Partly allowed

The United India Insurance Co. Ltd. v. Dr G S Gopalakrishna

Karnataka HC15 Jun 2023MFA/6355/2012

Case brief

AI extract

What is this about?

The High Court modified the negligence apportionment in a fatal motor accident case, holding the tractor-trailer driver 75% negligent and the bus driver 25% negligent. The appeal was dismissed against the tractor insurer but partly allowed against the bus insurer, recalibrating the compensation payment ratio.

What did the court decide?

Liability ratio modified to 75% for tractor insurer and 25% for bus insurer; compensation quantum upheld; orders passed for transmission of deposit and refund.

The United India Insurance Co. Ltd. Vs Dr G S Gopalakrishna — Insurance | Karnataka HC (2023)

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1 - NC: 2023:KHC:20630 MFA No. 6355 of 2012 C/W MFA No. 7829 of 2012

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 15^TH DAY OF JUNE, 2023

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BEFORE

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THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO. 6355 OF 2012 (MV)

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C/W

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MISCELLANEOUS FIRST APPEAL NO. 7829 OF 2012

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IN MFA NO. 6355/2012 BETWEEN:

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THE UNITED INDIA INSURANCE CO LTD NO.2911, SUNDAR ARCADE, OPPOSITE TO SUB URBAN BUS STAND, BN ROAD, MYSORE-1 (INSURER OF SAID TRACTOR), POLICY NO.072001/31/09/01/00001369 VALID FROM 01.08.04 TO 31.07.10 Digitally signed by VIJAYALAKSHMIB N BY ITS BANGALORE Location: HIGHCOURT OF REGIONAL OFFICE, KARNATAKA M/S UNITED INDIA INSURANCE CO, LTD, MOTOR T.P. DEPARTMENT, REGIONAL OFFICE, 5^TH FLOOR, NRUPTHUNGA ROAD, KRISHI BHAVAN, BANGALORE- 560 001 REPRESENTED BY ITS REGIONAL MANAGER. …APPELLANT

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(BY SRI. P B RAJU & P S JAGADISH.,ADVOCATE)

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NC: 2023:KHC:20630 MFA No. 6355 of 2012 C/W MFA No. 7829 of 2012

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AND:

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DR. G.S. GOPALAKRISHNA S/O K SHIVAIAH, AGED ABOUT 57 YEARS R/A D.NO.10/B, II MAIN ROAD, 8^TH CROSS ROAD, BHOGADI II STAGE, MYSORE-26

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SRI. SATHYA SAI TOURIST SST CHAMBERS SRI SATHYA SAI CIRCLE NO.152/17/1, 36^TH CROSS, 9^TH MAIN, 5^TH BLOCK, JAYANAGAR, BANGALORE – 560 041 (OWNER OF THE BUS BEARING REG NO.KA-05-C-6898)

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THE RELIANCE GENERAL INSURANCE CO. LTD., OPPOSITE: SUB URBAN BUS STAND B N ROAD, MYSORE

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POLICY NO.1405782340002137 VALID FROM 01.01.09 TO 31.01.10

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R. SWAMY GOWDA, S/O RAMEGOWDA SINCE DEAD BY LRS

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4(A) SRI. RAJASHEKAR S/O LATE D. SWAMY GOWDA, MAJOR IN AGE

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3 - NC: 2023:KHC:20630 MFA No. 6355 of 2012 C/W MFA No. 7829 of 2012

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4 (B) SRI. SURYAPRAKASH S/O LATE D. SWAMY GOWDA MAJOR IN AGE

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4 (C) SRI. NAVEEN KUMAR S/O LATE D. SWAMY GOWDA MAJOR IN AGE

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4(A) TO 4 (C) ALL ARE RESIDING AT: ACHAPPANAKOPPALU, K.SHETTAHALLI, RAMAPURA POST, SRIRANGAPATNA TALUK, MANDYA DISTRICT.

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…RESPONDENTS

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(BY SRI. P. NATARAJU ADVOCATE FOR R1; SRI. H.S. LINGARAJU ADVOCATE FOR R3; R2-SERVED;R4(B&C)NOTICE H/S V/O DATED 19.06.2018; R4(C) NOTICE D/W V/O DATED 17.09.2019)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED13.03.2012 PASSED IN MVC NO.701/2010 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-III & MACT, MYSORE, AWARDING A COMPENSATION OF Rs.6,46,200/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL DEPOSIT OR PAYMENT.

