Partly allowed

Smt Bi Bi Hajira v. M/S United India Insurance Co. Ltd.

Karnataka HC12 Jul 2021MFA/9618/2017

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed motor accident appeals, determining composite negligence between the lorry and car drivers. Appointing the lorry insurer to pay full compensation for one case and 50% for another due to the deceased driver's liability, the court awarded specific sums for dependency and consorous losses.

What did the court decide?

Insurer of lorry to pay Rs. 17,96,500/– (No. 1) and Rs. 9,51,800/– (No. 2) with 6% interest, with liberty to recover 50% from car owner.

Smt Bi Bi Hajira Vs M/S United India Insurance Co… — Motor Accident Claims | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 12^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.9617/2017 c/w M.F.A.No.9618/2017 (MV)

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IN M.F.A.No.9617/2017:

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BETWEEN :

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1 . SMT.HAJIRA BI W/O MOHAMED NAVEED, AGED ABOUT 31 YEARS

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2 . MOHAMED ABID

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S/O MOHAMED NAVEED, AGED ABOUT 6 YEARS SINCE MINOR REP. BY HIS MOTHER & NATURAL GUARDIAN APPELLANT No.1-HAJIRA BI.

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3 . SRI MOHAMED ANWAR

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S/O LATE MOHAMED RAZIQ, AGED ABOUT 64 YEARS

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4 . SMT.HANIFA BI W/O MOHAMED ANWAR, AGED ABOUT 58 YEARS

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ALL ARE R/AT NO.16, 5^TH "A" MAIN ROAD, I CROSS, BEHIND M.K.TRADERS, BHUVANESHWARI NAGAR, R.T.NAGAR POST, BENGALURU-560032.

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...APPELLANTS (BY SRI SHRIPAD V. SHASTRI, ADV.)

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AND :

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1 . M/s UNITED INDIA INSURANCE CO. LTD., REGIONAL OFFICE, NO.1, 2^ND & 3^RD FLOOR, KRUSHI BHAVAN BUILDING, HUDSON CIRCLE, NRUPATHUNGA ROAD, BANGALORE-01.

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2 . SRI KALIMUTHU P., S/O PARAMAL GOUNDER, MAJOR OLD NO.8/189, NEW NO.8/318, CHINNA VEPPANATHAM, VASANTHAPURAM POST, NAMAKKAL-637003, TAMIL NADU STATE (RC OWNER OF LORRY BEARING REG.NO.TN-28-AC-8295 ASHOK LAYLAND)

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3 . M/s UNITED INDIA INSURANCE CO. LTD., NO.10, 2^ND FLOOR, 80 FEET ROAD, ASHWATH NAGAR, NEAR IDBI BANK, SANJAY NAGAR, BANGALORE-94 BY ITS MANAGER …RESPONDENTS

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(BY SRI S.SRISHAILA, ADV. FOR R-1; SRI C.SHANKAR REDDY, ADV. FOR R-3;

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R-2 SERVED VIDE COURT ORDER DATED 11.02.2021.)

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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED 26.09.2016 PASSED IN MVC No.207/2015 ON THE FILE OF THE 2^ND ADDITIONAL SMALL CAUSES JUDGE & 28^TH ACMM, MACT, BENGALURU (SCCH-13), DISMISSING THE CLAIM PETITION FOR COMPENSATION.

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IN M.F.A.No.9618/2017:

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BETWEEN :

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1 . SMT.BI BI HAJIRA W/O LATE MOHAMED SADIQ PASHA, AGED ABOUT 26 YEARS

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2 . BI BI RUZAINA D/O LATE MOHAMED SADIQ PASHA, AGED ABOUT 5 YEARS SINCE MINOR REP. BY HIS MOTHER & NATURAL GUARDIAN APPELLANT No.1-BI BI HAJIRA.

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3 . SRI MOHAMED ANWAR S/O LATE MOHAMED RAZIQ, AGED ABOUT 64 YEARS

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4 . SMT.HANIFA BI W/O MOHAMED ANWAR, AGED ABOUT 58 YEARS ALL ARE R/AT NO.16, 5^TH "A" MAIN ROAD, I CROSS, BEHIND M.K.TRADERS, BHUVANESHWARI NAGAR, R.T.NAGAR POST, BENGALURU-560032. ...APPELLANTS

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(BY SRI SHRIPAD V. SHASTRI, ADV.)

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AND :

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1 . M/s UNITED INDIA INSURANCE CO. LTD., REGIONAL OFFICE, NO.1, 2^ND & 3^RD FLOOR, KRUSHI BHAVAN BUILDING, HUDSON CIRCLE, NRUPATHUNGA ROAD, BANGALORE-01.

