The High Court · 2016
Case Details
- 1 - NC: 2025:KHC:20754 MFA No. 3668 of 2016 HC-KAR IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE UMESH M ADIGA MISCELLANEOUS FIRST APPEAL NO. 3668 OF 2016 (MV-D) BETWEEN: THE MANAGER SHRIRAM GENERAL INS.CO.LTD., S-5, MONARCH CHAMBERS, 3RD FLOOR, INFANTRY ROAD, SHIVAJINAGAR, BANGALORE-01. NOW REP BY LEGAL MANAGER, SHRIRAM GENERAL INS.CO.LTD., NO.5/4, 3RD FLOOR, S.V ARCADE, BELEKALHALLI MAIN ROAD, OPP BANNERGHATTA ROAD, LIMB POST, BANGALORE-76. (BY SRI. PRADEEP B.,ADVOCATE) AND: 1. SMT. SHANKARAMMA, W/O LATE RAJANNA, AGED ABOUT 30 YEARS, 2. KUM. GOUTHAMI D/O LATE RAJANNA, AGED ABOUT 13 YEARS 3. KAVERI D/O LATE RAJANNA NOW AGED ABOUT 10 YEARS SINCE THE RESPONDENT NO.2 AND 3 Digitally signed by KORLAHALLI BHARATHIDEVIKRISHNACHARYA Location: HIGH COURT OF KARNATAKA …APPELLANT - 2 - NC: 2025:KHC:20754 MFA No. 3668 of 2016 HC-KAR ARE MINORS,REP BY THEIR NATURAL GUARDIAN IST RESPONDENT.
Legal Reasoning
ALL ARE R/O GOWNIPALLI VILLAGE, SRINIVASPUR TALUK, NOW R/A NO.128/2, R.V. ROAD, V.V PURAM, BANGALORE-85. 4. SHIVASHANKAR S/O VEMANARAYANA MAJOR, R/A NO.4-29-1-1C, INDIRA NAGAR, MADANAPALLI, ANDRA PRADESH-501 101. 5. N. BHARATH RAJ, S/O NARAYANAPPA MAJOR, YELDUR VILLAGE AND POST, SRINIVASPURA TALUK, KOLAR DIST-563 138. …RESPONDENTS (VIDE ORDER DATED 08/04/2025, SERVICE OF NOTICE TO R1 TO R3 ARE HELD-SUFFICIENT, R2 AND R3 ARE MINORS, REPRESENTED BY R1, NOTICE TO R-4 AND R-5 IS SERVED - UNREPRESENTED) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:16.02.2016 PASSED IN MVC NO.322/14, ON THE FILE OF THE II ADDITIONAL DISTRICT & SESSIONS JUDGE, KOLAR, AWARDING COMPENSATION OF RS.12,82,000/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL REALISATION. - 3 - NC: 2025:KHC:20754 MFA No. 3668 of 2016 HC-KAR THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE UMESH M ADIGA ORAL JUDGMENT This appeal is filed by the Insurance Company challenging the judgment and award dated 16th February 2016, passed by the II Addl.District and Sessions Judge and Member, M.A.C.T., Kolar, (for short `Tribunal), in MVC.No.322/2014. 2. The parties are referred to as per their rankings before the Tribunal. 3. Brief facts of the case are that, on 25.04.2012, around 4.30 p.m., deceased Rajanna was traveling in an autorickshaw bearing registration No.AP-03-TA-6837, to go to Addagal. The driver of the autorickshaw was driving the said vehicle in a rash and negligent manner and when it reached tank bund, a Tempo Trax bearing registration No.AP-22-G-3924, driven by its driver in a rash and - 4 - NC: 2025:KHC:20754 MFA No. 3668 of 2016 HC-KAR negligent manner came from the opposite direction and both the vehicles collided. As a result of the impact, said Rajanna sustained grievous injuries and succumbed to the injuries at the spot of the accident. 4. It is stated that the deceased was aged about 35 years at the time of the accident and was earning Rs.15,000/- per month by working as a mason. The claimants are his wife and minor children. With these reasons, they have prayed for awarding compensation of Rs.15 lakhs. 5. Respondent No.1 is the owner and respondent No.2 is the insurer of the autorickshaw bearing registration No.AP-03-TA-6837 and respondent No.3 is the owner of Tempo Trax bearing registration No.AP-22-G-3924. 6. The respondent Nos.1 and 3 have remained ex parte before the Tribunal. The respondent No.2-insurer in its written statement denied the contentions of the claimants. It further contended that the accident occurred - 5 - NC: 2025:KHC:20754 MFA No. 3668 of 2016 HC-KAR due to negligence of driver of the Tempo Trax; The driver of the autorickshaw was not at all responsible for causing the accident in question and its liability is restricted to terms and conditions of the policy of insurance. With these reasons, prayed to dismiss claim petition. 7. From the rival contentions of the parties, the Tribunal framed following issues : 1. Whether the petitioners prove that the deceased Sri Rajanna died due to rash and negligent driving of the Auto No.AP.03.TA.6837 and Trax No.AP.22.G.3924 by its drivers on 25.4.2012 at about 4.30 p.m., near Gownipalli, Srinivaspur taluk, Kolar district? 2. Whether the petitioners are entitled for compensation, if so how much and from whom? 3. What order? 8. The claimants to prove their case examined two witnesses as PW-1 and PW-2 and marked 6 documents as per Exs.P-1 to P-6. Respondents have examined one witness as RW-1 and marked one document as Ex.R-1. - 6 - NC: 2025:KHC:20754 MFA No. 3668 of 2016 HC-KAR 9. The Tribunal after hearing both parties, answered issue No.1 in the affirmative, issue No.2 partly in the affirmative and directed that the respondents are jointly and severally liable to pay the compensation of Rs.12,82,000/- with interest at the rate of 6% p.a. Being aggrieved by the same, the insurer of the autorickshaw bearing registration No.AP-03-TA-6837 has preferred the present appeal. 