IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 07TH DAY OF MARCH, 2019 BEFORE THE HON' BLE MR.JUSTICE R. DEVDAS M.F.A.NO.5108/2010 (MV) C/W M.F.A.NOs.5109/2010, 5110/2010, 5111/2010, 5112/2010 (MV) IN M.F.A.NO.5108/2010 BETWEEN THE NATIONAL INSURANCE COMPANY LIMITED C/O. RNS MOTORS TUMKUR MAIN ROAD YESHWANTHPUR BANGALORE-560 022 NOW REPRESENTED BY KHAJ PASHA ADMINISTRATIVE OFFICER NATIONAL INSURANCE COMPANY LIMITED REGIONAL OFFICE M. G. ROAD, BANGALORE.
(BY SRI. L. SREEKANTA RAO, ADVOCATE) AND 1. NARASIMHA MURTHY @ MURTHY S/O. T. CHANAPPA AGED ABOUT 35 YEARS R/AT NO.5, 3RD CROSS MUNESHWARA TEMPLE ROAD NAGASHETTIHALLI, RMV II STAGE BANGALORE-94.
... APPELLANT 2. THE MANAGING DIRECTOR KARNATAKA STATE ROAD TRANSPORT CORPORATION HEAD OFFICE KENGAL HANUMANTHAIAH ROAD BANGALORE-560 027.
3. A. M. MARIYAPPA S/O. MUNIBYRAPPA AGED ABOUT 45 YEARS NO.3, JAKKUR VILLAGE JAKKUR POST BANGALORE NORTH TALUK BANGALORE-64.
.. RESPONDENTS (BY SRI KEMPANNA, ADVOCATE FOR R1;
SRI D VIJAYA KUMAR, ADVOCATE FOR R2; SRI VINOD KUMAR P M, ADVOCATE FOR SRI K G LAKSHMIPATHI, ADVOCATE FOR R3) THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:11.1.2010 PASSED IN MVC NO.5657/2007 ON THE FILE OF XIX ADDITIONAL SCJ & MACT, BANGALORE, AWARDING A COMPENSATION OF RS.14,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALISATION.
IN M.F.A.NO.5109/2010 BETWEEN THE NATIONAL INSURANCE COMPANY LIMITED C/O RNS MOTORS, TUMKUR MAIN ROAD YESHWATHPUR, BANGALORE 560022 NOW REPRESENTED BY KHAJ PASHA ADMINISTRATIVE OFFICER NATIONAL INSURANCE COMPANY LIMITED REGIONAL OFFICE M.G. ROAD, BANGALORE.
(BY SRI L. SREEKANTA RAO, ADVOCATE) ... APPELLANT AND 1. SATISH S/O LATE MUNITHAPPA AGED 38 YEARS R/AT NO.5, 3RD CROSS MUNESHWARA TEMPLE ROAD NAGASHETTIHALLI R.M.V. II STAGE BANGALORE 94.
2. THE MANAGING DIRECTOR KARNATAKA STATE ROAD TRANSPORT CORPORATION HEAD OFFICE KENGAL HANUMANTHAIAH ROAD BANGALORE 27.
3. A. M. MARIYAPPA, S/O MUNIBYRAPPA AGED ABOUT 45 YEARS NO.3, JAKKUR VILLAGE JAKKUR POST, BANGALORE NORTH TALUK, BANGALORE.
... RESPONDENTS (BY SRI KEMPANNA, ADVOCATE FOR R1;
SRI D VIJAYA KUMAR, ADVOCATE FOR R2; SRI VINOD KUMAR P M, ADVOCATE FOR SRI K G LAKSHMIPATHI, ADVOCATE FOR R3) THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:11.01.2010 PASSED IN MVC NO.5658/2007 ON THE FILE OF XIX ADDITIONAL SCJ & MACT, BANGALORE, AWARDING A COMPENSATION OF RS.28,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALISATION.
IN M.F.A.NO.5110/2010 BETWEEN THE NATIONAL INSURANCE COMPANY LIMITED C/O RNS MOTORS TUMKUR MAINROAD YESHWANTHPUR BANGALORE-560022 NOW REPRESENTED BY KHAJ PASHA ADMINISTRATIVE OFFICER REGIONAL OFFICE M. G. ROAD, BANGALORE.
