Karnataka High Court
Bajaj Allianz General Insurance Co. ... vs Hanmantappa S/O Huchappa Doddamani, on 1 July, 2019
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 1st DAY OF JULY 2019
BEFORE
THE HON'BLE MR.JUSTICE P.G.M. PATIL
MFA NO.102269/2017 (MV-I)
C/W
MFA NO.102268/2017
MFA NO.102267/2017
IN MFA NO.102269/2017:
BETWEEN
BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.,
THROUGH ITS DIVISIONAL MANAGER,
FIR NO.31, TBR TOWER,
1ST CROSS, NEW MISSION ROAD,
NEAR BANGALORE STOCK EXCHANGE,
BENGALURU-560027
NOW REPRESENTED BY ITS AUTHORIZED SIGNATORY.
... APPELLANT
(By SRI. R. R. MANE, ADV.)
AND
1. HANMANTAPPA S/O HUCHAPPA DODDAMANI,
AGE: ABOUT 53 YEARS,
OCC: AGRICULTURE & MILK VENDING,
R/O: KUDARIHAL VILLAGE,
TQ: RANABENNUR, DIST: HAVERI.
2. DEEPAK S/O NIJALINGAPPA MURTHY,
2
AGE: MAJOR, OCC: BUSINESS,
R/O: NO. 46/1, 5TH MAIN,
TEACHER COLONY, SHANKAR NAGARA,
M L L LAYOUT, BENGALURU.
... RESPONDENTS
(By SRI. G. N. NARASAMMANAVAR, ADV. FOR R1;
SRI. N.J. APPANMNAVAR, ADV. FOR R2)
MFA FILED UNDER SECTION 173(1) OF MOTOR
VEHCILES ACT, 1988 AGAINST THE JUDGMETN AND
AWARD DATED 10.02.2017 PASSED IN MVC NO.873/2014
ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE
AND MEMBER, ADDITIONAL MOTOR ACCIDENT CLAIMS
TRIBUNAL, RANEBENNUR, AWARDING COMPENSATION OF
RS.3,51,500/- WITH INTEREST AT 6% P.A. FROM THE
DATE OF PETITION TILL ITS REALISATION.
IN MFA NO.102268/2017:
BETWEEN
BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.,
THROUGH ITS DIVISIONAL MANAGER,
FIR NO.31, TBR TOWER,
1ST CROSS, NEW MISSION ROAD,
NEAR BANGALORE STOCK EXCHANGE,
BENGALURU-560027
NOW REPRESENTED BY ITS AUTHORIZED SIGNATORY.
... APPELLANT
(By SRI. R. R. MANE, ADV.)
AND
1. GIRIJAVVA W/O SANNAPPA BANI,
AGE: ABOUT 50 YEARS,
3
OCC: HOUSEHOLD, R/O: KUDARIHAL VILLAGE,
TQ: RANEBENNUR, DIST: HAVERI.
2. PREMAVVA D/O SANNAPPA BANI,
AGE: ABOUT 35 YEARS,
OCC: HOUSEHOLD, R/O: KUDARIHAL VILLAGE,
TQ: RANEBENNUR, DIST: HAVERI.
3. LAXMAN S/O SANNAPPA BANI,
AGE: ABOUT 32 YEARS,
OCC: COOLIE, R/O: KUDARIHAL VILLAGE,
TQ: RANEBENNUR, DIST: HAVERI.
4. GOURAMMA D/O SANNAPPA BANI,
AGE: ABOUT 30 YEARS,
OCC: HOUSEHOLD, R/O: KUDARIHAL VILLAGE,
TQ: RANEBENNUR, DIST: HAVERI.
5. PRALHAD S/O SANNAPPA BANI,
AGE: ABOUT 27 YEARS,
OCC: HOUSEHOLD, R/O: KUDARIHAL VILLAGE,
TQ: RANEBENNUR, DIST: HAVERI.
6. BHARATHI D/O SANNAPPA BANI,
AGE: ABOUT 25 YEARS,
OCC: HOUSEHOLD, R/O: KUDARIHAL VILLAGE,
TQ: RANEBENNUR, DIST: HAVERI.
7. DEEPAK S/O NIJALINGAPPA MURTHY,
AGE: MAJOR, OCC: BUSINESS,
R/O: NO. 46/1, 5TH MAIN,
TEACHER COLONY, SHANKAR NAGARA,
M L L LAYOUT, BENGALURU.
