Partly allowed

United India Insurance Co. Ltd., v. Mrs. Rajashri

Karnataka HC6 Jun 2022MFA/331/2019

Case brief

AI extract

What is this about?

The High Court of Karnataka disposed of two appeals filed by an insurance company under Section 173(1) of the Motor Vehicles Act. It dismissed the appeal challenging liability for one claim but remitted the quantum assessment for another claim to the Claims Tribunal due to lack of medical evidence linking the deceased's death to the accident injuries.

What did the court decide?

MFA No. 332/2019 dismissed; MFA No. 331/2019 remitted to Tribunal solely for reconsideration of quantum regarding loss of dependency.

United India Insurance Co. Ltd., Vs Mrs. Rajashri — Motor Accident Claims | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 6^TH DAY OF JUNE 2022

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BEFORE

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THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD

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MFA No.332 OF 2019 (MV) C/W MFA No.331 OF 2019 (MV)

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IN MFA NO.332/2019 (MVC NO.1040/2017)

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BETWEEN:

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UNITED INDIA INSURANCE CO. LTD., VARANASI TOWERS, MISSION, STREET, BUNDER, MANGALURU, NOW REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, 5 & 6^TH FLOOR, KRISHI BHAVAN, NRUPATHUNGA ROAD, HUDSON CIRCLE, BANGALORE-560 001.

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…APPELLANT

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(BY SMT. HARINI SHIVANANDA, ADVOCATE)

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AND:

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MR. MAHESH, S/O MR. CHANDAPPA MOOLYA, 31 YEARS, R/O. NO.1-136, PALANEERU, KODLA HOUSE, BANTWALA TQ, KAROPADY, BANTWAL.

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MR. B. H. HYDER, S/O MR. HASANABBA,

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41 YEARS, R/O MANNAGUNDI HOUSE, MITHA BAGILU VILLAGE, KILLUR POST, BELTHANGADY-574 214.

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…RESPONDENTS

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(NOTICE TO R-1 & R-2 SERVED BUT UNREPRESENTED)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT, PRAYING TO ALLOW THIS APPEAL AND MODIFY THE JUDGMENT AND AWARD DATED 05.10.2018, PASSED IN MVC NO.1040/2017, ON THE FILE OF THE IV ADDITIONAL DISTRICT JUDGE, D.K.MANGALURU.

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IN MFA NO.331/2019 (MVC NO.1039/2017)

BETWEEN:

…APPELLANT

(BY SMT. HARINI SHIVANANDA, ADVOCATE)

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AND:

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1(a) MRS. RAJASHRI, W/O LATE PRAKASHA, 42 YEARS.

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1(b) MR. SACIN, S/O LATE PRAKASHA,

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22 YEARS,

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1(a) IS THE MOTHER AND 1(b) IS THE BROTHER OF THE DECEASED SAGAR WHO DIED DURING THE PENDENCY OF PETITION.

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BOTH ARE R/AT: HARIHALLI, ALUR TALUK, HASSAN-573 213 PRESENTLY RESIDING AT C/O HOTEL ANNAPOORNESWARI, PUMPWELL, MANGALURU-575 002.

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MR. B. H. HYDER, S/O MR. HASANABBA, 41 YEARS, R/O MANNAGUNDI HOUSE, MITHA BAGILU VILLAGE, KILLUR POST, BELTHANGADY-574 214.

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…RESPONDENTS

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(BY SRI SANDESH SHETTY T, ADV. FOR R-1 (a & b); R-2 SERVED BUT UNREPRESENTED)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT, AGAINST JUDGMENT AND AWARD DATED 05.10.2018, PASSED IN MVC NO.1039/2017 ON THE FILE OF THE IV ADDITIONAL DISTRICT JUDGE, D.K.MANGALURU, AWARDING COMPENSATION OF RS.6,98,250 WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.

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THESE MFAs COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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MFA No.331/2019 and MFA No.332/2019 under Section 173(1) of Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’) has been filed by the Insurance Company being aggrieved by the judgment and decree dated 05.10.2018 passed by the IV Additional District Judge, D. K. Mangaluru in MVC Nos.1039/2017 and 1040/2017, respectively.

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Facts giving rise to the filing of the appeals briefly stated are that on 19.04.2017 deceased-Sagar in MVC No.1039/2017 was proceeding in a motorcycle bearing Registration No.KA-21-V-9734 along with his friend/claimant-Mahesh in MVC No.1040/2017 as a pillion rider from Ujire towards Belthangady and when they reached near Laila Petrol Bunk, Belthangady, at that time, the driver of the Maruthi Omni bearing Registration No.KA-21-M-1469 came from

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Belthangady towards Ujire at high speed and in a rash

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and negligent manner and suddenly turned right side without giving any signal and dashed to motorcycle of the deceased. As a result of the aforesaid accident, the deceased-Sagar sustained grievous injuries and was hospitalized. During the pendency of the claim petition, he died and claimant-Mahesh sustained grievous injuries and was hospitalized.

