Karnataka High Court
The Divisional Manager National ... vs Smt.Rathna Bai on 28 September, 2012
Author: S.N.Satyanarayana
Bench: S.N.Satyanarayana
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 28TH DAY OF SEPTEMBER 2012
BEFORE
THE HON'BLE MR.JUSTICE S.N.SATYANARAYANA
M.F.A.NO.2656/2009 (MV)
C/W M.F.A.NOs.2654/2009 (MV) C/W 2655/2009 (MV)
BETWEEN :
The Divisional Manager,
National Insurance Co. Ltd.,
Divisional Office, P.B.No.74,
Chigateri Mercantile Building,
Chamarajpet, Davanagere,
Now represented by its
Regional Manager,
National Insurance Co., Ltd.,
Regional Office,
Subharam Complex, 144, M.G.Road,
Bangalore - 560 001.
... Appellant
(common)
(By Sri A.N.Krishnaswamy, Adv.,)
AND :
1. Smt. Rathna Bai,
W/o K.C.Rama Naik, Major,
Occ : Tailoring, R/o # 843/10,
Nanda Gokula Building,
Saraswathi Nagar, Davanagere.
2. J. Muniswamy Naik, S/o Juriya Naik,
Now aged about 60 years,
Deputy Director, Dept. of Agriculture,
Driver of Car No.KA-04/M-6735,
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District Agriculture Training Station,
Kadajji Village, Davangere Tq.,
R/o # 90/1, 4th Cross,
Basavanagudi Shimoga.
3. Vasantha Naik,
S/o Rekya Naik,
Now aged about 43 years,
Owner of Maruti Omni,
R/o Kogonahalli Village,
Honnali Tq., Davangere District.
4. Devaraj, S/o Obanna,
Now aged about 26 years,
Driver of Autorikshaw,
R/o Mallapura Village,
Alur Post, Davanagere Tq.,
5. G.S. Panduranga,
S/o G. Siddappa,
Owner of Autorikshaw,
R/o No.201, Anagodu Village,
Davangere Taluk. ...Respondents
In MFA NO.2656/2009
(By Sri M.Prakash, Adv., for M/s. N.R.Naik & Assts., for R1
R2 to R5 -served)
This MFA is filed u/S 173(1) of MV Act against the
judgment and award dated 31.12.2008 passed in MVC
No.720/2006 on the file of Additional Sessions Judge,
Presiding Officer of Fast Track Court-II, Davanagere,
Awarding a compensation of Rs.1,50,000/- with interest at
6% p.a from the date of petition till realisation.
AND :
1. M. Mahesh Naik,
S/o Mahadeva Naik,
Now aged about 31 years,
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Occ : Industrial Engineering,
R/o # 47/D, South Railway Station,
Davanagere.
2. J. Muniswamy Naik,
S/o Juriya Naik, Now aged about
60 years, Dy Director, Dept. of Agriculture,
Driver of Car No.KA-04/M - 6735,
District Agriculture Training Station,
Kadajji Village, Davangere Tq.,
R/o # 90/1, 4th Cross,
Basavanagudi, Shimoga.
3. K.R. Vasantha Naik,
S/o Rekya Naik,
Now aged about 43 years,
Owner of Maruti Omni,
R/o Kogonahalli Village,
Honnali Tq., Davangere District.
4. Devaraj, S/o Obanna,
Now aged about 26 years,
Driver of Autorikshaw,
R/o Mallapura Village,
Alur Post, Davanagere Tq.,
5. G.S. Panduranga,
S/o G. Siddappa,
Owner of Autorikshaw,
R/o No.201, Anagodu Village,
Davangere Taluk. ...Respondents
in M.F.A.NO.2654/2009
(By Sri M.Prakash for M/s. N.R.Naik & Assts., Advs.,
for R1 to R3, R4 & R5 -served)
MFA No.2654/2009 is filed u/s 173(1) of MV Act
against the Judgment and award dated:31.12.2008 passed
in MVC No.718/2006 on the file of Additional Sessions
Judge, Presiding Officer of Fast Track Court-II, Davanagere
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awarding a compensation of Rs.1,00,000/- with interest at
6% P.A from the date of petition till realisation.
AND :
1. Shilpa, D/o Rama Naik,
Now aged about 23 years,
R/o # 337/13, C.G. Hospital Quarters,
Davanagere.
2. J. Muniswamy Naik,
S/o Juriya Naik,
Now aged about 60 years,
Deputy Director, Dept. of Agriculture,
Driver of Car Bearing No.KA-04/M-6735,
District Agriculture Training Station,
Kadajji Village, Davangere Tq.,
R/o # 90/1, 4th Cross,
Basavanagudi, Shimoga.
3. K.R. Vasantha Naik,
S/o Rekya Naik,
Now aged about 43 years,
Owner of Maruti Omni,
R/o Kogonahalli Village,
Honnali Tq., Davangere District.
4. Devaraj, S/o Obanna,
Now aged about 26 years,
Driver of Autorikshaw,
R/o Mallapura Village,
Alur Post, Davanagere Tq.,
5. G.S. Panduranga S/o G. Siddappa,
Owner of Autorikshaw,
R/o No.201, Anagodu Village,
Davangere Taluk. ...Respondents
in M.F.A.NO.2655/2009
(By Sri M.Prakash for M/s. N.R.Naik & Assts., Advs.,
for R1, R2 to R5 -served)
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MFA No. 2655/2009 is filed u/s 173 (1) of MV Act
against the Judgment and award dated:31.12.2008 passed
in MVC No.719/2006 on the file of Additional Sessions
Judge, Presiding Officer of Fast Track Court-II and
Additional MACT, Davanagere, awarding a compensation of
Rs.75,000/- with interest @ 6% p.a from the date of petition
till realisation.
