IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO M.F.A.No.5990/2010 C/W M.FA.No.5991/2010 (MV) IN M.F.A.No.5990/2010 BETWEEN:
1. H K NAYANAKUMAR S/O H K KESHAVAMURTHY MAJOR, R/O HALANDURU, HOSANAGARA TALUK, SHIMOGA DISTRICT.
2. JAYAPPA @ OMKARAPPA S/O NAGAPPA AGE:46 YEARS R/O HOLEKEVI, GARTHIKERE POST HOSANAGARA TALUK SHIMOGA DISTRICT.
…APPELLANTS (BY SRI B S PRASAD, ADVOCATE) AND:
1. D G JAYARAMA S/O GUNDA PUJARI AGE:50 YEARS, CONTRACTOR R/O DAVANEBAILU VILLAGE GUDDEKOPPA POST THIRTHAHALLI TALUK SHIMOGA DISTRICT.
2. THE BRANCH MANAGER NATIONAL INSURANCE COMPANY LTD., S.S. COMPLEX, 1ST FLOOR B H ROAD, SHIMOGA.
3. K M HALESHAPPA @ HALAIAH S/ UMAMAHESWARAIAH MAJOR, R/O KEDALA GADDE HOSANAGARA TALUK SHIMOGA DISTRICT.
...RESPONDENTS (BY SRI D MANJUNATH, ADVCOATE FOR R2 SRI PRUTHVI WODEYAR, ADVOCATE FOR R3 R1 IS SERVED) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:06.05.2010 PASSED IN MVC No.520/2003 ON THE FILE OF I ADDITIONAL SENIOR CIVIL JUDGE AND ADDITIONAL MACT, SHIMOGA, AWARDING A COMPENSATION OF Rs.1,24,730/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL DEPOSIT.
IN M.F.A.No.5991/2010 BETWEEN:
1. H K NAYANAKUMAR S/O H K KESHAVAMURTHY MAJOR, R/O HALANDURU, HOSANAGARA TALUK, SHIMOGA DISTRICT.
2. JAYAPPA @ OMKARAPPA S/O NAGAPPA, AGE:46 YEARS R/O HOLEKEVI, GARTHIKERE POST HOSANAGARA TALUK SHIMOGA DISTRICT.
…APPELLANTS (BY SRI B S PRASAD, ADVOCATE) AND:
1. D M NAGENDRA S/O MUNISWAMY AGE:28 YEARS, OCC:MASON WORKER R/O DAVANEBAILU VILLAGE GUDDEKOPPA POST THIRTHAHALLI TALUK SHIMOGA DISTRICT.
2. THE BRANCH MANAGER NATIONAL INSURANCE COMPANY LTD., S.S. COMPLEX, 1ST FLOOR B H ROAD, SHIMOGA.
3. K M HALESHAPPA @ HALAIAH S/ UMAMAHESWARAIAH MAJOR, R/O KEDALA GADDE HOSANAGARA TALUK SHIMOGA DISTRICT.
...RESPONDENTS (BY SRI A M VENKATESH, ADVCOATE FOR R2 SRI PRUTHVI WODEYAR, ADVOCATE FOR R3 R1 IS SERVED) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:06.05.2017 PASSED IN MVC No.522/2003 ON THE FILE OF I ADDITIONAL SENIOR CIVIL JUDGE AND ADDITIONAL MACT, SHIMOGA, AWARDING A COMPENSATION OF Rs.67,160/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL DEPOSIT.
THESE MFA’s COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Though these matters are posted for Admission, with the consent of learned counsel for both the parties, they are taken up for final disposal.
These are the two appeals directed against the judgment and award dated 06-05-2010 passed by the I Additional Senior Civil Judge and Additional MACT, Shivamogga in MVC Nos. 520/2003 and 522/2003, wherein, the claim petitions filed by the claimants therein came to be allowed in part and an amount of Rs.1,24,730/- and Rs.67,160/- respectively was awarded together with interest at the rate of 6% p.a. from the date of petition till its deposit holding that respondents 1, 2 and 4 are jointly and severally liable to deposit the compensation amount and directed the respondents 1 and 2 to deposit 60% of the award amount and respondent No.4 to deposit 40% of the compensation amount in both the cases.
2. Both the appeals are respectively by the owner and the driver/rider of the offending vehicle to set aside the judgment and award and to dismiss the claim petitions only insofar as appellants are concerned.
3. In order to avoid confusion and overlapping, parties hereinafter are referred to with reference to their rankings as it stood before the Tribunal.
4. The incident as stated is that, on 29.6.2003, 2nd respondent requested the claimants to come to his sister Puspavathi’s house in order to complete the construction work and for settlement with regard to the works carried out by them. They went on a motor cycle bearing Registration No.KA.15.H.7184 and when they were proceeding near Moodalamane cross, a mini lorry bearing Registration No.KA.03.2664 came from the opposite direction and dashed against the said motor cycle. Due to which, both the petitioners fell down and sustained several injuries. They took treatment as inpatient and spent amount towards medical expenditure. They claimed compensation.