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2 . SRI KALIMUTHU P., S/O PARAMAL GOUNDER, MAJOR OLD NO.8/189, NEW NO.8/318, CHINNA VEPPANATHAM, VASANTHAPURAM POST, NAMAKKAL-637003, TAMIL NADU STATE (RC OWNER OF LORRY BEARING REG.NO.TN-28-AC-8295 ASHOK LAYLAND)

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3 . M/s UNITED INDIA INSURANCE CO. LTD., NO.10, 2^ND FLOOR, 80 FEET ROAD,

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ASHWATH NAGAR, NEAR IDBI BANK, SANJAY NAGAR, BANGALORE-94 BY ITS MANAGER …RESPONDENTS

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(BY SRI S.SRISHAILA, ADV. FOR R-1; SRI C.SHANKAR REDDY, ADV. FOR R-3; R-2 SERVED VIDE COURT ORDER DATED 11.02.2021.)

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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED 26.09.2016 PASSED IN MVC No.208/2015 ON THE FILE OF THE 2^ND ADDITIONAL SMALL CAUSES JUDGE & 28^TH ACMM, MACT, BENGALURU (SCCH-13), DISMISSING THE CLAIM PETITION FOR COMPENSATION.

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THESE APPEALS 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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Since these appeals arise out of the common

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judgment relating to the same accident, the matters are clubbed together and disposed of by this common judgment.

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These appeals by the claimants are directed against the common judgment and award dated 26.09.2016 passed in MVC Nos.207/2015 and

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208/2015 on the file of the II Additional Small Causes Judge and XXVIII ACMM, Bengaluru (‘Tribunal’ for short).

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The legal representatives of the deceased

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preferred petitions under Section 166 of the Motor Vehicles Act, 1988 (‘Act’ for short) claiming compensation for the death of Mohamed Naveed and Mohamed Sadiq Pasha in the road traffic accident.

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It was averred in the claim petitions that on

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17.11.2014 at about 7.30 a.m., when the deceased – Mohamed Sadiq Pasha and Mohamed Naveed along with one Sri. Prabhakar were traveling in a Maruthi Omni Car bearing registration No.KA-04-MB-2935 which was driven by Mohamed Sadiq Pasha, while crossing the road from Hiriyur town to NH – 4 road, met with the road traffic accident due to the negligent parking of the lorry bearing registration No.TN-28-AC-8295 (offending vehicle) on the middle of the NH - 4 without taking any precautionary measures. Due to the said impact, the inmates of the said Maruthi Omni Car died on the spot.

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It was contended that both the deceased

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were working as partners of M/S. Global Power Technologies, doing business at Bengaluru city and all over the Karnataka State. Both of them were earning about Rs.21,000/- per month and contributing their entire income to the maintenance of their respective family. Due to the sudden death of the deceased, their family members have lost the dependency besides loss of love and affection etc., On these set facts and grounds, the claimants sought for compensation.

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On service of notice by the Tribunal, the owner of the offending vehicle failed to appear and hence he was placed ex-parte . The insurer of both the vehicles appeared through their respective counsel and contested the claim. Insurer of the lorry admitting the issuance of policy of insurance contended that its liability is subject to terms and conditions of the policy. The primary defence set up was that the accident

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occurred due to the sole negligence of the driver of the Maruthi Omni Car; the jurisdictional police after investigation have filed abated charge-sheet against the deceased – Mohamed Naveed as the Maruthi Omni Car had ‘Act only’ policy. It was further contended that the compensation claimed is excessive and arbitrary.

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On the basis of the pleadings, issues were

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framed and both the petitions were clubbed, heard together and were dismissed.

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Being aggrieved by the said impugned judgment and award, the claimants in MVC No.207/2015 have preferred MFA No.9617/2017 whereas the claimants in MVC No.208/2015 have preferred MFA No.9618/2017.

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Learned counsel appearing for the claimants vehemently argued that the Tribunal grossly erred in coming to the conclusion that the negligence of the

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driver of the car alone was the cause for the accident ignoring the relevant material that the driver of the lorry has parked the said vehicle in the middle of the NH-4 road in the night hours without taking any precautionary measures. The Tribunal committed a palpable error in dismissing both the petitions notwithstanding the composite negligence of the drivers of two vehicles involved in the accident as far as the occupant/inmate is concerned. It was further contended that the Tribunal failed to determine the quantum of compensation on a wrong notion which is wholly untenable. In support of his contentions learned counsel has placed reliance on the following

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judgments:-

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1) Kumari Jyothi and others vs. Mohd. Usman Ali and others reported in ILR 2002 KAR 893;

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2) The Claim Manager, Shriram General Insurance Company Limited vs. Pushpa

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and others in MFA No.1378/2017 (D.D. 01.08.2019).

