IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF JULY, 2019 PRESENT THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA AND THE HON'BLE MR. JUSTICE ASHOK G. NIJAGANNAVAR M.F.A. No.8389/2014 (MV-D) C/W M.F.A. No.2100/2016 (MV-D) M.F.A. NO.8389/2014 BETWEEN:
1. SMT. H.M. SARASAMMA, @ SARASWATHI, W/O LATE PARAMESHWAR L., AGED ABOUT 38 YEARS, 2. RASHMI P., D/O LATE PARAMESHWAR L., AGED ABOUT 15 YEARS.
3. CHINNAYE, D/O LATE PARAMESHWAR L., AGED ABOUT 6 YEARS, 4. SMT. NARASAMMA, W/O LINGAPPA, AGED ABOUT 72 YEARS, ALL RESIDING AT:
SRIRANGA NIVAS, 2ND CROSS, TEACHER’S COLONY, J.C. EXTENSION, LAWYER PAPANNA ROAD, KANAKAPURA TALUK, RAMANAGARA DISTRICT – 562 117.
THE APPELLANT NOS.2 AND 3 ARE MINORS REPRESENTED BY MOTHER AND NATURAL GUARDIAN SMT. H.M. SARASAMMA @ SARASWATHI.
... APPELLANTS (BY SMT. BHUSHANI KUMAR, ADVOCATE) AND:
1. THE MANAGER, ORIENTAL INSURANCE CO. LTD., REGIONAL OFFICE, NO.44/45, 4TH FLOOR, LEO SHOPPING COMPLEX, RESIDENCY ROAD CROSS, BANGALORE – 25.
2. M/S. SRI BHAGAVAN MAHAVEER JAIN EDUCATION & CULTURAL TRUST, NO.91/2, DR. A.N. KRISHNA RAO ROAD, V.V. PURAM, BANGALORE – 04.
3. TH MANAGER, UNITED INDIA INSURANCE CO. LTD., 5TH & 6TH FLOOR, KRUSHI BHAVAN BUILDING, HUDSON CIRCLE, BANGALORE – 01.
4. SRI C.S. SIDDAPPA, NO.54, 2ND MAIN, CONCORD LAYOUT, R.R. NAGAR, BANGALORE – 59.
5. SRI JAYARAM V.G., S/O GIRIYAPPA, R/A. BHANANTHAMARAMMA EXTN., MAGALA BEEDI, KANAKAPURA TALUK, RAMANAGARA DISTRICT – 562 117.
… RESPONDENTS (BY SRI O. MAHESH , ADVOCATE FOR R1;
SRI S.V.HEGE MUKHAND, ADVOCATE FOR R-3; SRI V.F. KUMBAR, ADVOCATE FOR R-4;
R-2 IS SERVED;
SRI M.H.PRAKASH, ADVOCATE FOR R-5) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 18.07.2014 PASSED IN MVC NO.4559/2012 ON THE FILE OF THE II ADDITIONAL SMALL CAUSES JUDGE AND XXVIII ACMM, MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
M.F.A. NO.2100/2016 BETWEEN:
SRI JAYARAM V.G., S/O GIRIYAPPA, AGED 49 YEARS, R/A. BHANANTHAMARAMMA EXTN., MAGALA BEEDI, KANAKAPURA TALUK, RAMANAGARA DISTRICT. ... APPELLANT (BY SRI PRAKASH M.H., ADVOCATE) AND:
1. THE MANAGER, ORIENTAL INSURANCE CO. LTD., REGIONAL OFFICE, NO.44/45, 4TH FLOOR, LEO SHOPPING COMPLEX, RESIDENCY ROAD CROSS, BANGALORE – 25.
2. M/S. BHAGAVA MAHAVEER JAIN EDUCATION & CULTURAL TRUST, NO.91/2, DR. A.N. KRISHNA RAO ROAD, V.V. PURAM, BANGALORE – 04.
3. TH MANAGER, UNITED INDIA INSURANCE CO. LTD., 5TH & 6TH FLOOR, KRUSHI BHAVAN BUILDING, HUDSON CIRCLE, BANGALORE – 01.
4. SRI C.S. SIDDAPPA, NO.54, 2ND MAIN, CONCORD LAYOUT, R.R. NAGAR, BANGALORE – 59.
5. SMT. H.M. SARASAMMA, @ SARASWATHI, AGED 40 YEARS, W/O LATE PARAMESHWAR L.
6. RASHMI P., AGED 17 YEARS, D/O LATE PARAMESHWAR L.
7. CHINMAYE, AGED 8 YEARS, D/O LATE PARAMESHWAR L.
8. SMT. NARASAMMA, AGED ABOUT 74 YEARS, W/O LINGAPPA.
RESPONDENT NOS.6 & 7 ARE MINORS, REPRESENTED BY MOTHER/NATURAL GUARDIAN RESPONDENT NO.5.
