Karnataka High Court
Jhalkheen Ahamed S/O Ameer Ahmed vs Rakesh S/O Pilip Pinto on 24 March, 2017
Author: K.Somashekar
Bench: K.Somashekar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 24th DAY OF MARCH 2017
BEFORE
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
MFA No.22293/2009
a/w
MFA.Nos.22294 to 22297/2009 (MV)
MFA NO 22293 OF 2009:
BETWEEN
1. JHALKHEEN AHAMED
S/O AMEER AHEMAD
R/O 948/5, OPP TO ARVIND MOTORS
B.H.ROAD, SHIMOGA,
DIST: SHIMOGA.
2. THE DIVISIONAL MANAGER
THE ORIENTAL INSURANCE CO.LTD
HUBLI DIVISION, THROUGH ITS
HUBLI REGIONAL OFFICE,
REP. BY CHIEF REGIONAL MANAGER,
SUMANGALA COMPELX
HUBLI.
... APPELLANTS
(BY SRI. M K SOUDAGAR, ADVOCATE)
AND
1. RAKESH S/O PILIP PINTO
R/O VIDYANAGAR, HAVERI,
DIST: HAVERI.
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2. THE GENERAL MANAGER @ SELF INSURANCE
FUND, K.S.R.T.C., SHANTI NAGAR,
K.H. DOUBLE ROAD,
BANGALORE
... RESPONDENTS
(BY SRI. NAGRAJ .J. APPANNAVAR, ADVOCATE FOR
SRI L. T. MANTAGANI, ADVOCATE FOR R1
SRI F.S.DABALI, ADVOCATE FOR R2)
THIS MFA FILED U/S 173(1) OF MV ACT,
AGAINST THE JUDGMENT AND AWARD DATED:
20/12/2008 PASSED IN M.V.C.NO.08/2006 ON THE
FILE OF THE HON'BLE DISTRICT JUDGE, FAST TRACK
COURT AND MACT, HAVERI, AWARDING A
COMPENSATION OF RS.67,000/- ALONG WITH
INTEREST @ 6% P.A. FROM THE DATE OF PETITION
TILL THE REALISATION.
MFA NO 22294 OF 2009:
BETWEEN
1. JHALKHEEN AHAMED
S/O AMEER AHEMAD
AGE:MAJOR, OCC:BUSINESS,
R/O 948/5, OPP TO ARVIND MOTORS,
B.H.ROAD, SHIMOGA,
DIST: SHIMOGA.
2. THE DIVISIONAL MANAGER
THE ORIENTAL INSURANCE CO.LTD
HUBLI DIVISION THROUGH ITS
HUBLI REGIONAL OFFICE,
REP. BY CHIEF REGIONAL MANAGER,
SUMANGALA COMPLEX, HUBLI.
... APPELLANTS
(By SRI M K SOUDAGAR, ADVOCATE)
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AND
1. PRIYANKA D/O RAKESH PINTO
AGE: 09 YEARS, OCC: STUDENT,
M/G. REP. BY NEXT FRIEND FATHER
RAKESH D/O DILIP PINTO
AGE:40 YEARS, OCC:NIL
R/O VIDYANAGAR, HAVERI,
DIST: HAVERI.
2. THE GENERAL MANAGER @ SELF INSURANCE
FUND, KSRTC, SHANTINAGAR,
K.H.DOUBLE ROAD, BANGALORE
... RESPONDENTS
(BY SRI. NAGRAJ .J. APPANNAVAR, ADVOCATE FOR
SRI L. T. MANTAGANI, ADVOCATE FOR R1
SRI F.S.DABALI, ADVOCATE FOR R2)
THIS MFA FILED U/S 173(1) OF MV ACT,
AGAINST THE JUDGMENT AND AWARD DATED:
20/12/2008 PASSED IN M.V.C.NO.09/2006 ON THE
FILE OF THE DISTRICT JUDGE FAST TRACK COURT
AND MACT HAVERI, AWARDING A COMPENSATION OF
RS.38,000/- ALONG WITH INTEREST @ 6% P.A. FROM
THE DATE OF PETITION TILL THE REALISATION.
MFA NO 22295 OF 2009:
BETWEEN
1. JHALKHEEN AHAMED
S/O AMEER AHEMAD
R/O. 948/5, OPP TO ARVIND MOTORS
B.H.ROAD, SHIMOGA,DIST: SHIMOGA.
2. THE DIVISIONAL MANAGER
THE ORIENTAL INSURANCE CO.LTD.