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Learned counsel for the insurer of the car

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submitted that the car was covered with the ‘Act policy’ and as such, the risk of the occupant of the car was not covered under the policy. Similarly, the entire negligence being fixed on the driver of the car, the insurer is not liable to indemnify the insured - owner/driver.

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Learned counsel appearing for the insurer of

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the lorry submitted that the lorry was parked on the side of the highway. There was sufficient space left on the highway for the moving vehicles. Considering these aspects, the Tribunal has fixed the entire negligence on the part of the driver of the car exonerating the insurer from its liability. The same deserves to be confirmed by this Court.

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We have carefully considered the arguments

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advanced by the learned counsel for the parties and perused the original records.

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Re. Liability.

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As could be seen from the police records, particularly Ex.P3 - spot mahazar and Ex.P4 - spot sketch, it is discernable that the lorry was parked on the National Highway without taking any precautionary measures. It is obvious that a vehicle stationed on the National Highway is an obstruction to the plying vehicles.

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Section 122 of the Act provides that no person in charge of a motor vehicle shall cause or allow the vehicle or any trailer to be abandoned or to remain at 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

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inconvenience to other users of the public place or to the passengers.

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Rule 15 of the Rules of the Road

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Regulations, 1989 contemplates that every driver of a motor vehicle parking on a road shall park in such a way that it does not cause or is not likely to cause danger, obstruction or undue inconvenience to other road users and if the manner of parking is indicated by any sign board or markings on the road side, he shall park his vehicle in such manner.

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At this juncture, it is apt to refer to the judgment of the Co-ordinate Bench of this Court in Kumari Jyothi, supra, wherein the Co-ordinate Bench considering the point “whether the finding of the Tribunal that motorcyclist was also equally responsible for the accident is justified?” has observed that nothing has been elicited in the cross-examination of PWs.4 and

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5 to show that lorry had parked with any sign or

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indicator. Neither the driver nor the cleaner of the lorry was examined to say that any sign or indication was provided in regard to the parked vehicle. Thus, it is held that the Court is satisfied that the driver of the parked lorry was alone to be blamed as he had parked the lorry in the middle of the road without any sign or indications for other road users, the entire negligence was fastened on the driver of the lorry solely.

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In the case of The Claim Manager, Shriram General Insurance Company Limited vs. Pushpa and others, supra, the learned Single Judge of this Court referring to the judgment of the Division Bench in MFA No.24179/2012 (D.D. 28.03.2019) has held that the Division Bench has examined with regard to strict liability casted upon the driver of the lorry, who parked the vehicle on the road, particularly, in a place where the vehicle was not supposed to be parked.

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In the said case considered by the Division

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Bench, the lorry was parked on the highway at night. The car in which the claimants were traveling and the driver of the car could not see the parked lorry and suddenly dashed to the hind portion of the said lorry. Due to the said impact, two persons died on the spot and other in-mates of the car sustained grievous injuries.

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In the context of parked lorry on the

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highway, it has been held that persons traveling on a highway could proceed at a faster pace than in a city or town unless there is a traffic restriction or other obstruction to slow down. Hence, any vehicle, which is parked on the highway without any sign or indication with regard to its parking, must take care regarding the parking of the vehicle so that it does not cause any obstruction to the other passengers on the highway. No negligence would be attributed to the driver of the car as

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on a National Highway the vehicles would normally move at a greater speed than on an ordinary road or on

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a road in a city or a town. Even if the car was proceeding at a moderate speed, the driver could not have avoided the stationed lorry which was unattended and without light or indicator on so as to indicate to the drivers of the vehicles proceeding in the same direction that the lorry was parked to avoid hitting the lorry. Hence, considering the negligence on the part of the driver and owner of the lorry, the liability was fastened on the driver/owner and insurer of the lorry.

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In the present case, absolutely there is no evidence to prove that the indicators or the lights or any precautionary measures taken by the driver or the owner of the lorry in parking the lorry on the middle of the road. In the case of Raja Rani and others vs. Oriental Insurance Company Limited and others reported in 2009 ACJ 2003, the Hon’ble Apex Court in

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identical circumstances has apportioned the negligence at the ratio of 50:50 on the drivers of the two vehicles.