... RESPONDENTS
(By SRI.G.N. NARASAMMANAVAR, ADV. FOR R1-R6;
SRI.N.J. APPANNAVAR, ADV. FOR R7)
4
MFA FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, 1988, AGAINST THE JUDGMETN AND
AWARD DATED 10.02.2017 PASSED IN MVC NO.872/2014
ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE
AND MEMBER, ADDITIONAL MOTOR ACCIDENT CLAIMS
TRIBUNAL, RANEBENNUR, AWARDING COMPENSATION OF
RS.13,07,500/- WITH INTEREST AT 6% P.A. FROM THE
DATE OF PETITION TILL ITS REALISATION.
IN MFA NO.102267/2017:
BETWEEN
BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.,
THROUGH ITS DIVISIONAL MANAGER,
FIR NO.31, TBR TOWER,
1ST CROSS, NEW MISSION ROAD,
NEAR BANGALORE STOCK EXCHANGE,
BENGALURU-560027
NOW REPRESENTED BY ITS AUTHORIZED SIGNATORY.
... APPELLANT
(By SRI. R R MANE, ADV.)
AND
1. MAILAPPA S/O NINGAPPA DODDAMANI,
AGE: ABOUT 58 YEARS, OCC: AGRICULTURE,
R/O: MEDLERI VILLAGE, TQ: RANEBENNUR,
DIST: HAVERI.
2. KARIYAVVA W/O MAILAPPA DODDAMANI,
AGE: ABOUT 53 YEARS,
OCC: HOUSEHOLD, R/O: MEDLERI VILLAGE,
TQ: RANEBENNUR, DIST: HAVERI.
3. GANGAPPA S/O MAILAPPA DODDAMANI,
5
AGE: ABOUT 25 YEARS,
OCC: STUDENT, R/O: MEDLERI VILLAGE,
TQ: RANEBENNUR, DIST: HAVERI.
4. AKKAMMA D/O MAILAPPA DODDAMANI,
AGE: ABOUT 21 YEARS,
OCC: HOUSEHOLD, R/O: MEDLERI VILLAGE,
TQ: RANEBENNUR, DIST: HAVERI.
5. DEEPAK S/O NIJALINGAPPA MURTHY,
AGE: MAJOR, OCC: BUSINESS,
R/O: NO. 46/1, 5TH MAIN,
TEACHER COLONY, SHANKAR NAGARA,
M L L LAYOUT, BENGALURU.
... RESPONDENTS
(By SRI.G N NARASAMMANAVAR, ADV. FOR R1-R4;
SRI. NAGARAJ J. APPANNAVAR, ADV. FOR R5)
MFA FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND
AWARD DATED 10.02.2017 PASSED IN MVC NO.871/2014
ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE
AND MEMBER, ADDITIONAL MOTOR ACCIDENT CLAIMS
TRIBUNAL, RANEBENNUR, AWARDING COMPENSATION OF
RS.13,22,500/- WITH INTEREST AT 6% P.A. FROM THE
DATE OF PETITION TILL ITS REALISATION.
THESE APPEALS COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
The insurer-Bajaj Allianz General Insurance Company Limited being aggrieved by the common judgment and award dated 10.02.2017 passed in MVC 6 Nos.871/2014, 872/2014 and 873/2014 by the II Additional Senior Civil Judge and Member, Additional Motor Accident Claims Tribunal, Ranebennur has filed these appeals.
2. It is the case of the claimants before the Tribunal that on 08.01.2014 at about 12.15 p.m. one Hanumanthappa Mailappa Doddamani was riding the motorcycle bearing Registration No.KA-27/Y-5501 along with Sannappa Bani and Hanumanthappa Huchappa Doddamani as pillion riders from Devargudda-Kajjari village. When the vehicle came near Kotihal village, a car bearing No.KA-04/MH-0616 came in a rash and negligent manner and hit the motorcycle, as a result, the rider and pillion riders of the bike fell down and sustained grievous injuries.
3. The legal representatives of deceased Hanumanthappa Mailappa Doddamani filed MVC No.871/2014 and legal representative of Sannappa 7 Hanumanthappa Bani filed MVC No.872/2014 and the other pillion rider who sustained injuries filed the petition in MVC No.873/2014.
