Karnataka High Court
United India Insurance Co.Ltd vs Veeresh S/O Basavarajappa Mudgal And ... on 10 November, 2021
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 10TH DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE M.G.S.KAMAL
MFA No.32721/2013 (MV)
BETWEEN
UNITED INDIA INSURANCE CO. LTD.,
REGD.& HEAD OFFICE NO.24 WHITE ROAD
CHENNAI, NOW REPRESENTED BY ITS
DIVISIONAL MANAGER, UNITED INDIA
INSURANCE CO. LTD.,
RAICHUR-584101.
...Appellant
(BY SRI S. S. ASPALLI, ADVOCATE)
AND
1. VEERESH S/O BASAVARAJAPPA MUDGAL
AGE: 34 YRS, OCC:KIRANA BUSINESS
R/O TIDIGOL, TQ:SINDHANUR,
DIST:RAICHUR-584101.
2. CHANDRAKANTH S/O HANUMANTHA CHALUVADI
AGE: 35 YRS, OCC:JEEP DRIVER
R/O SARJAPUR VILLAGE, TQ:LINGASUGUR
NOW RESIDING AT MATUR, TQ,SINDHANUR
DISTRICT RAICHUR-584101.
3. AMARAPPA S/O PAMPANNA GUDADUR
AGE 26 YRS. OCC: DRIVER OF TRACTOR,
R/O TIDIGOL, TQ:SINDHANUR
2
DISTRICT RAICHUR-584101.
4 . PAMPANNA S/O SHANKARAPPA SANKANAL
AGE: 57 YRS, OCC:AGRICULTURE
R/O TIDIGOL VILLAGE TQ:SINDHANUR-584101
(OWNER OF TRAILER REGN.KA-36/TB-97)
5 . MANJUNATH S/O PAMPANNA SANKANAL
AGE: 30 YRS., OCC:AGRICULTURE
R/O TIDIGOL VILLAGE TQ:SINDHANUR
DISTRICT RAICHUR-584101
(OWNER OF TRAILER REGN.NO.KA-36-TB-97)
...RESPONDENTS
(BY SRI PUNITH H MARKAL, ADVOCATE FOR R1;
NOTICE TO R2 DISPENSED WITH;
R3 TO R5 IS SERVED)
THIS MFA FILED U/S 173(1) OF THE MV ACT
PRAYING TO CALL FOR THE RECORDS IN MVC
NO.116/2011 ON THE FILE OF THE ADDL. MOTOR
ACCIDENT CLAIMS TRIBUNAL (SR. CIVIL JDUGE) AT
LINGASUGUR DATED 08.03.2013. (SITTING AT
SINDANOOR) TO SET ASIDE THE JUDGMENT AND AWARD
DATED: 08.03.2013 IN MVC NO.116/2011 PASSED BY THE
ADDL. MOTOR ACCIDENT CLAIMS TRIBUNAL LINGASUGUR
SITTING AT SINDANOOR BY ALLOWING THE ABOVE
APPEAL.
THIS APPEAL COMING ON FOR ORDERS THIS DAY,
THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
This appeal is filed under Section 173(1) of the Motor Vehicles Act, 1988 (for short 'M. V. Act') by the insurance company against the judgment and award dated 3 08.03.2013 passed in MVC No.116/2011 on the file Motor Accident Claims Tribunal at Lingasugur sitting at Sindhanur (for short 'the Tribunal').
2. Brief facts leading up to filing of the present appeal are that on 22.06.2010, the claimant, who was proceeding in Mahindra jeep bearing registration No.KA- 36/M-1677 on Sindhanur - EJ Bommanahal road, the driver of the said jeep drove the same in high speed in a rash and negligent manner and dashed against the tractor- trailer bearing registration No.KA36/TB-1389 and KA-36- TB-97, which was parked on the road in a manner obstructing free flow of traffic and endangering to the human life. Due to the impact, the claimant sustained grievous injuries in the nature of fracture of left forearm and other passengers of the said jeep were also sustained injuries.
3. Thereupon, the claimant has filed a claim petition under Section 166 of the M. V. Act seeking 4 compensation on the premise that he put to loss and hardship due to the injuries sustained in the accident.
4. Upon service of notice, the driver of the jeep, who is respondent No.2 herein, the driver of the tractor, who is respondent No.3 herein, the owner of the tractor, who is respondent No.4 herein and owner of trailer, who is respondent No.5 herein have appeared and filed their written statement denying the petition averments. The insurance company, who is appellant herein appeared through its counsel filed written statement denying the age, income and occupation of the claimant. It is contended that the accident caused due to rash and negligent driving of jeep by its driver, but, the police authorities have filed a false and frivolous charge sheet against the driver of the tractor and trailer. It is further contended that the it is not liable to pay any compensation because the tractor and trailer are not insured with it and hence sought for dismissal of the claim petition. 5
5. Based on the pleadings of the parties, the Tribunal framed issues and recorded evidence. The claimant examined himself as PW.1 and one Dr.Ashwini Kumar Singh has been examined as PW.2 and exhibited 8 documents as Exs.P1 to P8. One G.K.Panduranga Rao has been examined as DW.1 and exhibited 4 documents as Exs.D1 to D4 on behalf of the respondents.