RESPONDENT NOS.5 TO 8 ARE R/A SRIRANGA NIVAS, 2ND CROSS, TEACHERS COLONY, J.C. EXTENSION, LAWYER PAPANNA ROAD, KANAKAPURA TALUK, RAMANAGARA DISTRICT – 562 117.
(BY SRI O. MAHESH , ADVOCATE FOR R1;
... RESPONDENTS SRI S.V.HEGE MUKHAND, ADVOCATE FOR R-3;
SMT. BHUSHANI KUMAR, ADVOCATE FOR R-5 TO R-8; NOTICE TO R-2 IS DISPENSED WITH V/O DT:27.04.2016) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 18.07.2014 PASSED IN MVC NO.4559/2012 ON THE FILE OF THE II ADDITIONAL SMALL CAUSES JUDGE AND XXVIII ACMM, MACT, BENGALURU, AWARDING COMPENSATION OF RS.62,24,152/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL DEPOSIT.
THESE APPEALS COMING ON FOR HEARING THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:-
J U D G M E N T MFA 8389/2014 has been filed by the legal representatives of the deceased Parameshwar L, while MFA No.2100/2016 has been filed by the owner of the Ambassador Car who is the fifth respondent before the Tribunal. Both these appeals assail the finding given on Issue no.1 in MVC No.4559/2012 by the Motor Accident Claims Tribunal (“Tribunal”, for the sake of brevity), Bengaluru by its judgment and award dated 18.07.2014.
2. For the sake of convenience, the parties shall be referred to in terms of their status before the Tribunal.
3. The appellants-claimants filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 claiming compensation of Rs.50 Lakhs on account of the death of Parameshwar L, in a road traffic accident that occurred on 27.06.2012. According to the claimants, on the said date at about 8.45 pm., Parameshwar and other inmates in the Ambassador car namely Jagadish, Nalini, Parvathi and Indumathi were traveling in the said car bearing No. KA-09/P-2492 on Bengaluru-Kanakapura road, Harohalli Hobli, and Jagadish was driving the said car. At that time, the bus bearing No.KA-01/ AA-7272 which belong to the second respondent Educational Trust came in a high speed and in a rash and negligent manner endangering human life in the opposite direction, and in the process of overtaking another vehicle, went to the extreme right of the road and dashed against the car. As a result, both the vehicles were damaged, Parameshwar sustained grievous injuries and died on the spot. Contending that Parameshwar was hale and healthy and he was the bread earner of the family and that the family was in agony on account of his death, they filed a claim petition seeking compensation.
4. In response to the notice issued by the Tribunal, the first respondent-Insurance Company appeared and filed its statement of objections contending that the claim petition was not maintainable, that material averments in the claim petition were denied and it was contended that the accident had occurred due to the negligence of the driver of the car, that the petition was bad for non-joinder of proper and necessary parties and that the driver of the car did not possess a valid driving license as on the date of accident. However, the Insurance Company admitted issuance of policy in respect of bus bearing No.KA-01/AA-7272 and contended that if any liability was fastened on the Insurance Company it would be subject to the terms and conditions of the policy. The insurer had sought for dismissal of the claim petition.
5. The second respondent-owner of the bus denied material averments in the claim petition and contended that the accident had occurred on account of the negligence of the driver of the car and had also contended that the bus was validly insured with the first respondent-insurer which was liable to indemnify the owner of the bus.
6. The second respondent also sought for dismissal of the claim petition. The third respondent is another Insurance Company which also contended that the claim petition was not maintainable and that the accident had occurred due to the negligence of the driver of the bus. While denying the averments in the claim petition, it was contended that an ‘Act Policy’ was issued in respect of Car bearing No.KA-04/P 2492 and that any liability to be fastened on the insurer was subject to the terms and conditions in the policy. The third respondent-insurer also sought for dismissal of the claim petition. The fourth respondent is the previous owner of the Ambassador car who contended that he had sold the car in favour of the fifth respondent on 20.04.2012 i.e., much prior to the accident and that there had been an endorsement issued by the RTO, Jnanabharathi, Bengaluru on 23.04.2012 and there was transfer of ownership to the fifth respondent which was endorsed by the Regional Transport Office at Ramanagar also. He sought for dismissal of the claim petition. The fifth respondent-owner of the Ambassador car denied the material averments in the claim petition and contended that the accident had occurred due to sole negligence of the driver of the bus and that if any liability is saddled on him, he would be indemnified by the third respondent. However, even the fifth respondent had sought for dismissal of the claim petition.
