Karnataka High Court
New India Assurance Co Ltd vs Geetha Kom Narayanagowda on 8 September, 2010
Bench: K.Bhakthavatsala, B.V.Nagarathna
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IN Ti~lIf{ llI(,}ll C:()URT Oi' KARNATAKA
C7iR(7Ul'£" I-3I?€NCl"I AT DHARWAD
DATIED Tl---[IS 'l"I~lli 8"' DAY OF SI-1PrI"E3
BEFORE
THE HON"BLE DR. JUSTICE K. }3HAKTHA
& V
MBER 2_Q . n
THE HON'BLI{%1 MRS. .}UST¥CE, 3.3'/ii_ NiAiGARA:m«NAW,ii_"
Between:
New India Assurance Co. Ltd,
M.i~1A. No. 4417/2004 i('I\/_IV.)_ "
D. No. 14305, Rice Millers Association l§'u.i_l:di.ng, 2
Post Office Road, Gudivada, tlnieiggh its" * :4 V .
Bangalore Regional Office,
N0.2~B, Missi0'n__R0adi;-- ?:.:;;~ = _
Unity Building Annex; Bar{galQi*e,.¢'
Represented by its Reg.i(;n'a.l_Man'ager.i '
(by Sri NR. Kufiipel_iu'v,
Sri B.C. Seediaijama Rae' Associates)
and 2
_ 1 . iSinti.__C§ee'Eliav. .Ko;*ii"Nai'aya11ag0wda,
Mafoi", a<.2edia*b0iLit 32 ears.
' *Shya1nala__ id/0 Narayanagowda,
A ..fMine.rj, aged about 1 l years.
Santhosh s/0 N3l'21}"al1£ig()\K-'d8,
-Mine]; aged about 8 years.
Appellant
i 1
ix)
4. Nitin sfo Narayangowda,
Minor, aged about (i years.
Respondents 2 to 4 are minors
Represented by their next friend and Natural guardian mother--respondent no. I.
5. Smt. Kami w/o Sidda Gouda, Major, aged 68 years.
Respondents I to 5 are residents of Harwada, Talukz Ankola.
6. Sri Veerapaneni Prasad, D.No. 5/69, V%ja;,{a'v.4_ad 1::;<5ad,'vtj, _ ,_ , Bapulapadu, _Di.sttfic?r, Andhra P1'a(:iesi?0',-,",_ «. . » Major in age, s/o Venkatararna_Mo0h:§n Raofifv
7. The Managiitg .{)_iree§t,o'1", _ K.s.R.*r..C., D0ubie'-=I,{OE1,d§t'--,., » ' Bangalore x(owne'r._o't' has 'no,"I<;x'i--3 1 --T»~3 26) (by Sri Dinesh LAM. _I{t21aE<a19ni, 'Adi/ocate for R1, {R2 to R4-"a«re:1jepreser1ted«13)/URI }, b'y._S1*i"M..adan 'Moha'n_M. Khannur, Advocate for R7, Notice to "R5,, -1-servéed,' Noticeto'~0R6»1+d'i'ap_en'se'd with) Respondents Tltis' apfiéai filed u/S 173(1) of M.\/. Act against the '*'--«'jjL:'dg'1'nent and ?award dated 10.02.2004 passed in M.V.C. No. , .509'/'1.998.on the file of the District Judge & Member, Prt. MACT, .0 0'-..Uttara_ Kanittada, Karwar, awarding compensation of Rs.4,20,000/- _fwi--th-- interest 6% pa.
This a eat comiiia on for ft1i'ther:'coiitinuation of anuments PP -. _ fl . ' to this day, Dr.K.Bhaktha\xatsala..I, delivered the 'following,judgment. Judgment
1. The appeliant~hisurance company is before this Cou1'fHp'rayi:ng to set aside the judgment and award dated IO.02.20t3.él' paasasveici l\/l.V.C. No. 509/1999 on the fite of I'rinc-ipail iD'i:tvrit:_t Uttara Kannada at Karwar.
