IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.5167 OF 2013 (MV) C/W M.F.A.NO.5166 OF 2013 & M.F.A.NO.5165 OF 2013 IN MFA NO.5167/2013 BETWEEN:
THE ORIENTAL INSURANCE CO. LTD. BRANCH OFFICE, HASSAN REP: BY ITS REGIONAL MANAGER, THE ORIENTAL INSURANCE CO. LTD, REGIONAL OFFICE, SUMANGALA COMPLEX, 2ND FLOOR, LAMINGTON ROAD, HUBLI – 580 020.
... APPELLANT (BY SRI.C.SHANKARA REDDY, ADVOCATE) AND:
1. T. VASU, S/ TANIYA NAPALI, AGED ABOUT 43 YEARS, R/AT NIDUVALLI VILLAGE, MUDIGERE TALUK, CHIKMAGALURU DISTRICT – 577 132.
2. H.B.NARASIMHA MURTHY, S/O BETTEGOWDA, R/AT TANNIRHALLA, BELUR ROAD, HASSAN – 573 201.
3. M.P. ABBAS, S/O ABDUL RAHAMAN, R/AT PADUBIDRE POST, UDUPI DISTRICT – 574 111.
4. UNITED INDIA INSURANCE CO. LTD. BRANCH OFFICE, UDUPI – 576 101.
5. JOSEPH D’ SOUZA, C/O H.B.NARASIMHAMURTHY S/ BETTE GOWDA, R/AT TANNIRHALLA, BELUR ROAD, HASSAN – 573 201.
6. M.P.ABDUL HAMEED, S/O ABDUL REHAMAN, R/AT MAGUNDI, BALEHONNUR HOBLI, CHIKMAGALUR DISTRICT – 577 112.
... RESPONDENTS (BY SRI.H.C.SHIVARAMU, ADVOCATE FOR R3;
SRI.A.M.VENKATESH, ADVOCATE FOR R4; R1, R2 AND R6 ARE SERVED;
R5 – SERVICE H/S V/O DATED 27.07.2018) THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED 15.12.2012 PASSED IN MVC NO.508/1995 ON THE FILE OF ADDITIONAL DISTRICT JUDGE, MACT, CHIKMAGALUR, AWARDING A COMPENSATION OF `5,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL 13.03.2001.
IN MFA NO.5166/2013 BETWEEN:
THE ORIENTAL INSURANCE CO. LTD. BRANCH OFFICE, HASSAN REP: BY ITS REGIONAL MANAGER, THE ORIENTAL INSURANCE CO. LTD, REGIONAL OFFICE, SUMANGALA COMPLEX, 2ND FLOOR, LAMINGTON ROAD, HUBLI – 580 020.
(BY SRI.C.SHANKARA REDDY, ADVOCATE) AND:
1. ABDUL REHAMAN, S/O MOHAMMED, SINCE DEAD BY HIS LR, SMT.NAFEESA, W/O LATE ABDUL REHAMAN AGED ABOUT 78 YEARS, R/AT MAGUNDI VILLAGE AND POST, N.R.PURA TALUK, CHIKMAGALUR DISTRICT – 577 112.
2. H.B.NARASIMHA MURTHY, S/O BETTEGOWDA, R/AT TANNIRHALLA, BELUR ROAD, HASSAN – 573 201.
3. M.P. ABBAS, S/O ABDUL RAHAMAN, R/AT PADUBIDRE POST, ... APPELLANT UDUPI DISTRICT – 574 111.
4. UNITED INDIA INSURANCE CO. LTD. BRANCH OFFICE, UDUPI – 576 101.
5. JOSEPH D’ SOUZA, R/AT TANNIRHALLA, BELUR ROAD, HASSAN – 573 201.
6. M.P.ABDUL HAMEED, S/O ABDUL REHAMAN, R/AT MAGUNDI, BALEHONNUR HOBLI, CHIKMAGALUR DISTRICT – 577 112.
... RESPONDENTS (BY SRI.H.C.SHIVARAMU, ADVOCATE FOR R1 AND R3;
SRI.A.M.VENKATESH, ADVOCATE FOR R4;
R2 AND R5 – SERVICE H/S V/O DATED 20.02.2017; R6 IS SERVED) THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED 15.12.2012 PASSED IN MVC NO.457/1995 ON THE FILE OF ADDITIONAL DISTRICT JUDGE, MACT, CHIKMAGALUR, AWARDING A COMPENSATION OF `1,32,600/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL 13.03.2001 AND FROM THE DATE OF ORDER OF HON’BLE COURT OF KARNATAKA (EXCLUDING FROM 13.03.2001 TO 05.09.2011) TILL REALIZATION.
