Karnataka High Court
The Branch Manager The Oriental ... vs Laxman S/O Devappa And Ors on 6 April, 2023
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MFA No. 200921 of 2015
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 6TH DAY OF APRIL, 2023
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
MISCL. FIRST APPEAL NO. 200921 OF 2015 (MV-D)
BETWEEN:
THE BRANCH MANAGER
THE ORIENTAL INS. CO. LTD.
KATKAM COMPLEX, NEAR CITY
TALKIES ROAD, RAICHUR,
NOW REPRESENTED BY
SR. DIVISIONAL MANAGER,
THE ORIENTAL INSURANCE CO. LTD.,
N.G.COMPLEX,MAIN ROAD,
KALABURAGI
...APPELLANT
(BY SRI SANJAY M. JOSHI, ADVOCATE)
AND:
1. LAXMAN S/O DEVAPPA
Digitally signed AGE: 30 YEARS, OCC: AGRI & COOLIE
by RAMESH
MATHAPATI 2. ANJAPPA S/O LAXMAN
Location: High AGE: 09 YEARS, OCC: STUDENT
Court of 3. MOUNESH S/O LAXMAN
Karnataka
AGE: 07 YEARS, OCC: STUDENT
4. POORNIMA D/OLAXMAN
AGE: 05 YEARS, OCC: STUDENT
5. BOODIBASAVA S/O LAXMAN
AGE: 04 YEARS, OCC: STUDENT
6. BHAGAMMA D/O LAXMAN
AGE: 02 YEARS,
CLAIMANTS NO.2 TO 6 ARE MINORS
U/G OF THEIR NATURAL FATHER
LAXMAN, WHO IS CLAIMANT NO.1
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MFA No. 200921 of 2015
ALL ARE R/O JERBANDI VILLAGE,
TQ. DEVADURGA,
NOW RESIDING AT S.P.C.H. NO.73,
POLICE COLONY,
NEAR ANJANEYA TEMPLE,
RAICHUR-584102
7. MARUTI S/O LALAPPA
AGE: 36 YEARS, OCC: RIDER OF
MOTOR CYCLE BEARING REG.
NO.KA-36/TF-3747,
R/O KAVITHAL VILLAGE, TQ.MANVI,
DIST. RAICHUR-584102
8. G. NARESH S/O SATHYANARAYANA
AGE: 30 YEARS, OCC: OWNER OF
MOTOR CYCLE BEARING REG.
NO.KA-36/TF-3747, R/O GANGANAGAR
CAMP-74 KAVITHAL TQ.MANVI,
DIST. RAICHUR-584102
...RESPONDENTS
(BY SRI BASAVARAJ R. MATH, ADVOCATE FOR R1;
R7 & R8 ARE SERVED;
R2 TO R6 ARE MINORS REP. BY R1)
THIS MFA IS FILED U/S 173(1) OF MV ACT, PRAYING TO
SET ASIDE THE JUDGMENT AND ORDER DATED 22.04.2015 IN
MVC NO. 618/2014 OF THE HON'BLE II ADDL. DIST. AND
SESSIONS JUDGE AND MACT AT RAICHUR, AWARDING
COMPENSATION OF RS.10,97,000 WITH 6% INTEREST AND
ALLOW THE APPEAL.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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MFA No. 200921 of 2015
JUDGMENT
This appeal is filed by the appellant-Insurance Company challenging the judgment and award dated 22.04.2015 passed in MVC.No.618/2014 by the learned II Addl. District and Sessions Judge, Raichur, (for short 'the Tribunal').
2. Though this appeal is listed for admission, it is taken up for final disposal.
3. For the sake of convenience, parties are referred to as per their ranking before the Claims Tribunal.
4. Heard on admission.
5. Learned counsel for the appellant-Insurance Company submitted that the accident was occurred on 4-5- 2014 at 11 a.m. when allegedly the respondent No.1 was riding the motor cycle No. KA-36/TF3747 belonging to the original respondent No.2, and had unduly carrying of two pillion riders, namely aged mother of deceased Smt. Shridevi as first pillion rider occupying the seat just behind the original respondent No.1 (the rider) and deceased Shridevi as the second pillion rider sitting behind her aged mother. While riding the said motor cycle from Jerabandi village to Manvi, the saree of the -4- MFA No. 200921 of 2015 deceased Smt. Shridevi got entangled in the rear wheel of the said motor cycle KA-36/TF-3747 and both the pillion riders fell down due to falling off the motor cycle due to the entanglement of the saree of deceased Shridevi in the rear wheel of the said motor cycle. The seating capacity as per the permit is only 1+1, i.e. rider plus one pillion rider, and limitations as to use provided in policy produced as Ex.R1 clearly reveals that the policy covers use only under a permit within the meaning of the Motor Vehicles Act 1988 or such a carriage falling under sub-
section 3 of Sec. 66 of MV Act 1966. It is further submitted that the tribunal has illegally saddled the liability upon the appellant insurance company by ignoring the contents of paragraph No.4 in the written statement and also contents of deposition of RWI who had specifically stated that the deceased Shridevi took the undue risk of occupying her seat as second pillion rider behind the first pillion rider and had contributed to the negligence and was cause for her own accidental death.
The original respondent No.1 had carried two pillion riders much in contravention of the policy conditions and the permit copy. The permit was in fact not obtained by the respondent No.1 as it was a new vehicle, which was still not registered but -5- MFA No. 200921 of 2015 the seating capacity of said vehicle is only 1+1 as per permit not issued. Hence, on these grounds sought for allowing of the appeal.
