Partly allowed

The Cholamandalam Ms General Insurance Co. Ltd., v. Shri.Arun S/O Jinnappa Sattur

Karnataka HC8 Aug 2023MFA/100215/2019

Case brief

AI extract

What is this about?

Five miscellaneous first appeals were filed by insurance companies challenging a Motor Accidents Claims Tribunal award. The High Court upheld the 50% liability apportionment but modified the interest rate from 8% to 6% p.a.

What did the court decide?

The appeal filed by the insurance companies was allowed in part. The interest rate on the compensation was reduced from 8% per annum to 6% per annum.

The Cholamandalam Ms General Insurance Co. Ltd., Vs Shri.Arun… — Insurance | Karnataka HC (2023)

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NC: 2023:KHC-D:8555 MFA No. 100207 of 2019 C/W MFA No. 100208 of 2019, MFA No. 100209 of 2019, MFA No. 100215 of 2019, MFA No. 100216 of 2019, MFA No. 100217 of 2019

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 08^TH DAY OF AUGUST, 2023

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BEFORE

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THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR

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MISCELLANEOUS FIRST APPEAL NO.100207/2019 (MV-D) C/W

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MISCELLANEOUS FIRST APPEAL NO. 100208/2019 (MV-D) MISCELLANEOUS FIRST APPEAL NO. 100209/2019 (MV-D) MISCELLANEOUS FIRST APPEAL NO. 100215/2019 (MV-D) MISCELLANEOUS FIRST APPEAL NO. 100216/2019 (MV-D) MISCELLANEOUS FIRST APPEAL NO. 100217/2019 (MV-D)

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IN MFA.NO.100207/2019:

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BETWEEN:

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Digitally signed by SUJATA SUBHASH PAMMAR

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THE DIVISIONAL MANAGER, THE ORIENTAL INSURANCE CO., LTD., HAVING ITS DIVISIONAL OFFICE AT CLUB ROAD, BELAGAVI. REP BY DEPUTY MANAGER, THE ORIENTAL INSURANCE CO., LTD., REGIONAL OFFICE, LAMITANG ROAD, HUBBALLI-580020.

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…APPELLANT

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(BY SRI S. V. YAJI, ADVOCATE)

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AND:

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ARUN S/O. JINNAPPA SATTUR, AGE: 34 YEARS, OCC:PRIVATE SERVICE,

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NC: 2023:KHC-D:8555 MFA No. 100207 of 2019 C/W MFA No. 100208 of 2019, MFA No. 100209 of 2019, MFA No. 100215 of 2019, MFA No. 100216 of 2019, MFA No. 100217 of 2019

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R/O: MUMMIGATTI, TQ AND DIST:DHARWAD-580011.

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SUJATA D/O. JINNAPPA SATTUR, AGE:31 YEARS, OCC:HOUSEHOLD, R/O: MUMMIGATTI, TQ AND DIST:DHARWAD-580011.

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SMT. ANURADHA W/O. CHANDRASHEKHAR SATTUR, AGE:45 YEARS, OCC:HOUSEHOLD, R/O. MUMMIGATTI, TQ AND DIST:DHARWAD-580011.

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THE CHOLAMANDALAM MS, GENERAL INSURANCE CO., LTD., REP. BY ITS DIVISIONAL MANAGER, DIVISIONAL OFFICE AT 1^ST FLOOR, KALBURGI SQUARE, DESAI CROSS, DESHPANDE NAGAR, HUBBALLI-580023.

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MR.ISMAILBHAI HASANBHAI KADIVAR, AGE:48 YEARS, OCC:BUSINESS, R/O. RAJADLA, TQ:WANANER, DIST:RAJKOT, STATE-GUJARAT-360001.

