IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF DECEMBER, 2017 BEFORE THE HON'BLE MR. JUSTICE B.SREENIVASE GOWDA MFA NO.4281/2011 (MV) c/w.
MFA Nos.4279/2011, 4277/2011, 1813/2008, 4280/2011, 1331/2011, 1332/2011, 1791/2011 & 1792/2011 IN MFA NO. 4281/2011 BETWEEN:
NEW INDIA ASSURANCE CO. LTD., REPRESENTED BY ITS MANAGER, MISSION ROAD, BANGALORE – 560 027. REPRESENTING NEW INDIA ASSURANCE CO., MYSORE ROAD, BANGALORE.
. . . APPELLANT (BY SRI. R. JAIPRAKASH, ADV.) AND:
1. SRI. K. R. SRINIVAS, S/O RANGAPPA NAYAK, MAJOR, BEECHAGANAHALLY GUDIBANDA TALUK, KOLAR DISTRICT-562109 NOW CHIKKABALLAPUR DIST-562101.
2. SRI. BALASUBRAMANYAM S/O MALAYAPPA PILLAI NO.4A, 156G, RAJIV GANDHI NAGAR, SALEM ROAD, NAMAKKAL NAMAKKAL DISTRICT. TAMILNADU – 637001.
3. UNITED INDIA INSURANCE CO. LTD. REPRESENTED BY ITS MANAGER DIVISIONAL OFFICE NO.2, SANKARAN ROAD, NAMAKKAL – 637 001. TAMILNADU STATE.
4. SRI. VENKATARAMANAPPA S/O RAMAPPA AGED ABOUT 30 YEARS, PERESANDRA VILLAGE, CHIKKABALLAPUR TALUK.
. . . RESPONDENTS (BY SRI. PUTTIGE R. RAMESH, ADV. FOR R3.
NOTICE TO R2 D/W. R4 – SERVED. SERVICE OF NOTICE TO R1 IS H/S) THIS APPEAL IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 29.10.2010 PASSED IN MVC NO. 50/2006 ON THE FILE OF CIVIL JUDGE (SR.DN.) & CJM, AND MEMBER, ADDITIONAL MACT, CHICKBALLAPUR DISTRICT, CHICKBALLAPUR, AWARDING A COMPENSATION OF RS. 30,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALISATION.
IN MFA NO. 4279/2011 BETWEEN:
NEW INDIA ASSURANCE CO. LTD., REPRESENTED BY ITS MANAGER, MISSION ROAD, BANGALORE – 560 027. REPRESENTING NEW INDIA ASSURANCE CO., MYSORE ROAD, BANGALORE.
. . . APPELLANT (BY SRI. R. JAIPRAKASH, ADV.) AND:
1. SRI. K.R. SRINIVAS, S/O RANGAPPA NAYAK, MAJOR, BEECHAGANAHALLY GUDIBANDA TALUK, KOLAR DISTRICT NOW CHIKKABALLAPUR DIST-562109.
2. SRI. BALASUBRAMANYAM S/O MALAYAPPA PILLAI NO.4A, 156G, RAJIV GANDHI NAGAR, SALEM ROAD, NAMAKKAL NAMAKKAL DISTRICT. TAMILNADU – 637001.
3. UNITED INDIA INSURANCE CO. LTD. REPRESENTED BY ITS MANAGER DIVISIONAL OFFICE NO.2, SANKARAN ROAD, NAMAKKAL – 637 001. TAMILNADU STATE.
4. SRI. NARASIMHARAJU S/O NARASIMHAPPA AGED ABOUT 30 YEARS, PERESANDRA VILLAGE, CHIKKABALLAPUR TALUK 562101.
. . . RESPONDENTS (BY SRI. PUTTIGE R. RAMESH, ADV. FOR R3.
R4 – SERVED. NOTICE TO R1 IS HELD SUFFICIENT) THIS APPEAL IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 29.10.2010 PASSED IN MVC NO. 48/2006 ON THE FILE OF CIVIL JUDGE (SR.DN.) & CJM, AND MEMBER, ADDITIONAL MACT, CHICKBALLAPUR DISTRICT, CHICKBALLAPUR, AWARDING A COMPENSATION OF RS. 30,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALISATION.