7. On the basis of the rival pleadings, the Tribunal framed the following issues:
“1. Whether petitioners prove that one Parameshwar.L died in the road traffic accident that occurred on 27.06.2012 at about 8.45 a.m., on Kaggalihalli Tank Bund NH-209, Bengaluru- Kanakapura Main Road, Harohalli Hobli, Kanakapura Taluk, due to rash and negligent driving of Jain School Bus bearing No.KA-01/ AA-7272 ?
2. Whether the petitioners are entitled for compensation ? If so to what extent?
8. In order to substantiate their case, the claimants examined three witnesses. The widow of Parameshwar examined herself as PW.1 and two other witnesses namely Chandrashekar and Indumathi were examined as PWs.2 and 3. The claimants produced 22 documents which were marked as Ex.P1 to P22.
9. On behalf of the respondents, N. Nagaraja was examined as RW.1 i.e., on behalf of the first respondent. He produced three documents which were marked as Ex.R.1 to R3. On the basis of said evidence, the Tribunal answered Issue Nos.1 and 2 in the affirmative and awarded compensation of Rs.62,24,152/- with interest at 6% per annum from the date of claim petition till realization and issued directions regarding apportionment and deposit. While awarding compensation, the Tribunal held that respondent nos.1 and 2 were liable to pay compensation to an extent of 30% and respondent no.5 was liable to pay compensation to an extent of 70% of the amount and that the deposit be made in two months time.
10. Being aggrieved by the apportionment of liability, negligence between the drivers of the bus and the car to an extent of 30:70, the claimants as well as the owner of the car have preferred their respective appeals.
11. We have heard learned counsel for the parties and learned counsel for the owner of Ambassador Car who is the appellant in the connected appeal and learned counsel for first respondent-insurer and learned counsel for fourth respondent – previous owner of the Ambassador car and perused the material on record.
12. At the outset, it was submitted that on account of the accident, there were three claim petitions preferred, one was MVC No.4559/2012, out of which this appeal arises and two other claim petitions were MVC No.6313/2012 and MVC No.6314/2012 which were preferred before the XXI Additional Judge, Court of Small Causes, Bengaluru. That MVC No.6313/2012 and MVC No.6314/2012 were disposed of on 26.09.2013. In the said petitions, finding of the said Tribunal was that negligence was on the part of the driver of the bus completely (100%) but, in the impugned judgment the Tribunal has apportioned the negligence only to an extent of 30% on the driver of the bus and 70% on the driver of the car. It was contended that the impugned judgment was passed on 18.07.2014. But the learned counsel for the insurance-company who was the same counsel in both the proceedings failed to bring it to the notice of the Tribunal which has passed the impugned judgment and award; possibly, a different finding would have been arrived at in the instant case. The insurance company which was saddled with the liability i.e., the second respondent in MVC No.6313/2012 and MVC No.6314/2012 satisfied the said awards and the claimants therein have received the compensation. Therefore, the insurer is estopped from raising any contention vis-à-vis finding arrived at by the Tribunal in the instant case. That in the interest of uniformity and consistency, the judgment in MVC No.6313/2012 and MVC No.6314/2012 which is prior in time must be followed in the instant case as the same has attained finality because the Insurance Company has not challenged the same. In support of their contention, they relied on a decision of the Co-ordinate Bench of this court in the case of B.U. Chaitanya –vs- Managing Director, Bangalore Metropolitan Transport Corporation and another reported in 2013 ACJ 1423. They contended that the finding arrived at by the Tribunal in the impugned judgment may be reversed and made consistent with what has been found in MVC No.6313/2012 and MVC No.6314/2012 as such finding has been accepted by the first respondent-insurer. Also the awards made therein have been satisfied. Hence, these appeals filed by the claimants and the owner of the Ambassador car herein may be allowed.
13. Per contra, the learned counsel for the first respondent-insurer sought to contend that the finding arrived at in the impugned judgment is just and proper as the judgment in MVC No.6313/2012 and MVC No.6314/2012 is cryptic and is not in consonance with the evidence on record and therefore, the impugned judgment and award would not call for any interference at the hands of this court. He contended that there is no merit in the appeals filed by the claimants as well as the owner of the Ambassador Car and the same may be dismissed.
14. The learned counsel appearing for respondent no.4 – previous owner of the Ambassador car submits that appropriate finding may be given in these appeals that respondent no.4 has already sold the car in favour of the respondent no.5 before the Tribunal who is the appellant in MVC No.2100/2016.
15. Having heard the learned counsel for the respective parties and on perusal of the material on record, the following points arise for consideration:-
1. Whether the finding arrived at on issue no.1 in the impugned judgment and award calls for any interference vis-à-vis on the aspect of negligence?