2. For the purpose ol" convenieiic-e"'a.h'tl better~un'derstanding the respondent nos. 1 to 5 herein at_fe'*~:efeii'red_ to -as.,v'iiC--laiii1ants' as arrayed in the claim petition. 'v
3. The facts.io't":' to filing of the appeal may be stated as under: V Resprgnident Nos; 5-Aetaimants filed a claim petition 11/8 166 o1°i'M.*'~./V.,"/Xet .agair1s_t"tlie owner and insurance company of the lorry praying, compensation of Rs.10,00,000/-
deathiii'ot"vNaraya:1 Sidde Gowda, namely, the husband of i'~._iVelaii'nsant_no_« l, father of claimants 2 to 4 and son of claimant no.5. 3 in v"'~--¢..,. , They pleaded that the cleceased Narayan Sidde Gowda was 30 years old, working as a ClI'lVC§' for l<;..S.R.T.C. and on 14.08.1998 when the deceased was driving the bus bearing no. KA--31/F-326 and f»jvh.erii.l1e was at Siruguppi village on l~lLib1i~Gadag road at about _ to rash and negligent driving of the lorry its dri'\/"ei';*--\iiv_lt,ic'li Carrie from the opposite direction there was a heaclon teolilision, 'asla reslta-ltiot:
which both the driver of the lorry «':i]'1VC>l'..di'i.\V/_"€1' oi' died. ' it Since it is a case ofthe ciaimantsttliat the' occin*red..s'olely due to rash and negligent driving ei'e:e ll()*E'i'l':iy;'l b3.'-lit-sf'_'.:1Vri*.fer, they filed a claim petition only aga'i'nst-the;_ovgin.er and"inStiraVi*1ce company. The insurance company. oiiifthle entered appearance and filed objections deiiying.._Vt1'ive ax-reri1jen«t_.s"' of the claim petition and sought dismissal ._oi".thesiV.sa1i1e. 134.613.2003 the Tribunal framed as many as four3i_iss'L2e_s.'c. lVSti'bseqiie--ntly the claimants impleaded the Managing 17$'-~Directorioil; the as respondent no. 3 and also filed an " "--ap'pliCation seeking; permission to amend the claim petition as the one e..1l6e3_l4;'\_ i\/1.V. Act instead of {US 166 o'1'M.V. Act, 1988. The filed objections stating that the accident occurred solely 1 9 let due to rash and negligent drivingg of the lorry by its driver and the K.S.R.T.C. was not a proper and necessary party and on account of misjoinder of parties the ciaim petition is iiabie to be disn1.i_sise:d. re Without prejudice to the above contention the contended that if the driver of the bus wasaiso 1'e.spo'r1.sib§,ei"'forthe accident, the ciaim petition u/S E63»/\ K.S.R.T.C. is not maintainabie and tIie_1ief.ore prayed._toi:_d'i:sit1'issa1 of " it the ciaiin petition. After the KI;-S.R.T.C3;*"ciaine'on rec.oi"d-theviTribunaE framed two more issues on point whether the accident occurred"d_u"e. to; 1'21sh_fandii'*injeg,}igent driving of the K.S.R.T.C. by its ii1i_nisei'f-etiirid whether the compensation to 'be paid to the petitionei'siish_otii'd' b:e."'conti.'ibuted by the K.S.R.T.C. and the"t.I'nsuraniSeE_Cornpaiiy"«oitflthe iorry. Again on 04.07.2003 an additionail fraziied on the point whether the iiability of the 'petitioners.__ishouV}_diaiiiisoibe shared by K.S.'R.T.C. in support of the case » -.CIaimantvs_i'i~wite of the deceased got herseit" examined as 'P.W.i 'i«*7ia1Eii€d documents per [3x.P.i to Ex.P.6. En rebuttai, the 6 Conductor of the i'<l.S.R.T.(j7. bus was e>s:a.mined as R.W.i and got marked documents as per 1?E:>{.R.1 to if?ix.R_.4.