IN MFA NO. 4277/2011 BETWEEN:
NEW INDIA ASSURANCE CO. LTD., REPRESENTED BY ITS MANAGER, MISSION ROAD, BANGALORE – 560 027. REPRESENTING NEW INDIA ASSURANCE CO., MYSORE ROAD, BANGALORE.
. . . APPELLANT (BY SRI. R. JAIPRAKASH, ADV.) AND:
1. SRI. K.R. SRINIVAS, S/O RANGAPPA NAYAK, MAJOR, BEECHAGANAHALLY GUDIBANDA TALUK, KOLAR DISTRICT NOW CHIKKABALLAPUR DIST-562109.
2. SRI. BALASUBRAMANYAM S/O MALAYAPPA PILLAI NO.4A, 156G, RAJIV GANDHI NAGAR, SALEM ROAD, NAMAKKAL NAMAKKAL DISTRICT. TAMILNADU – 637001.
3. UNITED INDIA INSURANCE CO. LTD. REPRESENTED BY ITS MANAGER DIVISIONAL OFFICE NO.2, SANKARAN ROAD, NAMAKKAL – 637 001. TAMILNADU STATE.
4. SRI. CHIKKA NARAYANAPPA S/O APPANNA, AGED ABOUT 45 YEARS, 5. SMT. MUNILAKSHMAMMA W/O NARAYANAPPA AGED ABOUT 39 YEARS, SL. NO.4 & 5 ARE R/AT NALLAPPANAHALLY VILLAGE SADALI HOBLI, SHIDLAGHATTA TALUK 562105.
NOW R/AT KANDAVARA CHIKKABALLAPUR TOWN – 562101.
. . . RESPONDENTS (BY SRI. PUTTIGE R. RAMESH, ADV. FOR R3.
SRI. P.L. NANJUNDASWAMY, ADV. FOR R4 & R5. NOTICE TO R1 IS HELD SUFFICIENT) THIS APPEAL IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 29.10.2010 PASSED IN MVC NO. 47/2006 ON THE FILE OF CIVIL JUDGE (SR.DN.) & CJM, AND MEMBER, ADDITIONAL MACT, CHICKBALLAPUR DISTRICT, CHICKBALLAPUR, AWARDING A COMPENSATION OF RS. 2,38,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALISATION.
IN MFA NO. 1813/2008 BETWEEN:
THE BRANCH MANAGER, UNITED INDIA INSURANCE COMPANY, D.O.2, DR. SHANKAR ROAD, NAMAKAL, TAMIL NADU – 637 001.
REPRESENTED IN THIS APPEAL BY UNITED INDIA INSURANCE CO. LTD. BY ITS MANAGER, SHANKARANARAYANA BUILDINGS, NO.25, I FLOOR, M.G. ROAD, BANGALORE – 560 001.
(BY SRI. PUTTIGE R. RAMESH, ADV.) . . . APPELLANT AND:
1. NARASAMMA, AGED ABOUT 41 YEARS, W/O LATE SREERAMAPPA, R/OF BANDAHALLI, CHIKKABALLAPUR TALUK, CHIKKABALLAPUR DISTRICT 562 101.
2. MUNIRAJU, AGED ABOUT 24 YEARS, S/O LATE SREERAMAPPA, R/OF BANDAHALLI, CHIKKABALLAPUR TALUK, CHIKKABALLAPUR DISTRICT 562 101.
3. K.R. SRINIVAS, MAJOR, S/O A. RANGAPPA NAYAK, R/OF BEECHAGANAHALLI, GUDIBANDE TALUK, KOLAR DISTRICT, 562 209.
4. THE BRANCH MANAGER, NEW INDIA ASSURANCE CO. LTD., NO.41/2A & 2B, 1ST FLOOR, NITHYANANDANAGAR, NAYANDAHALLI, MYSORE ROAD, BANGALORE – 560 026.
5. M. BALASUBRAMANYAM, MAJOR, S/O MALAYAPPA PILLAI, NO.42/156, G. RAJIV GANDHI NAGAR, BEHIND MURUGAN KOIL, SALEM ROAD, NAMAKKAL DISTRICT, TAMIL NADU – 637 001.
