IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE N.K.SUDHINDRARAO MISCELLANEOUS FIRST APPEAL NO.8088/2019 C/W MISCELLANEOUS FIRST APPEAL NO.8087/2019 BETWEEN:
M/S. HDFC-ERGO GENERAL INSURANCE CO. LTD. #25/1, 2ND FLOOR BUILDING NO.2 SHANKAR NARAYAN BUILDING M.G.ROAD BANGALORE – 560 001 ...APPELLANT COMMON (BY SRI D.VIJAYAKUMAR, ADVOCATE) AND:
1. B.BHAMINI @ DHIVYASHREE D/O. LATE BASAVARAJU AGED ABOUT 24 YEARS R/AT NO.16 BILESHIVALE VILLAGE KOTTANUR POST BANGALORE EAST TALUK BANGALORE – 560 077 2. B.DEEPAK S/O. LATE BASAVARAJU AGED ABOUT 26 YEARS CENTER, SANAPATHI BAPAT MARG R/AT NO.20 BILESHIVALE VILLAGE KOTTANUR POST BANGALORE EAST TALUK BANGALORE – 560 077 3. THE MANAGER FUTURE GENERAL INDIA INSURANCE COMPANY LTD. 6TH FLOOR, TOWER-3 INDIA BULLS FINANCE ELPHINSTONE ROAD MUMBAI – 400 059 4. MALIGACHAR S/O. LATE MARAPPA AGED ABOUT 79 YEARS R/AT NO.16, BILESHIVALE VILLAGE KOTTANUR POST BANGALORE EAST TALUK BANGALORE – 560 077 5. SRI. MURUGAN S/O. KANDAPPAGOWNDAR AGED ABOUT 49 YEARS NO.7/56A, MALAYANUR VILLAGE THANAGAYUR POST IDAPADI TALUK SALEM DISTRICT TAMIL NADU – 637 102 ...RESPONDENTS IN MFA.No.8088/2019 AND:
1. B.BHAMINI @ DHIVYASHREE D/O. LATE BASAVARAJU AGED ABOUT 24 YEARS R/AT NO.16, BILESHIVALE VILLAGE KOTTANUR POST BANGALORE EAST TALUK BANGALORE – 560 077 2. THE MANAGER FUTURE GENERAL INDIA INSURANCE COMPANY LTD. 6TH FLOOR, TOWER-3 INDIA BULLS FINANCE ELPHINSTONE ROAD MUMBAI – 400 059 3. MALIGACHAR S/O. LATE MARAPPA AGED ABOUT 79 YEARS R/AT NO.16, BILESHIVALE VILLAGE KOTTANUR POST BANGALORE EAST TALUK BANGALORE – 560 077 4. SRI MURUGAN S/O. KANDAPPAGOWNDAR AGED ABOUT 49 YEARS NO.7/56A, MALAYANUR VILLAGE THANAGAYUR POST IDAPADI TALUK SALEM DISTRICT TAMIL NADU – 637 102 5. SRI SHIVAKUMAR C. S/O. CHINNATHAMBI AGED ABOUT 47 YEARS R/AT NO.58, SUBRAYAR STREET VALAPADY, SALEM-636 115 ...RESPONDENTS IN MFA.No.8087/2019 THESE MFAs ARE FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 03.07.2019 PASSED BY XVIII ADDITIONAL JUDGE, MACT, BENGALURU IN MVC.Nos.4505/2015 AND 4504/2015 RESPECTIVELY.
THESE APPEALS COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T These appeals by the Insurance Company are directed against the judgment and award passed by the Motor Accident Claims Tribunal in MVC Nos.4505/2015 and 4504/2015 respectively, whereby the Tribunal has granted compensation of Rs.20,46,000/- in MVC.No.4505/2015 and Rs.1,86,000/- in MVC.No.4504/2015 with interest at 6% p.a. fastening liability in the ratio of 25%:75% on the both the Insurance Company.
2. The brief facts of the case as per the claim petition is as under:
On 04.01.2015 at about 5.00 a.m., the petitioner along with her mother deceased Nirmala, grand-mother Gowramma, grand-father and her brothers were all traveling in a scorpio bearing registration No.KA-03-MS-2070 to visit Brahmamgari Mattam for Dyva Darshan of Shree Veerabhadra Swamy, Kadapa District, Andhra Pradesh. When they reached Palannavaripalle Rampuram on the left side of the road, the motor cycle came from the opposite side of scorpio vehicle, at that time, the driver to safeguard the motor cycle applied sudden brake. At the same time, a Lorry bearing registration No.TN-52-C-3328 came in a rash and negligent manner without blowing the horn and dashed against scorpio. Due to the impact, all the injured were shifted to Government Hospital, Raychutti. It is stated that Rampuram Police has registered a case in Crime No.1/2015 against the driver of lorry bearing registration No.TN-52-C-3328 and the driver of scorpio bearing registration No.KA-03-MS-2070 for the offences punishable under Sections 337 and 304(A) of IPC.
3. The Tribunal has awarded the compensation as under:
a) Pain and suffering Rs.40,000.00 b) Medical expenses Rs.86,000.00 c) Loss of income during laid up period Rs.30,000.00 d) Disability NIL e) Towards food, nourishment and attendant charges Rs.10,000.00 f) Towards loss of future happiness and amenities Rs.20,000.00 Total Rs.1,86,000.00 4. Sri D.Vijayakumar, learned counsel for the appellant- Insurance Company submits that the chargesheet was filed against the driver of scorpio and without any grounds, the Tribunal has fixed the liability on driver of the lorry. As per the records, a criminal case was registered against the driver of scorpio bearing registration No.KA-03-MS-2070 as such in no manner of circumstances, the driver of the lorry is held liable.
5. ‘Negligence’ is a breach of legal duty. It is a sort of recklessness. The accident was occurred due to collision between two vehicles, one is scorpio and the other one is lorry. The Tribunal has fastened the liability of 75% on the driver of scorpio and 25% on the driver of the lorry i.e. on the appellant- Insurance Company. The Tribunal has observed in para-15 of its judgment as under:
“15. On perusal of the Ex.P2 charge sheet, after the investigation, the IO filed the charge sheet against the driver of the Scorpio car. Admittedly, mere filing of the charge sheet itself is not a conclusive proof of rash and negligent driving of the driver of the Scorpio Car. The Tribunal has to look into the materials available on record. In order to prove the rash and negligence, both the respondents have not chosen to examine either the drivers of the vehicles or the eye witness. Even the respondents have not chosen to examine the IO. They have also not chosen to produce the sketch or any other documents.”
As held by the Tribunal in the aforesaid paragraph, mere filing of the chargesheet itself is not a conclusive proof of rash and negligent driving. Under the circumstances, I do not find any error or lapse or non application of mind in fastening the liability of 75% on the driver of the scorpio and 25% on the driver of the lorry by the Tribunal.
The liability on negligence is properly adjudicated. In my opinion, the compensation awarded by the Tribunal does not require further consideration and the same is just and reasonable. Therefore, I do not find any reason to interfere with the judgment and award passed by the Tribunal. The appeals are liable to be rejected at the threshold itself. Accordingly, they are rejected.
The amount in deposit in both the appeals shall be transmitted to the concerned Tribunal.
Sd/- JUDGE LB