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…RESPONDENTS

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(BY SRI PRAVEEN P. JOSHI, AND SRI SRI R.H.ANGADI, ADVOCATES, FOR R1 AND R2;

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SRI BAHUBALI N. KANABARAGI, ADVOCATE, FOR R3; R4 AND R5 – NOTICE SERVED.)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 28.09.2018, PASSED IN MVC NO.134/2015, ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE AND ADDITIONAL M.A.C.T., DHARWAD, SADDLING LIABILITY AGAINST THE APPELLANT TO AN EXTENT OF 50% AND TO MODIFY THE AWARD AGAINST THE APPELLANT, ETC.,.

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NC: 2023:KHC-D:8555 MFA No. 100207 of 2019 C/W MFA No. 100208 of 2019, MFA No. 100209 of 2019, MFA No. 100215 of 2019, MFA No. 100216 of 2019, MFA No. 100217 of 2019

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IN MFA.NO.100208/2019:

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BETWEEN:

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THE DIVISIONAL MANAGER, THE ORIENTAL INSURANCE CO., LTD., HAVING ITS DIVISIONAL OFFICE AT CLUB ROAD, BELAGAVI, REP, BY DEPUTY MANAGER, THE ORIENTAL INSURANCE CO., LTD., REGIONAL OFFICE, LAMITANG ROAD, HUBBALLI-580020.

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…APPELLANT

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(BY SRI S.V.YAJI, ADVOCATE.)

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AND:

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ARUN S/O. JINNAPPA SATTUR, AGE: 34 YEARS, OCC:PRIVATE SERVICE, R/O: MUMMIGATTI, TQ AND DIST:DHARWAD-580011.

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SUJATA D/O. JINNAPPA SATTUR, AGE: 31 YEARS, OCC:HOUSEHOLD, R/O: MUMMIGATTI, TQ AND DIST:DHARWAD-580011.

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SMT. ANURADHA W/O. CHANDRASHEKHAR SATTUR, AGE:45 YEARS, OCC:HOUSEHOLD, R/O. MUMMIGATTI, TQ AND DIST:DHARWAD-580011.

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THE CHOLAMANDALAM MS, GENERAL INSURANCE CO., LTD., REP. BY ITS DIVISIONAL MANAGER, DIVISIONAL OFFICE AT 1^ST FLOOR, KALBURGI SQUARE, DESAI CROSS, DESHPANDE NAGAR, HUBBALLI-580023.

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NC: 2023:KHC-D:8555 MFA No. 100207 of 2019 C/W MFA No. 100208 of 2019, MFA No. 100209 of 2019, MFA No. 100215 of 2019, MFA No. 100216 of 2019, MFA No. 100217 of 2019

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MR.ISMAILBHAI HASANBHAI KADIVAR, AGE:48 YEARS, OCC:BUSINESS, R/O. RAJADLA, TQ:WANANER, DIST:RAJKOT, STATE GUJARAT-360001.

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…RESPONDENTS

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(BY SRI PRAVEEN P. JOSHI, AND SRI R.H.ANGADI, ADVOCATES FOR R1 AND R2; SRI BAHUBALI N. KANABARAGI, ADVOCATE FOR R3; SRI SUBHASH J. BADDI, ADVOCATE FOR R4; R5 – NOTICE SERVED.)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 28.09.2018, PASSED IN MVC NO.135/2015, ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE AND ADDITIONAL M.A.C.T., DHARWAD, SADDLING LIABILITY AGAINST THE APPELLANT TO AN EXTENT OF 50% AND TO MODIFY THE AWARD AGAINST THE APPELLANT, ETC.,.

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IN MFA.NO.100209/2019:

BETWEEN:

…APPELLANT

(BY SRI S. V. YAJI, ADVOCATE)

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AND:

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SMT. GANGAVVA W/O. HOMBANNA SATTUR, AGE: 76 YEARS, OCC: HOUSEHOLD WORK,

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NC: 2023:KHC-D:8555 MFA No. 100207 of 2019 C/W MFA No. 100208 of 2019, MFA No. 100209 of 2019, MFA No. 100215 of 2019, MFA No. 100216 of 2019, MFA No. 100217 of 2019

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R/O: MUMMIGATTI, TQ/DIST: DHARWAD – 580 011.

