Partly allowed

The Claim Manager v. Kishan Rao

Karnataka HC6 Jul 2021MFA/2089/2015

Case brief

AI extract

What is this about?

The High Court allowed the appeal partly, altering the contributory negligence ratio from 50:50 to 25:75. The car driver bears 25% liability while the lorry driver bears 75%. Relying on a Full Bench decision, the lorry insurer must pay its share and recover from the owner.

What did the court decide?

Appeal allowed in part; liability fixed at 25:75 ratio; Lorry insurer to pay 25% share with liberty to recover from owner.

The Claim Manager Vs Kishan Rao — Insurance | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 6^TH DAY OF JULY, 2021

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PRESENT

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THE HON’BLE MRS.JUSTICE S.SUJATHA

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AND

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THE HON’BLE MR. JUSTICE E.S.INDIRESH

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M.F.A.No.2089/2015 (MV)

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BETWEEN :

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THE CLAIM MANAGER CHOLAMANDALAM GENERAL INSURANCE COMPANY LIMITED, NO.135/5, 2^ND FLOOR, 3^RD MAIN, 15^TH CROSS, J.P NAGAR, BANGALORE-560078 NOW AT THE CLAIMS MANAGER, CHOLAMANDALAM MS GENERAL INSURANCE COMPANY LIMITED, UNIT NO.04, NINTH FLOOR (LEVEL-06), ‘GOLDEN HEIGHTS’ COMPLEX, 59^TH ‘C’ CROSS, INDUSTRIAL SUBURB, RAJAJINAGAR, 4^TH ‘M’ BLOCK, BENGALURU-560010 ...APPELLANT

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(BY SRI O.MAHESH, ADV.)

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AND :

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1 . KISHAN RAO S/O S.BAL SHETTY, AGE 65 YEARS

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2 . SMT.S.PUSHPAVATHI W/O S.KISHAN RAO, AGED ABOUT 60 YEARS

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3 . KUM. S.ROOPAVATHI D/O S.KISHAN RAO, (NOT MARRIED) AGED ABOUT 34 YEARS ALL ARE R/AT DEVASANDRA MAIN ROAD, K.R.PURAM, BANGALORE-560023 4 . THE MANAGER M/s SAKSHI MARKETING CORPORATION, OPP: VIJAYA BANK, OLD MADRAS ROAD, K.R.PURAM, BANGALORE-23 5 . THE MANAGER NATIONAL INSURANCE CO. LTD., 1^ST FLOOR, SATHI COMPLEX, NO.64, MISSION ROAD, NEAR SUBBAIAH CIRCLE, BANGALORE-560027 6 . THE MANAGER V.LINK TAXIS PVT. LTD., CORPORATE NO.99/4, 2^ND FLOOR, ZONESH ALPHA BUILDING, MUNEKKOLALU VILLAGE, VARTHUR HOBLI, MARATHAHALLI COLONY, BANGALORE-36 …RESPONDENTS

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(BY SRI R.CHANDRASHEKAR, ADV. FOR R-1 TO R-3; SRI A.NANCY PRINCE, ADV. FOR R-4; SMT.H.R.RENUKA, ADV. FOR R-5; SRI P.PRASANNA KUMAR, ADV. FOR R-6.)

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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED 22.08.2014 PASSED IN MVC NO.7762/2010 ON THE FILE OF THE MEMBER, MACT, COURT OF SMALL CAUSES, MAYOHALL UNIT, BANGALORE, AWARDING A COMPENSATION OF Rs.37,06,810/- WITH INTEREST 6% P.A FROM THE DATE OF THE PETITION TILL REALIZATION.

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THIS APPEAL COMING ON FOR HEARING, THIS DAY, S. SUJATHA, J ., DELIVERED THE FOLLOWING:

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J U D G M E N T

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This appeal is filed by the insurer challenging the judgment and award dated 22.8.2014 passed in MVC No.7762/2010 on the file of the Motor Accident Claims Tribunal & Addl. Judge, Court of Small Causes, Mayohall Unit, Bangalore (SCCH-19) [‘Tribunal’ for short].