4. The Tribunal after hearing the arguments and pe1'us.in.gl'ithe evidence and material on record answered issues hold.i§n.g"th'at..'_the_ driver of the K.S.R.'I'.C. bus died due to i'as.l_i"and the lorry by its driver. 'I'herefore it answered no, 2' (fiiarnéd..on_:
24.03.2003) in the negative, in l'avi9§¥llt...,Of "lThe " it additional issue framed on 04i..Q7.20V03* answereid in the negative in favour of the i'ilatin'a.lLvall1owed the claim petition filed that the claimants are entitled for with costs and interest at the rate of pad the diatelloi" petition tiil the date of realisation.
the and insurer of the lorry are jointly and severaily'5'_lia'::3'le°'to compensation. The claim petition was Vl'.:;:tlis1'aissedilas aglainstillthe K.S.R.T.C. This is impugned in this appeal. _ .,nL;eaiitnedll'counsel for the appellant»insLirance Company submits ".l'v..that.l.':3in'cethere was a head on collusion between the K.S.R.'F.C. bus and the lorry, a criminal case was booked against both the drivers. But the Tribunal erred in holding that the accident occurred solely due to rash and negligent driving of the lorry by its driver. 'i"lierefo,_i_'ehe submits that that contributory negligence may be fixed at;"theCjr._ate_ _ 50:50 on the driver ofthe lorry and K.S.I{.'l".h;Cf.l3'tis.
6. Learned counsel appearing for the cla.i1na_nts Zithietieii is no illegality or infirmity in th_e iiii_pugn'e.djudgment. _ ii i i i i
7. Learned counsel for the 'Bills .siu"hntitsV...iithat the Tribunal has rightly held that the'aceidie.nti'»oicctiriiedsolely due to rash and negligent itadriver and the claim petition was dismissed against t.l1eiil<_i.iS"r.._I{'.T:.I'C'. Therefore no appeal was filed against the*"l3mpttgned _§u'd'gm_e.z3t' and award. He further submits that the q'i.iantI,lhi_.ofeo'inpehs--ation is not determined in accordance with 2""
:tli»95,.c.hedule 'toi'$ecv._i of l\/I.V. Act and in the event of holding that
-. ..acc,ident o'Cc_ti1~.*red due to rash and negligent driving of the bus by
3.,'ithedri*{er.,V_ii:;., the deceased himself' and he being a tort-feasor, the .petiti_on ti/S 163»/»\ of' iVl.V. Act against the l<.S.R."l".C. is not E 5 s»»».._.--
inaintainable. in the light of the 8.1'gL1lT16ntS addressed by the learned counsel for the parties, we formulate the following points for our consideration.
:0 Whether the Tribunal was justified in holding :a.'cc'ide"r1't-iii _& ii occurred solely due to rash and negligeiit'Clriving of its driver?
Whether the compensation detie_i'rn.i11edi"o}/V the is in 2 L' accordance with the Scl1edr1ie--i_l_i'i:appendecl"tg_:Séc_ §63*A of M.v. Act, 1933? i V in the event of answering §50.i11t."nofi l.--'«.par§l_'3f__ii.n favour of the appellant--lnsu1jan'ee corzhpaniy ififxiing contributory negligencieiiondtvhe of' cleeeiased driver of the K.S.R.T.C. bus, wh'eth'er tl1ei'C,:l'i"arli:1n. in/S l63--A is maintainable as against K.S.R;lTv,Ci'? _ it doubt the conductor of the K.S.R.T.C. bus has u/_ l:v>»een that the accident occurred due to rash and the iorry by its driver. But evidence of R.W.l is the absence of' corroboration of evidence of R.W.l it i safe to accept the same. lslaving regard to the fact that there was 9 a head--on collision between the two heavy vehicles and the drivers of both the vehicles were cliarge sheeted, but the proceedings stood abated on account of their death in the accident and the l'act..tha:ticthe accident occurred at about 3.30 p.m. ie, in the day tiihe,_.b_oth . in our view, ought to have taken more care an.d__caut_ioni 'whiie diii_v.ing the vehicle, since, the accident occurred oni"¥.:l'iib_liiGadag"i'O3<l, \'i\_fl'1l_éii'i--i. is a part of a Highway. The fact that t'he"s.pot }i5"an__chanainastlateslithat T' the bus had mounted on the loiry would 'not any way absolve the driver of the bus from causing the of the two drivers not come in the iwjaj" ofthe :othei"'"vehi-c'le.