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SMT. MAHADEVI W/O. RAVINDRA @ RAVI SATTUR, AGE: 38 YEARS, OCC: HOUSEHOLD WORK, R/O: MUMMIGATTI, TQ/DIST: DHARWAD - 580 011.

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DEEPA D/O. RAVINDRA @ RAVI SATTUR, AGE: 22 YEARS, OCC: STUDENT, R/O: MUMMIGATTI, TQ/DOST: DHARWAD – 580 011.

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SMT. PREETI D/O. RAVINDRA @ RAVI SATTUR, AGE: 20 YEARS, OCC: STUDENT, R/O: MUMMIGATTI, TQ/DIST: DHARWAD – 580 011.

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ANURADHA W/O. CHANDRASHEKHAR SATTUR, AGE: 45 YEARS, OCC: HOUSEHOLD, R/O: MUMMIGATTI, TQ/DIST: DHARWAD-580 011.

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THE CHOLAMANDALAM MS, GENERAL INSURANCE CO. LTD., REP. BY ITS DIVISIONAL MANAGER, DIVISIONAL OFFICE AT 1^ST FLOOR, KALBURGI SQURE, DESAI CROSS, DESHPANDE NAGAR, HUBBALLI-580 023.

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MR. ISMAILBHAI HASANBHAI KADIVAR, AGE: 48 YEARS, OCC:BUSINESS, R/O: RAJADLA, TQ: WANANER, DIST: RAJKOT, STATE: GUJARAT-360 001.

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…RESPONDENTS

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(BY SRI PRAVEEN P. JOSHI, AND SRI R.H.ANGADI, ADVOCATES FOR R1 TO R4;

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SRI SUBHASH J. BADDI, ADVOCAT FOR R6; R.5 – SERVICE OF NOTICE HELD SUFFICIENT; R7 – NOTICE SERVED.)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 28.09.2018, PASSED IN MVC NO.315/2015, ON THE FILE OF THE III ADDITIONAL SENIOR

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NC: 2023:KHC-D:8555 MFA No. 100207 of 2019 C/W MFA No. 100208 of 2019, MFA No. 100209 of 2019, MFA No. 100215 of 2019, MFA No. 100216 of 2019, MFA No. 100217 of 2019

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CIVIL JUDGE AND ADDITIONAL M.A.C.T., DHARWAD, SADDLING LIABILITY AGAINST THE APPELLANT TO AN EXTENT OF 50% AND TO MODIFY THE AWARD AGAINST THE APPELLANT, ETC.,.

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IN MFA.NO.100215/2019:

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BETWEEN:

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THE CHOLAMANDALAM MS, GENERAL INSURANCE CO. LTD., REP. BY ITS DIVISIONAL MANAGER, DIVISIONAL OFFICE AT 1^ST FLOOR, KALBURGI SQURE, DESAI CROSS, DESHPANDE NAGAR, HUBBALLI-580 029, NOW REPRESENTED BY ITS AUTHORISED SIGNATORY.

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…APPELLANT

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(BY SRI SUBHASH J. BADDI, ADVOCATE)

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AND:

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SHRI ARUN S/O. JINNAPPA SATTUR, AGE: 33 YEARS, OCC: PRIVATE SERVICE, R/O: MUMMIGATTI, TQ AND DIST: DHARWAD – 580 002.

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SUJATA D/O. JINNAPPA SATTUR, AGE: 30 YEARS, OCC: HOUSEHOLD, R/O: MUMMIGATTI, TQ AND DIST: DHARWAD – 580 002.

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SMT. ANURADHA W/O. CHANDRASHEKHAR SATTUR, AGE: MAJOR, OCC: HOUSEHOLD, R/O: MUMMIGATTI, TQ/DIST: DHARWAD 580 002.

