Karnataka High Court
The Manager vs Shankar Rao Biradar Ors on 31 January, 2020
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 31ST DAY OF JANUARY 2020
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
MFA NO.31991/2011 (MV)
BETWEEN:
The Manager
Bajaj Allianz General Insurance
Company Ltd.
GE Plauze, Airport Road, Yerwada
Pune - 411 006
Now Represented by
Deputy General Manager
Bajaj Allianz General Insurance
Company Ltd., Hubli
... Appellant
(By Sri Subhash Mallapur, Advocate)
AND:
1. Shankar Rao Biradar
S/o Gurappa Biradar
Age: 55 years, Occ: Agriculture
2. Smt. Vimalabai
W/o Shankar rao Biradar
Age: 53 years, Occ: Housewife
(Both R/o village Hippalgaon
Post: Chambol, Tq. Bidar
2
3. Pandurang S/o Bhimrao
Age: Major, Occ: Business
R/o Village Bagdal thanda
Tq. Bidar
4. Vijaykrishna N. Ganiger
Age: Major, Occ: Business
R/o A.P. Chinchankandi (KD)
Taluka Mudhol, Dist. Bagalkot
Karnataka - 587 101
5. The Divisional Manager
New India Assurance Co. Ltd.
10-2-7, P.B.No.12
II Floor, S.B. Temple Road
Sangmeshwar Nagar, Gulbarga
... Respondents
(Sri Santosh Biradar, Advocate for R1 & R2;
R3 - served)
Sri Shivakumar Malipatil, Advocate for R4;
Sri Sudarshan M., Advocate for R5)
This Miscellaneous First Appeal is filed under Section
173 (1) of the Motor Vehicles Act, praying to allow the
appeal and set aside the impugned judgment and award
dated 18.04.2011 in MVC No.511/2008 passed by P.O.
FTC-I and Additional MACT, Bidar awarding compensation
of Rs.3,05,000/- as against the appellant insurance
company (being 50% o the total awarded compensation of
Rs.6,10,000/-), in the above case, holding the appellant
herein liable to pay the compensation to the respondents
No.1 and 2 herein.
3
This appeal coming on for final hearing this day, the
Court delivered the following:
JUDGMENT
This appeal by the insurance company is directed against the impugned judgment and award dated 18.04.2011 passed by the Presiding Officer, FTC-I & Additional MACT, Bidar (for short 'the Tribunal'), whereby the Tribunal allowed the claim petition filed by respondent Nos.1 and 2.
2. For the purpose of convenience, the parties are referred to as per their respective ranks before the Tribunal.
3. The brief facts giving rise to the present appeal are as follows:-
The claimants are the parents of one Somnath, who died in a fatal road accident that occurred on 25.03.2008.
It was the specific case of the claimants that their son, deceased Somnath was riding as a pillion on a motorcycle 4 bearing No.KA-29/K-5220 which was being driven by his friend Sidharodh. The said motorcycle was owned by Vijaykrishna and insured by New India Insurance Company Limited. The said owner and the insurance company were arrayed as respondent Nos.3 and 4 before the Tribunal. It was contended that the said motorcycle met with an accident on account of rash and negligent driving of a jeep bearing No.KA-38/M-1283 which came in a rash and negligent manner in the opposite direction. The said jeep was owned by Pandurang - respondent No.1 before the Tribunal and was insured by Bajaj Allianz General Insurance Company Limited - respondent No.2 before the Tribunal.
4. After trial, the Tribunal came to the conclusion that the accident was on account of rash and negligent driving of both the driver of the motorcycle as well as the driver of the jeep and that both of them were equally guilty of contributory negligence to an extent of 50% each. Under these circumstances, after coming to the conclusion 5 that the claimants were entitled to compensation in a sum of Rs.6,10,000/-, the Tribunal passed the impugned judgment and award directing respondent No.2 - Bajaj Allianz General Insurance Company Limited to pay 50% of the compensation amount as well as respondent No.4 - New India Assurance Company Limited to pay balance 50% of the compensation amount.
5. Aggrieved by the impugned judgment and award fastening the liability to pay compensation to an extent of 50%, the Bajaj Allianz General Insurance Company Limited is before this Court by way of the present appeal.
6. I have heard the learned counsel for the appellant and the learned counsel for the respondents.
7. Firstly, learned counsel for the appellant - insurance company submits that a perusal of the FIR would indicate that the accident was solely on account of rash and negligent driving of the driver of the motorcycle 6 and not the driver of the jeep, who was insured by the appellant. It is therefore contended that the Tribunal committed an error in fastening the liability to an extent of 50% on the appellant without appreciating that the insurer of the motorcycle ought to have been held liable to pay the entire compensation.
8. Per contra, learned counsel for respondent No.5-New India Assurance Company Limited would support the impugned judgment and award passed by the Tribunal.
9. So also, learned counsel for respondent Nos.1 and 2-claimants in addition to supporting the impugned judgment and award would submit that the Tribunal committed an error in applying the multiplier of 11 instead of 17 having regard to the undisputed fact that the deceased was aged about 30 years as on the date of the accident. It is therefore contended that the claimants are entitled to additional compensation by applying the correct multiplier.