:4:
HUBLI DIVISION, THROUGH ITS
HUBLI REGIONAL OFFICE,
REP. BY CHIEF REGIONAL MANAGER,
SUMANGALA COMPLEX, HUBLI
... APPELLANTS
(By SRI M K SOUDAGAR, ADVOCATE)
AND
1. PALLAVI D/O RAKESH PINTO
R/O SHIVABASAV NAGAR, HAVERI,
DIST: DHARWAD.
2. THE GENERAL MANAGER @ SELF
INSURANCE FUND, KSRTC, SHANTINAGAR,
K.H.DOUBLE ROAD, BANGALORE.
... RESPONDENTS
(BY SRI. NAGRAJ .J. APPANNAVAR, ADVOCATE FOR
SRI L. T. MANTAGANI, ADVOCATE FOR R1
SRI F.S.DABALI, ADVOCATE FOR R2)
THIS MFA FILED U/S 173(1) OF MV ACT,
AGAINST THE JUDGMENT AND AWARD DATED:
20/12/2008 PASSED IN M.V.C.NO.10/2006 ON THE
FILE OF THE DISTRICT JUDGE (FAST TRACK) COURT
AND MACT HAVERI, AWARDING A COMPENSATION OF
RS.80,000/- ALONG WITH INTEREST @ 6% P.A. FROM
THE DATE OF PETITION TILL THE REALISATION.
MFA NO 22296 OF 2009:
BETWEEN
1. JHALKEEN AHAMED
S/O AMEER AHEMAD
R/O 948/5, OPP TO ARVIND MOTORS,
:5:
B.H.ROAD, SHIMOGA, DIST: SHIMOGA.
2. THE DIVISIONAL MANAGER
THE ORIENTAL INSURANCE CO.LTD
HUBLI DIVISION, THROUGH ITS
HUBLI REGIONAL OFFICE,
REP. BY CHIEF REGIONAL MANAGER,
SUMANGALA COMPLEX, HUBLI.
... APPELLANTS
(BY SRI M K SOUDAGAR, ADVOCATE)
AND
1. GUNDAPPA S/O VEERAPPA BANAKAR
AGE:45 YRS, OCC:DRIVER
R/O SHIVABASAV NAGAR, HAVERI,
DIST: HAVERI.
2. THE GENERAL MANAGER @ SELF
INSURANCE FUND, K.S.R.T.C.
SHANTINAGAR, K.H. DOUBLE ROAD,
BANGALORE.
... RESPONDENTS
(BY SRI. NAGRAJ .J. APPANNAVAR, ADVOCATE FOR
SRI L. T. MANTAGANI, ADVOCATE FOR R1
SRI F.S.DABALI, ADVOCATE FOR R2)
THIS MFA FILED U/S 173(1) OF MV ACT,
AGAINST THE JUDGMENT AND AWARD DATED:
20/12/2008 PASSED IN M.V.C.NO.02/2008 ON THE
FILE OF THE FAST TRACK COURT AND MACT HAVERI,
AWARDING A COMPENSATION OF RS.20,000/- ALONG
WITH INTEREST @ 6% P.A. FROM THE DATE OF
PETITION TILL THE REALISATION OF COMPENSATION
AMOUNT.
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MFA NO 22297 OF 2009:
BETWEEN
1. JHALKHEEN AHAMED
S/O AMEER AHEMAD
AGE:MAJOR, OCC:BUSINESS,
R/O 948/5, OPP TO ARVIND MOTORS,
B.H.ROAD, SHIMOGA,
DIST: SHIMOGA.
2. THE DIVISIONAL MANAGER
THE ORIENTAL INSURANCE CO.LTD
HUBLI DIVISION, THROUGH ITS
HUBLI REGIONAL OFFICE,
REP. BY CHIEF REGIONAL MANAGER,
SUMANGALA COMPLEX,
HUBLI.
... APPELLANTS
(BY SRI M K SOUDAGAR, ADVOCATE)
AND
1. GUNDAPPA S/O VEERAPPA BANAKAR
AGE:45 YRS, OCC:DRIVER
R/O SHIVABASAV NAGAR, HAVERI,
DIST: HAVERI.
2. RENUKA W/O GUNDAPPA BANAKAR
AGE":43 YRS, OCC:HOUSEWIFE
R/O SHIVABASAV NAGAR, HAVERI,
DIST: HAVERI.
3. THE GENERAL MANAGER @ SELF INSURANCE
FUND, KSRTC, SHANTINAGAR,
K.H.DOUBLE ROAD, BANGALORE.
