaswamy, Adv.for R2:
Sri.Shobith N. Shetty, Adv. for R3(absent)
R1 & R4 are served and & unrepresented)
5
This MFA is filed under Section 173(1) of MV Act
against the judgment and award dated:24.03.2015
passed in MVC No.4296/2013 on the file of the V
Additional Small Causes Judge and XXIV ACMM,
Member awarding compensation of Rs.52,000/- with
interest at 6% p.a. from the date of petition till the
date of its realization.
These MFAs coming on for admission, through
video conference, this day, H.T. Narendra Prasad J.,
delivered the following:
JUDGMENT
MFA Nos.1360 and 1361 of 2017 have been filed by the owner of the offending vehicle under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act', for short) being aggrieved by the judgment in M.V.C.Nos.4055 & 4296/2013 dated 24.03.2015 passed by the Motor Accident Claims Tribunal. Since, both the appeals arise out of the same accident as well as a common judgment, they 6 are heard together and are being decided by this common judgment.
2. Facts giving rise to the filing of the appeals briefly stated are that on 23.06.2013 at about 9-05 p.m., the deceased Sri. Menaka Rao along with his brother, SriJanaki Rao were proceeding as pedestrians on Navayuga toll, near Bangalore - Tumkur NH-4 Service road, Bangalore, at that time, a tanker lorry bearing registration No.KA-01/AB-3604, being driven by its driver, at a high speed and in a rash and negligent manner from Sundekuppa circle, dashed against the deceased as well as his brother. As a result of the aforesaid accident, the deceased sustained grievous injuries and succumbed to the injuries at the spot and his brother sustained grievous injuries and was hospitalized.
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3. The claimants filed petitions in MVC.Nos.4055 & 4296/2013 under Section 166 of the Act on the ground that the deceased Menaka Rao in MVC.No.4055/2013 was aged about 26 years at the time of accident and was employed as wood worker and was earning Rs.9,000/- p.m. The claimant in MVC.No.4296/2013 was aged about 35 years and was employed as wood worker and was earning Rs.12,000/- per month. The claimants in both the petitions claimed compensation to the tune of Rs.20,00,000/- and Rs.5,00,000/- respectively along with interest.
4. On service of summons, the respondent Nos.1 and 2 appeared through their counsel, but respondent No.2 only has filed written statement in which the averments made in the petition were denied. It was pleaded that while admitting the issuance of insurance policy in respect of Tanker Lorry 8 bearing Reg. No.KA-01/AB-3604, restricted its liability to the terms and conditions of the policy. It was further pleaded that the accident was due to negligence on the part of deceased himself. It was further pleaded that the contents of the complaint clearly indicate that, the accident was solely attributable to the fact that the national Highway authorities had failed to erect suitable barricades. It was further pleaded that the driver of the offending vehicle was not holding valid and effective driving licence to drive vehicle carrying hazardous goods and the owner did not possess valid fitness certificate and permit to said vehicle as on the date of the accident. Hence, he sought for dismissal of the petitions.
It was pleaded by the respondent No.3 that since the claim petition does not disclose any cause of action against this respondent, they are not liable to pay any compensation. It was further leaded that 9 there is no complaint against respondent No.3 and the charge sheet also not filed against them. Hence, he sought for dismissal of the petitions.
It was pleaded by the respondent No.4 that they have erected a separation wall in between the highway and the service road, as per the norms issued bythe respondent No.3. it was further pleaded that the alleged accident occurred solely due to rash and negligent driving of the offending vehicle by its driver. The age, income, occupation, earnings, mode of accident, vehicle involved and the amount incurred towards medical expenses and also relationship of the deceased with the claimants are denied. It was further pleaded that the compensation claimed by the claimants in both petitions is highly exorbitant and excessive. Hence, he prays for dismissal of the petitions.
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5. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and additional issue thereafter recorded the evidence. The claimants in both petitions, in order to prove their case, examined claimant No.1 in MVC.No.4055/2013 as PW- 1 and got exhibited documents namely Exs.P1 to 9 and examined claimant in MVC.No.4296/2013 as PW-2 and got exhibited documents namely Exs.P10 to 12 and 15 to 17. On behalf of respondent No.2, Assistant manager was examined as RW-1 and two witnesses as RW.2 and RW.3 and got exhibited documents namely Ex.R1 to Ex.R29. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the offending vehicle by its driver, as a result of which, the deceased in MVC.No.4055/2013 sustained injuries and succumbed to the injuries and claimant in MVC.No.4296/2013 sustained injuries. The Tribunal 11 further held that the claimants in both petitions are entitled to a compensation of Rs.17,44,000/- and Rs.52,000/- respectively along with interest at the rate of 6% p.a. and directed the respondent No.1, owner of the offending vehicle to deposit the compensation amount along with interest. Being aggrieved, these appeals have been filed.
6. Sri.S.R.Sreeprasad, the learned counsel for the owner of the offending vehicle has contended that after service of summons the owner was represented by counsel, the appellant has not filed any written statement and he has not adduced evidence to prove that as on the date of the accident, the driver of the offending vehicle was holding a valid and effective driving licence and also owner has possessed fitness certificate. He further contended that matters may be remanded to the Tribunal by giving one more opportunity to the appellant to adduce the evidence in 12 respect of liability is concerned. Hence, the learned counsel appearing for the owner prays for allowing the appeals.
7. On the other hand, the learned counsel for the Insurance Company has contended that as on the date of the accident, the driver of the offending vehicle was not holding valid and effective driving licence to drive the vehicle carrying hazardous goods. Since there is a violation of policy conditions, the Tribunal has rightly fastened liability on the insured. Hence, the learned counsel for the Insurance Company prays for dismissal of the appeals.
8. We have considered the submissions made by the learned counsel for the parties and have perused the records.
9. It is not in dispute that the accident has occurred due to rash and negligent driving of the 13 Tanker Lorry bearing Reg.No.KA-01/AB-3604 by its driver. It is also not in dispute regarding quantum of compensation awarded by the Tribunal. Only issue arises for consideration in these appeals is in respect of liability. The Tribunal has fixed liability on the owner of the offending vehicle on the ground that the driver of the offending vehicle carrying hazardous goods, was not holding a valid and effective driving licence.
10. Before the Tribunal, after service of summons, the owner of the offending vehicle was represented through its counsel, he has not filed any written statement and has not adduced any evidence. To give one more opportunity to the appellant, the matters require to be remanded only for the purpose of consideration of issue of liability alone. The 14 judgment and award passed by the Tribunal in respect of other aspects are concerned, is confirmed.
Accordingly, the appeals are allowed in part. The judgment and award of the Tribunal is set aside only in respect of fixing the liability on the insured.
The matters are remanded back to the Tribunal. The Tribunal is directed to consider the matter in respect of the issue of liability alone.
The parties are at liberty to adduce their evidence with regard to the issue of liability.
The amount in deposit before this Court by the appellant is transferred to the Tribunal.
The claimants are at liberty to file an application for withdrawal of the amount. If such an application is filed, the Tribunal may permit them to withdraw the said amount subject to the condition that if the Tribunal holds that the Insurance Company is liable to 15 pay the compensation, the insured will be entitled to recover the amount which is paid to the claimants.
The Tribunal is directed to dispose of the matters within six months from the date of receipt of certified copy of this Judgment.
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JUDGE Sd/-
JUDGE Mkm/-