5. The claim petitions were resisted by the respondents. Respondent Nos. 1 and 2 have contended that accident occurred due to rash and negligent driving by the driver of mini lorry driven by 4th respondent and accordingly, they registered a case against him and they are not liable to pay compensation. 3rd respondent- Insurance Company contended that two wheeler was insured with effect from 18.3.2002 to 17.3.2003 and policy was expired by efflux of time without renewal and therefore, as on the date of the accident the vehicle was not insured with it and as such, it is not at all liable to pay the compensation. 4th respondent contended that he was driving the vehicle by observing all the traffic rules and regulations, but 2nd respondent was driving the two wheeler with two pillion riders and lost control over the vehicle and he himself dashed against the mini lorry and accordingly accident took place, but the police have falsely filed chargesheet against him and he is not liable to pay the compensation.
6. The learned Member of the Tribunal was accommodated with the oral evidence of PWs 1 and 2 and RWs 1 to 3 and documentary evidence of Exs.P1 to P13 and Ex.R1 to R7.
7. The learned Member after hearing the parties considered the case on the basis of the oral and documentary evidence and other materials available on record and partly allowed the petitions and granted the compensation fastening liability jointly and severally on the respondent Nos.1, 2 and 4 in the ratio as mentioned above. The said judgment and award is challenged in these appeals by the respondent Nos. 1 and 2.
8. The learned counsel Sri. B.S.Prasad appearing for the appellants in both the appeals would submit that the compensation payable in both the cases are saddled in the ratio of 60: 40 respectively on the part of the driver and owner of the motor cycle and the driver cum owner of mini lorry and the grievance of the appellants, in fact, is, there is no rationale for the apportionment of negligence. The appellants are unequally clamped with the liability to pay compensation as the proportion does not answer reasonably.
The other aspects of the accident, injury and disability are not disputed. Regard being had to the fact that both the vehicles were possessing the insurance. The accident occurred and the claimants in both the petitions have sustained the injuries.
9. In MFA No.5990/2010 which pertains to MVC No. 520/2003, claimant has sustained three injuries as per Ex.P5. Injury No.1 is shown as lacerated wound on the right knee medial aspect and another injury is a lacerated wound on the lower end of right thigh above right knee joint and 3rd injury is a swelling of lower 1/3rd of right thigh fracture of femur lower end.
In MFA No.5991/2010 which pertains to MVC No. 522/2003, claimant has sustained two injuries as per Ex.P10. Injury No.1 is shown as lacerated wound on the knee and injury No.2 is shown as swelling on the right thigh in the middle.
10. The break up compensation awarded by the learned Member in both the petitions are as under:
In MFA No.5990/2010 (MVC No.520/2003)
Future medical expenses Rs. 5,000/- Total Rs.1,24,724/-
In MFA No.5991/2010 (MVC No.522/2003) Pain and sufferings Rs.35,000/- Medical expenses Rs. 7,153/-
Loss of income for 50 days Rs. 5,000/-
Attendant charges Rs. 5,000/-
Future medical expenses Transportation charges Special diet and nutrition Rs. 5,000/- Rs. 5,000/- Rs. 5,000/-
Total Rs.67,163/- rounded of to Rs.67,160/-
11. Learned counsel for the appellants in both the appeals would submit that he represents the owner and rider of the motor cycle bearing Registration No. KA.15.H.7184 and that more liability may not be ordered on the owner and the rider of motor cycle a small vehicle and light liability on the owner cum driver of the mini lorry bearing Registration No. KA.03.2664 and FIR was registered against the driver of the mini lorry in Crime No.63/2003 for the offences punishable under Sections 279 and 337 of IPC.
12. Learned counsel Sri.A.M.Venkatesh, appearing for the Insurance Company would submit that insofar as Insurance Company is concerned, it is not responsible for any liability.
13. In the context and circumstances of the case, I find that in the light of the accident, injuries and liability and compensation are concerned, the Tribunal is right in ordering compensation to the claimants. However, considering the nature of vehicles and the circumstances of the case, the liability should have been in the proportion of 50:50 respectively on both the vehicles. This becomes necessary factor when the accident is considered with reference to the sequences chronologically.
14. Insofar as compensation awarded by the Tribunal in both the appeals are concerned, the same is just and fair and it does not call for interference.
15. Accordingly, both the appeals filed by the appellants/respondent Nos. 1 and 2 are partly allowed.
The judgment and award dated 6/5/2010 passed in MVC Nos.520/2003 and 522/2003 by the learned Member is modified fastening liability in the ratio of 50:50 respectively on the part of the driver and owner of the motor cycle and the driver cum owner of mini lorry.
The appellants/respondent Nos. 1 and 2 and respondent No.4 are directed to deposit the compensation amount with interest in the ratio of 50:50 within a period of four weeks from the date of receipt of a copy of this order.
The amount deposited in both the appeals shall be transmitted to the concerned Tribunal forthwith.
tsn* Sd/- JUDGE