IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 09TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT M.F.A.No.3162/2013 [MV] BETWEEN:
THE BRANCH MANAGER UNITED INDIA INSURANCE CO. LTD., KARKALA BRANCH, A S ROAD KARAKAL BY DIVISIONAL MANAGER UNITED INDIA INSURANCE CO. LTD., JEWEL PLAZA, 1ST FLOOR MARUTHI VEETHIKA UDUPI-576101 BY ITS MANAGER.
... APPELLANT (BY SRI.O MAHESH, ADV.) AND:
1. SMT. JALAJA ACHARTHI AGED ABOUT 47 YEARS W/O LATE RAGHU ACHARYA 2. KUMARI DEVAKI AGED ABOUT 42 YEARS D/O LATE CHANDAYYA ACHARYA 3. KUMARI SWATHI, MINOR AGED ABOUT 13 YEARS REPRESENTED BY HER MOTHER NATURAL GUARDIAN RESPONDENT NO.1 SMT JALAJA ACHARTHI.
ALL ARE R/AT BOBBALA TELLAR ROAD, KUMBRAPADAVU KARKALA KASABA VILLAGE KARKALA TALUK, UDUPI DIST-576101.
4. SRI VASANTH NAYAK AGED ABOUT 45 YEARS S/O LATE SRINIVASA NAYAK R/A NO.ANUGRAHA NIVASA MIYAR VILLAGE, KARKALA TALUK UDUPI DISTRICT-576101.
... RESPONDENTS (R1, R2 & R4- SERVED & UNREPRESENTED R3 – MINOR AND REP. BY R1) THIS M.F.A. FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 01.01.2013 PASSED IN MVC NO.534/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE, AMACT, KARKALA, AWARDING A COMPENSATION OF RS.3,27,000/- WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL REALIZATION.
THIS M.F.A. COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The United India Insurance Company Limited is in appeal, aggrieved by the judgment and award dated 01.01.2013 passed in MVC No.534/2011 on the file of the Senior Civil Judge and Additional Motor Accident Claims Tribunal, Karkala (hereinafter referred to as 'the Tribunal' for short).
2. The claim petition was filed under Section 166 of the Motor Vehicles Act, claiming compensation for the death of one Srinivasa Acharya. It is stated that on 19.08.2010, when the deceased Srinivasa Acharya was walking on the left side of the road, a motorcycle bearing registration No.KA-20/S-1289 came in a rash and negligent manner on the wrong side of the road and dashed to the deceased. Due to the impact of accident, the deceased sustained grievous head injuries and succumbed to the same on 20.08.2010 at Wenlock hospital. He was aged about 50 years as on the date of death and was earning Rs.15,000/- p.m.
3. On issuance of notice, respondents appeared before the Tribunal. The first respondent contended that the claimants are not the legal heirs of deceased Srinivasa Acharya. The second respondent/insurer contended that the accident took place due to the negligence of the deceased, since he suddenly crossed the road and dashed the offending two wheeler, but admitted the issuance of policy.
4. The first claimant was examined as P.W.1 and marked the documents as Ex.P1 to Ex.P13. The second respondent/insurer examined one witness as R.W.1 and got marked the documents as Ex.R1 to Ex.R7.
5. The Tribunal, on assessing the material on record awarded total compensation of Rs.3,27,000/- with interest at the rate of 6% p.a., on the following heads:
1. Loss of dependency Rs.4,500 – 50% x 12 x 12 :: Rs.2,97,000/-
2. Loss of love and affection :: Rs. 10,000/-
3. Loss of estate :: Rs. 10,000/-
4. Transportation of dead body and funeral expenses :: Rs. 10,000/-
Total Rs.3,27,000/-
The Tribunal while awarding compensation directed the second respondent/insurer to pay the compensation at the first instance, with liberty to recover the same from the respondent No.1/owner of the offending vehicle. Aggrieved by the same, the Insurance Company is in appeal before this Court.