. . . RESPONDENTS (BY SRI. R. JAIPRAKASH, ADV. FOR R4.
SRI. K.S. NARAYANASWAMY ADV. FOR R1 AND R2. R3, 5 – ARE SERVED) THIS APPEAL IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 30.06.2007 PASSED IN MVC.NO. 2143/2006 ON THE FILE OF THE XIX ADDL. JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT, METROPOLITAN AREA, BANGALORE, (SCCH.NO.17), AWARDING A COMPENSATION OF RS. 2,25,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL DEPOSIT.
IN MFA NO. 4280/2011 BETWEEN:
NEW INDIA ASSURANCE CO. LTD., REPRESENTED BY ITS MANAGER, MISSION ROAD, BANGALORE – 560 027. REPRESENTING NEW INDIA ASSURANCE CO., MYSORE ROAD, BANGALORE.
. . . APPELLANT (BY SRI. R. JAIPRAKASH, ADV.) AND:
1. SRI. K. R. SRINIVAS, S/O RANGAPPA NAYAK, MAJOR, BEECHAGANAHALLY GUDIBANDA TALUK, KOLAR DISTRICT NOW CHIKKABALLAPUR DIST-562109.
2. SRI. BALASUBRAMANYAM S/O MALAYAPPA PILLAI NO.4A, 156G, RAJIV GANDHI NAGAR, SALEM ROAD, NAMAKKAL NAMAKKAL DISTRICT. TAMILNADU – 637001.
3. UNITED INDIA INSURANCE CO. LTD. REPRESENTED BY ITS MANAGER DIVISIONAL OFFICE NO.2, SANKARAN ROAD, NAMAKKAL – 637 001. TAMILNADU STATE.
4. SRI. VENKATESH S/O BAJJAYAPPA @ BAJJANNA AGED ABOUT 37 YEARS NALLAPPAHALLY VILLAGE, SADALI HOBLI, SHIDLAGHATTA TALUK 562105.
. . . RESPONDENTS (BY SRI. PUTTIGE R. RAMESH, ADV. FOR R3.
NOTICE TO R2 IS D/P SERVICE OF NOTICE TO R1 IS H/S SRI. P.L. NANJUNDA SWAMY, ADV. FOR R4.) R4 – SERVED. NOTICE TO R1 IS HELD SUFFICIENT) THIS APPEAL IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 29.10.2010 PASSED IN MVC NO. 49/2006 ON THE FILE OF CIVIL JUDGE (SR.DN.) & CJM, AND MEMBER, ADDITIONAL MACT, CHICKBALLAPUR DISTRICT, CHICKBALLAPUR, AWARDING A COMPENSATION OF RS. 30,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALISATION.
IN MFA NO. 1331/2011 BETWEEN:
1. CHIKKA NARAYANAPPA S/O APPANNA, AGED ABOUT 45 YEARS.
2. SMT. MUNILAKSHMAMMA, W/O CHIKKA NARAYANAPPA, AGE 40 YEARS.
BOTH ARE RESIDING AT: NALLAPPANAHALLY VILLAGE, SADALI HOBLI, SIDLAGHATTA TALUK AND NOW, R/AT KANDWARA, CHIKKABALLAPUR TOWN.
. . . APPELLANTS (BY SRI. P.L. NANJUNDA SWAMY, ADV.) AND:
1. UNITED INDIA INSURANCE CO. LTD., DIVISIONAL OFFICE NO.2, SANKARAN ROAD, NAMAKKAL, TAMIL NADU.
2. M. BALASUBRAMANYAM, S/O MAKKAYAPPA PILLAI, 4A/156G, RAJIV GANDHI NAGAR, SALEM ROAD, NAMAKKAL, NAMAKKAL DISTRICT, TAMILNADU.
3. THE NEW INDIA ASSURANCE CO. LTD., NO. 41/2A, 2B, I FLOOR, NITYANANDA NAGAR, NAYANDAHALLI, MYSORE ROAD, BANGALORE.
4. K.R. SRINIVASA, S/O A. RANGAPPA NAYAK BECHAGANAHALLI, GUDIBANDA TALUK, KOLAR DISTRICT.
. . . RESPONDENTS (BY SRI. PUTTIGE R. RAMESH, ADV. FOR R1.