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The claim petition was filed by the claimants under Section 166 of the Motor Vehicles Act, 1988 (‘Act’ for short) seeking compensation for the death of S.Nagesh Rao in the road traffic accident.

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It was contended that the on 12.11.2010 at about 4.20 a.m., when the deceased was traveling in a Meru Car bearing Registration No.KA-53-6251, which was driven by its driver, on BB Road, the driver of lorry bearing Registration No.KA-53-1204 had negligently parked the vehicle in the middle of the road without

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putting indicator or signal. As such, the driver of the car has dashed to the parked vehicle in the middle of the

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road. Due to the said impact, the occupantS.Nageshwara Rao sustained grievous injuries. Immediately he was shifted to Veges hospital for treatment. However, he died on 17.11.2010 at about 12.30 p.m. while taking treatment as an inpatient.

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It was contended that the deceased was aged

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about 38 years and he died in harness. He was very active and was working as software engineer as a Team leader at Applied Malleials India Private Limited thereby getting salary of Rs.75,000/- per month. He used to contribute his entire income for the maintenance of his family. The claimants being the parents and the unmarried sister of the deceased have lost love and affection, dependency etc., due to the untimely death of the sole bred earning member. On these set of grounds, claimants sought for compensation.

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respondent No.1 though appeared, has not filed any objections.

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The insurance company – National

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Insurance Co., Ltd., insurer of the Eicher lorry as well as the owner of the Eicher lorry appeared before the Court. No objection statement was filed by the owner of the Eicher lorry. The defence set up by the insurance company was that the driver of the Eicher Goods vehicle bearing Registration No.KA-53-1204 (offending vehicle) was not holding a valid and effective Driving Licence at the time of the accident. He was not qualified for holding such driving licence. Despite the same, respondent No.1-owner has handed over the possession of the vehicle to the said driver. There being breach of the conditions of the policy, insurer is not liable to indemnify the insured. Nextly it was contended that the alleged accident occurred due to the rash and

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negligent driving of the driver of the Meru Car in which

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the deceased was traveling as a passenger.

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It transpires that the respondent Nos.3 and

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4 RC owner and the insurer of the car were impleaded

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subsequently. The said respondents refuted the claim. It was contended that the accident occurred due to the carelessness and negligent parking of the offending vehicle – Eicher lorry in the middle of the road without taking precautionary measure. The charge sheet has been field against the driver of the offending vehicle.

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The insurer of the car admitted the coverage of the policy however subject to the terms and conditions of the said policy. It was further contended that the driver of the car had no valid and effective driving licence at the time of the accident and the owner of the car had handed over the vehicle in contravention of the terms and conditions of the policy and the rules framed under the Act. Further, the compensation sought by the

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claimants was challenged as excessive, arbitrary and unreasonable.

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Based on the pleadings, issues were framed

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and answered by the Tribunal allowing the petition in part awarding total compensation of Rs.37,06,810/with interest @ 6% p.a. from the date of the petition till realization from respondent Nos.1, 3 and 4 fixing the contributory negligence to the extent of 50% on the driver of both the vehicles thereby fixing the liability equally on the insurer of both the vehicles.

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Being aggrieved by the contributory

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negligence of 50% apportioned on the driver of the car and thereby fixing the liability on the insurer of the car, this appeal is field by the insurer of the car.

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Learned counsel appearing for the insurer of

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the car has restricted the challenge inasmuch as negligence aspect is concerned. It was argued that the

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Tribunal failed to appreciate the credential value of two sets of spot sketch prepared by the investigating police officer which depicts two different position of lorry bearing Registration NoKA-53-6251 on the road in question. Concerned police officer failed to appear before the Tribunal summoned, the approach of the Tribunal is casual, mechanical without proper application of mind to the material on record. Inviting the attention of the Court to spot sketch Ex.P3 and spot sketch placed before the jurisdictional Court in C.C.No.289/2011 submitted that there is material difference in both these sketches. The insurer has examined G. Suresh, Asst Manager (legal) of the insurance company as RW-2 through whom the documents at Exs.R6 to R10 were marked. There is no reference to the evidence of this witness and the documents at Exs.R6 to R10 either in the body of the judgment or at annexures listed in the judgment. Thus,

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it was argued that the Tribunal has utterly failed to apply its mind in a right perspective.

