Partly allowed

Bajaj Allainz General Insurance v. Janardhan

Karnataka HC7 Jun 2021MFA/2657/2013

Case brief

AI extract

What is this about?

The Karnataka High Court allowed the aware in part, modifying a Motor Accidents Claims Tribunal award. It held that in a head-on collision between two insured vehicles, liability must be apportioned. The court fixed liability at 40% for the appellant insurer and 60% for the other insured vehicle's insurer based on evidence of contributory negligence. Both insurers are directed to make correspondin

What did the court decide?

The impugned judgment and award are modified to fasten liability on the appellant (40%) and respondent No.4 (60%). The appellant is directed to deposit 40% and respondent No.4 to deposit 60% within 6

Bajaj Allainz General Insurance Vs Janardhan — Banking and Recovery | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 7^TH DAY OF JUNE, 2021

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BEFORE

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THE HON'BLE MR. JUSTICE H.P. SANDESH

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M.F.A.NO.2657/2013 (MV)

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BETWEEN:

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BAJAJ ALLAINZ GENERAL INSURANCE COMPANY LTD., NO.636, SRIHARI COMPLEX SEETHVILAS ROAD, MYSURU REPRESENTED BY ITS ASSISTANT VICE PRESIDENT (CLAIMS)

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… APPELLANT (BY SRI H.R.RENUKA, ADVOCATE)

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AND:

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1 . JANARDHAN S/O THIMAPPA AGED ABOUT 25 YEARS R/O BYLUKUPPA VILLAGE PIRIYAPATNA TALUK MYSORE DISTRICT-571101

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2 . PREETHAMGOWDA S/O DR. H.SHIVASHANKAR AGED ABOUT 43 YEARS CHANNAPURA ROAD KOTE LAYOUT CHIKMAGALUR-577101

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3 . NATIONAL INSURANCE CO. LTD., BRANCH OFFICE AT

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SRI MANJUNATHESWARA COMPLEX

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BUS STAND, HASSAN NAGAR-573201

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4 . NATIONAL INSURANCE CO. LTD., II FLOOR, YASHURAM CAMBERS RATNAGIRI ROAD CHIKMAGALUR-577101

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5 . SHIVAKUMAR S/O RAMASHETTY NO.82, BYLUKUPPA VILLAGE PIRIYAPATNA TALUK MYSURU DISTRICT-571101

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... RESPONDENTS

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(BY SRI P.CHANDRASHEKAR, ADVOCATE FOR R1; SRI M.K.BHASKARAIAH, ADVOCATE FOR R2; SRI M.NARAYANAPPA, ADVOCATE FOR R3; SRI P.B.RAJU, ADVOCAR FOR R4; R5-SERVED AND UNREPRESENTED)

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THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT TO SET ASIDE THE JUDGMENT AND AWARD DATED 18.12.2012 PASSED IN MVC.NO.93/2010 ON THE FILE OF THE CIVIL JUDGE (SR. DN.) AND MACT, BELUR, BY ALLOWING THE APPEAL.

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THIS M.F.A. COMING ON FOR ADMISSION THROUGH ‘VIDEO CONFERENCE’ THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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Though the matter is listed for admission today, with the

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consent of the learned counsel for both the parties, it is taken up for final disposal.

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This appeal is filed challenging the judgment and award dated 18.12.2012, passed in M.V.C.No.93/2010 on the file of Civil Judge (Sr. Dvn) and MACT, Belur (‘the Tribunal’ for short) questioning the fastening of liability on the appellant.

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The parties are referred to as per their original rankings before the Tribunal to avoid confusion and for the convenience of the Court.

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The factual matrix of the case is that claimant sustained injuries in the accident that occurred on 17.02.2010 at 9.42 p.m. near Hassan-Belur Road involving the two vehicles i.e., Mahindra Pickup Goods Vehicle bearing registration No.KA09-TC-806 and Santro Car bearing registration No.KA-18-M7042. The claimant who sustained injuries in the accident filed claim petition claiming compensation of Rs.5,00,000/- for which the respondents also filed statement of objections. In support of his claim, examined himself as P.W.1 and got marked documents at Exs.P1 to P14. Court witness is also examined as CW.1, through who the documents at Exs.C1 to C6 are marked. The respondent No.1 examined himself as R.W.1 and another

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witness as R.W.2 and got marked documents at Exs.R1 to R9. The respondent did not dispute the accident but the only dispute is with regard to fastening the liability on the Insurance Company in respect of vehicle.

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Learned counsel appearing for the appellant would vehemently contend that the case has been registered against the driver of the Santro Car and also the insured vehicle. The police have investigated the matter and filed the charge sheet against the drivers of both the vehicles. Learned counsel also would vehemently contend that the driver of the Santro Car had lodged the complaint on 16.06.2010 almost after lapse of 4 months of the accident, whereas the the driver of the insured vehicle had lodged the complaint on 17.02.2010 itself.

