IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF DECEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.4834 OF 2013 (MV) C/W M.F.A.NO.4833 OF 2013 AND M.F.A.NO.4835 OF 2013 IN M.F.A.NO.4834 OF 2013 BETWEEN:
NEW INDIA ASSURANCE CO. LTD., CITY BRANCH, MAHADEVAPURA, NO.67/1, REDDY COMPLEX, WHITE FIELD MAIN ROAD, MAHADEVAPURA POST, BANGALORE – 560 048.
REPRESENTED BY NEW INDIA ASSURANCE CO. LTD., M G ROAD, BANGALORE – 560 001. BY MANAGER.
(BY SRI.R.JAIPRAKASH, ADVOCATE) AND:
1. SRI. T NAGARAJ, S/O THIPPAIAH, AGED ABOUT 50 YEARS, NO.41, 2ND MAIN, 2ND CROSS, ... APPELLANT VIDYARANYA NAGAR, TOLGATE, MAGADI ROAD BANGALORE – 560 023.
2. THE ORIENTAL INS. CO. LTD., NO.19/1, I FLOOR, III CROSS, CHIKKANNA GARDEN, SHANKARMUTT COMPOUND, SHANKARPURAM, BANGALORE – 560 004.
3. SRI. SRINIVAS, S/O NAGAPPA, MAJOR, NO.437, IMMADIHALLI VILLAGE & POST, WHITE FIELD, BANGALORE – 560 066.
4. SRI. VENKATESH, S/O BOREGOWDA, AGED ABOUT 28 YEARS, C/O VENKATESHAIAH BUILDING, IN FRONT OF CITY CLINIC, IMMADIHALLI MAIN ROAD, WHITE FIELD, BANGALORE – 560 066.
... RESPONDENTS (BY SRI K.K.VASANTH, ADVOCATE FOR R2;
SRI K.T.GURUDEVA PRASAD, ADVOCATE FOR R4; R1 AND R3 –NOTICE DISPENSED WITH VIDE ORDER DATED 08.08.2016) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 05.01.2013 PASSED IN MVC NO.2641/2011 ON THE FILE OF THE XXII ADDL. SMALL CAUSES JUDGE & MEMBER, MACT, COURT OF SMALL CAUSES, BANGALORE, AWARDING A COMPENSATION OF RS.7,37,800/- WITH INTEREST @ 6% P.A. FOR RS.7,12,800/- (EXCLUDING FUTURE MEDICAL EXPENSES OF RS.25,000/-) FROM THE DATE OF PETITION TILL DEPOSIT.
IN M.F.A.NO.4833 OF 2013 BETWEEN:
NEW INDIA ASSURANCE CO. LTD., CITY BRANCH, MAHADEVAPURA, NO.67/1, REDDY COMPLEX, WHITE FIELD MAIN ROAD, MAHADEVAPURA POST, BANGALORE – 560 048.
REPRESENTED BY NEW INDIA ASSURANCE CO. LTD., M G ROAD, BANGALORE – 560 001. BY MANAGER.
(BY SRI.R.JAIPRAKASH, ADVOCATE) AND:
1. SRI. T NAGARAJ, S/O T. THIPPAIAH, AGED ABOUT 50 YEARS, NO.41, 2ND MAIN, 2ND CROSS, VIDYARANYA NAGAR, TOLGATE, MAGADI ROAD BANGALORE – 560 023.
... APPELLANT 2. THE ORIENTAL INS. CO. LTD., NO.19/1, I FLOOR, III CROSS, CHIKKANNA GARDEN, SHANKARMUTT COMPOUND, SHANKARPURAM, BANGALORE – 560 004.
3. SRI. SRINIVAS, S/O NAGAPPA, MAJOR, NO.437, IMMADIHALLI VILLAGE & POST, WHITE FIELD, BANGALORE – 560 066.
4. SRI. ANIL KUMAR, S/O SRINIVAS, AGED 28 YEARS, IMMADIHALLI VILLAGE & POST, WHITE FIELD ROAD, BANGALORE – 560 066.
…RESPONDENTS (BY SRI K.K.VASANTH, ADVOCATE FOR R2;
SRI K.T.GURUDEVA PRASAD, ADVOCATE FOR R4; R1 AND R3 –NOTICE DISPENSED WITH VIDE ORDER DATED 08.08.2016) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 05.01.2013 PASSED IN MVC NO.2755/2011 ON THE FILE OF THE XXII ADDL. SMALL CAUSES JUDGE & MEMBER, MACT, BANGALORE, AWARDING A COMPENSATION OF RS.5,20,000/- WITH INTEREST @ 6% P.A. ON RS.4,95,000/- (EXCLUDING OF RS.25,000/-) FROM THE DATE OF PETITION TILL DEPOSIT.