R2 – SERVED. NOTICE TO R4 IS D/W) THIS APPEAL IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 29.10.2010 PASSED IN MVC NO. 47/2006 ON THE FILE OF CIVIL JUDGE (SR.DN.) & CJM, AND MEMBER, ADDITIONAL MACT, CHICKBALLAPUR DISTRICT, CHICKBALLAPUR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA NO.1332/2011 BETWEEN:
VENKATESHA S/O BAJJAYAPPA @ BAJJANNA, AGED ABOUT 36 YEARS, R/AT NALLAPPANAHALLI VILLAGE, SADALI HOBLI, SIDLAGHATA TALUK.
. . . APPELLANT (BY SRI. P.L. NANJUNDA SWAMY, ADV.) AND:
1. UNITED INDIA INSURANCE CO. LTD., DIVISIONAL OFFICE NO.2, SANKARAN ROAD, NAMAKKAL, TAMIL NADU.
2. M. BALASUBRAMANYAM, S/O MAKKAYAPPA PILLAI, 4A/156G, RAJIV GANDHI NAGAR, SALEM ROAD, NAMAKKAL, NAMAKKAL DISTRICT, TAMILNADU.
3. THE NEW INDIA ASSURANCE CO. LTD., NO. 41/2A, 2B, I FLOOR, NITYANANDA NAGAR, NAYANDAHALLI, MYSORE ROAD, BANGALORE.
4. K.R. SRINIVASA, S/O A. RANGAPPA NAYAK BECHAGANAHALLI, GUDIBANDA TALUK, KOLAR DISTRICT.
. . . RESPONDENTS (BY SRI. PUTTIGE R. RAMESH, ADV. FOR R1.
NOTICE TO R2 AND R4 ARE D/W SRI. R. JAIPRAKASH, ADV. FOR R3.) THIS APPEAL IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 29.10.2010 PASSED IN MVC NO. 49/2006 ON THE FILE OF CIVIL JUDGE (SR.DN.) & CJM, AND MEMBER, ADDITIONAL MACT, CHICKBALLAPUR DISTRICT, CHICKBALLAPUR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA NO. 1791/2011 BETWEEN:
VENKATARAMANAPPA S/O RAMAPPA, AGED ABOUT 30 YEARS, R/AT PERESANDRA, CHICKBALLAPUR TALUK.
. . . APPELLANT (BY SRI. P.L. NANJUNDA SWAMY, ADV.) AND:
1. UNITED INDIA INSURANCE CO. LTD., DIVISIONAL OFFICE NO.2, SANKARAN ROAD, NAMAKKAL, TAMIL NADU.
2. M. BALASUBRAMANYAM, S/O MAKKAYAPPA PILLAI, 4A/156G, RAJIV GANDHI NAGAR, SALEM ROAD, NAMAKKAL, NAMAKKAL DISTRICT, TAMILNADU.
3. THE NEW INDIA ASSURANCE CO. LTD., NO. 41/2A, 2B, I FLOOR, NITYANANDA NAGAR, NAYANDAHALLI, MYSORE ROAD, BANGALORE.
4. K.R. SRINIVASA, S/O A. RANGAPPA NAYAK BECHAGANAHALLI, GUDIBANDA TALUK, KOLAR DISTRICT.
. . . RESPONDENTS (BY SRI. PUTTIGE R. RAMESH, ADV. FOR R1.
R2 – SERVED. NOTICE TO R4 IS D/W SRI. R. JAIPRAKASH, ADV. FOR R3.) THIS APPEAL IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 29.10.2010 PASSED IN MVC NO. 50/2006 ON THE FILE OF CIVIL JUDGE (SR.DN.) & CJM, AND MEMBER, ADDITIONAL MACT, CHICKBALLAPUR DISTRICT, CHICKBALLAPUR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA NO. 1792/2011 BETWEEN:
NARASIMHARAJU S/O NARASIMHAPPA, AGED ABOUT 30 YEARS, R/AT PERESANDRA, CHICKBALLAPUR TALUK.