__\2&§'l1ieh was coming in the opposite d._ii'eeti0n,"it£.a'e:?e'wo'u.ld'"--not have been any accident at all. The fact that the two Tv.eh'icl"e.s:i_i'_.'nwere proceeding in the opposite direction V_and there has bee_n.._.a» head on collision in the middle of the da)i?'--cLiearliyib1'ings 'play the principle of res ipsa loquitor, i.e., the i"*~--fact speaksfor tljérfisélves and under such circumstances, the Tribunal _._./'.j'wasl'ia_ot righ"t_i__n~ fastening the entire negligence on the driver of the i"'ilo'rry; .iAlt--.is:i.-significant to note that the charge sheet was filed against bo'th...the drivers and that both the drivers succurnbed to serious 2 injuries sustained in the accident. Therefore, the findings ofthe Triburral on the point of negligence has to be modified a.r:d..ti'n..¢ithe absence of there being any categorical evidence with _r'egardl't:i5 ' exact percentage of negligence on the pa1't~o'f"e-achhot'_t.hefdriverfS.> it, would be just and proper to apportion 11t3glil'~L_{_£3l'i"_CL'i on the 'part C-f'the"._ deceased drivers of the KSRTC as we'le«E,:as the lorry' of V 50% each, considering the l'ac:t"~thert occurriediiiidue to a head-on collision in the nriddle T.h:uVs'ii'§vei__a:1swer this point holding that the accident gligent driving of the Ion-y and and they are equally responsible. lijlence negligence shall be fixed at the rate of 50:50. Th'e.rjefoV1'eiiw'eirioint no. l partly in favour of the a:fI3p€3'llaH'£f'l'llSLltfttl1C§j co1npai3__y,A
9. no,.;i_"lT'he---claimants have produced the salary certificate the 'deceased.idrfivcer of K.S.R.'l'.C. Bus and the same has been ...i.i'_fnqarke-d as Ex,l'f"'i.~4. Accoz-ding. to E><.P.4, salary of the deceased was i'*--.Rs--.2;5.e:;1K_~ month. He was a trainee. The tribunal has taken the 3 11 age of the deceased 34 years, applied rhultipiier 1.7 and after deducting l/3 of the salary awarded a sum of Rs. 3,410,000/-- towards loss of dependency. in addition to that, the Tribunal has awarded a sum of Rs.80,000/- towards loss of consortium, e0nvejy'ance,:"~.ete, Thus the Tribunal has awarded compensation ofRs.4,20,0QUf4;--f_~ " t
10. Since the claim petition was tiled u/S I63-A o.lV'_'.M._u\/.' Tribunal should have determined the compensation' asiéiiperé schedule to Sec. E63--A the Tribunal has fixed age..ofthe'tdeceasiétdetatd
34. According to the said scheduler for alb"o_\/ie-- 30 biutilgnoit exceeding 35 years, the multiplier is 17.' T':-ibu--n_al=has: aiiipiliiedi the multiplier 17. -3,'40.000/-- awarded towards loss of dependency is cierreet. din to that, the claimants are entitled for." eompensatiori towards..._c;Qn.ventional heads, namely, Rs.2,000/--
towards Rs. 5,000/- towards loss of consortium and :""R,s,2,50()d/i+ of estate, i.e._, in all amounting to Rs.9,500/-.
-.l.Thu.s_'accordi.n'gVté» Sec. 163-A of MQV. Act the claimants are entitled i?_,4itfor'~-eonipwenlsatioii of Rs.3,4(),O0O/- towards loss oi' dependency and l{s'.;9,5QQi:5-- towards conventional heads and thus in all, entitled to § Rs.3,49.500/~ whereas the Tribunal has awardeti. compensation of Rs.4,20,000/~. Thus the tribunal has am-a1'ded excess compen.sati'o.n'o_f Rs."/0,500/~ and the same has to be reduced. Since ' negligence is fixed only to the extent of 50°/5"'(;n. the lorryj"
insurer of the lorry is liable to pay only the"compens£tti'o.iii'~ amount, i.e., Rs.1,74,750/-. Acco1*dingl«yrp.oint no,_i_2"iis'.=an'sV\iered in favour ofthe appeilant.