4. The claimants have stated that the deceased Hanumantappa was earning Rs.25,000/-by doing agricultural work. The claimants-legal representative of Sannappa Bani have stated that the deceased was earning Rs.15,000/- p.m. by doing agricultural work and that the claimants in both the cases have lost their dependency. Claimant in MVC No.873/2014 has stated that he was earning Rs.15,000/-p.m. by doing agricultural work and milk vending and due to the accidental injuries, he has permanently become disabled. He has spent Rs.1,50,000/- for medical treatment. The claimants in MVC No.871/2014 claimed compensation of Rs.40,00,000/-, claimants in MVC No.872/2014 claimed compensation of Rs.30,00,000/- and the claimant in MVC No.873/2014 claimed 8 compensation for injuries sustained by him in the motor vehicle accident. All the three cases were clubbed together and common evidence was recorded and disposed of by a common judgment.
5. In pursuance of the notice, respondent-owner and insurer of the offending vehicle appeared before the Tribunal and respondent No.1 has filed the written statement denying the averments made in the petitions in toto. He has further stated that his vehicle was insured with respondent No.2 and the insurance policy was in force as on the date of the accident and the driver of the car was holding a valid and effective licence and in case any compensation to be paid, respondent No.2 is liable. Respondent No.2 filed written statement denying the averments made in the claim petition in toto. He has admitted that the car was insured with him. He has further contended that the accident occurred due to the composite negligence of the rider of 9 the bike who was riding with two pillion riders. The rider of the motorcycle was negligent by not wearing the helmet. Therefore, claim petition against him be dismissed.
6. On the basis of the pleadings of the parties, the Tribunal framed the issues.
7. In support of the claim petitions the claimants got examined themselves as PWs.1 to PW4 and got marked 52 documents as Exs.P.1 to P.52. Respondent No.2 got examined its official witness as RW-1 and got marked two documents as Exs.R1 to R2.
8. Learned member of the Tribunal, after hearing both the parties, passed the impugned judgment awarding compensation of Rs.13,22,500/- in MVC No.871/2014, Rs.13,07,500/- in MVC No.872/2014 and Rs.3,51,500/- in MVC No.873/2014. Respondent No.2 insurer was directed to deposit the compensation. 10
9. The insurer being aggrieved by the impugned judgment and award has filed these appeals, on the grounds that the accident in question was occurred due to negligence on the part of the rider of the motorcycle carrying two pillion riders in violation of traffic rules, safety clause. The Tribunal has unjustifiably rejected the defence of the appellants on this ground. The appellants have alternatively contended that the Tribunal ought to have considered the contributory negligence on the part of respondent No.1 to the extent of 50% and that the compensation awarded by the Tribunal is excessive and exorbitant.
10. Heard the learned counsels appearing for the appellants and the respondents.
11. A short question which arises for consideration before this Court is as to 11 "i) whether the appellant-insurer has made out grounds for setting aside the liability saddled against him for reducing the liability to 50% on imposing other 50% on the rider of the motorcycle due to contributory negligence on the part of driver of the motorcycle and pillion riders?."
ii) Whether the appellant has made out grounds to reduce the quantum of the compensation?
12. Learned counsel for the appellant submitted that the accident in question occurred due to the negligent riding of the motorcycle with two pillion riders, and it is the cause for the accident and that both the rider and pillion riders have to be fixed liability atleast to the extent of 50%.
13. Learned counsel relying on the judgment of this Court in the case of Bajaj Allianz General Vs. Nagaraja S/o Kenchapa and others in MFA Nos.25390/2011 c/w 25391/2011 and 25392/2011 decided on 7/4/2014 submitted that where both the pillion riders were adult, they also 12 contributed negligence in causing accident and therefore, claimants' petitions are liable to be dismissed against the insurer.
14. Per contra, learned counsel for the claimants submitted that carrying two pillion riders on the motor bike may attract penal provision under Section 128 of the M.V. Act, that itself is not a ground to presume that the rider and the pillion riders have contributed in causing the accident unless it is proved by the insurer and that in the present case the insurer has not produced any evidence in order to prove that there was negligence on the part of the rider and the pillion riders in causing the accident.
15. Learned counsel has also relied on the judgment in the case of K.Yellappa and Others Vs. N.Manju and Others reported in 2008 KCR 3453 and the Insurance Company Limited, Belagvi Vs. Shri Adiveppa Appanna Naik and 13 Others reported in 2018(3) KCCR 2141 and in the case of K.S.R.T.C. Vs. Bellappa reported in 2017 KAR 1292 in support of his arguments.