IN M.F.A.NO.4835 OF 2013 BETWEEN:
NEW INDIA ASSURANCE CO. LTD., CITY BRANCH, MAHADEVAPURA, NO.67/1, REDDY COMPLEX, WHITE FIELD MAIN ROAD, MAHADEVAPURA POST, BANGALORE – 560 048.
REPRESENTED BY NEW INDIA ASSURANCE CO. LTD., M G ROAD, BANGALORE – 560 001. BY MANAGER.
(BY SRI.R.JAIPRAKASH, ADVOCATE) AND:
1. SRI. T NAGARAJ, S/O THIPPAIAH, AGED ABOUT 50 YEARS, NO.41, 2ND MAIN, 2ND CROSS, VIDYARANYA NAGAR, TOLGATE, MAGADI ROAD BANGALORE – 560 023.
2. THE ORIENTAL INS. CO. LTD., NO.19/1, I FLOOR, III CROSS, CHIKKANNA GARDEN, SHANKARMUTT COMPOUND, SHANKARPURAM, ... APPELLANT BANGALORE – 560 004.
3. SRI. SRINIVASA, S/O NAGAPPA, MAJOR, NO.437, IMMADIHALLI VILLAGE & POST, WHITE FIELD, BANGALORE – 560 066.
4. SMT. MEENAMMA, AGED ABOUT 48 YEARS, W/O LATE NARAYANAPPA, 5. SRI. RAJESH, S/O LATE NARAYANAPPA, AGED ABOUT 31 YEARS SL.NO.4 & 5 R/AT IMMADIHALLI VILLAGE & POST WHITE FIELD, BANGALORE – 66.
…RESPONDENTS (BY SRI K.K.VASANTH, ADVOCATE FOR R2;
SRI K.T.GURUDEVA PRASAD,ADVOCATE FOR R4 & R5; R1 AND R3 –NOTICE DISPENSED WITH VIDE ORDER DATED 08.08.2016) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 05.01.2013 PASSED IN MVC NO.2642/2011 ON THE FILE OF THE XXII ADDL. SMALL CAUSES JUDGE & MEMBER, MACT, BANGALORE, AWARDING A SUM OF RS.9,18,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL DATE OF DEPOSIT.
THESE MFAs COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT In all the above three appeals, the insurer is assailing the common judgment and award dated 05/01/2013 in M.V.C.Nos.2755/2011, 2641/2011 & 2642/2011 on the file of the XXII Additional Small Causes Judge & Member, MACT, Bangalore.
2. The claim petitions were filed under Section 166 of the Motor Vehicles Act, seeking compensation for the accidental injuries sustained by the claimants in MVC.Nos.2755/2011 & 2641/2011 in a road traffic accident. Claim petition in MVC.No.2642/2011 was filed claiming compensation for the death of one Narayanappa in a road traffic accident. The claimant in MVC.No.2755/2011 states that on 21-11-2010, when he was proceeding as a pillion rider in motorcycle bearing Reg.No.KA-53-K-3177, when they reached Sapthapadi Kalyana Mantapa, the driver of the Autorickshaw bearing Reg.No.KA-02-A-4976 came from opposite direction in a rash and negligent manner and dashed to the motorcycle bearing Reg.No.KA-53-K-3177 and also dashed against another motorcycle bearing Reg.No.KA-53-J-5490. Due to which, rider and pillion rider of both the motorcycles’ sustained grievous injuries. The pillion rider of the motorcycle bearing Reg.No.KA-53-J-5490 died subsequently.
3. On issuance of notice, respondent No.2-Insurer of Autorickshaw filed its written statement denying the claim petition averments and contended that the driver of the Autorickshaw had no valid and effective driving licence as on the date of accident. Further it is also contended that the Autorickshaw was not at all involved in the accident and the same has been falsely implicated. Respondent No.4-insurer of motorcycle bearing Reg.No.KA-53-K-3177 filed its written statement denying the claim petition averments. Further stated that the liability if any is subject to the terms and conditions of the policy.