6. The Tribunal after having appreciated the pleadings and material evidence placed on record held that the claimant sustained injuries in the accident involving the jeep and the tractor-trailer. Consequently, held that the claimant is entitled for total compensation of Rs.99,500/-. While assessing the liability, the Tribunal has come to the conclusion that there was contributory negligence on the part of both the driver of the jeep as well as the driver of the tractor-trailer. Since the tractor- trailer and jeep were insured with the respective insurers, directed the liability of payment of compensation be fastened at 50% each on the said insurance companies. Being aggrieved by the said order fastening the liability of 6 paying the compensation at 50%, the insurance company, who is the insurer of the tractor-trailer is before this Court.
7. Heard the learned counsel for the appellant - insurance company and the learned counsel for the respondent No.1 - claimant.
8. The accident in question involving the tractor- trailer and the jeep resulting in injuries to the claimant is not in dispute. The compensation awarded by the Tribunal at Rs.99,500/- has not been questioned. The limited challenge to the impugned order is to the extent of fastening 50% of the liability on the insurer of the tractor- trailer.
9. The learned counsel for the appellant - insurance company reiterating the grounds urged in the appeal memorandum submitted that as per the contents of FIR and complaint filed by one Radhavendra, which is registered in Crime No.24/2010 at Turvihal police station categorically reveal that the accident had occurred on account of rash and negligent driving on the part of the 7 driver of the jeep and there was no negligence on the part of the driver of the tractor-trailer, who had parked the said vehicle on the left side of the road. He further submits that the claimant, who has been examined as PW.1 has categorically asserted that it was the driver of the jeep who was driving the same in a rash and negligent manner and due to the said act, the accident had occurred. Thus, he submits that these two aspects of the matter has not been taken into consideration by the Tribunal even while erroneously holding that there was contributory negligence. He further submits despite categorical statement in the complaint and the FIR, concerned police filed the charge sheet against the driver of both the vehicles, which would not be justified in view of the aforesaid admitted position. Hence, he seeks for allowing of the appeal by exonerating the insurance company from the liability to pay the compensation.
10. The respondent No.1 - claimant is represented by his counsel. Despite service of notice, respondent No.2 has remained absent.
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11. The only question that arises for consideration is:
"Whether the appellant/insurance company has made out a case for interference with the order of the Tribunal fixing 50% liability on it?"
12. It is settled position of law that aspect of contributory negligence or negligence as the case may be has to be established independently by leading cogent evidence. The insurance company, who is under contractual obligation to pay/indemnify the loss either to the person or to the property subject matter of the policy, cannot infer contributory negligence from the circumstances without leading evidence. It is equally settled position of law that FIR is not a substantive piece of evidence. The contents of complaint and FIR have to be corroborated with independent evidence. In the instant case, there is no independent evidence led in to establish the negligence solely on the part of the driver of the jeep. The fact that the tractor-trailer having been parked on the 9 road is established from the FIR, charge sheet, spot mahazar, IMV report and the spot sketch. The reason for parking the said tractor-trailer on the road has not been forthcoming. Section 122 of the M. V. Act provides that no person in charge of a motor vehicle shall cause or allow the vehicle or any trailer to be abandoned or to remain at rest on any public place in such a position or in such a condition or in such circumstances as to cause or likely to cause danger, obstruction or undue inconvenience to other users of the public place or to the passengers. There was no material evidence placed on record to show the circumstances warranting parking of the tractor-trailer at the spot of the accident. There is also no material placed on record as to whether the driver of the driver/owner of the tractor-trailer has taken sufficient precaution to caution the fellow road users. In the absence of these crucial aspects of the matter, merely on the ground of statement made in the complaint, it cannot be inferred that there was no negligence on the part of the driver of the tractor- trailer. The Tribunal after taking into consideration these 10 aspects of the matter has come to the conclusion fastening the liability at 50% each on the insurer of the tractor- trailer, who is the appellant herein, as well as on on the jeep. The said finding cannot be found fault with. For the aforesaid analysis, the point raised is answered and following order is passed:
ORDER
a) The appeal filed by the insurance company is dismissed.
b) The judgment and order passed by the Tribunal dated 08.03.2013 passed in MVC No.116/2011 is confirmed.
c) The amount in deposit be transmitted to the concerned Tribunal.
Sd/-
JUDGE Srt