10. Though notice was duly served on the respondents, they have not appeared 11. I have heard the arguments of learned counsel for the appellant-Insurance Company. The learned counsel for the appellant submits the following points : (a) Regarding issue No.1 : The Tribunal ought to have given a finding regarding rash and negligent driving of both the vehicles. Though the Tribunal answered the said point in the affirmative, it has not apportioned the liability. It has directed all the three respondents to pay - 7 - NC: 2025:KHC:20754 MFA No. 3668 of 2016 HC-KAR the amount of compensation without apportionment, therefore, it is vague. (b) It is further contended that a charge sheet was filed against the driver of the Tempo Trax and there were no materials on record to show that the driver of the autorickshaw was also negligent in causing accident. The respondent No.3 has not examined the driver of the autorickshaw, still the Tribunal held that the accident had taken place due to the negligence of the autorickshaw. (c) PW-2 was not an eye witness according to the charge sheet, but his evidence was accepted by the Tribunal, which is not proper. (d) Even if it is considered that the accident occurred due to contributory negligence of drivers of both the vehicles, then, at least the liberty could have been given to the respondent No.2 to recover the amount from respondent No.3. - 8 - NC: 2025:KHC:20754 MFA No. 3668 of 2016 HC-KAR In view of these reasons, the findings of the Tribunal is erroneous. Therefore, prayed to interfere in the same. 12. Following points arises for my determination: " (i) Whether the Tribunal has answered issue No.1 properly? (ii) What order? 13. PW-1 is not an eye witness. According to the appellant, she is the wife of the deceased and she has stated about the facts available on record. In her cross- examination, she fairly admitted that she had not seen the accident. 14. PW-2 is said to be a close friend of the deceased and an eye witness to the incident. Ex.P-6 is the charge sheet and his name is not mentioned as an eye witness in the charge sheet. There were only two eye witnesses in the charge sheet, one is Anand and second one is Valli and others are not eye witnesses. Therefore, he appears to be a planted witness. Even if we consider his evidence, - 9 - NC: 2025:KHC:20754 MFA No. 3668 of 2016 HC-KAR according to him, the accident occurred due to negligence of drivers of both the vehicle. The respondents examined RW-1, who is the Legal Officer of respondent No.2. He is not an eye witness. On the basis of materials available on record, he denied the case of the claimants. 15. Looking at Exs.P-1 to P-6, it is evident that the accident was a head-on collision. Even if we consider the materials available on record, as well as evidence of PW-2, it is clear that the drivers of both the vehicles contributed to the accident in question. However, the driver of the Tempo Trax was alone charge sheeted. Since joint tortfeasors are parties to the claim petition, the contribution of both the drivers could be considered in the ratio of 50:50 causing the accident. Accordingly, both are liable to pay the compensation. - 10 - NC: 2025:KHC:20754 MFA No. 3668 of 2016 HC-KAR 16. There is no dispute in respect of the amount of compensation awarded by the Tribunal. The Tribunal after considering the age, occupation and notional income of the deceased, awarded the compensation of Rs.12,82,000/-, which does not call for any interference by this Court. 17. For the aforesaid discussion, point No.1 is partly answered in favour of the appellant and accordingly, I proceed to pass the following:
Decision
ORDER i) The Appeal is allowed in part. ii) The judgment and award dated 16th February 2016, passed in MVC.No.322/2014, by the II Addl.District & Sessions Judge and Member, M.A.C.T., Kolar, stands modified. iii) The accident had taken place due to contributory negligence of driver of autorickshaw, as well as Tempo Trax in the ratio of 50:50. Respondent No.1 and respondent No.2/appellant together shall pay 50% of the compensation amount and remaining 50% shall - 11 - NC: 2025:KHC:20754 MFA No. 3668 of 2016 HC-KAR be paid by respondent No.3, with proportionate interest at the rate of 6% p.a. from the date of claim petition till its realization. iv) The respondent No.2/appellant - Insurance Company being the insurer of the autorickshaw shall deposit 50% of the compensation amount with interest, within a period of six weeks from the date of award. v) The apportionment, release and deposit of the amount are as per the award of the Tribunal. vi) Whatever amount deposited by the appellant-insurer before this Court shall be transmitted to the concerned Tribunal for disbursement. If it is in excess of 50% of the amount, then the excess amount shall be refunded to the appellant-insurer. vii) The respondent No.3 (owner of tempo trax) shall deposit the remaining 50% of the compensation amount within a period of six weeks from the date of the award. viii) Draw award accordingly. - 12 - NC: 2025:KHC:20754 MFA No. 3668 of 2016 HC-KAR Registry is directed to send back the records along with a copy of this judgment to the concerned Tribunal. Sd/- (UMESH M ADIGA) JUDGE bk/ List No.: 1 Sl No.: 19