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MR. ISMAILBHAI HASANBHAI KADIVAR, AGE: MAJOR, OCC:BUSINESS, R/O: RAJADLA, TQ: WANANER, DIST: RAJKOT, STATE: GUJARAT.

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NC: 2023:KHC-D:8555 MFA No. 100207 of 2019 C/W MFA No. 100208 of 2019, MFA No. 100209 of 2019, MFA No. 100215 of 2019, MFA No. 100216 of 2019, MFA No. 100217 of 2019

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THE DIVISIONAL MANAGER, THE ORIENTAL INSURANCE CO., LTD., HAVING ITS DIVISIONAL OFFICE AT CLUB ROAD, BELAGAVI – 590 001.

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…RESPONDENTS

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(BY SRI PRAVEEN P. JOSHI, AND SRI R.H.ANGADI, ADVOCATE FOR R1 AND R2; SRI BAHUBALI N. KANABARAGI, ADVOCATE FOR R3; R4 – NOTICE SERVED; SRI S.V.YAJI, ADVOCATE FOR R5.)

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IN MFA.NO.100216/2019:

BETWEEN:

…APPELLANT

(BY SRI SUBHASH J. BADDI, ADVOCATE)

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AND:

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SHRI ARUN S/O. JINNAPPA SATTUR, AGE: 33 YEARS, OCC: PRIVATE SERVICE, R/O: MUMMIGATTI, TQ AND DIST: DHARWAD – 580 002.

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NC: 2023:KHC-D:8555 MFA No. 100207 of 2019 C/W MFA No. 100208 of 2019, MFA No. 100209 of 2019, MFA No. 100215 of 2019, MFA No. 100216 of 2019, MFA No. 100217 of 2019

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SUJATA D/O. JINNAPPA SATTUR, AGE: 30 YEARS, OCC: HOUSEHOLD, R/O: MUMMIGATTI, TQ AND DIST: DHARWAD – 580 002.

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SMT. ANURADHA W/O. CHANDRASHEKHAR SATTUR, AGE: MAJOR, OCC: HOUSEHOLD, R/O: MUMMIGATTI, TQ/DIST: DHARWAD-580 002.

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MR. ISMAILBHAI HASANBHAI KADIVAR, AGE: MAJOR, OCC:BUSINESS, R/O: RAJADLA, TQ: WANANER, DIST: RAJKOT, STATE: GUJARAT.

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THE DIVISIONAL MANAGER, THE ORIENTAL INSURANCE CO., LTD., HAVING ITS DIVISIONAL OFFICE AT CLUB ROAD, BELAGAVI – 590 001.

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…RESPONDENTS

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(BY SRI PRAVEEN P. JOSHI AND SRI R.H.ANGADI, ADVOCATES FOR R1 AND R2;

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SRI BAHUBALI N. KANABARAGI, ADVOCATE FOR R3; R4 – NOTICE SERVED; SRI S.V.YAJI, ADVOCATE FOR R5.)

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IN MFA.NO.100217/2019:

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BETWEEN:

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THE CHOLAMANDALAM MS, GENERAL INSURANCE CO. LTD.,

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NC: 2023:KHC-D:8555 MFA No. 100207 of 2019 C/W MFA No. 100208 of 2019, MFA No. 100209 of 2019, MFA No. 100215 of 2019, MFA No. 100216 of 2019, MFA No. 100217 of 2019

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REP. BY ITS DIVISIONAL MANAGER, DIVISIONAL OFFICE AT 1^ST FLOOR, KALBURGI SQURE, DESAI CROSS, DESHPANDE NAGAR, HUBBALLI-580 029, NOW REPRESENTED BY ITS AUTHORISED SIGNATORY.