7
10. I have given my careful consideration to the rival submissions and perused the material on record.
11. Insofar as the contention urged on behalf the appellant - insurance company with regard to the driver of the jeep not being guilty of the contributory negligence is concerned, the Tribunal while considering and appreciating the material on record has held as under:
"8. ISSUE NO.1 & 2:- The claimant No.1 and 2 are father and mother of the deceased - Somnath and the father is examined as P.W-1 and he deposed that the accident took place only due to rash and negligent driving of offended jeep by its driver, and that there was no any negligence of rider of the motor cycle. He has further deposed that due to accidental injury his son died on the way to hospital. Since P.W-1 is not eye witness for the said accident, he examined one Vishwanath as P.W-2. This P.W-2 has deposed that he has personally witnessed the said accident and that the motor cycle was proceeding in normal speed and at that time 8 the jeep came in high speed and dashed to the motor cycle. But in cross examination P.W-2 has deposed that police have not recorded his statement in criminal case. However it is pertinent to note that after the accident the driver of the jeep lodged the complaint and police registered the case against rider of motor cycle and after investigation filed the charge sheet against him. No doubt after filing the charge sheet before JMFC Court, prosecution has failed to prove his guilt and accordingly he has been acquitted as per copy of the judgment marked as Ex.P-8. But mere acquittal in criminal case is not a ground to disbelieve the actionable negligence and tortious liability in claims before the MACT. The degree of proof required to prove the actionable negligence is not so high as in criminal case. On the other hand, the spot panchnama marked s Ex.P-3 clearly speaks that the offended jeep was coming on its left side and the driver of the jeep tried to avoid the accident by applying the break and the break marks are appearing on the spot and at the time of panchnama, the jeep was on extreme left side. The claimants have 9 intentionally not produced the sketch map of the spot. The F.I.R., and complaint go to show that the driver of jeep tried to proceed on road by over-taking front vehicle and at that time he dashed to the opposite jeep. This accident would not have occurred if the driver of both the vehicles were in normal speed and that both the drivers were not able to control their respective vehicles due to speed. There is headon collision between both vehicles on road. It is clear from the facts of the case that the road on the spot was not free to move because of the presence of third vehicle infront of the motor cycle.
9. The R-1 and 2 have made serious allegations against rider of the motor cycle. On the other hand R-4 made allegations against driver of the jeep. But mere filing of pleadings before the Court is not sufficient. They must prove the same by adducing evidence. But none of the respondents have come forward to lead evidence in support of their contentions. Therefore, considering above facts and circumstances, evidence available on record, and spot panchnama, I hold that the said 10 accident has taken place due to equal contributory negligence of driver of both the vehicles. There is nothing to discard the oral evidence of P.W-2 and so also there is nothing to discard the documents Ex.P-1 to Ex.P-3. Hence, I answer issue No.1 & 2 partly in affirmative."
12. A perusal of the impugned judgment would indicate that the Tribunal after considering the material on record including the FIR and complaint has recorded a categorical finding of fact that the drivers of both the motorcycle as well as the jeep are equally guilty of contributory negligence to an extent of 50% each and consequently fastened the liability in the ratio of 50:50 on both the insurance companies.
13. After re-appreciating the entire material on record, I am of the considered opinion that the said finding of fact recorded by the Tribunal cannot be termed as illegal, arbitrary, capricious or perverse so as to warrant interference by this Court. Under these circumstances, the 11 said finding with regard to contributory negligence by the drivers of both the jeep as well as the motorcycle to an extent of 50% each is hereby confirmed.
14. Insofar as the quantum of compensation is concerned, as rightly contended by the learned counsel for the claimants, having regard to the undisputed fact that the deceased was aged about 30 years, the appropriate multiplier would be 17. Inspite of applying the multiplier of 17, the Tribunal has incorrectly taken the multiplier of 11, which is contrary to well-settled principles of law governing the grant of compensation. Under these circumstances, I am of the opinion that the claimants would be entitled to enhanced compensation by applying a multiplier of 17 instead of 11 as wrongly applied by the Tribunal.
15. The power vested in this Court to modify the judgment and award passed by the MACT and award just and fair compensation even in the absence of cross objection filed by the claimants by exercising powers under 12 Order XLI Rule 33 of CPC in order to do complete justice is well settled in several judgments of the Apex Court as well as this Court including the judgment by a Division Bench of this Court in the case of The Oriental Insurance Co. Ltd. vs Akkayamma & Others, ILR 2009 KAR 24.
16. Under these circumstances, I deem it appropriate to invoke the inherent powers of this Court under Order XLI Rule 33 R/w Section 107 of CPC and modify the impugned judgment and award by applying the proper multiplier of 17 instead of 11 as wrongly applied by the Tribunal.
17. Accordingly, the compensation payable in favour of the claimants towards loss of dependency is reworked as hereunder:
Rs.9,000 - 50% i.e., Rs.4,500 = Rs.4,500 x 12 x 17 = Rs.9,18,000/-13
18. The Tribunal has awarded a sum of Rs.16,000/- towards conventional heads which is left undisturbed.
19. Thus, in all, the claimants are entitled to a total sum of Rs.9,34,000/- (Rs.9,18,000/- + Rs.16,000/-). Since the Tribunal has already awarded a sum of Rs.6,10,000/-, the claimants are entitled to additional enhanced compensation of Rs.3,24,000/- together with interest at 6% p.a. from the date of the claim petition till realization.
20. In view of the aforesaid discussion, I pass the following:
ORDER
(i) The appeal is hereby dismissed.
(ii) The impugned judgment and award dated 18.04.2011 passed by the Tribunal is hereby modified.14
(iii) The claimants are entitled to additional enhanced compensation of Rs.3,24,000/- with interest at 6% p.a. from the date of claim petition till realization.
(iv) The additional compensation of Rs.3,24,000/- is directed to be deposited equally by the appellant - insurance company and respondent No.5 - insurance company in the ratio 50:50.
(v) The amount in deposit is directed to be transferred to the Tribunal for disbursement.
Sd/-
JUDGE LG