11. Point No. 3: Since the finding 'ii.I'V_'isi.that there was a contributory negligence ijzsaitofi the .;::lriivevr--.ofth.e bus aiso to an extent of50%:;ithie qeueTstion7'fV:9iaisediljy tl1eiiK.iS.R.T.C. as to whether the claimants are entiti--e<:i to 'eEiaVi1n"reii1i«ai'ning 50% of the compensation from the owner ofthe_i1<;.S.;'R."l'1C:i'bus in question. on the ground that the_ cle'cea.s'eel ihimself wasiii-iesponsible, does not arise. Since, the deceaseti"-i2s;'as of the KSRTC Bus, who succumbed to the injuries iii" the 'accident, his legal re_pi'esentatives could have .: .n.i_aintained,_ the". claim petition under the WC Act. However, the .i'~ii'_v-cla*ir.nan'.'§s 'opted to tile claim petition initialiy under Section E66 and or under Section 163A oi." the Act and subsequently, by an amendment, restricted the ctaim as one under Section 163A of the Act.
12. Section 167 of the Act deals with option 1'ega1'ding.'..c_Eaiih4s'roofK cornpensation in certain cases. The said section beginsl"-withfainnorr obstante clause and states that if, in respectghof injury to any person gives rise to a claim for c'o_1Tipensastio1;.iindefithe M.V.Act and also under the WC. Act,lilt'hera .irresp"ec_t:iV'e offgwhat is contained in the WC. Act 'ijeizs-o.h"*'V.i's».rTentitled to claim CompensationZiihcier-either tl_ie*.Acts btitflraot under both. Therefore there is an optioe given 'toitheV(:il'a~i..1iiants to seek remedies under either of the Acts and when oncieisuch option is exercised or the claimants elect ioiieoélofitlirei' remedies, they are estoppecl from seeking a 1'emedy' tmtaei Therefore, if the claimants seek one of '1:-the 1_e1nedie's particular Act, they are estopped from seeking, {a.tioth.e.rj 't'em_ect3/lllltintier the other Act, with regard to the very same ii'-ll's3.EMai1'nT arises in both the W.C.Act as well as the l\/l.V.Act. EX...
White Section E66 of the M.V.Act is in Chapterjxil, Section MBA is in Chapte1'~XI of the Act which de:1jli's~i:.W.i?'t'hA' insurance of motor vehicies ageiiiist third party--f_r"isVkAsV. i' said Section aiso begins with a non oihstante 'cia_§.tsie'vand*hras"; an over riding effect over ail' other ip.1jovisiio_ns'vofethei M.V.Act and any other iaw for and under the said section the insurer of the motor Vehicie is of death or permanent a_.cc:i.id:enit"'airising out of the use of moto1f__ as indicated in Second Schd'dui--e' the victim as the case may be. Pe1'man.eVint. stated in Section 163A of sai.1':'e......m'eaning to an extent as in the (2) of Section E63A states that the i7i"cviaitnant no.t.ife-iqtiireci to piead or estabiish that the death "-orv'p_e'rmanent__disabiement in respect of which the claim has '~._'bee'n'm'a»de=i was due to any wrongful act or neglect or CVi€if:8V.'Li~iI":Of the owners of the vehicte or vehicles concerned or of any other person. Therefore the claimant can seek compensation when there is death or permanent disablernent due to an accident arising out of the use of tl1€vv.fl}'l_().:i'(_)I' vehicle and the claimant is not required to prove on the part of the owner of vehicle or owners"c'o'n--c_e.rn~ed,as.v per the decision of the Apex Court in tth'eA~'eas'e Girislzblmi Sani and others Company Ltd._, (2002 AC.,I_.lI58-"(SC)lfv,Acc.oi'd'iing"Eto the aforesaid decision of the Ape}§'Coti'1:i c§.la~ivifn."petition under Section 166l?..Qf--.thell":Ct?'Tllie_r'e'fore, the claimants have to prefer filing oflaécilaini either under Section 166 or under Sec'ti20n__?] 6_3A o'f«t.!1esAct but not under both.