These MFAs coming on for hearing this day, the Court
delivered the following:
JUDGMENT
The fifth respondent in MVC.Nos.718, 719 and 720/2006 on the file of Additional Sessions Judge, Presiding Officer, Fast Track Court-II, Davanagere, has come up in these three appeals impugning the common judgment and award dated 31.12.2008 passed in aforesaid claim petitions so far as it pertains to the finding of Tribunal to the effect that alleged accident dated 30.5.2005 is caused due to rash and negligent driving of both car bearing No.KA-04/M.6735 and Autorickshaw bearing No.KA-22/A.158.
2. Brief facts leading to these appeals are as under:
Claimants in MVC.Nos.718/2006 to 720/2006 are members of same family. It is stated that they were -6- travelling together in Autorickshaw bearing No.KA-22/A.158 on 30.5.2005. On that day, at about 1.30 pm., when said Autorickshaw was proceeding on Hadadi Road, met with accident involving car bearing No.KA-04/M.6735. Accident is not in dispute and so also claimants being inmates of Autorickshaw. However, it is seen that immediately after accident Sri.Mahesh Naik, claimant in MVC.No.718/2006 lodged a complaint before the Traffic Police, Davanagere, contending that Autorickshaw in which he and his other two family members were travelling met with an accident due to rash and negligent driving of car bearing No.KA-04/M.6735 belonging to second respondent and driven by first respondent before Tribunal. Based on said complaint, it is seen a FIR was registered on the same day in Crime No.110/2005. It is seen that police after completion of investigation filed charge sheet against first respondent before Tribunal, namely, J.Muniswamy Naik, Deputy Director of Department of Agriculture, who was driving the vehicle at the relevant time. Thereafter, criminal prosecution proceeded as against first respondent.-7-
3. Meanwhile, claim petitions are filed by inmates of Autorickshaw, who are none other than claimants before Tribunal in MVC.No.718/2006 to MFA.No.720/2006. It is seen that though claimant in MVC.No.718/2006, who is PW.3 before Tribunal, wherein common evidence is recorded in all the three claim petitions, has lodged complaint at the first instance alleging that accident has taken place due to rash and negligent driving of driver of car, subsequently turnaround and stated that accident has taken place due to rash and negligent driving of drivers of car and as well as Autorickshaw.
4. On going through the material on record it is clearly seen the turnaround on the part of claimants to give such evidence is for the reason that at the relevant time of accident, offending car was not having valid insurance coverage. In that view of matter, it is seen in collusion both claimants and respondents 1 and 2 appear to have adduced evidence to see that liability to pay compensation is fixed on Autorickshaw, which had insurance coverage issued by fifth respondent. Incidentally, before Tribunal, issues are not -8- framed, evidence is not adduced regarding the negligence on the part of driver in riding Autorickshaw in rash and negligent manner. Accordingly, when material evidence available on record discloses that accident caused resulting injuries to claimants in MVC.No.718/2006 to MVC.No.720/2006 is due to rash and negligent driving of offending car, claimants adducing evidence contrary to that in trying to fasten liability on Autorickshaw driver, is an after thought. Unfortunately, Tribunal has neither looked into pleadings nor documentary evidence available on record properly and it got swayed away by the self-serving oral evidence of claimants in the aforesaid three proceedings and benevolently awarded compensation to claimants, so that they could get compensation from insurance company, fifth respondent before it.
5. It is further seen that Tribunal with the sole intention of trying to help claimants, gone to the extent of observing that claimants are entitled to receive compensation from any one of the respondents before Tribunal. Thereby, indicating that entire compensation -9- awarded could be recovered from insurance company-fifth respondent before it. This infact is serious lapse on the part of the Tribunal in appreciating the evidence which definitely indicate that it is unjustifiably sympathetic towards claimants to some how provide them compensation. It is also seen that Tribunal in its anxiety to help claimants has gone out of the way in allowing the claim petition as against the owner and insurer of the Autorickshaw. Further it has made serious error in observing that the claimant can receive entire compensation from any one of the respondents, thereby jeopardising the interest of the owner and insurer of the Autorickshaw in a case where they are at no fault. This clearly indicates that the Tribunal has deliberately deviated from the procedure to be followed in deciding such claim petition, which cannot be sustained in the eye of law. In that view of matter, judgment impugned is required to be set aside observing that the same is due to misplaced sympathy on the part of Presiding Officer of Tribunal in supporting the unscrupulous claims of claimants in MVC.No.718/2006 to MVC.No.720/2006.
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6. Accordingly, appeals filed by insurance company are allowed. Impugned judgment and award dated 31.12.2008 passed in MVC.No.718/2006 to 720/2006 on the file of Additional Sessions Judge and Fast Track Court-II, Davanagere, so far as it pertains to fixing liability on respondents 3, 4 and 5 therein, namely, owner, driver and insurer of Autorickshaw bearing No.KA-22/A.158 is set aside. Consequently, restricting the right of claimants to receive compensation only against respondents 1 and 2 collectively, i.e., J.Muniswamy Naik, Deputy Director of Department of Agriculture, who was driver of car at the relevant time and its owner K.R.Vasantha Naik.
In view of the appeals of insurance company being allowed, the amount in deposit in all three appeals is ordered to be released in favour of appellant therein.
The registry is directed to place a copy of this judgment before Administrative judge within whose jurisdiction the Presiding Officer who has written impugned judgment is now discharging his duty as judicial officer
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(XXXI Additional City Civil and Sessions Judge, Bangalore City) for information.
Sd/-
JUDGE nd.