The National Insurance Co. Ltd., By its Divisional Manager, Ramdev Galli, Belgaum v. Smt.Rajashree

Smt.Rajashree W/o.Sangayya Naik, Age 22 years, 0cc.: Household work, R/o.Solapur, Tq.: Hukkeri, Dist.: Belgaum. Smt.Yallawwa W / o. Shankar Naik, Age 50 years, Ccc.: Household, R/o.Solapur, Tq.: Hukkeri, Dist.: Belgaum. APPELLANT RESPONDENTS This MFA is filed u/S 173(1) of MV Act against the judgment and award dated 19.09.2011 passed in MVC No.1597/2009 on the file of the Presiding Officer, Fast Track Court-IV, Belgaum, awarding the compensation of Rs. 19,08,636/- with interest at the rate of 9% p.a. from the date of petition till the date of actual deposit. IN MFA No.26048/2011: BETWEEN: The National Insurance Co. Ltd., By its Divisional Manager, Ramdev Galli, Belgaum, Herein rep. by National Insurance Co. Ltd., Regional Office, Cell, Sujata Complex, P.B.Road, Hubli-580 029, Rep. by its Deputy Manager. (By Sri.Ravindra R.Mane, Advocate) AND: Smt.Rajashree W/o.Sangayya Naik, Age 22 years, 0cc.: Household work, R/o.Solapur, Tq.: Hukkeri, Dist.: Belgaum. APPELLANT RESPONDENT This MFA is filed u/S 173(1) of MV Act against the judgment and award dated 19.09.2011 passed in MVC No.1598/2009 on the file of the Presiding Officer, Fast Track Court-IV, Belgaum, awarding the compensation of Rs.1,51,000/- with interest at the rate of 9% p.a. from the date of petition till the date of actual deposit. These appeals coming on for admission this day, the Court delivered the following: JUDGMENT The appellant-Insurance Company has filed these appeals challenging the liability on the negligence. The ground urged on behalf of the Insurance Company is that the Tribunal has committed an error in fastening the cent percent liability on the Insurance Company.

2. The learned counsel for the appellant submits that there was an accident between motorcyclist on 20th June

2009. In the said accident, the rider of the vehicle has died and the pillion rider sustained injuries.

3. On the basis of the complaint and the report of the police, there was an accident but so far as negligence is concerned there is no mention. On the basis of the charge sheet and Ex.P3-copy of panchanama, the accident has taken place at the instance and the negligence on the part of the motorcyclist.

4. RW2, who is the driver of the truck is also examined by the Insurance Company, who deposed before the Tribunal that the motorcyclist came in opposite side in a rash and negligent manner and caused accident. It was on the wrong side, so accident takes place. Hence the Tribunal should have fastened the contributory negligence on the motorcyclist. However, the same is given a goby by the Tribunal. The learned counsel prepared a sketch on the basis of the panchanama, copy of the same is made available to the Court and submitted that he obtained the sketch prepared by c 4 the Police and that sketch is not marked before the Tribunal. Further it is submitted that in similar facts the judgment of this Court in the case of New India Assurance Co. Ltd., Vs. Venkataramana and others reported in 11(2006) ACC 798 fastened the liability for contributory negligence of 50%.

5. It is submitted by the learned counsel that in this case the Tribunal has committed an error in awarding interest at the rate of 9% instead of 6%, which is on the higher side, for which the learned counsel relied on the judgment of this Court in the case of Oriental Insurance Co. Ltd., Vs. S.Jagadish and others reported in 1991 ACJ

6. The submission of the learned counsel has been examined and for the said purpose I have gone through the judgment of the Tribunal as the Insurance Company takes up the ground of contributory negligence, for which there shall be an evidence and materials to be produced and if such efforts are made, then it is the duty on the part of the Tribunal to give reasons from examining the documents marked petitioner respondent-Insurance Company. I have not found any such documents namely sketch or any mention about the sketch in the panchanarna Ex.P3. Even not withstanding it not safe for the Court to rely on the sketch, unless the same is confronted to the claimants. When such efforts has not been made and the Tribunal has not examined and no finding has been given, then the evidence of RW2-driver of the Truck, the same has been considered by the Tribunal and discussion made at para-13. In his cross-examination, RW2 has admitted that on

20.06.2009 the accident caused by his truck and the Police registered a case against him and after completion of investigation, the Police have filed charged sheet against him “he has not challenged charge sheet before any competent Court of law”. From this piece of evidence, in the cross- examination of RW2, it comes out that the charge sheet filed against the driver of the Truck for his negligence and the driver has not challenged the charge sheet. Secondly, it is the case of the driver-RW2 that accident caused because of rash and negligent driving without following traffic rules by the motorcyclist. K 6

7. The Insurance Company has relied on the judgment referred supra in the case of Venkataramana and others, wherein in a case of head on collision between tanker and lorry driver, negligence was fastened on both the vehicles evenly and the Police prosecuted the tanker driver, not a decisive to hold negligence is only on his part, Insurer of lorry liable to pay 50% compensation and rest 50% payable by owner of tanker. The judgment referred supra is not helpful in this case for the reason that there is no disputed facts. On the basis of the materials namely sketch and Ex.P3- panchanama, two vehicles are heavy loaded vehicles normally this is possible in a case of head on collision. In the instant case the accident between heavy truck vs. two wheeler, Secondly, the learned counsel relied on the judgment referred supra in the case of S.Jagadish and others, wherein the interest portion was modified from 9% to 6%. It is for the Court discretion that it does not award interest roughly without assigning reasons.

8. Under these circumstances, I follow the judgment referred by the appellant in the case of Oriental Insurance K. Co. Ltd., Vs. S.Jagadish and others reported in 1991 ACJ 1105 and reduce the interest portion from 9% to 6%.

9. Since, this is the discretion of the Court on the basis of the facts and circumstances for modification of the interest portion the same is done without notice to the claimants.

10. With the above observations, the appeal filed by the Insurance Company stands disposed of. Amount in deposit be transmitted to MACT. Vnp* Sd! 3UDGE