16. The Co-ordinate bench of this Court in Bajaj Allianz General Vs. Nagaraja S/o Kenchapa and others stated supra has held in para 11 as follows:-
"11. In the instant case all the three persons are grown up adults, major in age. They knew that the vehicle involved in the accident is TVS xl super is a moped with capacity of 69.6 cc, which is meant for one adult and in extreme circumstances a child could be taken on that. Considering the capacity of the vehicle three grown up adults would not have traveled on it. That itself is sufficient ground for causing the accident. When somebody is travelling on such a small vehicle with more number of people than that itself is a detriment to the rider to ride the vehicle smoothly following all the traffic rules."14
17. In the case of Bharma Kalappa Murashetti and Others Vs. Karamjeet Kaur and Another reported in ILR 2016 KAR 5098 Co-ordinate Bench of this Court has held in para 8 as follows:-
"8. A careful perusal of these judgments makes it clear that the very violation of a statutory provision would not lead to negligence causing the accident. A concrete evidence is necessary to establish the violation of the statutory provision, resulting in the negligence causing the accident. Only in such circumstances, proportionate contributory negligence could be attributable. No doubt three passengers were traveling in a motorcycle in violation of 128 of the Act, but no evidence is led by the insurer to establish that the said violation of the statutory provision itself was the cause for the accident to attribute contributory negligence on the part of the deceased. Mere taking a defence in the written statement would not be suffice to establish the factum of contributory negligence, it has to be supported by direct and corroborative evidence, which is admittedly missing in the present case, since the insurer has not made any attempt to adduce evidence to establish the contributory 15 negligence on the part of the deceased. It is well settled principle that, for the insurer to avoid its liability, the breach of the policy must be so fundamental in nature that it brings contract to an end. The burden of proving rests on the shoulder of the insurer to establish this breach of the policy, which was fundamental in nature that it brings contract to an end. The burden of proving rests on the shoulder of the insurer to establish this breach of the policy, which was fundamental in nature. That having not been done by the insurer, no contributory negligence can be attributed on the part of the deceased. On the other hand, the police records very well eatablish that the negligence on the part of the driver of the truck was the cause for the accident. This vital material evidence was lost sight of by the Tribunal while fixing contributory negligence to the extent of 50% on the deceased. Thus, this Court is of the considered opinion that the Tribunal fixing 50% contributory negligence on the part of the deceased is not file to tbe sustained. Accordingly, the entire negligence is fixed on the driver of the truck (offending vehicle) and the insurer of the offending vehicle-respondent No.2 shall be liable to satisfy the award."16
18. Consequently, all the claim petitions in that case were dismissed.
19. This Court has referred the judgment in the case of B.V. Nagaraju Vs. Oriental Insurance Company Ltd. Divisional Officer, Hassan, reported in (1996) 4 SCC 647 and Lakhmi Chand Vs. Reliance General Insurance reported in (2016) 3 SCC 100.
20. Similarly, the judgment in the case of Divisional Manager, National Insurance Company Ltd. Vs. Smt. Sunanda and Others in MFA No.6360/2008 and connected appeals decided on 24/6/2010 was referred. In the case of K.S.R.T.C. Vs. Bellappa stated supra this Court relied on the judgment in the of B.V. Nagaraju Vs. Oriental Insurance Company Ltd. Divisional Officer, Hassan, and Lakhmi 17 Chand Vs. Reliance General Insurance stated supra has held in paragraph 11 as follows:-
"11. In the case of Sri. Anjanappa's case (supra), the Division Bench of this court had an occasion to consider the provisions of Section 128 of the Act and the Rule 123 of the CMV Rules and 143 of the KMV Rules vis-a-vis claim made while the deceased carrying two pillions on the motorcycle. It was almost same set of facts as the case on hand, it was held merely breach of law or duty would not create a liability to pay damages. Merely because the deceased was riding motorcycle with two persons on the vehicle though amounts to contravention of Section 128 of the Act, it does not amount to negligent act on the part of the deceased. The rider riding the vehicle, if it is demonstrated lost control of the vehicle, he was not able to balance the vehicle or because of such contravention he dashed against the vehicle which resulted in accident, then the question of extent of breach of duty resulted in negligence would be analysed. 30% of contributory negligence foisted on the deceased solely on the ground that he was riding the motorcycle with two persons behind him was held to be not permissible in law. The police documents placed on record was considered to be reliable evidence which were prepared in discharge 18 of their official duty and in the process of investigation, in the absence of any motive being attributed. This Judgment is squarely applicable to the facts of the present case."
21. Therefore, in two judgments stated above wherein this Court has referred the judgment of the Hon'ble Supreme Court, therefore they can be relied on for the purpose of deciding the question involved in the present case, for fastening of the liability on the rider and the pillion riders of the motor bike.