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IN MFA NO. 7829/2012 BETWEEN:

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THE RELIANCE GENERAL INSURANCE CO. LTD., OPPOSITE: SUB URBAN BUS STAND B N ROAD, MYSORE HERE IN REPRESENTED BY

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THE REGIONAL OFFICE NO.18, EAST WING

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- 4 - NC: 2023:KHC:20630 MFA No. 6355 of 2012 C/W MFA No. 7829 of 2012

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5^TH FLOOR, CENTENARY BUILDING M. G. ROAD, BANGALORE – 560 001 BY ITS ZONAL LEGAL MANAGER

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…APPELLANT

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(BY SRI. H. S. LINGARAJ, ADVOCATE)

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AND:

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DR. G. S. GOPALA KRISHNA S/O SRI K. SHIVAIAH AGED ABOUT 57 YEARS R/A NO.10/BM II MAIN, 8^TH CROSS BHOGADI II STAGE MYSORE – 570 026.

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SRI SATYA SAI TOURIST S.S.T CHAMBERS, SRI SATYA SAI CIRCLE, NO.152/17/1, 36^TH CROSS, 9^TH MAIN, 5^TH BLOCK, JAYANAGAR, BANGALORE – 560 041.

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R. SWAMYGOWDA S/O RAMEGOWDA, AGED ABOUT 30 YEARS, R/A ACCHAPPANNA KOPPALU, RAMAPURA, S.R. PATNA TALUK, MANDYA DISTRICT – 571 438.

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UNITED INDIA INSURANCE CO. LTD., NO.2911, SUNDER ARCADE,

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NC: 2023:KHC:20630 MFA No. 6355 of 2012 C/W MFA No. 7829 of 2012

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OPP: SUB URBAN BUS STAND, B N ROAD, MYSORE – 570 001.

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…RESPONDENTS

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(BY SRI. P. NATARAJ ADVOCATE FOR R1; SRI. P. B. RAJU, ADVOCATE FOR R4;

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R2 SERVED; APPEAL ABATED AS AGAINST R3 V/O DATED 23.06.2014)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED13.3.2012 PASSED IN MVC NO.701/2010 ON THE FILE OF PRESIDING OFFICER, FAST TRACK COURT-III & MACT, MYSORE, AWARDING A COMPENSATION OF RS.6,46,200/- WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.

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

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JUDGMENT

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MFA No.6355/2012 is filed by the insurer-United India Insurance Company Limited, challenging the Judgment and Award dated 13.03.2012 passed in MVC No.701/2010 by the Fast Track Court-III and MACT, Mysuru, so far as attributing the liability at 50% on the part of the driver of the tractor-trailer for rash and negligent driving and fastening 50% liability on the driver of the bus for rash and negligent driving.

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6 - NC: 2023:KHC:20630 MFA No. 6355 of 2012 C/W MFA No. 7829 of 2012

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MFA No.7829/2012 is filed by the insurer-Reliance General Insurance Company Limited who is the insurer of the bus.

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The claimant aged 50 years, was a Geologist by profession, was going on his motor-cycle bearing No.KA-09-H-2064 near Naguvanahalli gate, BengaluruMysuru main road at 6.45 p.m., on 11.10.2009. When he was moving near road divider, the tractor and trailer No.KA-11-T-5268 and 5269 coming behind the claimant's motor-cycle with a high speed in a rash and negligent manner and has taken 'U' turn without giving signals and dashed the claimant's motor-cycle due to which, the claimant had fallen on the road and at the same time, bus No.KA-05-C-6898 coming from Mysuru-Bengaluru side, driven by its driver without giving any signals, drove with high speed and rash and negligent manner, had dashed the claimant. Therefore, by this accident, the claimant had sustained injuries and hence, filed a claim petition against the owner and insurer of both the tractor and the

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7 - NC: 2023:KHC:20630 MFA No. 6355 of 2012 C/W MFA No. 7829 of 2012

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bus and the Tribunal, appreciating the material on record, has granted compensation of Rs.6,46,200/- by holding the owner and insurer of both the vehicles liable to pay compensation of 50% each, to the claimants.

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Heard the learned counsel on both side and perused the records.

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Learned counsel for the appellant-insurer of the United India Insurance Company Limited submitted that the driver of the tractor-trailer was not rash and negligent in driving the tractor-trailer and hence, fastening 50% of negligence on the part of the driver of the tractor, is not correct. At the same time, learned counsel for the insurer of the bus-Reliance General Insurance Company argued that the driver of the tractor-trailer took turn suddenly and caused the accident, but not the bus. Therefore, the accident was caused due to the rash and negligent driving of the tractor-trailer only, but not the bus. Therefore, the entire negligence is attributed on part of the tractortrailer.

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8 - NC: 2023:KHC:20630 MFA No. 6355 of 2012 C/W MFA No. 7829 of 2012

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RE: LIABILITY OF INSURANCE COMPANY ON RASH

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AND NEGLIGENT DRIVING

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The manner of accident is not disputed by either parties. The motor-cycle was going ahead of the tractortrailer. The tractor-trailer has tried to take 'U' turn and

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dashed the motor-cycle, due to which, the claimant had suffered injuries. Ex.P1 is the complaint, Ex.P2 is the F.I.R, Ex.P3 is the spot mahazar and Ex.P6 is the charge sheet which show that the driver of the tractor-trailer firstly had dashed the motor-cycle while taking 'U' turn.