... RESPONDENTS
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(BY SRI. NAGRAJ .J. APPANNAVAR, ADVOCATE FOR
SRI L. T. MANTAGANI, ADVOCATE FOR R1 & R2
SRI F.S.DABALI, ADVOCATE FOR R3)
THIS MFA FILED U/S 173(1) OF MV ACT,
AGAINST THE JUDGMENT AND AWARD DATED:
20/12/2008 PASSED IN M.V.C.NO.01/2008 ON THE
FILE OF THE DISTRICT JUDGE, FAST TRACK COURT
AND MACT HAVERI, AWARDING A COMPENSATION OF
RS.7,000/- ALONG WITH INTEREST @ 6% P.A. FROM
THE DATE OF PETITION TILL THE REALISATION OF
COMPENSATION AMOUNT.
THESE APPEALS COMING ON FOR HEARING
THIS DAY, THE COURT DELIVERED THE
FOLLOWING:-
COMMON JUDGMENT
All these appeals are by the appellants- respondents 2 and 3 before the Tribunal, who are the driver and insurer of the offending luxury bus involved in the accident, questioning the impugned common judgment and award dated 20.12.2008 passed in MVC.Nos.8 to 10/2006, 1 and 2/2008 holding that accident was due to the contributory negligence on the part of the drivers of both the KSRTC and luxury bus involved in the accident and directing them to pay compensation to the claimants in equal proportions. :8:
2. Since all these appeals arise out of the common judgment and award passed by the Tribunal, they are disposed of by this common judgment.
3. Heard the learned counsel for the appellants and respondents in all these appeals.
4. For the sake of convenience, the parties are referred to as per their rank before the Tribunal.
5. The brief factual matrix are as follows:-
On 21.5.2000 at about 6.30 a.m. the petitioners were travelling as passengers in KSRTC bus bearing No.KA-01-F-6692 from Haveri to Hubli driven in a high speed in a rash and negligent manner by flouting all the traffic rules and regulations. When the said KSRTC bus was on P.B. Road near Varur in Hubli Taluk, one luxury bus bearing No.KA-14/B-3787 came from opposite direction driven in a very high speed and in a rash and negligent manner. The drivers of both the vehicles lost control over their respective vehicles as a result of which :9: both the vehicles collided with each other. As a result of the impact, the petitioners in MVC.Nos.8, 9, 10 and 2/2008 sustained multiple and grievous injuries and Kumari Nirmala, D/o.Gundappa Banakar in MVC.No.1/08 who sustained fatal injuries died in Shreyas Hospital subsequently. All the petitioners were given prolonged treatment in the hospitals at Haveri and Hubli. Hence, the claim petitions in MVC.Nos.8,9,10/2006 and MVC.No.2/2008 were filed claiming compensation for the injuries suffered in the accident and MVC.No.1/2008 was filed by the parents of Kum. Nirmala claiming compensation for her death.
Respondent No.1-insurer of the KSRTC bus filed objections denying the averments in the claim petitions and contended that the accident had occurred solely due to the negligence of the driver of the luxury bus and therefore sought for dismissal of the claim petitions against it.: 10 :
Respondent Nos. 2 and 3 who are the owner and insurer of the luxury bus filed their objections denying the petition averments and contended that the driver of the KSRTC bus was charge sheeted by Hubli Rural Police in Cr.No.96/2000 and that the accident had occurred solely due to the negligence of the driver of the KSRTC bus and therefore, sought for dismissal of the claim petitions.
Based on the above contentions, the Tribunal framed the following issues:-
ISSUES IN MVC.Nos.8/06, 9/06 and 2/08
1.Whether petitioner proves that, he/she has sustained injuries in the motor accident that occurred on 21.5.2000 at about 6.30 a.m. on P.B. Road, Varur, Hubli Taluk while he was travelling in KSRTC bus No.KA-01/F-6692?
2.Whether petitioners further proves that the above said accident occurred due to rash and negligent driving of the drivers of both the vehicles KSRTC bus No.KA-
01/6692 and luxury bus No.KA-14/B-3787?
3.Whether respondent No.2 proves that the above said accident occurred due to negligence of driver of KSRTC bus No.KA-01/6692?
4.Whether petitioner is entitled to the compensation? : 11 : If so, to what amount and from whom?
5.What award or order?"
