Karnataka High Court
The Branch Manager, United India ... vs Sri Prabhu Alias Prabhurao Ors on 12 March, 2018
Author: B.Veerappa
Bench: B.Veerappa
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 12th DAY OF MARCH, 2018
BEFORE
THE HON'BLE MR. JUSTICE B.VEERAPPA
MFA NO. 30513/2011 (MV)
BETWEEN:
The Branch Manager
United India Insurance Company Limited,
S.S. Front Raod, Bijapur
Through its Divisional Manager.
... Appellant
(By Sri Manvendra Reddy, Advocate)
AND:
1. Sri. Prabhu Alias Prabhurao
S/o. Nandappa Harnal
Age: 41 years, Occ: Business & Agriculture,
R/o. Muddebihal, Dist. Bijapur.
2. Sri. M. Udayakumar S/o. Marappan
Age: Major, Occ: Business,
R/o. LIG-83, KHB Colony, Bidar.
3. Sri. Rajashekhar S/o. Shivasharanappa
Gadlegaon, M/s. H.B.T., Co.
Near Sales Tax Check Post,
Kapnoor, Gulbarga
(Owner of the truck bearing No.KA-32/7165)
2
4. The Branch Manager
The New India Assurance Co. Ltd.,
Gurukul Road, Bijapur.
... Respondents
(By Sri. Manjunath C.
& Sri. Uday P. Honguhkal, Advocates for R4;
Notice to R1 and R2 held Sufficient V/o dated 09/02/2017
Notice to R3 served and un-represented)
This MFA filed under Section 173 (1) of MV Act,
praying to call for the records and set aside the judgement
and award dated 20.09.2010 passed by the MACT-VIII,
Muddebihal in M.V.C. No.72/2006 by allowing the appeal.
This appeal coming on for Admission this day, the
Court delivered the following:
JUDGMENT
United India Insurance Company filed the present appeal against the judgment and award dated: 20-09- 2010 made in MVC.No.72/2006 on the file of the Senior Civil Judge & MACT No.VIII Muddebihal awarding global compensation of Rs.1,48,000/- with interest at 6% per 3 annum from the date of the petition till the amount is fully satisfied.
2. It is the case of the claimant that, when he was proceeding in a Luxury Bus bearing No.KA-38-A- 4449 from Bijapur to Gulbarga through Sindagi road, when the said Bus is about 7 to 8 Kmts., away from Bijapur, the driver of the bus was driving the bus in a rash and negligent manner, at that point of time a truck bearing No.KA-32-7165 came from opposite direction in a very high speed and in a rash and negligent manner by overtaking the said bus, the accident has been caused and on account of the accident, the claimant and other 14 persons sustained grievous injuries. Immediately the claimant and others were shifted to Matoshree Fracture Hospital, Bijapur. The claimant was hale and healthy before the accident and on account of accident, he was suffering from physical disability. He was aged 35 years and was doing 4 agricultural equipment's selling business under the name and style as Renuka Irrigation Agencies and he was getting income of Rs.10,000/- per month. On account of the accident, the claimant has become permanent disabled unable to do any work and he was unable to maintain his family. The accident was occurred due to rash and negligent driving by the drivers of the Luxury bus bearing Reg. No.KA-38-A- 4449 and Truck bearing Reg. No.KA-32-7165 and the respondent Nos.1 & 3 being the owners and respondent Nos.2 & 4 being the Insurers of the vehicles are liable to pay the compensation.
3. After service of the summons from the Tribunal, the first respondent remained absent and has not contested the case. The claim petition against third respondent dismissed. The respondent Nos.2 & 4, the Branch Manager United India Insurance Company and New India Insurance Company filed the written 5 statements denying all the allegations made in the claim petition and also denied the earning capacity of the claimant and the accident in question, the amount spent towards medical expenses and also denied that at the time of accident, the claimant was proceeding in Luxury Bus bearing Reg. No.KA-38-A-4449 and denied other averments made in the claim petition, hence both the respondents sought for dismissal of the claim petition.