(BY SRI L. SREEKANTA RAO, ADVOCATE) ... APPELLANT AND 1. SMT. NARAYANAMMA W/O LATE MUNITHAYAPPA AGED ABOUT 55 YEARS R/AT NO.5, 3RD CROSS MUNESHWARA TEMPLE ROAD NAGASHETTIHALLI, R M V II STAGE BANGALORE-50094.
2. THE MANAGING DIRECTOR KARNATAKA STATE ROAD TRANSPORT CORPORATION HEAD OFFICE KENGAL HANUMANTHAIAH ROAD BANGALORE-560027.
3. A. M. MARIYAPPA S/O MUNIBYRAPPA AGED ABOUT 42 YEARS NO.3, JAKKUR VILLAGE JAKKUR POST, BANGALORE NORTH TALUK BANGALORE-64.
... RESPONDENTS (BY SRI KEMPANNA, ADVOCATE FOR R1;
SRI D VIJAYA KUMAR, ADVOCATE FOR R2; SRI VINOD KUMAR P M, ADVOCATE FOR SRI K G LAKSHMIPATHI, ADVOCATE FOR R3) THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:11.01.2010 PASSED IN MVC NO.5659/2007 ON THE FILE OF XIX ADDITIONAL SCJ & MACT, BANGALORE, AWARDING A COMPENSATION OF RS.98,300/- WITH INTEREST @ 6% P.A. FROM THE DATE OF SUIT TILL REALISATION.
IN M.F.A.NO.5111/2010 BETWEEN THE NATIONAL INSURANCE COMPANY LIMITED C/O. RNS MOTORS TUMKUR MAIN ROAD YESHWANTHPUR BANGALORE-560 022 NOW REPRESENTED BY KHAJ PASHA ADMINISTRATIVE OFFICER NATIONAL INSURANCE COMPANY LTD REGIONAL OFFICE M. G. ROAD, BANGALORE.
(BY SRI L. SREEKANTA RAO, ADVOCATE) AND 1. BYRAMMA W/O. T. CHANAPPA AGED ABOUT 63 YEARS R/AT NO.5, 3RD CROSS MUNESHWARA TEMPLE ROAD NAGASHETTIHALLI, RMV II STAGE BANGALORE-94.
2. THE MANAGING DIRECTOR KARNATAKA STATE ROAD TRANSPORT CORPORATION HEAD OFFICE KENGAL HANUMANTHAIAH ROAD BANGALORE-560 027.
3. A. M. MARIYAPPA S/O. MUNIBYRAPPA ... APPELLANT AGED ABOUT 45 YEARS NO.3, JAKKUR VILLAGE JAKKUR POST BANGALORE NORTH TALUK BANGALORE-64.
... RESPONDENTS (BY SRI D VIJAYA KUMAR, ADVOCATE FOR R2; SRI VINOD KUMAR P M, ADVOCATE FOR SRI K G LAKSHMIPATHI, ADVOCATE FOR R3 R1 SERVED AND UNREPRESENTED) THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:11.01.2010 PASSED IN MVC NO.5660/2007 ON THE FILE OF XIX ADDITIONAL SCJ & MACT, BANGALORE, AWARDING A COMPENSATION OF RS.64,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALISATION.
IN M.F.A.NO.5112/2010 BETWEEN THE NATIONLA INSURANCE COMPANY LIMITED C/O RNS MOTORS TUMKUR MAIN ROAD YESHWANTHPUR, BANGALORE-560022 NOW REPRESENTED BY KHAJ PASHA ADMINISTRATIVE OFFICER NATIONAL INSURANCE COMPANY LIMITED REGIONAL OFFICE M. G. ROAD, BANGALORE.
(BY SRI L. SREEKANTA RAO, ADVOCATE) AND 1. MAS. BHARATH S/O MARIYAPPA AGED ABOUT 17 YEARS ... APPELLANT R/AT AGRAGARA VILLAGE JAKKUR POST YELAHANKA HOBLI BANGALORE-560064.
SINCE MINOR REPRESENTED BY HIS NATURAL GUARDIAN AND BY HIS MOTHER JAMUNA.