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In the light of these judgments, having analyzed the material evidence on record, we are of the considered view that the driver of the car was not solely responsible for the accident. Parking of the lorry on a National Highway without any indicator would certainly amounts to negligence on part of the driver/owner of the lorry. Hence, we apportion the liability in the ratio of 50:50 on the driver of the car and the driver of the lorry. In such circumstances, as regards inmate is concerned, it is a composite negligence. In view of the legal principles enunciated by the Hon’ble Apex Court in the case of

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Khenyei vs. New India Assurance Company Limited

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and Others reported in 2015 ACJ 1441, the claimant can claim the compensation from any one of the tortfeasor. Any one of the insurance company against whom the claim is made would be liable to pay the entire compensation amount to the claimant with liberty

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to recover 50% of the compensation i.e., liability fastened on the other vehicle.

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Applying the said principles to the case on hand, the Mohamed Naveed being an occupant of the car, the claimants in M.F.A.No.9617/2017 (MVC No.207/2015) are entitled to claim the entire compensation from the insurer of the lorry. Thus, the insurer is liable to deposit the entire compensation with liberty to recover 50% of compensation amount from the registered owner of the car.

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As regards the claimants in MVC

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No.208/2015 is concerned, indisputably the deceased – Mohamed Sadiq Pasha was the driver of the car which was covered by the ‘Act Policy’. In view of the negligence fixed at 50% on the driver of the lorry, the claimants in M.F.A.No.9618/2017 (MVC No.208/2015) are entitled to 50% of the compensation to be awarded.

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Re. quantum

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In MVC No.207/2015 (MFA No.9617/2017)

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It is apparent that the Tribunal has not determined the quantum of compensation while dismissing the claim petition. In view of the material evidence available before us, perusing the original records, we proceed to determine the compensation. It is discerned that though the claimants contended that both the deceased were partners of M/S. Global Power Technologies, doing business at Bengaluru city and all over the Karnataka State, both of them were earning about Rs.21,000/- per month, there is no cogent evidence to prove the same. In the absence of proof of income, referring to the Chart prepared by the Karnataka State Legal Services Authority, we determine the monthly income of the deceased at Rs.8,500/-. As the deceased was aged about 36 years, we add 40% of the income towards future prospects to compute the

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loss of dependency. Applying the multiplier of ‘15’ and deducting 1/4^th towards personal and living expenses of the deceased considering the number of dependants – 4, the loss of dependency would work out Rs.16,06,500/(8,500 + 40% x 12 x 15 x ¾).

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In terms of the dictum of the Hon'ble Apex

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Court in National Insurance Company Limited Vs. Pranay Sethi and others reported in (2017) 16 SCC 680 and New India Assurance Company Limited v/s. Somwati and others reported in (2020) 9 SCC 644 , the claimants are entitled to Rs.40,000/- towards loss of spousal consortium; Rs.40,000/- towards loss of parental consortium; Rs.80,000/- towards loss of filial consortium (Rs.40,000/- to each parent); Rs.15,000/towards loss of estate and Rs.15,000/- towards funeral expenses.

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For the reasons aforesaid, the total

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compensation is assessed as under:

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Sl.No.	Particulars	Amount [in Rs.]
1.	Loss ofdependency	16,06,500/-
2.	Loss of spousal consortium	40,000/-
3.	Loss of parental consortium	40,000/-
4.	Loss of filial consortium (Rs.40,000/- to each parent)	80,000/-
5.	Loss ofestate	15,000/-
6.	Towards funeral expenses	15,000/-
	Total	17,96,500/-

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Thus, the claimants in MVC No.207/2015 (MFA No.9617/2017) shall be entitled to total compensation of Rs.17,96,500/- with interest at the rate of 6% per annum from the date of the claim petition till the date of realization. However, the claimants shall not be entitled to interest for the delayed period of 354 days caused in filing the appeal before this Court in terms of the order of this Court dated 13.11.2020.

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In MVC No.208/2015 (MFA No.9618/2017)

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We determine the monthly income referring to the Chart prepared by the Karnataka State Legal

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Services Authority at Rs.8,500/-. 40% of the income has to be added towards future prospects as per the decision of the Hon’ble Apex Court in Pranay Sethi , supra. As per the driving licence Ex.P22, the date of birth of the deceased – Mohamed Sadiq Pasha is shown as 28.05.1981. Considering the same, the age of the deceased – Mohamed Sadiq Pasha has to be taken as 33 years at the time of the accident. The applicable multiplier would be ‘16’ as per the decision of the Hon’ble Apex Court in Sarla Varma and others vs. Delhi Transport Corporation and another reported in 2009 ACJ 1298 . Deducting 1/4^th towards personal and living expenses of the deceased, the loss of dependency would work out to Rs.17,13,600/- (8,500 + 40% x 12 x 16 x ¾).