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…APPELLANT

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(BY SRI SUBHASH J. BADDI, ADVOCATE)

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AND:

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SMT. GANGAVVA W/O. HOMBANNA SATTUR, AGE: 75 YEARS, OCC: HOUSEHOLD WORK, R/O: MUMMIGATTI, TQ/DIST: DHARWAD – 580 002.

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SMT. MAHADEVI W/O. RAVINDRA @ RAVI SATTUR, AGE: 37 YEARS, OCC: HOUSEHOLD WORK, R/O: MUMMIGATTI, TQ/DIST: DHARWAD - 580 002.

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DEEPA D/O. RAVINDRA @ RAVI SATTUR, AGE: 21 YEARS, OCC: STUDENT, R/O: MUMMIGATTI, TQ/DIST: DHARWAD – 580 002.

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PREETI D/O. RAVINDRA AT RAVI SATTUR, AGE: 19 YEARS, OCC: HOUSEHOLD WORK, R/O: MUMMIGATTI, TQ/DIST: DHARWAD – 580 002.

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SMT. ANURADHA W/O. CHANDRASHEKHAR SATTUR, AGE: MAJOR, OCC: HOUSEHOLD, R/O: MUMMIGATTI, TQ/DIST: DHARWAD – 580 002.

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MR. ISMAILBHAI HASABHAI KADIVAR, AGE: MAJOR, OCC:BUSINESS, R/O: RAJADLA, TQ: WANANER, DIST: RAJKOT, STATE: GUJARAT.

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10 -

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NC: 2023:KHC-D:8555 MFA No. 100207 of 2019 C/W MFA No. 100208 of 2019, MFA No. 100209 of 2019, MFA No. 100215 of 2019, MFA No. 100216 of 2019, MFA No. 100217 of 2019

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THE DIVISIONAL MANAGER, THE ORIENTAL INSURANCE CO LTD., HAVING ITS DIVISIONAL OFFICE AT CLUB ROAD, BELAGAVI – 590 001.

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…RESPONDENTS

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(BY SRI PRAVEEN P. JOSHI, AND SRI R.H.ANGADI, ADVOCATES FOR R1 TO R3 AND R5; R4 AND R6 – NOTICE SERVED; SRI S.V.YAJI, ADVOCATE FOR R7.)

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THESE APPEALS COMING ON FOR FURTHER HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The appeals in MFA Nos.100207, 100208 and 100209 of 2019 are filed by the Oriental Insurance Company, who is insurer of Truck No.GJ-03/W-7950 challenging the judgment and award dated 28.09.2018, passed in MVC Nos.134, 135 and 315 by the III Addl. Senior Civil Judge and Addl. MACT, Dharwad, questioning the 50% of rashness and negligence attributed on part of the driver of the Truck. Whereas, the appeals in MFA Nos.100215,

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11 - NC: 2023:KHC-D:8555 MFA No. 100207 of 2019 C/W MFA No. 100208 of 2019, MFA No. 100209 of 2019, MFA No. 100215 of 2019, MFA No. 100216 of 2019, MFA No. 100217 of 2019

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100216 and 100217 of 2019 are filed by Cholamandalam General Insurance Company Limited, who is insurer of Car No.KA25/Z-8541, questioning the 50% of rashness and negligence attributed on the part of the driver of Toyota Car.

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Brief facts of the case are that, on 02.12.2013 evening at 05.00 p.m. the driver of Toyota Car No.KA25/Z-8541 was driving the Car from Nippani towards Dharwad along with other inmates in the car and when the said car reached the place near Srinagar Mulla Building, Belagavi on NH-4, the driver of Truck had parked the Truck No.GJ-03/W-7950, on the wrong side of the road facing towards northern side and the driver of the Car had hit the front portion of the Truck. Due to the said accident the driver of the Car and other inmates of the Car died. Therefore legal heirs of the driver and inmates in the car have filed claim petition under section 166 of the M.V.Act and the tribunal while awarding compensation has held

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12 - NC: 2023:KHC-D:8555 MFA No. 100207 of 2019 C/W MFA No. 100208 of 2019, MFA No. 100209 of 2019, MFA No. 100215 of 2019, MFA No. 100216 of 2019, MFA No. 100217 of 2019

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that the driver of the Car and the driver of the Truck are equally responsible for the accident. Therefore apportioned 50% each of the rashness and negligence on the part of the driver of the Car and Truck.