2. THE MANAGING DIRECTOR KARNATAKA STATE ROAD TRANSPORT CORPORATION HEAD OFFICE KENGAL HANUMANTHAIAH ROAD BANGALORE-560027.
3. A M MARIYAPPA S/O MUNIBYRAPPA AGED ABOUT 42 YEARS NO.3, JAKKUR VILLAGE JAKKUR POST, BANGALORE NORTH TALUK BANGALORE-64.
... RESPONDENTS (BY SRI D VIJAYA KUMAR, ADVOCATE FOR R2; SRI VINOD KUMAR P M, ADVOCATE FOR SRI K G LAKSHMIPATHI, ADVOCATE FOR R3 R1 SERVED AND UNREPRESENTED) THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:11.01.2010 PASSED IN MVC NO.5661/2007 ON THE FILE OF THE XIX ADDITIONAL SMALL CAUSE JUDGE, MACT, BANGALORE, AWARDING A COMPENSATION OF Rs.35,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
THESE MFAs COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
COMMON JUDGMENT R. DEVDAS J., (ORAL):
The occupants of a Maruthi Van bearing Registration No.KA-50-M-498 having met with an accident and five of the occupants having sustained injuries, filed separate claim petitions claiming compensation from the owners of the vehicles i.e., Maruthi Van and a KSRTC bus bearing Registration number KA-06-F-0426 and the insurer of Maruthi Van. Since a common judgment and award dated 11.01.2010, was passed by the Motor Accident Claims Tribunal, Bangalore (SCCH-17) (in short “the Tribunal” for brevity) holding that the insurer and owner of the Maruthi Van are liable to pay the compensation, the insurer of the Maruthi Van is before this Court calling in question the common judgment and award dated 11.01.2010.
2. Since separate five claim petitions were filed by the claimants/respondents, the appellant-Insurance Company has filed these five appeals, the appeals are heard and disposed of by this common judgment.
3. The facts of the case in nutshell are as follows:
On 01.07.2007, the claimants/private respondents were proceedings in a Maruthi Van bearing Registration Number KA-50-M-498, from Bangalore to Dharmasthala and on Dharmasthala-Kukkade and Bangalore road, the vehicle collided against a KSRTC bus bearing Registration Number KA-06-F-0426, which was coming from the opposite direction. The occupants of the Maruthi Van, having sustained grievous injuries and having incurred huge medical expenses, approached the Tribunal, seeking compensation against the owners and insurers of both the vehicles.
4. The insurer of the Maruthi Van i.e., appellant herein filed statement of objections admitting that the vehicle was insured by insurer, but denied the allegations made against the driver of the Maruthi Van and took up other standard contentions. It is necessary to notice that an amended statement of objections were filed by the appellant herein whereby it was contended that the Maruthi Van was a private vehicle and policy covered the vehicle for private usage only. It was specifically contended that the Maruthi Van was used for hire and reward by the occupants and therefore there is violation of the terms and conditions of the policy. It was also contended by the insurer that the vehicle was overloaded in as much as the permitted seating capacity was 1+5, while there was an extra passenger in the vehicle. Learned counsel for the respondents would however point out that the extra passenger was a minor child.
5. Seven witnesses were examined on behalf of the claimants/petitioners, which also including the treating Doctor and about 42 documents were exhibited and marked on behalf of the petitioners. The insurer- KSRTC and the owner of the vehicle examined three witnesses on behalf of the respondents and 8 documents were exhibited and marked on behalf of the respondents.
6. On considering the oral and documentary evidence, the Tribunal has framed the following issues:
1. Whether the petitioner proves that on 01.07.2007 at about 6.30 a.m. when the petitioner was traveling in a Maruthi Van bearing No.KA-50-M-498 on Dharmasthala-Kukkade, near Karipikali bridge, Nidle village and at the time, the driver of the said Maruthi Van and the driver of the KSRTC bus bearing regn. No.KA-06-F-426 drove in high speed in a rash and negligent manner and as a result of which, there was head on collusion and the petitioner sustained injuries?
2. Whether the petitioner is entitled for compensation? If so, at what rate and from whom?
3. What order or decree?
7. The Tribunal proceeded to examine the witnesses and the evidence on record. The Tribunal has returned a finding that the driver of the Maruthi Van was alone responsible for the accident. Thereafter, on the basis of the evidence produced by individual claimants, the Tribunal proceeded to pass award granting compensation to each of the claimants. Being aggrieved by the judgment and award passed by the Tribunal, the insurer of the Maruthi Van is before this Court.