6. Per contra, the learned counsel for the respondents supports the impugned judgment and award passed by the tribunal. He further submits that the compensation awarded by the tribunal is just and proper and does not call for any interference. Hence, prays to dismiss the appeal.
7. A perusal of the impugned judgment in paragraph No.14 and 15 the tribunal has observed as under;
" On meticulous scrutiny of the entire records, evidence and pleadings, much less Ex.P.1 is the certified copy of the FIR with complaint, Ex.P.2 is the Chargesheet, Ex.P.3 is the Crime Details, Ex.P.4 is the Inquest of Sridevi, Ex.P.5 is the IMV Report and Ex.P.6 is the P.M.Report. These documents have clearly and exclusively prove that, the accident has happened due to the rash and negligent driving of the Motor- cycle bearing registration No.KA-36/TF- 3747, by respondent No.1, as a result in the said accident said Sridevi sustained severe accidental injuries and succumbed in the Hospital on 5.5.2014. Further, the crime details clearly proves that, this -6- MFA No. 200921 of 2015 accident is purely caused due to rash and negligent manner of Motor-cycle bearing registration No.KA- 36/TF-3747, by respondent No.1. The documentary evidence placed by the claimants is unchallenged by the respondent No.3. In this case, though the respondent No.3 filed the W.S. and denied the petition averments and submitted that, the alleged accident was occurred due to the rash and negligence on the part of two pillion riders as well as rider of motor cycle/respondent No.1 and hence, the respondent No.3 is not liable to pay any compensation. It is not sustainable in Law. Because, the learned counsel for the claimant has argued his case by relying upon a decision reported in AIR 2008 Madhya (DB) Pradesh 18 in the case of Devisingh Vs. Vikramsingh & others, it is held as under:
"Motor Vehicles Act (59 of 1988), Ss.128, 168 Contributory negligence on part of motorcyclist pillion rider. Driver of motor cycle carrying two pillion riders in violation of S.128 -Violation of S. 128 per se, by motorcyclist or pillion riders - Does not amount to contributory negligence - Breach of S. 128 must have causal connection with damage caused to pillion rider.
2007 (1) Manisa 204 (M.P.) (DB), 2007 (1) MPWN 88 (DB), Overruled.
A plain reading of section 128 of the Act would show that sub-section (1) casts a duty on the driver of a two wheeled motor cycle not to carry more than one person in addition to himself on the motor cycle. Similarly, Rule 123 of the Rules mentions the safety devices to be provided while manufacturing a motor -7- MFA No. 200921 of 2015 cycle. These provisions obviously are safety measures for the drivers and pillion riders and breach of such safety measures may amount to "negligence" but such negligence will not amount to "contributory negligence" on the part of the pillion rider or "composite negligence" on the part of the driver of the motor cycle, unless such negligence was partly the immediate cause of accident or damage suffered by the pillion rider.
If the damage in the accident has not been caused partly on account of violation of Section 128 of the Act by the pillion rider of the motor cycle, the pillion rider is not guilty contributory negligence. Similarly, if the damage suffered by the pillion rider has not been caused partly on account of violation of section 128 of the Act by the driver, the pillion rider cannot put up a plea of composite negligence by the driver. otherwords, if breach of Section 128 of the Act, does not have a causal connection with the damage caused to the pillion rider, such breach would not amount to contributory negligence on the part of the pillion rider of the motor cycle or composite negligence on the part of the driver of the motor cycle."
15. The above said decision is aptly applicable to the case on hand. In view of the above said decision, violation of S.128 per se, by motorcyclist or pillion riders - does not amount to contributory negligence. Hence, the respondent No.3 failed to prove the contributory negligence. Because, the R.W.1 in his cross examination clearly admitted that, it is true that, the claim petition filed by third party. It is true that, the claim petition filed by one second pillion rider. The Policy is a package Policy. It is true that, -8- MFA No. 200921 of 2015 the accident was occurred within one month from the date of temporary registration of vehicle. They have not verified the MLC records and they have conducted the investigation through their agency, but they have not placed any report of their agency. R.W.1 further admitted in his cross examination that, he has not seen the accident. He has given the evidence based on the documents. From these admission given by the R.W.1 it clearly goes to show that, the respondent No.3 has failed to prove the W.S. contents. On the other hand, in support of their pleadings, the claimant No.1 adduced evidence that, his wife died in the above said accident. Therefore, the death is due to rash and negligent manner and negligent driving of the respondent No.2's Motor cycle and the deceased was died due to accidental injuries. The respondent No.2, owner of the motor cycle though received the summons, remained absence and hence, he has been placed as Exparte. The respondent No.2 being the owner of the Motor cycle has not contested in this case. So, it clearly goes to show, the respondent No.2 admitted the claim of the claimants. Hence, I totally discard entire oral and documentary evidence of the respondent No.3 and I accept the oral and documentary evidence of the petitioner NO.1 and answer issue No.1 held in the affirmative."
-9- MFA No. 200921 of 20158. The tribunal has elaborately discussed the evidence on record in accordance with law and given findings that the Insurance Company is liable to pay compensation. The defence set up by the Insurance Company will not come under the provisions of Section 149 of M.V.Act. Hence, I do not find any grounds to interfere with the impugned judgment and award passed by the tribunal.
9. For the aforesaid reasons, there are no grounds to admit the appeal. Hence, I proceed to pass the following;
ORDER
(a) The appeal is dismissed.
(b) The amount in deposit, if any, shall be transmitted to
the concerned tribunal forthwith.
Sd/-
JUDGE
MSR
List No.: 1 Sl No.: 25