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At the same time, the bus was coming from Mysuru to Bengaluru side, it also caused accident and due to which, the claimant has suffered injuries. The Tribunal fastened rash and negligent driving to the extent of 50% each on part of the driver of two respective vehicles. Even though the charge sheet is filed against the drivers of both the tractor-trailer and bus, but always it cannot be said that both have equally contributed to the accident. Under what circumstances the claimant had fallen on the ground is to

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9 - NC: 2023:KHC:20630 MFA No. 6355 of 2012 C/W MFA No. 7829 of 2012

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be appreciated. The driver of the tractor-trailer had dashed the motor-cycle and the claimant had fallen on the ground. The bus was coming on its way may be with speed since be the road is national high-way and the accident has occurred, but which vehicle had caused the accident at first instance constraining the claimant to fall

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on the road has to be considered for assessment of magnitude of rash and negligence aspect is concerned. Thus, if the tractor-trailer had not dashed the motor-cycle, the claimant would not have fallen on the ground. But the tractor-trailer hit the motor cycle of claimant. Then the claimant had fallen on the ground. Subsequently, bus hit the motor-cycle. When the bus was coming on its way and suddenly, the motor-cycle was compelled to fall in front of the bus, under such circumstances, the driver of the bus would not be in a position to control the bus immediately. Any how, the bus has also caused the accident. Therefore, considering the evidence and material on record in this regard, the driver of the tractortrailer is found to be more rash and negligent in causing

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10 - NC: 2023:KHC:20630 MFA No. 6355 of 2012 C/W MFA No. 7829 of 2012

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the accident compared to the driver of the bus. Therefore,

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just because the charge sheet is filed against both the vehicles, it cannot always be held that drivers of both the vehicles are equally rash and negligent in causing the accident as regards the negligence aspect is concerned in

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the present case. Therefore, as regards the apportionment of the negligence is concerned, as discussed, the driver of the tractor-trailer is held to be 75% negligent for rash and negligent driving. 25% liability is fastened on the driver of the bus. Accordingly, 75:25 liabilities is fastened on both the drivers of the tractor-trailer and bus, respectively.

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Thus, the finding on Issue No.1 is concerned, is modified for the reasons stated above.

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Therefore, the appellant-insurer in MFA No.6355/2012, viz., United India Insurance Company Limited shall pay 75% of the compensation to the claimant and the appellant-insurer - Reliance General Insurance

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11 - NC: 2023:KHC:20630 MFA No. 6355 of 2012 C/W MFA No. 7829 of 2012

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Company Limited in MFA No.7829/2012 shall pay 25% of

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the compensation amount to the claimant.

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RE: QUANTUM:

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So far as quantum of compensation is concerned,

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considering the nature of injuries sustained and disability, the assessment of compensation made by the Tribunal is found just and proper and reasonable. Therefore, there is no necessity to modify the quantum of compensation awarded by the Tribunal.

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Issue No.2 is answered accordingly.

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Therefore, I pass the following:

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ORDER

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(i) The appeal filed by the United India Insurance Company Limited in MFA

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No.6355/2012 is hereby dismissed.

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(ii) The appeal filed by Reliance General Insurance Company Limited in MFA

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NC: 2023:KHC:20630 MFA No. 6355 of 2012 C/W MFA No. 7829 of 2012

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12 -

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No.7829/2012 is partly allowed. The Judgment and Award dated 13.03.2012 passed in MVC No.701/2010 by the Fast Track Court-III and MACT, Mysuru, is hereby modified as far as negligence aspect is concerned.

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(iii) The appellant-insurer in MFA No.6355/2012, viz., United India Insurance Company Limited and the appellant-insurer in MFA No.7829/2012, viz., Reliance General Insurance Company Limited shall pay compensation amount to the claimant in the ratio of 75:25 respectively.

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(iv) The amount in deposit shall be transmitted to the Tribunal and if the insurer-Reliance General Insurance Company Limited has deposited the excess amount, the same shall be refunded to the Insurance Company.

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NC: 2023:KHC:20630 MFA No. 6355 of 2012 C/W MFA No. 7829 of 2012

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(v) Costs made easy.

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(vi) Draw award accordingly.

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Sd/JUDGE

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BNV List No.: 1 Sl No.: 10

The United India Insurance Co. Ltd. v. Dr G S Gopalakrishna

Case brief

What is this about?

What did the court decide?

The United India Insurance Co. Ltd. v. Dr G S Gopalakrishna

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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