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Learned counsel for the appellant not disputes the

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fact that the accident is due to the head on collusion between the two vehicles. It is also the contention of the learned counsel for the appellant that the driver of the Santro Car went on the wrong side of the road and caused the accident. The Tribunal has committed an error in fastening the liability only on the

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Insurance Company of the offending vehicle on the ground that the driver had admitted the guilt and paid the fine before the Court. Learned counsel also brought to the notice of this Court the sketch marked at Ex.P4 and also Ex.P5 - the IMV report. Referring to these two documents, learned counsel would vehemently contend that the Tribunal erred in fastening the liability only on the ground that the driver had admitted the guilt and paid the fine.

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Per contra, learned counsel appearing for the respondent No.4, who insured the Santro Car, would vehemently contend that the driver of the other offending vehicle admitted the guilt and paid the fine and hence, the Tribunal has rightly come to the conclusion that the accident was on account of sole negligence on the part of the driver of the other offending vehicle. Hence, it does not require interference of this Court.

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Having heard the arguments of the respective counsel and also on perusal of the records, the points that would arise for the consideration of this Court are:-

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(i) Whether the Tribunal has committed an error in fastening the liability exclusively on the appellant/Insurance Company ?

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(ii) What order ?

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Points No.1 and 2:-

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Having heard the respective counsel and also on perusal of the materials available on record, it is not in dispute that there is an involvement of the two vehicles in the accident. It is also not in dispute that the accident is on account of head on collusion between the two vehicles when both the vehicles are proceeding in the opposite direction. The sketch at Ex.P4, which is brought to the notice of this Court by the learned counsel for the appellant clearly depicts the direction of the two vehicles on spot, where the accident had taken place. Though the learned counsel for the appellant vehemently contend that taking note of Ex.P4, the Tribunal ought to have exonerated the liability on the Insurance Company, not examined the driver of the offending vehicle and also not examined the Investigating Officer, who conducted the investigation and filed the charge sheet. It is not in dispute that the Investigating Officer has filed

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the charge sheet against the drivers of the two respective vehicles. The Tribunal has come to the conclusion that the

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driver of the insured vehicle of this appellant had admitted the guilt and paid the fine. When the charge sheet is filed against the drivers of both the vehicles, the Tribunal ought to have taken note of the same and also that admission of guilt is only in respect of the charge sheet filed against him.

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It is also important to note that Ex.P5-IMV Report clearly discloses that front portion of both the vehicles have been damaged. The sketch clearly discloses that the insured vehicle of the appellant was proceeding towards Belur from Hassan and other insured vehicle i.e., Santro Car, which is insured by respondent No.4 was proceeding in the opposite direction. Having taken note of the fact that the accident is due to head on collusion between the two vehicles and also particularly, the sketch at Ex.P4, it is appropriate to take the contributory negligence on both the drivers of the vehicles, which shall be apportioned to the extent of 60% on the part of the driver of the Santro Car since he proceeded towards the right side of the direction, where the insured vehicle of the appellant was proceeding and to the extent of 40% on the insured vehicle of

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the appellant considering the damages caused to both the vehicles as indicated in Ex.P5. It is not in dispute that both the vehicles are insured with the appellant and respondent No.4. The Tribunal has committed an error in fastening the liability against the appellant and not fastening the liability on the other insurer when admittedly, two vehicles are involved in the accident. Hence, it requires interference of this Court by modifying the judgment and award passed by the Tribunal and fastening the liability on the insurers of both the vehicles in view of the observations made in this order, particularly, taking into consideration of Ex.P4-sketch and Ex.P5-IMV report. Hence, I answer point No.1 as partly affirmative.

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In view of the discussion made above, I pass the

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following:-

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ORDER

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(i) The appeal is allowed in part.

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(ii) The judgment and award passed by the Tribunal is modified by fastening the liability on the appellant as well as respondent No.4 in the ratio of 40:60 respectively.

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(iii) If any deposit is made by the appellant, the same is ordered to be transmitted to the Tribunal forthwith.

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(iv) The appellant is directed to deposit the 40% of the award amount before the Tribunal and in case of excess amount being deposited, the same shall be refunded to the appellant, on proper identification.

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(v) Respondent No.4 is directed to deposit 60% of the award amount within 6 weeks’ from today.

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(vi) Registry to transmit the Trial Court Records to the concerned Tribunal, forthwith.

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Sd/JUDGE

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PYR

Bajaj Allainz General Insurance v. Janardhan

Case brief

What is this about?

What did the court decide?

Bajaj Allainz General Insurance v. Janardhan

Case brief

What is this about?

What did the court decide?

What the court decided

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