4. The claimants in MVC.Nos.2755/2011 & 2641/2011 examined themselves as PW-1 and PW-2. Claimant No.2 in MVC.No.2642/2011 examined himself as PW-3 and the claimants also examined two more witnesses as PWs.4 & 5 including the Doctor. Further, the claimants got marked documents Exs.P-1 to P-30. Respondents examined RWs- 1 to 3 and got marked documents Exs.R-1 to R-9.
5. The Tribunal based on the material placed on record, awarded compensation with interest at the rate of 6% per annum from the date of petition till its realization, on the following heads:
MVC.No.2755/2011 Amount in (Rs.) 1. Pain & Suffering 50,000 2. Medical, Conveyance and nourishment Expenses 3. Loss of earnings during the period of treatment 2,90,000 30,000 4. Disability 1,00,000 5. Future medical expenses 25,000 6. Loss of amenities and enjoyment of life 25,000 Total 5,20,000 MVC.No.2641/2011 Amount in (Rs.) 1. Pain & Suffering 75,000 2. Medical, Attendant, Conveyance and nourishment Expenses 3,20,000 3. Loss of earnings during the period of treatment 48,000 4. Loss of future earnings 2,44,800 5. Future medical expenses 25,000 6. Loss of amenities and enjoyment of life 25,000 Total 7,37,800 MVC.No.2642/2011 Amount in (Rs.) 1. Medical expenses 3,25,000 2. Loss of Dependency 5,28,000 3. Loss of consortium & loss of love and affection 4. Transportation, Funeral & obsequies Expenses 45,000 20,000 Total 9,18,000 Further, the Tribunal saddled the contributory negligence of 30% on the insurer of Autorickshaw bearing Reg.No.KA- 02-A-4976 and 70% contributory negligence on the insurer of motorcycle bearing Reg.No.KA-53-K-3177. The insurer of the motorcycle bearing Reg.No.KA-53-K-3177, aggrieved by the saddling of contributory negligence on it, is before this Court in these three appeals.
6. Heard the learned counsel for the appellant-insurer and learned counsel for respondent No.2-Insurer as well as learned counsel for the claimants in all the three appeals. Perused the entire lower court records.
7. Learned counsel for the appellant-insurer would submit that the Tribunal committed an error in fastening the contributory negligence to an extent of 70% on the rider and consequently on insurer of motorcycle bearing Reg.No.KA-53-K-3177. He further submits that the driver of the Autorickshaw bearing Reg.No.KA-02-A-4976 was equally responsible for the occurrence of accident and further invites attention of this Court to sketch-Ex.P4 and evidence of PWs.1 & 2 who are the injured claimants. PWs.1 & 2 states that Autorickshaw bearing Reg.No.KA- 02-A-4976 came from opposite direction in a rash and negligent manner endangering human life from extreme right side overtaking the other vehicles in a zigzag manner and dashed to the motorcycle bearing Reg.No.KA-53-J- 5490 and then dashed to motorcycle bearing Reg.No.KA- 53-K-3177. In the cross-examination also it is stated that the driver of the Autorickshaw overtook the other vehicles and dashed to the two wheeler. Further, referring to sketch-Ex.P4, learned counsel submits that the accident had taken place in the middle of the road and Autorickshaw which came from opposite direction had hit motorcycle bearing Reg.No.KA-53-J-5490 at the first instance and thereafter to motorcycle bearing Reg.No.KA- 53-K-3177. Thus, he submits that the contributory negligence saddled by the Tribunal needs modification.
8. Per contra, learned counsel for Insurer of Autorickshaw i.e., respondent No.2 herein would submit that the Tribunal rightly saddled 70% contributory negligence on the rider of motorcycle bearing Reg.No.KA- 53-K-3177 and its insurer and 30% on the insurer of Autorickshaw. Further, referring to Ex.P4, learned counsel submits that the rider of the motorcycle who was coming from western side, immediately took to right and caused accident. There was no necessity for him to take right, when he was moving towards western side to eastern side. Thus, he prays for dismissal of the appeal.
9. Having heard the learned counsels for the parties and on perusal of the entire lower court records, the only point which arises for consideration in the facts and circumstances of the case is as to whether the Tribunal is justified in saddling 70% contributory negligence on the rider and insurer of motorcycle bearing Reg.No.KA-53-K- 3177 and 30% contributory negligence on the driver and insurer of Autorickshaw bearing Reg.No.KA-02-A-4976. Answer to the said point is in the negative for the following reasons.