22. This Court in the above stated case has held that even where it is proved that rider was carrying two pillion riders on motor bike, it would not disentitle the claimants from claiming compensation and that it may be violation of Section 128 of the Act which would be maintainable by the effective action but that itself would not result in breach of compromise 19 and condition of insurance policy. Under such circumstances the liability cannot be saddled against the rider and pillion riders for having contributed anything towards accident.
23. Admittedly in the present case, insurer having taken the said contention in the written statement has not produced necessary evidence to prove that there was contributory negligence on the part of the rider and the pillion riders in causing the accident. Therefore, the contention taken on behalf of the insurer that contributory negligence has to be held against the rider and pillion riders of the motorcycle cannot be accepted. It is not in disputed that the driver of the offending car was charge sheeted for causing accident in question.
24. Under these circumstances, this Court holds that the insurer has not made out any 20 grounds for reducing his liability to any extent on the ground of contributory negligence on the part of the rider and pillion riders of the motorcycle.
25. In MFA.No.102269/2007:- The learned counsel for the appellant insurer submitted that the Tribunal has awarded 50% income of the deceased towards loss of future prospects which is not appropriate and a further sum of Rs.2,29,500/- is awarded toward loss of estate which is inadmissible and that the sum of Rs.1,50,000/- awarded towards love and affection is also excessive. The claimants have contended that the deceased Hanumathappa was bachelor and he was earning Rs.25,000/- per month by doing gardening and agricultural work. The Tribunal has considered his income at Rs.6,000/- per month and has added 50% of the income towards future prospects since the deceased was not getting fixed salary or income. 40% has to be 21 added towards future prospects, 50% of the income has to be deducted towards personal and living expenses of the deceased. Therefore, the loss of dependency comes to Rs.8,56,800/- (4,200X12X17), towards loss of love and affection Rs.1,50,000/- as awarded by the Tribunal, funeral expenses Rs.15,000/-, loss of estate Rs.15,000/- is awarded. Thus the claimants are entitled for total compensation of Rs.10,36,800/- as against Rs.13,22,500/-and there by compensation awarded by the Tribunal is reduced.
26. In MFA.No.102268/2017:- The claimants having contended before the Tribunal that the deceased Sannappa was aged about 54 years and was earning Rs.15,000/- per month by doing agricultural work. However, they have not produced any positive evidence to prove the income of the deceased. Therefore, the Tribunal has considered the income of the deceased at 22 Rs.6,000/- per month. The Tribunal has added 15% of the income towards future prospects which is incorrect, and the addition should be only 10% in view of the judgment in the case of National Insurance Co. Ltd. v. Pranay Sethi and others, reported in 2017 ACJ 2700, 1/3rd of the income of the deceased has to be deducted towards personal and living expenses. Therefore, the claimants are entitled for compensation towards loss of dependency of Rs.5,80,800/-, a sum of Rs.70,000/- is awarded under the conventional heads. Towards medical expenses Rs.77,690/-, attendant charges, conveyance, food, diet and nourishment in all Rs.24,500/- as awarded by the Tribunal are retained. Thus, the claimants are entitled for compensation of Rs.7,52,990/- as against Rs.13,07,019/- and thereby the compensation awarded by the Tribunal is reduced.
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27. In MFA.No.102269/2017:- Tribunal has awarded towards pain and suffering Rs.60,000/- , medical expenses Rs.70,622/- which needs no interference by this Court. Loss of feature earning capacity on account of permanence physical disability of Rs.1,40,400/- as awarded by the Tribunal is maintained. Rs.52,000/- as awarded under the heads of conveyance, diet, extra nourishment charges food and attendant charges and also Rs.18,000/- as awarded towards loss of income during the laid up period and a sum of Rs.10,000/- as awarded towards loss of amenities and enjoyment of life are confirmed and needs no interference. Thus, the point for consideration is answered accordingly. In the result, this Court proceed to pass the following:
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ORDER MFA.Nos.102268/2010 and 102267/2010 are allowed in part and MFA.No.102269/2017 is hereby dismissed.
Claimants in 102268/2017 are awarded compensation of Rs.7,52,990/- and claimants in MFA.No.102267/2017 are awarded compensation of Rs.10,36,800/- with interest at 6% from the date of petition till its realization.
The amount of compensation deposited by the insurer shall be transmitted to the concerned Tribunal forthwith.
Sd/-
JUDGE KGK /vmb/vb