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In terms of the dictum of the Hon'ble Apex

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Court in Pranay Sethi , supra and Somwati, supra, the claimants are entitled to Rs.40,000/- towards loss of

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spousal consortium; Rs.40,000/- towards loss of parental consortium; Rs.80,000/- towards loss of filial consortium (Rs.40,000/- to each parent); Rs.15,000/towards loss of estate and Rs.15,000/- towards funeral expenses.

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For the reasons aforesaid, the total

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compensation is assessed as under:

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Sl.No.	Particulars	Amount [in Rs.]
1.	Loss ofdependency	17,13,600/-
2.	Loss of spousal consortium	40,000/-
3.	Loss of parental consortium	40,000/-
4.	Loss of filial consortium (Rs.40,000/- to each parent)	80,000/-
5.	Loss ofestate	15,000/-
6.	Towards funeral expenses	15,000/-
	Total	19,03,600/-
Le	ss : 50%negligence	9,51,800/-
Ent	itled Compensation	9,51,800/-

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Thus, the total compensation is determined at Rs.19,03,600/-. In view of the negligence to the extent of 50% on the deceased – Mohamed Sadiq Pasha, the

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claimants in MVC No.208/2015 (MFA No.9618/2017) shall be entitled to total compensation of Rs.9,51,800/with interest at the rate of 6% per annum from the date of the claim petition till the date of realization. However, the claimants shall not be entitled to interest for the delayed period of 354 days caused in filing the appeal before this Court in terms of the order of this Court dated 13.11.2020.

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Hence, the following

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ORDER

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i) Both the appeals are allowed in part.

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ii) In MFA No.9617/2017 arising out of MVC No.207/2015, the claimants are entitled to total compensation of Rs.17,96,500/- with interest at the rate of 6% per annum from the date of the claim petition till the date of realization. . However, the claimants shall not be entitled to interest for the delayed period of 354 days caused in filing the

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appeal before this Court in terms of the order of this Court dated 13.11.2020.

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iii) In MFA No.9618/2017 arising out of MVC No.208/2015, the total compensation is determined at Rs.19,03,600/-. In view of the negligence to the extent of 50% on the deceased – Mohamed Sadiq Pasha, the claimants are entitled to the compensation of Rs.9,51,800/- with interest at the rate of 6% per annum from the date of the claim petition till the date of realization. However, the claimants shall not be entitled to interest for the delayed period of 354 days caused in filing the appeal before this Court in terms of the order of this Court dated 13.11.2020.

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iv) In MFA No.9617/2017 arising out of MVC No.207/2015, the insurer of the lorry is liable to pay the compensation amount of Rs.17,96,500/- with interest at the rate of

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6% per annum from the date of petition till its realization, with liberty to recover 50% of compensation amount from the registered owner of the car.

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v) In MFA No.9618/2017 arising out of MVC No.208/2015, the insurer of the lorry is liable to pay 50% of the total compensation amount of i.e., Rs.9,51,800/- with interest at the rate of 6% per annum from the date of petition till its realization.

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vi) The insurer shall deposit the amount determined as aforesaid before the Tribunal within 90 days from the date of receipt of the certified copy of the judgment and order.

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Apportionment in both MVC No.207/2015 (MFA No.9617/2017) & MVC No.208/2015 (MFA No.9618/2017):

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vii) On deposit of the compensation amount, claimant No.1 is entitled to 40%; claimant

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No.2 is entitled to 30%; claimant Nos.3 and 4 are entitled to 15% each.

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viii) In the share of claimant No.1, 50% of the amount shall be kept in the fixed deposit in any nationalized bank in her name for a period of 5 years and she is entitled to withdraw the interest accrued periodically on the said fixed deposit. The balance 50% shall be released in her favour subject to due identification in accordance with law.

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ix) Entire share of claimant No.2 shall be kept in fixed deposit in any nationalized bank till the minor child attains the age of majority. However, claimant No.1 is at liberty to withdraw the interest accrued periodically. x) In the shares of claimant Nos.3 and 4, 50% shall be kept in fixed deposit in any nationalized bank for a period of 3 years and they are entitled to withdraw the interest

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accrued periodically on the said fixed deposit. The balance 50% shall be released in their favour subject to due identification in accordance with law.

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xi) Draw modified award accordingly. xii) The Registry shall transfer the original records to the jurisdictional Tribunal forthwith.

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xiii) All pending I.As. stand disposed of accordingly.

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Sd/JUDGE

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Sd/JUDGE

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PMR

Smt Bi Bi Hajira v. M/S United India Insurance Co. Ltd.

Case brief

What is this about?

What did the court decide?

Smt Bi Bi Hajira v. M/S United India Insurance Co. Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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