ISSUES IN MVC.10/2006
1.Whether petitioner proves that, she has sustained injuries in the motor accident that occurred on 21.5.2000 at about 6.30 a.m. on P.B. Road, near Varur Petrol bunk, while she was travelling in KSRTC bus No.KA-01/F-6692?
2.Whether petitioners further proves that the above said accident occurred due to rash and negligent driving of the drivers of both the buses No.KA-01/6692 and No.KA-14/B-3787?
3.Whether respondent No.1 and 2 proves that the above said accident occurred due to rash and negligent driving of the driver of luxury bus No.KA-14/B-3787?
4.Whether petitioner is entitled to the compensation? If so, to what amount and from whom?
5.What award or order?"
ISSUES IN MVC.No.1/2008
1.Whether petitioners prove that, Kumari Nirmala Banakar died in the motor accident that occurred on 21.5.2000 at about 6.30 a.m. on P.B. Road, near Varur Petrol bunk, while she was travelling in the KSRTC bus No.KA-01/F-6692?
2.Whether petitioners further prove that the above said accident occurred due to rash and negligent driving of the drivers of the KSRTC bus No.KA-01/6692 and luxury bus No.KA-14/B-3787?
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3. Whether petitioner is entitled to the compensation? If so, to what amount and from whom?
4.What award or order?"
Common evidence has been adduced in MVC.No.8/2006. The petitioners in MVC.No.8/06, 10/06 and 2/08 examined themselves as P.Ws.1 to 3 respectively and doctors were examined as P.Ws.4 and 5 and got marked documents as Exs.P1 to P82. The respondents did not adduce any oral evidence, but produced copies of charge sheet and insurance policy to support their case.
The Tribunal on appreciation of the oral and documentary evidence has held that the accident occurred due to the contributory negligence on the part of the drivers of both the vehicles, awarded compensation to the claimants and directed respondents No.1 and 3 to pay compensation in equal proportion. It is this, which is questioned in the present appeals.
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6. The learned counsel for the appellants/respondents 2 and 3 has contended that the impugned judgment and award passed by the Tribunal is contrary to law and material on record. The assessment of contribution to the accident by the Tribunal in equal proportion to the drivers of both the buses is illegal and arbitrary. The second respondent is exclusively responsible for payment of compensation to the first respondent as the accident is exclusively due to the rash and negligent driving on the part of the driver of the KSRTC bus involved in the accident who is an employee of the second respondent. In view of the documents relied and exhibited namely complaint, FIR, spot panchanama and charge sheet and also in view of the principles laid down by the Supreme Court in the case of National Insurance Company .vs. Govindamma, the appellants are not liable to pay compensation to the petitioners-claimants and further that the impugned judgment and award are opposed to the facts, evidence, probabilities, circumstances and law and would result : 14 : in irreparable loss and injury to the appellants. Further, in support of his contention that the appeal by the owner of the vehicle(insured) and insurer is maintainable he has relied on the decision reported in United India Insurance Company Limited .vs. Shila Datta and others (2011 ACJ 2729) at paragraphs 12 and 15, which reads thus:-
"12.There is no dispute that when an award is made by the Tribunal, the owner of the vehicle(insured), being a person aggrieved, can file an appeal challenging his liability on any ground, or challenge the quantum of compensation. An appeal which is 'maintainable' when the owner of the vehicle files it, does not become 'not maintainable' merely on account of the insurer being a co-appellant with the owner. When the insurer becomes a co-appellant, the owner of the vehicle does not cease to be a person aggrieved.: 15 :
15. On a careful consideration we are of the view that the decision in Chinnama George, 2000 ACJ 777(SC), to the extent it holds that a joint appeal is not maintainable, does not lay down the correct law. As observed in Narendra Kumar, 1998 ACJ 244(SC), the owner of the vehicle does not ceased to be an aggrieved person, merely because the insurer is ultimately liable under the terms of the policy or under Section 149 of the Act. If the owner by himself can file an appeal as an aggrieved person and such appeal is maintainable, we fail to understand how the presence of the insurer as a co-appellant would make the appeal not maintainable. Whether the owner joins the insurer or the insurer joins the owner, makes no difference to the fact that owner continues to be a person aggrieved."
Further, the learned counsel for the appellants contended that in MFA.No.22297/2009 arising out of MVC.No.1/2008, the Tribunal has erred in assessing : 16 : the income at Rs.3,000/- per month for a student and deducting only 1/3rd of the income towards personal expenses of the deceased who was unmarried at the time of accident instead of deducting 50%. In support of this contention, reliance is placed on the decision reported in New India Assurance Company Limited reprensented by Sr.Divisional Manager .vs. Sri David T. and another [ILR 2012 KAR 2859] at Paragraph 7.