. . . APPELLANT (BY SRI. P.L. NANJUNDA SWAMY, ADV.) AND:
1. UNITED INDIA INSURANCE CO. LTD., DIVISIONAL OFFICE NO.2, SANKARAN ROAD, NAMAKKAL, TAMIL NADU.
2. M. BALASUBRAMANYAM, S/O MAKKAYAPPA PILLAI, 4A/156G, RAJIV GANDHI NAGAR, SALEM ROAD, NAMAKKAL, NAMAKKAL DISTRICT, TAMILNADU.
3. THE NEW INDIA ASSURANCE CO. LTD., NO. 41/2A, 2B, I FLOOR, NITYANANDA NAGAR, NAYANDAHALLI, MYSORE ROAD, BANGALORE.
4. K.R. SRINIVASA, S/O A. RANGAPPA NAYAK BECHAGANAHALLI, GUDIBANDA TALUK, KOLAR DISTRICT.
. . . RESPONDENTS (BY SRI. PUTTIGE R. RAMESH, ADV. FOR R1.
R2 – SERVED. NOTICE TO R4 IS D/W SRI. R. JAIPRAKASH, ADV. FOR R3.) THIS APPEAL IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 29.10.2010 PASSED IN MVC NO. 48/2006 ON THE FILE OF CIVIL JUDGE (SR.DN.) & CJM, AND MEMBER, ADDITIONAL MACT, CHICKBALLAPUR DISTRICT, CHICKBALLAPUR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT MFA No.1813/2008 is filed by the United India Insurance Company Limited, the insurer of the lorry bearing registration No.TN-28-F-4298, challenging the judgment and award dated 30.06.2007, passed in MVC No. 2143/2006 by the MACT Bangalore SCCH No. 17 on the ground of negligence and consequential liability.
MFA Nos.4277/11, 4279/11, 4280/11 and 4281/11 are filed by the New India Assurance Company Limited, the insurer of the canter bearing registration No.KA-40-A-9333, challenging the common judgment and award dated 29.10.2010, passed in MVC Nos. 47 to 50/2006 by the Addl. MACT, Chikkaballapura, on the ground of liability.
MFA Nos.1331/2011, 1332/2011, 1791/2011 and 1792/2011 are filed by the claimants seeking enhancement of compensation awarded by Addl. MACT, Chikkaballapura in MVC Nos.47/2006 to 50/2006 2. As all these appeals have arisen out of a common road traffic accident, with the consent of learned counsel appearing for the parties, they are heard together and disposed of by this common judgment.
3. Perused the judgments and awards passed in MVC No. 2143/2006 by the MACT Bangalore, SCCH No. 17, and common judgment and awards passed in MVC Nos. 47 to 50/2006 by the Addl. MACT Chikkaballapura, including the records of the Tribunals in the above claim petitions as well as the records of the MACT Bangalore SCCH No. 2 in MVC Nos.2387/2006 and 2388/2006 disposed of on 24.07.2007.
4. As there is no dispute regarding death of four persons namely, Gangadhara, B.S.Nagaraj, B.S.Venkatswamy and Vali and injuries sustained by three persons namely, Narasimharaju, Venkatesh and Venkataramanappa in the road traffic accident occurred on 03.12.2005 at about 9.45 a.m. near Peresandra cross, Chikkaballapura, by involvement of the Canter bearing registration No.KA-40-A-9333 and the lorry bearing registration No.TN-28-F-4298, the points that arise for consideration in these appeals are:
1. Whether the Addl. MACT, Chikkaballapura was justified in saddling 50% of the liability on the insurer of the canter bearing registration No. KA-40-A-9333?
2. Whether the finding of the MACT Bangalore SCCH No. 17 in MVC No.2143/2006 holding that the accident had occurred due to sole rash and negligent driving of the driver of the lorry bearing registration No.TN-28-F-4298, is just and proper?
3. Whether quantum of compensation awarded by the Addl. MACT Chikkaballapura in MVC Nos.47, 48, 49 & 50/2006 is just and reasonable or does it call for enhancement?