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The claimants filed separate claim petition under Section 166 of the Act seeking compensation. It was pleaded that they spent huge amount towards medical expenses, conveyance, etc. It was further pleaded that the accident occurred purely on account of the rash and negligent driving of the offending vehicle by its driver.

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On service of notice, the respondent Nos.1 and 2 being the owner and the insurer of the offending vehicle have appeared through counsel and

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filed written statement in which the averments made in the petition were denied.

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It was pleaded by the owner that the petition itself is false and frivolous in the eye of law. It was further pleaded that the offending vehicle was insured with Insurance Company and the policy was in force as on the date of the accident and the driver of the offending vehicle had valid driving licence. Hence, the Insurance Company is liable to pay the compensation.

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It was pleaded by the Insurance Company that the accident was due to negligence on the part of the deceased and not on the part of the driver of the offending vehicle. It was further pleaded that the driver of the offending vehicle did not possess valid driving licence as on the date of the accident. The liability is subject to terms and conditions of the policy. The age, occupation and income of the deceased are denied. It was further pleaded that the

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quantum of compensation claimed by the claimants is exorbitant. Hence, they sought for dismissal of the petition.

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On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimant No.1(a) in MVC No.1039/2019 was examined as PW-1 and the claimant in MVC No.1040/2019 was examined as PW-2 and got exhibited documents namely Ex.P1 to Ex.P18. On behalf of the respondents, no witness was examined but exhibited a document namely Ex.R1. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the offending vehicle by its driver, as a result of which, the claimant sustained injuries. The Tribunal further held that the claimants in MVC No.1039/2017 are entitled to a compensation of Rs.6,98,250/and the claimant in MVC

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No.1040/2017 is entitled to a compensation of Rs.1,00,000/- along with interest at the rate of 6% p.a. and directed the Insurance Company to deposit the compensation amount along with interest. Being aggrieved, these appeals have been filed by the Insurance Company.

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Smt. Harini Shivanand, learned counsel for the Insurance Company has raised the following contentions in both the cases: Re-Liability:

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The accident has occurred due to negligence on the part of the rider of the motorcycle. Both rider and the pillion rider of the motorcycle were not wearing head gear and the rider was not holding driving licence as on the date of the accident. Since he has violated the provisions of the motor vehicle Act, the Tribunal has failed to consider this aspect of the matter and has wrongly held that only the driver of

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the offending vehicle alone was negligent in causing the accident. She further contended that it is very clear from the sketch produced at Ex.P5, the driver of the Car has taken extreme right side and has almost reached the edge of left side of the road to reach the petrol bunk and the rider of the bike has not made any effort to stop the vehicle. Therefore, he has also contributed to the alleged accident. The Tribunal has erred in holding that the driver of the Car alone was negligent in causing the accident. Hence, she sought for allowing the appeals filed by the Insurance Company.

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Re-Quantum in MVC No.1039/2017, she has contended that the death of the deceased-Sagar was not due to the accidental injuries. The claimants have not examined the doctor to prove that the death was due to the injuries sustained by the deceased in the road traffic accident. Therefore, the Tribunal has erred

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in awarding compensation for ‘loss of dependency’. She further contended that the compensation awarded by the Tribunal for pain and suffering and other incidental expenses are on higher side.

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Re-Quantum in MVC No.1040/2017, the injuries

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suffered by the claimant are minor in nature. Considering the injuries suffered by the claimant and considering the wound certificate, the compensation of Rs.1,00,000/- awarded by the Tribunal is on higher side. Hence, she sought for reduction of

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compensation.

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Per contra, Sri Sandesh Shetty, the learned counsel for the claimant has raised following counter contentions:

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Re-Liability:

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The accident was occurred due to rash and negligent driving of the driver of the offending car. He further contended that it is a national highway where

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the driver of the Car has come extreme right side to reach the petrol bunk which is situated other side of the road and dashed against the motorcycle where there is no any traffic signal. Since he was negligent in causing the accident, therefore, the Tribunal has rightly held that the accident occurred due to negligence on the part of the driver of the Car. He further contended that the Insurance Company has not examined the driver of the Car to disprove the case of the claimants. Even the Police has registered a FIR against the driver of the Car and after thorough investigation, has filed the charge sheet as per Ex.P4. The Tribunal was justified in fastening the liability on the Insurance Company. He further contended that even though the rider of the motorcycle was not wearing head gear and was not holding a driving licence and the same are violation of the rules or violation of provisions of motor vehicles Act, he was

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not negligent in causing the accident. In support of his contention, he has relied upon the judgment of the Hon’ble Apex Court in the case of MOHAMMED SIDDIQUI vs. NATIONAL INSURANCE COMPANY LIMITED reported in AIR 2020 SC 520.