IN MFA NO.5165/2013 BETWEEN:
THE ORIENTAL INSURANCE CO. LTD. BRANCH OFFICE, HASSAN REP: BY ITS REGIONAL MANAGER, THE ORIENTAL INSURANCE CO. LTD, REGIONAL OFFICE, SUMANGALA COMPLEX, 2ND FLOOR, LAMINGTON ROAD, HUBLI – 580 020.
(BY SRI.C.SHANKARA REDDY, ADVOCATE) AND:
1. SRI. P. HASSAN, S/O ISMAIL, AGED ABOUT 59 YEARS.
2. SMT. ZUBEDA, S/O P. HASSAN, AGED ABOUT 54 YEARS.
BOTH ARE R/AT MUTT ROAD, BALEHONNUR, CHIKMAGALUR DISTRICT – 577 112.
3. H.B.NARASIMHA MURTHY, S/O BETTEGOWDA, R/AT TANNIRHALLA, BELUR ROAD, HASSAN – 573 201.
4. M.P. ABBAS, S/O ABDUL RAHAMAN, R/AT PADUBIDRE POST, UDUPI DISTRICT – 574 111.
5. UNITED INDIA INSURANCE CO. LTD. BRANCH OFFICE, UDUPI – 576 101.
... APPELLANT 6. JOSEPH D’ SOUZA, R/AT TANNIRHALLA, BELUR ROAD, HASSAN – 573 201.
7. M.P.ABDUL HAMEED, S/O ABDUL REHAMAN H.P R/AT MAGUNDI, BALEHONNUR HOBLI, CHIKMAGALUR DISTRICT – 577 112.
... RESPONDENTS (BY SRI.N.R.RAVIKUMAR, ADVOCATE FOR R1 AND R2; SRI.H.C.SHIVARAMU, ADVOCATE FOR R4; SRI.A.M.VENKATESH, ADVOCATE FOR R5;
R3 AND R6 SERVICE H/S V/O DATED 20.02.2017) THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED 15.12.2012 PASSED IN MVC NO.428/1995 ON THE FILE OF ADDITIONAL DISTRICT JUDGE, MACT, CHIKMAGALUR, AWARDING A COMPENSATION OF `1,32,600/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL 13.03.2001 AND FROM THE DATE OF ORDER OF HON’BLE COURT OF KARNATAKA (EXCLUDING FROM 13.03.2001 TO 05.09.2011) TILL REALIZATION.
THESE MFAs COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT All the three appeals are taken together and are heard for final disposal as the same are filed challenging the common judgment and award dated 15.12.2012 in MVC Nos.428/1995, 457/1995 and 508/1995 passed by the Additional District Judge and MACT Judge, Chikmagalur.
2. Respondent No.2- The Oriental Insurance Company is in appeal challenging the saddling of the entire liability on it, since the driver of the lorry bearing No.KA-20/2155 has also contributed towards the occurrence of the accident. The claim petitions were filed under Section 166 of the Motor Vehicles Act, 1988 claiming compensation for the deceased in MVC No.428/1995 and MVC No.457/1995, whereas the claim petition in MVC No.508/1995 was filed seeking compensation towards injuries.
3. It is stated that on 11.07.1995, when the deceased Shariff was proceeding in a lorry bearing No.KA-20/2155, a lorry bearing No. MYY 6969 driven by respondent No.6-Joesph in a rash and negligent manner dashed to the lorry bearing No.KA-20/2155.