5. Sri.R.Jaiprakash, learned counsel appearing for the New India Assurance Company Limited, the insurer of the canter bearing registration No. KA-40-A- 9333 (hereinafter referred to as “Insurer of Canter”) submits, even though the insurer of canter in its statement of objections filed before the Tribunal has specifically contended that deceased and injured persons having travelled in the canter as unauthorized (gratutious) passengers, their risk is not covered under the policy and therefore the insurer is not liable to indemnify the owner of the canter and pay compensation, if any, to be awarded by the Tribunal to the claimants. He submits that even though the claimants have failed to prove their contention that they had travelled in the canter vehicle along with goods, the Tribunal even without discussing the contentions urged by the Insurer of Canter in this regard has committed a serious error in fastening 50% of the liability on the insurer of the canter. Therefore, he submits that the finding of the Addl. MACT, Chikkaballapura in MVC Nos.47, 48, 49 & 50 of 2006 on liability does not sustain in law and matter needs to be remanded back to the Tribunal for reconsideration of the issue relating to liability. He fairly submits that the Insurer of Canter has not challenged the judgment and awards passed in MVC 47 to 50/2006 by the Addl. MACT, Chikkaballapura on any other grounds.
6. Sri. Puttige R Ramesh, learned counsel appearing for The United India Insurance Company Limited the insurer of the lorry bearing registration No.TN-28-F-4298, (hereinafter referred to as “Insurer of Lorry”) submits that in the very accident four persons namely, Gangadhara, B.S.Nagaraj, B.S.Venkatswamy and Vali died and three persons namely, Narasimharaju, Venkatesh and Venkataramanappa sustained bodily injuries. The legal representatives of Gangadhara, B.S.Nagaraj, B.S.Venkatswamy and Vali and the injured persons namely, Narasimharaju, Venkatesh and Venkataramanappa had filed seven seperate claim petitions in MVC Nos.47, 48, 49 & 50 of 2006 and MVC Nos.2143/2006, 2387/2006 and 2388/2006 before different Tribunals seeking compensation from the owner and insurers of both the vehicles i.e., canter and lorry. He further submits that MACT, Bengaluru (SCCH-17) by judgment and award dated 30.06.2007 allowed MVC No.2143/2006 filed by the parents of the deceased B.S.Nagaraj, student aged about 18 years, holding that the accident had occurred due to rash and negligent driving of the driver of the lorry and directed the insurer of lorry (The United India Insurance Company Limited) to pay the entire compensation of Rs.2,25,000/- with interest. He submits that MACT, Bengaluru (SCCH-2) by common judgment and award dated 24.07.2007 allowed MVC Nos.2387/2006 and 2388/2006 filed by the legal representatives of deceased Srinivas and Vali respectively holding that the accident occurred due to rash and negligent driving of the driver of the canter and directed the insurer of the canter (The New India Assurance Company Limited), to pay the compensation awarded in the said claim petitions. He further submits that Civil Judge (Sr.Dn.) & CJM and MACT, Chickaballapur by common judgment dated 29.10.2010 allowed the claim petitions filed in MVC Nos.47/2006 by legal representatives of Gangadhar and MVC Nos.48, 49 & 50 of 2006 by the inured claimants Narasimharaju, Venkatesh, and Venkataramanappa respectively and awarded compensation holding that the accident had occurred due to contributory negligence of the drivers of both the vehicles at the ratio of 50% each and directed the insurers of both the vehicles to pay the compensation amount awarded in the said claim petitions equally at the rate of 50% each. He further contends that, the insurer of canter has already satisfied the awards made in MVC Nos.2387/2006 and 2388/2006 by depositing the compensation amount awarded in the said claim petitions and therefore the insurer of the canter is estopped from questioning the awards passed by the Addl. MACT, Chikkaballapura in MVC Nos.47 to 50 of 2006 either on negligence or liability and therefore MFA Nos. 4277 and 4279 to 4281/2011 are liable to be dismissed as not maintainable. He further submits that MACT, Bangalore (SCCH-2) has held in MVC Nos.2387/2006 and 2388/2006 that the accident had occurred due to sole rash and negligent driving of the driver of the canter, and therefore MACT Bangalore (SCCH No.17) could not have held in MVC No.2143/2006 that the accident had occurred due to sole rash and negligent driving of the driver of the lorry. He submits that the Additional MACT, Chickballapura has also committed an error in holding in MVC Nos.47, 48, 49, 50 of 2006 that the accident had occurred due to contributory negligence of the drivers of both the vehicles at the rate of 50% each. Therefore, he submits that as per the finding of the Tribunal in MVC Nos.2387/2006 and 2388/2006 on the issue of negligence, the insurer of the lorry has to be exonerated from liability. If the finding of the MACT, Bangalore (SCCH-2) Tribunal in MVC Nos.2387/2006 and 2388/2006 held on the issue of negligence is accepted, then the liability of the insurer of the lorry will be zero. Alternatively, he contends that even if the finding of the Addl. MACT, Chikkaballapura in MVC Nos.47, 48, 49 and 50 of 2006 held on the issue of negligence is accepted, then the liability of the insurer of the lorry will be to the extent of 50%. Therefore, he submits that the insurer of the lorry has no objection for considering the request made by the learned counsel appearing for the Insurer of canter for remanding the matter to the Addl. MACT, Chikkaballapura for reconsideration of MVC Nos.47 to 50 of 2006.