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Learned counsel for the contesting

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respondents sought to justify the impugned judgment and award.

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We have carefully analysed the sketch at Ex.P3 and the sketch said to have been produced by the investigating officer in C.C.No.289/2011. In both these sketches the Meru Car bearing Reg.No.KA-53-6251 was moving from South to North i.e., towards Devanahalli.

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The distance between the spot of the accident and the light pole point No.B is 40 feet. Similarly in all the other three directions the distance from the spot of accident to the light pole at point Nos.A, B, E is the same. The lorry was parked on the middle of the road i.e., the designated way for the vehicles moving from South to North in which direction the car was moved. As per Section 122 of the Act, Leaving vehicle in dangerous

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position i.e., no person in charge of a motor vehicle shall cause or allow the vehicle or any trailer to be abandoned or to remain rest on any public place in such a position or in such a condition or in such circumstances as to cause or likely to cause danger, obstruction or undue inconvenience to other users of the public place or to the passengers, the same is an offence. Vehicles have to be parked in the designated parking stations. The spot description shown in the spot sketch is fortified by the panchanama. Police records further indicate that the charge sheet was filed against the driver of the lorry. Moreover the accident has occurred in the wee hours where it is hard to expect the vehicles moving in the right way about the stationed vehicle without putting on the indicators or signals or taking any precautionary measures. Considering these aspects, it can be held that the degree of contributory negligence on the part of the driver of the lorry is much higher than the contributory negligence of the driver of the car. Hence,

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it is appropriate to fix the contributory negligence on the driver of the car and the driver of the lorry at 25% : 75%. Thus the contributory negligence is fixed at 25% on the driver of the car who was moving in his way and

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75% on the driver of the offending vehicle who had parked the vehicle recklessly and negligently in the middle of the road without giving any indication or taking precautionary measures.

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negligence aspect we have addressed the same without touching up on the other aspects.

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The Tribunal has fastened the liability of 50% on the owner of the offending vehicle which is said to have been satisfied since the driver of the said offending vehicle had the effective driving licence to drive LMV vehicles as on the date of the accident and was not authroised do drive LGV. In view of the Full Bench decision of this Court in New India Assurance

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Company Limited Vs. Yallavva & others reported in

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ILR 2020 KAR 2239, t he insurer is liable to pay and recover the compensation amount from the registered owner of the vehicle albeit the driver of the vehicle not possessing valid and effective Driving Licence at the time of the accident.

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Hence, in the light of the said decision, the insurer of the lorry is directed to pay 25% of the compensation amount with liberty to recover the same from the registered owner of the vehicle.

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At this juncture, the learned counsel for the claimants made a fervent plea to reserve liberty to the claimants to seek for enhancement of compensation. It is needless to observe that the adjudication of the appeal being restricted only to the negligence aspect, the claimants are at liberty to challenge the quantum of compensation if they are entitled to, as per law.

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For the reasons aforesaid, we pass the

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following:

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ORDER

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i) Appeal is allowed in part.

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ii) Liability is fixed in the ratio of 25 : 75 on the appellant - Insurer of the car bearing No.KA53-6251 and the insurer of the lorry bearing No.KA-53-1204 respectively.

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iii) Appellant – Insurer of the car shall pay 25% of the compensation amount of Rs.37,06,810/- with interest @ 6% p.a. from the date of petition till its realization awarded by the Tribunal within 90 days from the date of the receipt of the judgment and order.

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iv) Insurer of the lorry shall pay 25% of the compensation amount of Rs.37,06,810/with interest @ 6% p.a. from the date of petition till its realization awarded by the

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Tribunal within 90 days from the date of the receipt of the judgment and order as 50% is already paid by the owner, with liberty to recover the same from the owner.

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v) Amount in deposit shall be transmitted to the jurisdictional Tribunal for disbursement in accordance with law. Balance, if found in excess, shall be refunded to the appellantInsurer.

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SD/JUDGE

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SD/JUDGE

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Dvr:

The Claim Manager v. Kishan Rao

Case brief

What is this about?

What did the court decide?

The Claim Manager v. Kishan Rao

Case brief

What is this about?

What did the court decide?

What the court decided

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