6. Heard the learned counsel for the appellant/ Insurer. Even though the respondents are served, they remained unrepresented.
7. Learned counsel for the appellant/insurer would submit that the Tribunal failed to consider the contention of the insurer that the deceased also contributed his negligence for the occurrence of the accident. The accident took place solely due to the negligence of the deceased, who unmindfully crossed the road and dashed to the motorbike, which is evident from Ex.P3(a)-sketch. Further, the learned counsel for the insurer submits that the first respondent/owner of the motorbike failed to produce the driving license of the rider of the offending motorbike. It is his contention that the rider of the motorcycle had no license to ride the two wheeler as on the date of accident as such, the Tribunal could not have directed the Insurer to pay and recover the same from the owner of the motorbike. Having come to the conclusion that the rider of the vehicle had no license, the Tribunal could not have directed the insurer to pay and recover the compensation amount. Thus, he prays for allowing the appeal.
8. The accident that took place on 19.08.2010 involving the motorcycle bearing registration No. KA-20/S-1289 and the accidental death of one Srinivasa Acharya are not in dispute in this appeal. The insurer contends that the Tribunal has failed to consider the contributory negligence on the part of the deceased to the occurrence of the accident. It is stated that the deceased was admittedly crossing the busy road unmindfully of traffic and contributed negligence for the occurrence of the accident. He invites the attention of this Court to Ex.P3(a)-Sketch to contend that the accident occurred due to the negligence of the deceased. On perusal of Ex.P3 and Ex.P3(a) spot mahazar and the sketch respectively, it could be seen that the road was 16 feet width and accident had taken place on the eastern side of the road. The deceased, in order to cross the road was standing on the right side of the road and the bike which was coming from South to North was totally on the wrong side i.e. on the extreme right side and dashed to the deceased. Ex.P1-complaint would indicate that the bike was ridden towards Thellur by the rider in a rash and negligent manner and dashed to the deceased. The sketch would also indicate that, while the bike was proceeding towards Thellur side, the deceased was on the right side of the road and the motorcycle dashed to the deceased on the right side of the road which means rider of the bike was on the wrong side and dashed to the deceased. From the material on record, such as, Ex.P1-complaint, Ex.P3- spot mahazar and Ex.P3(a)- sketch, it could be safely said that the accident had taken place due to rash and negligent riding of the motorbike by its rider. Thus, the contention of the appellant/insurer that the Tribunal failed to consider the contributory negligence on the part of the deceased fails and the same is rejected.
9. The appellant/insurer contends that the rider of the motorcycle had no valid and effective driving license as on the date of accident. It is further stated that the owner/first respondent failed to produce copy of the license nor any other documents to establish that the rider of the vehicle had license to ride the motorcycle. But, on going through the written statement filed by the insurer, it is crystal clear that the insurer has not taken any such contention that the rider of the motorbike had no license to ride the motorcycle as on the date of accident. In the cross-examination of P.W.1, the insurer suggested that the rider of the motorcycle- Vishwanath Nayak was not possessing the license as on the date of accident. But, the same was denied by P.W.1. The insurer examined R.W.1-Vishwanath Nayak rider of the motorcycle wherein he has stated in his evidence that he had Learner’s license and Xerox copy of which was produced before the Court. However, to rebut the same, the insurer has not examined any other person. It is also not the case of the insurer that the rider of the motorcycle had no license at all. But, it is a case, where, the rider of the motorcycle had Learner’s License as on the date of the accident. The Tribunal, taking note of the entire facts of the case and taking note of the decisions of the Hon'ble Apex Court has come to the conclusion that the insurer is liable to pay the compensation at the first instance and also observed that the insurer is at liberty to recover the compensation from the first respondent/owner of the offending motorbike.
10. I find no perversity or erroneousness in the finding of the Tribunal. Accordingly, the appeal stands rejected.
The amount in deposit be transmitted to the concerned Tribunal.
Sd/- JUDGE mpk/-*CT:bms