7. Sri. P.L.Nanjundaswamy, learned counsel appearing for the claimants in MFA Nos.1331/2011, 1332/2011, 1791/2011 and 1792/2011 and Sri.K.S.Narayanaswamy, learned counsel appearing for the claimants in MFA No.1813/2008 arising out of MVC No.2143/2006 jointly submit that the accident had taken place as long back as on 03.12.2005 and matter has become 12 years old and at this length of time, if the matter is remanded to the Tribunal, on one or the other ground, the claimants will be put to untold hardship and great inconvenience. Therefore, they submit that the claimants will be satisfied with the compensation amount already awarded by the tribunal and they do not press the appeals preferred by them for enhancement of compensation and pray for directing the insurers of both the vehicles to pay or deposit the compensation amount already awarded by the Tribunal at 50% each, as per the finding of the Tribunal in MVC Nos.47, 48, 49 and 50/2006, wherein it has held that the accident had occurred due to contributory negligence of the drivers of both the vehicles.
8. It is not in dispute that in a road traffic accident occurred on 03.12.2005 by involvement of the aforesaid two vehicles, four persons namely Gangadhara, B.S.Nagaraj, B.S.Venkatswamy and Vali died and three persons namely Narasimharaju, Venkatesh and Venkataramanappa have sustained bodily injuries. The legal representatives of deceased Gangadhara and injured persons viz. Narasimharaju, Venkatesha and Venkataramanappa had filed claim petitions in MVC Nos.47, 48, 49 and 50/2006 before Addl. MACT, Chikkaballura. The legal representative of B.S.Nagaraj had filed claim petition in MVC No.2143/2006 before the MACT, Bangalore (SCCH-17). The legal representative of deceased Srinivas and Vali filed claim petitions in MVC Nos.2387/2006 and 2388/2006 before the MACT, Bengaluru (SCCH-2). MVC No.2143/2006 was disposed of on 30.6.2007 by MACT Bangalore SCCH No. 17, holding that the accident had occurred due to sole rash and negligent driving of the driver of the lorry and consequently, the insurer of lorry was directed to pay the entire compensation awarded in the said claim petition to the claimants. MVC Nos.2387/2006 and 2388/2006 were disposed of by common judgment and award dated 24.07.2007 by MACT, Bangalore SCCH No.2, holding that the accident had occurred due to sole rash and negligent driving of the driver of canter and consequently the insurer of the canter was directed to pay the entire compensation awarded in those two claim petitions to the claimants therein. Though these claim petitions were disposed of on 30.06.2007 and 24.07.2007 respectively, the finding of MACT, Bangalore (SCCH-17) and MACT Bangalore (SCCH-2) on negligence was not brought to the notice of MACT, Chickballapura while disposing of MVC Nos.47, 48, 49 and 50/2006. As a result, the MACT Chikkaballapura had passed the judgment based on the material available before it and has held that the accident had occurred due to contributory negligence of the drivers of both the vehicles and directed the insurer of both the vehicles to pay compensation awarded in the said claim petitions at 50% each.