4. Based on the pleadings, the Tribunal has framed the following issues:
1. F PÉù£À CfðzÁgÀgÀÄ ¢£ÁAPÀ B 29-06-2005 gÀAzÀÄ PÉJ 38 J 4449 ®PÀëÓÄj §¸ï£À°è ©eÁ¥ÀÇgÀ¢AzÀ UÀÄ®§UÁðPÉÌ ºÉÆÃUÀÄwÛzÁÝUÀ ¹AzÀsV gÀ¸ÉÛAiÀÄ ªÉÄÃ¯É 1£Éà JzÀÄgÀÄzÁgÀgÀ ªÀiÁ°ÃPÀvÀéPÉÌ M¼À¥ÀlÖ ªÁºÀ£À læPï £ÀABPÉJ32/7165 £ÀÄß CzÀgÀ ZÁ®PÀ£ÀÄ Cwà ªÉÃUÀ¢AzÁ ªÀÄvÀÄÛ ¤±Á̼Àf¬ÄAzÁ £ÀqɹPÉÆAqÀÄ §AzÀÄ, ªÀÄÄSÁªÀÄÄT rQÌ ªÀiÁr, C¥ÀWÁvÀzÀ°è CfðzÁgÀgÀÄ wêÀæ ¸ÀégÀÆ¥À UÁAiÀÄ ºÉÆA¢gÀĪÀÅzÁV gÀÄdĪÁvÀÄ¥Àr¹zÁÝgÉAiÉÄÃ?6
2. 2£Éà JzÀÄgÀÄzÁgÀgÀÄ F C¥ÀWÁvÀPÉÌ JgÀqÀÆ ªÁºÀ£ÀUÀ¼À ¤®ðPÀëåvÀ£ÀªÉà PÁgÀt JA§ÄzÁV gÀÄdĪÁvÀÄ¥Àr¹zÁÝgÉAiÉÄÃ?
3. CfðzÁgÀgÀÄ CfðAiÀÄ°è PÉýgÀĪÀAvÉ ¥ÀjºÁgÀ ¥ÀqÉAiÀÄ®Ä CºÀðgÁVgÀĪÀgÉÃ?
4. K£ÀÄ rQæ CxÀªÁ DzÉñÀ?
5. In order to establish his case, the claimant examined himself examined as PW.1, the Docrtor is examined as PW.2 and got marked 08 documents as Exs.P1 to P.10. Both the respondents have neither adduced any evidence, nor produced any document.
6. The Tribunal considering the entire material on record, by the impugned Judgment and award dated:
20-09-2010 awarded compensation of Rs.1,48,000/- with interest at the rate of 6% per annum from the date of petition till deposit. Hence the present petition is filed by the Insurance Company - respondent No.2. 7
7. I have heard the learned counsel for the parties to the lis.
8. Sri Manvendra Reddy, learned counsel for the appellant-Insurance Company vehemently contended that the impugned judgment and award passed by the Tribunal awarding compensation of Rs.1,48,000/- with interest at the rate of 6% per annum is erroneous, contrary to the material on record. He would further contend that, Ex.P.1 FIR and Ex.P.5 charge sheet clearly depicts that the complaint has been lodged against the drivers of both the vehicles and after investigation both the drivers of the vehicles have been charge sheeted by the concerned police and the Tribunal ought not to have fixed the entire liability on the appellant as such the Tribunal ought to have considered the contributory negligence of 50% towards driver of Truck bearing Reg. No.KA-32-7165 and fastening the liability on respondent Nos.3 & 4 and 50% 8 on the appellant-respondent No.2 / and fastening the entire liability on the appellant -respondent No.2 is against the statute and law laid down by the Hon'ble Apex Court in case of Renukadevi H. V/s Bangalore Metroplitan Transport Corporation reported in 2008(4) KCCR Supreme Court page No.2680. He would further contend that, there 14 connected MVC cases filed by all the claimants who sustained severe injuries in the same accident and the learned Fast Track Court II Bijapur has awarded compensation in respect of the claimants fastening 50% liability on the owner and insurer of the Luxury Bus bearing Reg. No. KA-38-A-4449 and owner and insurer of the lorry bearing Reg. No.KA-32-7165 as such the Judgment and award passed by the Tribunal requires modification. Therefore, he sought to allow the appeal by modifying the impugned judgment and award passed by the Tribunal.9
09. Per contra, Sri.Manjunath learned counsel appearing for Uday P. Honguntikar for respondent No.4 sought to justify the impugned Judgment and award passed by the Tribunal and vehemently contended that, the appellant has not adduced any evidence before the Tribunal to prove the contributory negligence between the two vehicles involved in the accident. In the absence of any material produced, the Tribunal was justified in fastening the entire liability on the present appellant. Therefore, he sought to dismiss the appeal.
10. Having heard the learned counsel to the parties, it is not in dispute that, the claimant sustained grievous injuries and fracture of left fore-arm and fracture of 5th 6th and 7th ribs of right side is mentioned in the evidence of PW.2-Doctor. On account of rash and negligent driving of both the drivers of the vehicles, namely Luxury Bus bearing Reg. No.KA-38-A-4440 and Truck bearing Reg. No.KA-32-7165. The said finding 10 recorded by the Tribunal that on account of contributory negligence of drivers of both the vehicles is not challenged by the respondent No.4.