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Re-Quantum in MVC No.1039/2017 he has contended that the death of deceased-Sagar was due to the accidental injuries. Due to the accident, he has suffered grievous injuries and later he died during the pendency of the claim petition. Therefore, the Tribunal has rightly granted compensation towards ‘loss of dependency’. He further contended that considering the injuries sustained by the deceased and considering the age and avocation of the deceased, the overall compensation awarded by the Tribunal is just and reasonable compensation. Hence, he sought for dismissal of the appeals.

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Re-Quantum in MVC No.1040/2017, respondents were served and unrepresented.

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Heard the learned counsel for the appellant and learned counsel for the respondent in MVC No.1039/2017 and perused the judgment and award and original records.

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The case of the claimant on 19.04.2017 deceased-Sagar was proceeding in a motorcycle bearing Registration No.KA-21-V-9734 along with his friend Mahesh as a pillion rider from Ujire towards Belthangady and when they reached near Laila Petrol Bunk, Belthangady, at that time, the driver of the Maruthi Omni bearing Registration No.KA-21-M-1469 came from Belthangady towards Ujire at high speed and in a rash and negligent manner and suddenly turned right side without giving any signal and dashed to motorcycle of the deceased. Due to impact, they

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fell down and sustained grievous injuries. To prove the case, Rajashree/claimant No.1(a) in MFA No.1039/2017 was examined as PW.1. She has categorically deposed that the accident occurred due to rash and negligent driving of the driver of the Car. They have produced complaint as per Ex.P1, FIR as per Ex.P2, sketch as per Ex.P5, Inquest report as per Ex.P6, Post Mortem Report as per Ex.P8, Charge Sheet as per Ex.P4. Immediately after the accident, the complaint has been registered against the driver of the offending Car as per Ex.P1. The Police has registered a FIR and after thorough investigation, has filed a charge sheet against the driver of the offending Car as per Ex.P4. To disprove the case of the claimants, the respondents have not examined any witness and they have not even examined the driver of the Car. In the cross-examination of PW.1, nothing worthwhile has been elicited. Even as per the sketch,

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it is very clear that the accident was occurred on NH234, the road was proceeding from Bantwala (Belthangady) to Kadur i.e. East to West, the width of the road is 22 feet and the Car was proceeding from Bantwala towards Kadur and the motorcycle was coming from Kadur towards Bantwala. As per the Sketch, it is very clear that the accident was occurred 2 feet away from the edge of the road i.e. from South. The driver of the Car suddenly took right turn to reach the petrol bunk which is situated in South side and dashed against the rider of the motorcycle. It is very clear from Ex.P5, the driver of the Car was negligent in causing the accident. The Tribunal has rightly held that the driver of the Car in causing the accident. Even though the rider of the motorcycle was not wearing head gear, but seeing the sketch as well as the complaint and FIR, it is very clear that there is no any negligence on the part of the rider of the

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motorcycle. Even the Hon’ble Apex Court in the case of ‘MOHAMMED SIDDIQUI’ (supra) has held that it cannot be held contributory negligence, unless it is established that his very act of riding along with two others, contributed either to the accident or to the impact of the accident upon the victim. In the case on hand, non wearing of the head gear is a violation of the rules, it is not established that it was contributed to the accident. Therefore the contention of the appellant/Insurance Company that the rider of the motorcycle is also contributed negligent in causing the accident is unsustainable.

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In respect of quantum is concerned in MVC No.1040/2017, considering the evidence and considering the injuries suffered by the claimant, I am of the opinion that the overall compensation of Rs.1,00,000/- awarded by the Tribunal with interest is just and reasonable.

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In respect of quantum in MVC No.1039/2017,

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the accident was occurred on 19.04.2017 and the rider Sagar died on 26.09.2017. The claimants have not examined the doctor to prove that the death of Sagar was due to the accidental injuries. No document has been produced. The Tribunal has also not discussed whether the death was due to the accidental injuries or not. Under thus circumstances, in respect in MVC No.1039/2017 regarding quantum is concerned, the matter requires to be remitted back to the Tribunal for fresh consideration.

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Accordingly MFA No.332/2019 (MVC No.1040/2017) filed by the Insurance Company is hereby dismissed .

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MFA No.331/2019 is remitted back to the Tribunal only in respect of quantum. In respect of negligence is concerned, the judgment and award passed by the Tribunal is hereby confirmed.

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The Tribunal is directed to reconsider the matter afresh only in respect of quantum in MVC No.1039/2017 after giving opportunity to both the parties to produce additional documents and adduce additional evidence.

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Since both the parties represented before this Court, they are directed to be appeared before the Tribunal on 04.07.2022 without further notice.

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The Tribunal is directed to dispose of the appeal within a period of four months from the date of appearance of the parties.

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Amount in deposit shall be transmitted to the Tribunal

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Sd/JUDGE

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HA/-

United India Insurance Co. Ltd., v. Mrs. Rajashri

Case brief

What is this about?

What did the court decide?

United India Insurance Co. Ltd., v. Mrs. Rajashri

Case brief

What is this about?

What did the court decide?

What the court decided

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