9. Even though certified copy of the judgment and award dated 30.6.2007, passed in MVC 2143/2006 and the common judgment and awards dated 23.07.2007 passed in MVC 2387/2006 and 2388/2006 were produced before the Addl. MACT, Chikkaballapur in MVC 47/2006 to 50/2006 and marked as Ex.P-8, the Addl. MACT Chikkaballapura without referring to those judgments in its common judgment dated 29.10.2010 either as to its finding regarding negligence or liability, allowed the said claim petitions holding that accident had occurred due to contributory negligence of the drivers of both the vehicles at the rate of 50% and directed the insurer of both the vehicles to pay the compensation amount awarded in the said claim petitions equally at the rate of 50% each.
10. The insurer of the canter have satisfied the award made in MVC 2387 and 2388/2006 by depositing the compensation amount before the MACT, Bangalore (SCCH 2) and the claimants in MVC 2387/2006 and MVC 2388/2006 have received the entire compensation amount awarded in their petitions from the insurer of the canter long back, as submitted at the bar. Claimants in other claim petitions have also been paid portion of the compensation amount. The claimants in MVC 2143/2006 have not been paid any compensation amount on some technical grounds. It is settled principle of law that claimants either in case of death or injury in a road traffic accident occurred by involvement of more than one motor vehicle, are entitled to claim compensation from any one of the tortfeasor or from all the tortfeasors. Fortunately, both the vehicles have been insured and insurance policies were in force as on the date of accident.
11. The insurer of canter having accepted the finding of MACT Bangalore (SCCH-2) on negligence as well as liability, wherein it has held that accident occurred due to sole rash and negligence driving of the driver of the canter and having satisfied the award made in MVC Nos.2387/2006 and 2388/2006 is estopped from reopening its contention on the above grounds.
12. Considering the facts and circumstances of the cases, it would be just and proper to accept the finding of the Addl. MACT Chikkaballapur which latest in point of time on negligence wherein it has held that the accident had occurred due to contributory negligence on the part of the drivers of both the vehicles and directed the insurers of both the vehicles to pay compensation to the claimants at the rate of 50% each as requested by the learned counsel for the claimants.
Accordingly, the following order is passed:
ORDER a) MFA 1813/2008 filed by the United India Insurance Company is allowed in part.
i) The finding of the MACT, Bangalore (SCCH-17) passed in MVC 2143/2006 on negligence is modified insofar a s negligence is concerned and its finding in all others aspects remains undisturbed and it is held that accident had occurred due to contributory negligence of the drivers of both the vehicles as has been held in MVC 47/2006 to 50/2006 by the Addl. MACT, Chikkaballapur.
ii) The insurer of both the canter and lorry are directed to pay compensation at the rate of 50% each with proportionate interest from the date of claim petition till realization.
iii) The amount deposited in by the United India Insurance Company in MFA 1813/2008 is ordered to be transferred to the Tribunal i.e., MACT, Bangalore (SCCH-17).
iv) The Tribunal in MVC 2143/2006 after paying 50% of compensation with interest at 6% p.a. from the date of petition till the date of payment shall refund the excess amount, if any remain to the United India Insurance Company .
v) The New India Assurance Company shall deposit their share of 50% of the compensation amount with proportionate interest at 6% p.a. from the date of claim petition till payment within two months from the date of receipt of copy of this judgment.
vi) The Tribunal shall disburse the amount in favour of the claimants in terms of the award passed.
b) MFA 4277/2011, 4279/2011, 4280/2011, 4281/2011 filed by the New India Assurance Co. Ltd. stands challenging the judgment and award of the Tribunal passed in MVC 47/2006 to 50/2006 stands dismissed.
i) The amount deposited in MFA 4277/2011, 4279/2011, 4280/2011 and 4281/2011 is ordered to be transferred to the Tribunal i.e., Addl. MACT, Chikkaballapur for disbursement in favour of the claimants in terms of the award of the Tribunal.
c) MFA 1331/2011, 1332/2011, 1791/2011, 1792/2011 filed by the claimants are dismissed as not pressed.
No order as to costs.
Sd/- JUDGE VMB/DM