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In these appeals both insurance companies have preferred appeal questioning 50% of rashness and negligence attributed respectively on the part of the driver of the Car and driver of the Truck.

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The learned counsel for Oriental insurance company submitted that the accident caused at 05.00 p.m. and there was sun light and road was straight. Hence the driver of the Car could see the ongoing vehicles and has clear visibility. Therefore, if the driver of the Car had taken care, then the accident could have been avoided. It is further submitted that the Truck was parked on the road covering eight feet; only four feet width of the National Highway was utilized by the Truck. The width of

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13 - NC: 2023:KHC-D:8555 MFA No. 100207 of 2019 C/W MFA No. 100208 of 2019, MFA No. 100209 of 2019, MFA No. 100215 of 2019, MFA No. 100216 of 2019, MFA No. 100217 of 2019

¶134

the one side of the National Highway is 40 feet. Therefore, the remaining 34 feet space was available for the driver of the Car to pass through on the said place but rammed the Truck and caused the accident. Therefore it is submitted, the driver of the Car was more rash and negligent compared to driver of the Truck. Therefore prays to hold the Car driver completely rash and negligent in driving the Car and rammed the Truck and caused the accident for which the driver of the Car is wholly responsible.

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On the other hand, learned counsel for Cholamandalam insurance company submitted that the Truck was going on the wrong direction towards Nippani side. Therefore it is not the case that the Car was going from Nippani to Dharwad, but going opposite to Nippani. Hence the Truck was parked on the wrong side of the road causing obstruction to the movements of vehicle on the national highway. Thus, in this way the accident was caused. Hence the Truck driver is completely rash and

¶136

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¶137

negligent while parking and abandoned the Truck in a danger position causing obstruction to movement of the vehicles on National Highway. Therefore the driver of the Truck was completely rash and negligent. Therefore it is submitted, 100% negligence is attributed on the part of the driver of Truck but not on the driver of the Car. Therefore, he prays for modification of the findings that the driver of the Truck was completely negligent in parking the Truck on the National highway.

¶138

Considering the scenario of the accident, as per

¶139

the spot panchanama, spot sketch produced before the tribunal, which are at Exs.P.5 and R.3, these two panchanama and spot sketch are referred by both the insurance companies before the tribunal. Upon considering the complaint, FIR, charge sheet, spot sketch and spot panchanama, the place of accident and the manner of accident are not disputed. The Car was moving from Nippani to Dharwad. The road is National Highway No.4

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NC: 2023:KHC-D:8555 MFA No. 100207 of 2019 C/W MFA No. 100208 of 2019, MFA No. 100209 of 2019, MFA No. 100215 of 2019, MFA No. 100216 of 2019, MFA No. 100217 of 2019

¶142

from Kolhapur to Dharwad. The Truck has moved from Dharwad direction to Kolhapur/Nippani and stationed/ parked towards northern side, it means towards Nippani side. Therefore, from the evidence on record it is proved that the Truck was parked on the wrong side of the road. The Truck was not supposed to park on the wrong side. Section 122 of the Motor Vehicles Act, 1988, stipulates regarding parking or abandoning the vehicle in a danger position or obstructing movement of other vehicles. Rule 15 of the Rules of the Road Regulations, 1989, stipulates regarding parking of vehicle.

¶143

Section 122 of M.V.Act reads as follows.

¶144

122. Leaving vehicle in dangerous position.— 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 inconvenience to other users of the public place or to the passengers.