11. It is also not in dispute that, when the alleged accident occurred on 29-06-2009 between the Luxury bus and the Truck, there were 15 persons who sustained various injuries and fractures. The other 14 persons already filed MVC Nos.981, 982, 984, 985, 986, 989, 988, 1086, 854, 855, 939, 940 and 943 of s2005 and 76/2006 before the Presiding Officer, Fast Track Court II Bijapur. After contest by both the owners and Insurance Companies, the Presiding Officer, Fast Track Court II Bijapur by Common Judgment and award dated: 14-12-2009 awarded compensation to all the 14 persons and held that it is proved that the accident took place due to contributory negligence of both the drivers of the vehicles and the petitioners sustained injuries noted above and come to conclusion that, it is apportion 11 the negligence to the extent of 50% on each of the driver of the vehicles, accordingly respondent Nos.1 and 2 being the owner and insurer of the offending vehicle-bus are jointly and severally liable to pay the compensation to the extent of 50% of the in respect of the claimants in all the cases and the respondent Nos.3 & 4 being the owner and insurer of the offending vehicle -Truck are jointly and severally liable to pay the compensation to the extent of 50%, fixing 50% towards contributory negligence of each owner and insurer of both the vehicles. The Judgment and award passed by the Presiding Officer, Fast Track Court II Bijapur has reached finality. It is also not in dispute that, either of the claimant or either of owners, Insurance Company have not challenged the said Judgment and award dated: 14-12-2009 passed by Presiding Officer, Fast Track Court II Bijapur fixing 50% of the liability on each of the owner and Insurance Company.12
12. It is also not dispute that, in the present case, a specific allegation is made by the claimant that the accident was due to rash and negligent driving of the drivers of the Luxury bus bearing Reg. No. No.KA-
38-A-4440 and Truck bearing Reg. No.KA-32-7165 and the respondent Nos.1 to 4 being the owners and insurers are liable to pay the compensation. The Issue was also framed in the present case with regard to contributory negligence of both the vehicles driven by the respective drivers. The Tribunal accordingly answered the said issue holding that, the accident occurred due to contributory negligence of both the drivers. The Tribunal while accepting Ex.P.1 to Ex.P.5, i.e. FIR, complaint, spot panchnama, wound certificate, charge sheet, MVI report held that the two vehicles are involved in the accident, but proceeded to fasten the liability on the appellant/respondent No.2 mainly on the ground that, the Insurance Company has not adduced any evidence, nor produced any material documents. 13
13. It is also not in dispute that, out of the same accident between the two vehicles, in MVC No.981/2010 and connected matters, the Presiding Officer, Fast Track Court II Bijapur by the Judgment and award dated: 14-12-2009 awarded compensation to all the claimants fixing the liability on both the owners and both the Insurer, unfortunately the same was not brought to the notice of the Tribunal in the present case which came to passed subsequently on 21-09-2010. Therefore the Tribunal has erred in fastening the entire liability on the appellant by relying upon Ex.P.1 to Ex.P.5, which is impermissible.
14. The material on record, the very complaint, FIR clearly depicts that, the accident occurred due to rash and negligent driving of both the drivers, i.e., contributory negligence of the both the vehicles. The MVI report also reveals the same. When the material clearly reveals that there is contributory negligence of 14 both the drivers of the vehicles and the same is taken by the Presiding Officer, Fast Track Court II Bijapur in MVC No.981/2005 and connected matters by the Judgment and award dated: 14-12-2009 fastening liability on both the owners of the vehicles and both Insurance Company, the Tribunal in the present case in all fairnes should have fastened the liability on both the Insurance Companies, the same has not been done in the present case. Fastening the contributory negligence out of the same accident between the two drivers of the vehicles (Luxury bus bearing No.KA-38/A- 4449 and Truck bearing Reg. No.KA32-7165) by the Presiding Officer, Fast Track Court II Bijapur by its Judgment and award dated: 14-12-2009 has reached finality. Therefore the respondent No.4 - Insurance Company cannot escape to pay 50% of compensation in the present case. Since the present appeal is also on account of accident occurred on 29-06-2005 alongwith 14 persons who sustained injuries. Merely because the 15 two cases have posted in two different courts, the Tribunal cannot discriminate between the parties. In my view the Judgment and award passed by the Tribunal in the present appeal is in utter violation of Article 14 of the Constitution of India.
15. Considering the documents produced and entire material on record, it clearly depicts that there was contributory negligence on both the drivers of the Luxury Bus bearing No. No.KA38/A-4449 and Truck bearing Reg. No.KA-32-7165) and owners/insurers of both the vehicles are liable to pay 50% each of the compensation awarded by the Tribunal.
16. For the aforesaid reasons, the appeal filed by the Insurance Company is allowed. The impugned Judgment and award passed by the Tribunal is modified holding that the present appellant/respondent No.2 and respondent No.4 New India Assurance Company are 16 liable to pay 50% each of the compensation awarded by the Tribunal in the present case.
17. The appellant/respondent No.2 and respondent No.4 /New India Assurance Company Ltd., are directed to deposit the 50% each of the award amount with interest at 6% per annum within six weeks from the date of receipt of copy the order.
18. Any amount in deposit by the Insurance Company shall be transmitted to the Tribunal forthwith.
Ordered accordingly.
Sd/-
JUDGE MWS