7. The learned counsel for the third respondent sought to support the impugned common judgment and award and relied on the decisions reported in 2015 AIR SCW 6158(Kamlesh and others .vs. Attar Singh and others); AIR 2013 SC 2293(Jiju Kuruvila and others .vs. Kunjujamma Mohan and others) and AIR 2002 SC 3350(National Insurance Company Limited .vs. Nicolletta Rohtagi).
8. In this regard, it is seen that the accident took place on 21.5.2000 at about 6.30 a.m. on P.B. : 17 : Road near Varur in Hubli Taluk. It is in the evidence of P.Ws.1 to 3 that the driver of the KSRTC bus bearing No.KA-01/F-6692 proceeding from Haveri to Hubli was driven in a high speed and in a rash and negligent manner by flouting all the traffic rules and regulations. When the said bus was moving near the Varur village, the Luxury bus bearing No.KA-14/B-3787 came from the opposite direction driven in a very high speed and in a rash and negligent manner and the drivers of both the vehicles lost control over their respective vehicles and as a result of which both the vehicles colluded with each other. The respondents were not able to examine the drivers of both the vehicles as the drivers of both the vehicles died on the spot as an impact of the accident. The respondents have not adduced any evidence to prove that the accident was the result of the exclusive rashness and negligence on the part of the driver of the other vehicle. Further, the Tribunal from the admissions extracted by P.Ws.1 to 3 in the cross- examination has observed that the accident was the : 18 : result of contributory rashness and negligence on the part of the drivers of both the vehicles and it is due to the head on collision of both the vehicles. P.Ws.1 and 3 who were travelling in KSRTC bus at the time of accident have in their cross-examination have stated that it was an head on collision of the two vehicles. They have blamed the drivers of both the vehicles for causing such accidents. They have stated in their evidence as well as in their cross-examination that drivers of botht he vehicles were driving their respective vehicles in a rash and negligent manner. Their evidence has been considered by the Tribunal while dealing with their evidence apart from the documents got marked to establish the case. Therefore, the Tribunal is justified in holding that the accident was the result of contributory rashness and negligence on the part of the drivers of both the vehicles and I do not find any good reason to interfere with the said finding of the Tribunal.
9. In so far as the compensation awarded in MFA.No.22297/2009 arising out of MVC.No.1/2008, the : 19 : learned counsel for respondents 1 and 2 who are parents of deceased Nirmala contended that considering the age of the deceased and the age of the younger parent namely mother and the number of dependants, the assessment of income, the multiplier applied and deduction of 1/3rd towards the personal expenses of the deceased made by the Tribunal in arriving at the total loss of dependency is just and proper. In support of the contention, reliance is placed on the judgments of this Court in Munirathnamma .vs. K.G. Venkateshwarulu decided on 25.9.2008 and the judgment of the Apex Court in C.A.No.6313 of 2001 decided on 12.3.2008 wherein in the case of death of bachelor held that determining the loss of dependency by 50% was not correct and accordingly, modified it to 1/3rd of income of deceased.
10. In this regard it is seen that at the time of accident, the deceased was aged about 19 years and unmarried. From the evidence of P.W.3-father of the deceased it is clear that she had studied upto II PUC. : 20 : She was studious and intelligent girl. In this regard number of academic certificates earned by her were produced. At the time of accident, she was travelling to Dharwad for the examination of staff selection. It is in their evidence that she was earning Rs.3,000/- from tailoring work. Therefore the Tribunal considering the fact that the deceased had already attained the age where she could have started earning, has taken the income at Rs.3,000/-. Further the Tribunal has deducted 1/3rd towards the personal expenses of the deceased, which is just and proper having regard to the number of dependants and also the decision relied on in the case of Munirathnamma supra. Thus, the Tribunal has assessed the loss of dependency at Rs.2,000/- per month and considering the age of the younger parent namely mother who was aged 43 years has adopted the multiplier 13 and computed the total loss of dependency at Rs.3,12,000/-, which is just and proper. : 21 :
11. For the reasons stated supra, there are no substance in the contentions of the learned counsel for the appellants calling for interference with the impugned judgment and award. The appeals are devoid of merit.
12. Consequently, the appeals are dismissed.
13.The amount, if any, deposited shall be transmitted to the Tribunal forthwith.
Sd/-
JUDGE *alb/-.