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NC: 2023:KHC-D:8555 MFA No. 100207 of 2019 C/W MFA No. 100208 of 2019, MFA No. 100209 of 2019, MFA No. 100215 of 2019, MFA No. 100216 of 2019, MFA No. 100217 of 2019

¶147

Rule 15 of the Rules of the Road Regulations,

¶148

1989, stipulates as follows:

¶149

15. Parking of the vehicle.— (1) Every driver of a motor vehicle parking on any 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 the manner of parking is indicated by any sign board or markings on the road side, he shall park his vehicle in such manner.

¶150

(2) A driver of a motor vehicle shall not park his vehicle:-

¶151

i) at or near a road crossing, a bend, top of a hill or a humpbacked bridge; ii) on a foot-path; iii) near a traffic light or pedestrian crossing; iv) in main road or one carrying fast traffic; v) opposite another parked vehicle or as obstruction to other vehicle; vi) alongside another parked vehicle; vii) on roads or at places or roads where there is a continuous white line with or without a broken line;

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NC: 2023:KHC-D:8555 MFA No. 100207 of 2019 C/W MFA No. 100208 of 2019, MFA No. 100209 of 2019, MFA No. 100215 of 2019, MFA No. 100216 of 2019, MFA No. 100217 of 2019

¶154

viii) near a bus stop, school or hospital entrance or blocking a traffic sigh or entrance to a premises or a fire hydrant;

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ix) on the wrong side of the road; x) where parking is prohibited; xi) away from the edge of the footpath.

¶156

The question involved is regarding proving of

¶157

rash and negligent act on the part of the disputed vehicles are to be considered on the principle of Res Ipsa Loquitur (the thing speaks for itself). Even though the Truck was on the wrong direction of the road and parked but only four feet width of the Truck was on National Highway and remaining width of the Truck was on the kachcha road. The road is national highway and the one side of the road of national highway is 40 feet width. Therefore for the Car to pass through on the national highway, the Car driver was having remaining 34 feet width to pass through the national highway besides the Truck. The time of accident was evening 05.00 p.m. Hence there was still sunlight.

¶158

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¶159

The road is straight and the driver of the Car was driving the Car with clear visibility on the road and the driver of the Car was still having space of 34 feet to pass through the national highway besides the Truck. Therefore, in this regard the tribunal after appreciating the evidence on record has held that both the drivers are 50% each rash and negligent and were responsible for the accident.

¶160

When this being the fact revealed that the driver of the Truck ought not to have stationed/parked on the national highway, but at the same time, considering the width of the Truck, the Truck has utilized only six feet of the national highway and the remaining width of the truck was on kachcha road. What was compelled the Truck driver to park by utilizing the space on national highway is not forthcoming in the evidence. The driver of the Truck has not led evidence but the fact remains proved that the Truck was on the wrong direction of the road which Truck driver was not supposed to drive on the wrong direction

¶161

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¶162

but the Truck was stationed. At the same time the driver

¶163

of the Car coming from Nippani to Dharwad was having clear visibility as the time of accident was evening 05.00 p.m. but could have avoided accident if the driver of the Car had taken little bit care since the driver of the Car was still having 34 feet width to pass on the said national highway. But without doing so, rammed the front portion of the Truck. Therefore, in this regard both the drivers are equally responsible for the accident.

¶164

If the driver of the Truck had parked the truck completely on the national highway, then certainly it can be said that the driver of the Truck had parked the Truck in a danger position on the national highway completely obstructing the movement of other vehicles, but the Truck driver has utilized the space on the kachcha road for parking the truck and used only six feet width on the national highway. Therefore, it cannot be said that the Truck driver was completely negligent so as to park the

¶165

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NC: 2023:KHC-D:8555 MFA No. 100207 of 2019 C/W MFA No. 100208 of 2019, MFA No. 100209 of 2019, MFA No. 100215 of 2019, MFA No. 100216 of 2019, MFA No. 100217 of 2019

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Truck in a danger position causing complete obstruction to

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the movement of other vehicles.