As a result, Shariff in MVC No.428/1995 and Abdul Aziz in MVC No.457/1995 died, whereas in the said accident, the claimant in MVC No.508/1995, T.Vasu sustained injuries.
4. Claim petitions were filed impleading Insurers of both the lorry. The Tribunal based on the material available on record awarded a total compensation of `1,32,600/-in MVC No.428/1995, `1,32,600/- in MVC No.457/1995 and `5,000/- to claimant in MVC No.508/1995 and further, saddled the liability on the respondent No.2-Insurer of the vehicle bearing No. MYY 6969.
5. Respondent No.2-Insurer of the vehicle bearing No.MYY 6969, being aggrieved by the saddling of the entire liability contended that the lorry bearing No.KA-20/2155 has also contributed its negligence to the occurrence of the accident.
6. Heard learned counsel for the appellant and learned counsel for the respondents. Perused the materials on record.
7. On hearing learned counsel for the parties and on perusal of the materials on record including the Lower Court Records, the only point which falls for consideration is whether the Tribunal is justified in saddling the entire liability on the Insurer of the lorry bearing No.MYY 6969. Answer to the above point is in affirmative for the following reasons.
8. The accident occurred on 11.07.1995 involving lorries bearing No.KA-20/2155 and No.MYY 6969 and accidental death of Shariff and Abdul Aziz in MVC No.428/1995, MVC No.457/1995 and injuries suffered by the claimant in MVC No.508/1995, are not in dispute in these appeals. The Insurer has also not disputed the quantum of compensation awarded by the Tribunal. The Insurer is in appeal being aggrieved by the saddling of entire liability on respondent No.2- Oriental Insurance Company.
9. Learned counsel for the appellant would submit that the Tribunal has committed an error in saddling the entire liability on it. It is his submission that the driver of the lorry bearing No.KA-20/2155, insured with respondent No.4-Insurer has also contributed negligence to the occurrence of the accident. The Tribunal without examining the contributory negligence on the part of the lorry bearing No.KA-20/2155, the entire liability is fastened on respondent No.2-Oriental Insurance Company. It is head on collusion and accident had taken place in the middle of the road. Therefore, the driver of the lorry bearing No.KA-20/2155 is also responsible for the accident and the Tribunal ought to have saddled the contributory negligence on the said vehicle.
10. PW-3, claimant in MVC No.508/1995 is the eye witness to the accident. In his evidence, he has deposed that he was traveling in lorry bearing No.MYY 6969 and the said lorry was driven in a high speed and dashed against the lorry, which was coming from the opposite side. Due to which, he sustained injury. He has also further deposed that the accident was caused due the negligence of the lorry in which he was traveling i.e., lorry bearing No.MYY 6969. PW-3 is cross-examined by the counsel for the appellant herein. But, nothing in favour of them is elicited in the cross-examination.
11. PW-3, T. Vasu, the injured has lodged the complaint. First Information Report was registered against the driver of the lorry bearing No.MYY 6969 i.e., respondent No.5 herein. Thereafter, charge sheet was also filed against the driver of the lorry bearing No.MYY 6969.
12. From perusal of the material available on record, particularly, Ex.P2- FIR and evidence of PW-3, the eye witness to the accident, it is clear that the accident had occurred solely due to the negligence of the driver of the lorry bearing No.MYY 6969. Accordingly, the Tribunal saddled the liability on the appellant herein, who is the Insurer of the lorry bearing No.MYY 6969. RW-3, is the owner of the lorry bearing No.KA-20/2155. In his evidence also, he has stated that the accident had taken place due to the negligent driving of the driver of the lorry bearing No.MYY 6969.
13. Oriental Insurance Company, the appellant herein, has failed to prove the negligence of the driver of the lorry bearing No.KA-20/2155 by placing cogent evidence on record. Thus, the saddling of the liability on the Insurance company, the appellant herein, is proper and correct. The judgment and award of the Tribunal is neither perverse nor erroneous so as to warrant interference. The appellant has not made out any ground to interfere with the impugned judgment and award.
Accordingly, the appeals stand dismissed.
The amount in deposit in all the appeals shall be transmitted to the concerned Tribunal.
Mds/-
Sd/- JUDGE