10. The accident occurred on 21-11-2010 involving motorcycle bearing Reg.No.KA-53-K-3177, motorcycle bearing Reg.No.KA-53-J-5490, Autorickshaw bearing Reg.No.KA-02-A-4976 and the accidental injuries suffered by the claimants in MVC.Nos.2755/2011 & 2641/2011 and also death of one Narayanappa in MVC.No.2642/2011 are not in dispute in these appeals. The insurer of motorcycle bearing Reg.No.KA-53-K-3177 is in appeals, aggrieved by the saddling of 70% contributory negligence.
11. The only contention urged by the insurer of motorcycle bearing Reg.No.KA-53-K-3177 in these appeals is with regard to the contributory negligence, the award is not challenged on any other ground. To appreciate the contention of the appellant-insurer, it is necessary to look into Ex.P4-sketch, Ex.P10-IMV report and evidence of PWs.1 & 2. Evidence of PW-1 reveals that the claimant in MVC.No.2755/2011 was proceeding as a pillion rider in motorcycle bearing Reg.No.KA-53-K-3177, when they reached Sapthapadi Kalyana Mantapa, the driver of the Autorickshaw bearing Reg.No.KA-02-A-4976 came from opposite direction in a rash and negligent manner endangering human life from extreme right side of the road overtaking the other vehicles in a zigzag manner and dashed to motorcycle bearing Reg.No.KA-53-J-5490 and then dashed to motorcycle bearing Reg.No.KA-53-K-3177. In the cross-examination of PW-1, he states that the driver of the Autorickshaw overtook other vehicles and dashed to the motorcycles as stated above. PW-2-claimant in MVC.No.2641/2011 also deposed under the same manner as deposed by PW-1. PW-2 in his cross-examination has denied the suggestion that the accident occurred due to the negligence of the riders of the two motorcycles. Ex.P-10-IMV report would indicate that all three vehicles involved in the accident sustained damages. It is very relevant to examine Ex.P4-sketch of the accident spot. The accident had taken place in the middle of the road. The motorcycle bearing Reg.No.KA-53-K-3177 was coming from western side to eastern side, whereas, motorcycle bearing Reg.No.KA-53-J-5490 was proceeding from eastern side to western side as also Autorickshaw from eastern side to western side. The sketch-Ex.P4 clearly indicates that Autorickshaw which was coming behind motorcycle bearing Reg.No.KA-53-J-5490 overtook the same and went further, whereas the motorcycle bearing Reg.No.KA-53-K-3177, which was coming from western side to eastern side took right side of the road and accident had taken place between three vehicles in the middle of the road. There was no necessity for the Autorickshaw driver to overtake the motorcycle bearing Reg.No.KA-53-J-5490 and as also no necessity for the rider of motorcycle bearing Reg.No.KA-53-K-3177 to come to right side of the road, when he was to proceed from western side to eastern side. A careful examination of the sketch would demonstrate that the accident had taken place due to the negligence of the rider of the motorcycle bearing Reg.No.KA-53-K-3177 and the driver of Autorickshaw. They have contributed equally to the occurrence of the accident. Moreover, the charge-sheet has been filed against the driver of the Autorickshaw as well as rider of motorcycle bearing Reg.No.KA-53-K-3177.
12. Respondents have examined RW-1-police officer, RW-2-official from Hospital and RW-3-official of the insurer. But nothing is elicited from them with regard to the contributory negligence. The Tribunal based on the complaint-Ex.P2, saddled the 70% liability on the insurer of motorcycle bearing Reg.No.KA-53-K-3177. Admittedly, the complaint is filed by the driver of the Autorickshaw, who was equally responsible for occurrence of the accident. Based on the said Ex.P2-complaint, the finding arrived at by the Tribunal is wholly erroneous. From the evidence of PWs.1 & 2 and Ex.P4-sketch, I am of the view that the rider of the motorcycle bearing Reg.No.KA-53-K- 3177 and driver of Autorickshaw bearing Reg.No.KA-02-A- 4976 are equally responsible for the occurrence of the accident. Thus, 50% of the contributory negligence is fastened on the rider and consequently on insurer of motorcycle bearing Reg.No.KA-53-K-3177 and 50% of contributory negligence is fixed on the driver and consequently on insurer of Autorickshaw bearing Reg.No.KA-02-A-4976. Thus, appeals are allowed in part. The contributory negligence is fixed equally on the appellant-insurer as well as on respondent No.2.
The statutory amount in deposit in all the three appeals be transmitted to the concerned Tribunal. Both the insurers are liable to deposit the amount equally.
Sd/- JUDGE SMJ