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Therefore, upon re-appreciating the evidence on record in this regard, as discussed above, the tribunal is correct in holding that both the drivers are equally responsible for causing the accident at 50% and the tribunal is correct in apportioning rash and negligent act on the part of both the vehicles drivers. Therefore the finding given on this issue is confirmed.

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In the present case the deceased are father, mother and son and two children. The tribunal after considering all the parameters correctly awarded compensation under the head loss of dependency and on other heads such as loss of love and affection and for transportation of dead body and funeral expenses. It is not that the tribunal has awarded just and reasonable compensation on account of death of deceased. It is the

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21 -

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NC: 2023:KHC-D:8555 MFA No. 100207 of 2019 C/W MFA No. 100208 of 2019, MFA No. 100209 of 2019, MFA No. 100215 of 2019, MFA No. 100216 of 2019, MFA No. 100217 of 2019

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submission made by both the insurance companies that one of the deceased was 61 years old and the children are major sons and daughters. Hence the compensation awarded under the head loss of dependency cannot be accepted.

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Even though the deceased was 61 years old, his income is contribution to the family for sustenance. Therefore, the tribunal has correctly deducted 1/3^rd of his income towards personal and living expenses and accordingly awarded the compensation. Therefore, considering the quantum of compensation in these three claim petitions, the parameters held by the tribunal are found to be just and proper, fair and reasonable. Therefore, there is no good ground available for interference with the quantum of compensation awarded by the tribunal.

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22 - NC: 2023:KHC-D:8555 MFA No. 100207 of 2019 C/W MFA No. 100208 of 2019, MFA No. 100209 of 2019, MFA No. 100215 of 2019, MFA No. 100216 of 2019, MFA No. 100217 of 2019

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Therefore on the aspect of rash and negligence

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as well as quantum of compensation awarded by the tribunal, the impugned judgment and award passed by the tribunal is justifiable, correct and legal. Besides, the quantum of compensation is fair one and therefore the judgment and award in its entirety is justified. Therefore in these appeals filed by the insurance companies the judgment and awards cannot be interfered with. But so far as awarding of rate of interest is concerned, the appeal filed by the insurance companies have to be allowed in part. The tribunal has awarded interest at the rate of 8% p.a. and the same is scaled down to 6% p.a. Therefore, the claimants are entitled for interest at the rate of 6% p.a. from the date of petition till realization. Therefore, so far as rate of interest is concerned, the appeals filed by the insurance companies are to be allowed in part. Hence

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the following:

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23 -

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NC: 2023:KHC-D:8555 MFA No. 100207 of 2019 C/W MFA No. 100208 of 2019, MFA No. 100209 of 2019, MFA No. 100215 of 2019, MFA No. 100216 of 2019, MFA No. 100217 of 2019

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ORDER

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i) The appeals are allowed in part.

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ii) The judgment and award dated 28.09.2018, passed by the III Addl. Senior Civil Judge and Addl. MACT, Dharwad, in MVC No.134, 135, 315 of 2015 stand modified so far as rate of interest is concerned only.

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iii) The claimants are entitled for interest at the rate of 6% p.a. on the compensation awarded by the tribunal from the date of petition till realization.

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iv) The amount in deposit made by the insurance companies shall be transmitted to the tribunal.

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v) Send back the trial Court records forthwith along with a copy of this judgment.

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vi) No order as to costs.

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vii) Draw award accordingly.

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MRK List No.: 2 Sl No.: 35 CT-ASC

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SD/JUDGE

The Cholamandalam Ms General Insurance Co. Ltd., v. Shri.Arun S/O Jinnappa Sattur

Case brief

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The Cholamandalam Ms General Insurance Co. Ltd., v. Shri.Arun S/O Jinnappa Sattur

Case brief

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What the court decided

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