13."; lta peculiar"'si_tt1ation where the claimants could not have .'l'£,,f.1l,9d claim"'tlpetitilort..?'before the Commissioner' for Workmen's _lC_o_n3lpensatiori.. against the employer and also file a claim petition of M.V. Act or L:/S l63~--A oi' M.V. Act again.st the l 5, 16 owner and insurer of the lOI'i'}/'. Under such circumstances the ciaimants thought it fit to iiie claim petition L1/S 166 ot'M.V. Act only against the owner of the lorry. On account of the contention étaiteniby the Insurance Company the claimants impieaded Under the peculiar circumstances, contention..o_f theKiS'.'R'j,TiC..i_i_that._ ii claim petition ii/S i63--A of M.\/. Act isii'not7'.i_niainta'iniable K.S.R.T.C. holds no water, for the sliiti1pie.pp1'eason._ that 'thei'*-cllaimiants it have not flied an application'~.__seel<iing " lCCinipe.i1satioh"" before the Commissioner for Worl<n1en's C~omp'e'ns'ati.o_n';f;Ac'eording to the provisions of W.C . Acttire:}empl.oyer;'i{.S'.'I§'§;?l§C.iisiiliabie to pay entire CO1'1'1p€flSE1'[iOi1.l7._' Under'lsiIi'c..i1i'ctiii'ciin*istances the claimants cannot be forced to suffer andabsolve '[i?_€iE'.1:l;.::'piOy€F ofthe deceased in so far as the'*remai_r;1ii'«3.g:_coi"npensatio..n__.amount is concerned. Therefore the K.S§;?,:'T;€i. "i'iabie'to 'pay 50% of the compensation determined as iiaiaove. claini-.V.pietition_ is filed u/S l63--A of l\/E.V. Act, question '=«of*p_roving negligence does not arise. It wili be a case of only i'-v._'appO_rtionment of compensation among the vehicies involved in the acc_ide»nt.i Under such circumstances the contention taken by the if K.S.R.T.C. that it is not liable to pay any compensation amount much less 50% of the compensation payable u/S l63~«/\ of MN". Ac-t holds no water. Accordingly point no. 3 is answered in favouifx claimants. in the result, we pass the following order. V Qrglfl The appeal is partly allowed.
The claim petition in M.V.C. the Judge/lV1.A.C.T. at Uttara Kannada, Kar~.va1«..i.Si"paitly allowed holding that the claimants are entitled tori'eo;npiens?at'ioii'oifRs'.3,49,500/-- along with costs a11d'liiinterestV5.at 6%i_"pi§ai. from the date of petition till the date of1'ealisation,_i° The owner and "in.s;J:_'ei*'-.of'~~fhe lorry are jointly and severally liable'-to ofthe eoifipeinsation along with proportionate costs and iint.efestii sR.:em_ainiiVingi_1l50% ofthe compensation shall be paid by the T' proportionate costs and interest.
R $5» The compensation amount is to be apportioned among, the "1 claimants in this way in the ratio o'f8:3:3:3:.>. Minors' share amount shall be kept in fixed deposit untilttliey attain the age of majority. with liberty to claimant no. l-]'I"1_?:V).'i.L.l;1'6.3"1>'.,V'Qf: _ minor to withdraw the periodical interest.
Statutory amount in deposit shall be tftaitsnfiittiediisto Tirihe.na?:.e.:
for disbursement.
The appellant-Insurance.Cotnpa-n;t.."'anii_ 1'espionden.t': no. 7/ K.S.R.T.C shall deposit their sha19e.s.'aino1,iiit' -Tribunal within two months 3 Accordingly the iint§iuiig_ii.ed'*j:t:i'(i'g;;ment and award are modified. § Sd/uh JUDGE Sd/-3 FUDGE