8. Learned counsel for the appellant submits that inspite of the insurer taking up a contention that the vehicle which was a private vehicle was used as commercial vehicle for hire and reward, and contentions having specifically been raised that there was violation of the terms and conditions of the policy, the Tribunal has neither framed an issue in this regard nor addressed the contention raised by the Insurance Company. Learned counsel submits that Section 149 (2) (a) (i) (a) provides that no sum shall be payable by an insurer under sub-section (1) in respect of any judgment or award, if there is breach of a specified condition of the policy, and one of the condition is usage of vehicle for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward.
9. The learned counsel for the appellant further draws the attention of this Court to the admission made by the claimants as regards the usage of the vehicle for hire. It is pointed out that PW-4 Smt.Byramma has specifically admitted in the cross-examination that she did not know as to who was the owner of the vehicle; the occupants had taken the vehicle on hire and all the occupants contributed towards expenses for hiring of the vehicle. It was also pointed out that two other witnesses i.e., PW-2 and 3 had admitted that they did not know to whom the vehicle belongs. In the light of the above, it was contended by the learned counsel for the appellant that the judgment and award passed by the Tribunal is in contravention to provisions of Section 149 (2) of the Motor Vehicles Act, 1988.
10. Per contra, the learned counsel for the respondents would submit that a stray sentence in the cross-examination cannot take away the case of the claimants. It was vehemently contended that the occupants of the vehicle were related to each other and the son of the owner of the vehicle was also an occupant and a claimant before the Tribunal. It was specifically pointed out from the evidence of PW-1 that the person driving the vehicle was his own brother. It was also contended that the owner of the vehicle having entered the witness box has also spoken about the said fact. Moreover, it was contended that no such issue was raised by the Tribunal and therefore appellant cannot be allowed to contend for the first time before this Court that the Tribunal has not looked into these aspects.
11. Heard the learned counsels on both the sides and perused the pleadings and Lower Court Records. What is glaring in this case is that the appellant- Insurance Company, though filed an additional statement of objections or amended statement of objections to make out the grounds for rejections of the claim petitions under Section 149(2) of the M.V.Act, the appellant-Insurance Company did not insist that an issue in that regard be framed by the Tribunal. Since no issue in that regard was framed by the Tribunal, the Tribunal never bestowed its attention on the specific grounds raised by the appellant-Insurance Company. In the peculiar facts and circumstances of the case, this Court is of the opinion that another opportunity requires to be given to the claimants to prove their relations with the owner of the vehicle. The reason for such an opinion is that it is an admitted fact that the son of the owner of the vehicle was also an occupant and also a claimant before the Tribunal. At this juncture learned counsel for the respondents would point out that the owner of the vehicle has also spoken to the fact that Smt. Byramma, one of the claimant, is his sister and Sri. Narasimhamurthy, another claimant, is his brother-in-law.
12. Though this Court cannot loose sight of the admission made by the witnesses during the cross- examination, this Court also cannot ignore the fact that the Tribunal did not frame an important issue and the parties before this Court also did not lead evidence, for or against, on an important aspect. Therefore, in the peculiar facts and circumstances of the case, this Court deems it fit to remand the matter back to the Tribunal. The Tribunal is directed to frame an issue in that regard and thereafter, permit the parties to lead their evidence in connection with the said issue. Thereafter, the Tribunal may proceed to decide the matter on merits, afresh.
13. Accordingly, the appeals are allowed in part.
The impugned common judgment and award dated 11.01.2010, passed by the Tribunal, is hereby quashed and set-aside.
The parties are hereby directed to appear before the Motor Accident Claims Tribunal, Bangalore (SCCH- 17), on 25.03.2019, at 11.00 a.m, without further notice.
The Registry is directed to transmit the LCR to the Tribunal, forthwith.
The amount deposited by the appellant-Insurance Company is also directed to be refunded to the appellant-Insurance Company.
In view of the disposal of these appeals, the Misc.Civil applications filed in the appeals, do not survive for consideration and are disposed of.
SD/- JUDGE DL