2. What order?
16. The fact that on 27.06.2012 at about 8.45 p.m., there was a collision between the Ambassador car bearing No.KA-04/P-2492 and Bus bearing No.KA-01/AA 7272 which were proceeding in the opposite directions on Bangalore-Kanakapura road has been established by the appellants-claimants. The only controversy is with regard to the extent of negligence on the part of the drivers of the respective vehicles. In that regard, it may be stated that in MVC No.6313/2012 and MVC No.6314/2012 which was filed by the legal representatives of V.G.Jagadish, driver of Ambassador car and the injured passenger namely V.G.Parvathi, which were disposed of by the XXI Additional Judge, Court of Small Causes and MACT on 26.09.2013, it was held that the driver of the bus was solely negligent (100%) in causing the accident and liability was fastened on the owner and insurer of the said bus. But the fact of the matter is that the said judgment and award was not brought to the notice of the Tribunal which passed the impugned judgment and award. Had the same been brought to the notice of the Tribunal which passed the impugned judgment, possibly the finding may have been different. Be that as it may, we are constrained to observe that it was the duty of the learned counsel for first respondent-Insurance Company who had suffered the award on 26.09.2013 in MVC No.6313/2012 and MVC No.6314/2012 to have brought it to the notice of the Tribunal which has passed the impugned judgment and award. Incidentally it is the very same counsel who appeared in all the three claim petitions. More significantly, the first respondent-insurer has accepted the finding given in MVC No.6313/2012 and MVC No.6314/2012 to the effect that the driver of the bus was completely negligent in causing the accident and it has satisfied the claims by indemnifying the insured-owner of the bus and no appeals have been filed in that regard. But, in the instant case, the Tribunal has found negligence to an extent of 30% with the driver of the Bus and 70% with the driver of Ambassador Car.
17. In this regard, the learned counsel for claimants and learned counsel for the owner of car have drawn our attention to a judgment of a Co-ordinate Bench of this court in B.U.Chaitanya (supra). In that case, it has been held that when the insurer has satisfied the award after admitting negligence of the driver of the insured vehicle in one case, it is estopped from denying its liability in respect of other claims arising out of the same accident. In the said judgment, the matter was in respect of bus belonging to the Bangalore Metropolitan Transport Corporation. The bus had dashed against the scooter giving rise to three claims. The tribunal found that the driver of the bus was rash and negligent in causing the accident and granted compensation to the claimants in all the three claims. The Corporation had satisfied one of the claims and denied its liability by filing appeals against two other awards. This Court held that the Corporation was estopped from denying its liability in respect of other two claims arising out of the same accident. If the aforesaid ratio is applied to the instant case, it is to be held that the Insurance Company cannot deny its liability insofar as these claimants are concerned when it has satisfied the awards arising from MVC No.6313/2012 and MVC No.6314/2012. Possibly, the same could have been adopted by the Tribunal which has passed the impugned judgment and award or there would have been reasons as to why the same could not be adopted. But, the fact remains that in the interest of consistency and uniformity, which is the hallmark of justice dispensation system, it was necessary on the part of the learned counsel for insurer in the instant case who appeared before the Tribunal to have brought it to the notice of the Tribunal which has passed the impugned judgment and award about the judgment and award passed in MVC No.6313/2012 and MVC No.6314/2012 dated 26.09.2013. More significantly, the said judgment and awards have attained finality on account of there being no appeal filed by the first respondent-insurer, and secondly because it has satisfied the said claims. Therefore, there is no reason as to why divergent finding has to be accepted in respect of the claim petition out of which this appeal arises.
18. In the circumstances, the finding arrived at in the impugned judgment and award to the effect that negligence on the part of the driver of the bus is 30% and the driver of the car to an extent of 70% is set aside. It is held that negligence on the part of the driver of the bus is 100%. Consequently, the first and second respondents are liable to satisfy the award in the instant case also. The finding arrived at by the Tribunal on issue no.1 in the impugned judgment is reversed and is now in consonance with the finding arrived at by the Tribunal in MVC No.6313/2012 and MVC No.6314/2012, which finding has been accepted by the first and second respondents herein. It is unnecessary for this court to go into the merits of the finding arrived at by the Tribunal in the impugned judgment on issue no.1. Hence, point no.1 is answered in favour of the appellants in both the cases.
19. Consequently, the appeals filed by the claimants as well as by the owner of the Ambassador car are allowed.
The quantum of compensation awarded by the Tribunal is not interfered with. The first and second respondents are liable to satisfy the award.
The first respondent-insurer shall deposit the compensation before the Tribunal within a period of four weeks from the date of receipt of certified copy of this judgment.
The statutory amount deposited before this court in MFA No.2100/2016 is ordered to be refunded to the appellant therein.
In the result, the appeals are allowed. The parties to bear their respective costs.
In view of disposal of appeals, I.A.-1/2019 in MFA 8389/2014 is allowed and disposed. I.A.-2/2016 in MFA 2100/2016 is disposed of.
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