Allowed

The Regional Manager v. Smt Saraswathamma

Karnataka HC13 Jun 2023MFA/7605/2012

Case brief

AI extract

What is this about?

MFA No. 7605 of 2012 decided an insurance appeal against a Motor Accident Claims Tribunal award. The High Court allowed the appeal, modifying the negligence ratio to 30:70 and affirming the 'pay and recovery' order against the insurer.

What did the court decide?

The judgment and award were modified: negligence ratio set at 30:70; Insurance Company ordered to pay compensation first and recover from the vehicle owner.

The Regional Manager Vs Smt Saraswathamma — Motor Accident Claims | Karnataka HC (2023)

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NC: 2023:KHC:20332 MFA No. 7605 of 2012

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^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. 7605 OF 2012 (MV-I)

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BETWEEN:

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THE REGIONAL MANAGER, NATIONAL INSURANCE COMPANY LIMITED, REGIONAL OFFICE,NO. 144, 2ND FLOOR, SHUBHARAM COMPLEX, M. G. ROAD, BANGALORE - 560 001.BY IT'S MANAGER.

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…APPELLANT

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(BY SRI. O MAHESH, ADVOCATE)

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AND:

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SMT. SARASWATHAMMA, AGED ABOUT 57 YEARS, W/O LATE GOVINDAPPA,

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Digitally signed by VIJAYALAKSHMI B N Location: HIGH COURT OF KARNATAKA

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SMT. ASHWATHAMMA, AGED ABOUT 52 YEARS, W/O LATE GOVINDAPPA,

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SMT. SHYAMALAMMA, AGED ABOUT 40 YEARS, D/O LATE GOVINDAPPA,

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SRI. K. G. RAJAPPA, AGED ABOUT 36 YEARS, S/O LATE GOVINDAPPA

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SRI. MUNEGOWDA, AGED ABOUT 57 YEARS, S/O LATE NARAYANAPPA, (HANDICAPPED BROTHER)

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NC: 2023:KHC:20332 MFA No. 7605 of 2012

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SMT. MUNIYAMMA, AGED ABOUT 77 YEARS, W/O LATE NARAYANAPPA,

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ALL ARE RESIDING AT NO. 12, KONDENAHALLI, SIDLAGHATTA TALUK, CHIKKABALLAPUR DISTRICT - 562 101,

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AND ALSO R/AT NO. 143, 3RD MAIN, 2ND CROSS, YALAHANKA, BANGALORE - 64.

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SMT. B SUBBALAKSHMI, MAJOR, NO. 411, CHINNAHUTU MAIN STREET, ERODE, TAMILNADU, (EX-PARTE BFORE MACT).

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…RESPONDENTS

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(BY SRI. K V SHAYAM PRASAD, ADVOCATE FOR R1 TO R5; R6 - SERVED;

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R7 - NOTICE HELD SUFFICIENT VIDE ORDER DATED 21.09.2015)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 7.3.2012 PASSED IN MVC NO.5447/2010 ON THE FILE OF XXII ADDITIONAL SMALL CAUSES JUDGE, MEMBER ,MACT, BANGALORE, AWARDING A COMPENSATION OF RS.4,85,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL DEPOSIT.

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

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JUDGMENT

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This appeal is filed by the appellant/insurance

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company seeking to set aside the judgment and award dated 07.03.2012 passed in MVC No.5447/2010 by the

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NC: 2023:KHC:20332 MFA No. 7605 of 2012

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Motor Accident Claims Tribunal, Court of Small Causes, Bangalore.

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The brief facts of the case are that:

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On 31.05.2010 at 11.00 a.m., one Sri. Govindappa K

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N was riding TVS Super XL bearing No.KA-40-K-2408 at Chadalapura gate, Chikkaballapura District on the left side of the road and while crossing N.H.7 by-pass road from west to east, a lorry bearing Reg.No.T.D.Q. 3697 came from Bangalore-Bagepalli in high speed and in a rash and negligent manner and dashed against said Sri. Govindappa K N, due to which he sustained injuries. He was shifted to Government Hospital, Chikkaballapur for first aid and later shifted to Nimhans, Bangalore and later he succumbed to injuries. Therefore, the claimant has filed the claim petition, seeking compensation.

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Heard the arguments of learned counsel for the

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appellant and the learned counsel for the respondentInsurance Company and perused the records.

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NC: 2023:KHC:20332 MFA No. 7605 of 2012

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Learned counsel for appellant/insurance

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company submitted that the deceased while he was riding motorcycle and crossing the National Highway, supposed to slow down the motorcycle and waited for any vehicle coming in National Highway. After confirming that there is no vehicle coming, ought to have crossed the road. But without doing so, he tried to cross the road in a rash and negligent manner and in this way, the accident was occurred. Therefore, the entire negligence is attributed on the deceased. As such, the driver of the lorry was not at all rash and negligent.

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Further, it is submitted that the driver of lorry was not holding driving license to drive heavy transport vehicle but was holding license to drive Light Motor Vehicle. Thus, there is violation of conditions of policy and the insurance company is not liable to pay compensation. Hence, on these two grounds, he prays to allow the appeal.

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On the other hand, learned counsel for respondent-claimant justified the judgment and award passed by the Tribunal.

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In the present case, the place of accident and movement of vehicles are not disputed. The place of accident is NH.7. As per Ex.P4, the place of accident is shown at the junction of NH.7 on the middle of the road. When the deceased was riding the motorcycle and at the time of crossing National Highway, the deceased was duty bound to wait and see the movement of vehicles plying on the National Highway and ensure that there are no vehicles on the National Highway so as to cross the road and then to move to other side of the road. But without doing so, the deceased drove the motorcycle and at that time, the lorry was coming and caused accident. Since the road is a National Highway, the movement of vehicles are normally speed. Therefore, it is duty cast on the deceased while crossing the road to halt, wait and proceed. Therefore, in this regard, the deceased has not followed

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NC: 2023:KHC:20332 MFA No. 7605 of 2012

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the road safety measures as per Regulation Nos.8 and 9 of

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the Central Motor Vehicles Rules, 1989 which reads as

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under:

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"8. Left, right and 'U' turns -

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The driver shall plan well in advance of a turn, move to the appropriate lane of the road and give signal for the intended turn in the following manner, namely:-

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(1) Taking a left turn -

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(a) a driver who wishes to turn left shall clearly and in good time indicate his intention to turn left either by using direction indicator or giving appropriate hand signal;

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(b)before turning left, the driver shall, in reasonable time, move to the left most lane or use a slip lane, where provided.

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(c) while driving on a multi-lane road, where direction arrows pointing to the left are marked on the road, the driver shall use that lane while taking a left turn;

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(d) before moving into the left lane, the driver shall keep in view the traffic to his left and behind him, and change the lane only after giving a left-turn signal;

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(e) before turning left, the driver shall give way to cyclists and other slow-moving traffic;

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NC: 2023:KHC:20332 MFA No. 7605 of 2012

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(f) at uncontrolled pedestrian crossings, the driver shall give way to the pedestrians before turning left;

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(g) a vehicle, which is unable to negotiate a left turn due to large turning radius required for the vehicle from the extreme left lane, may use the next lane with the driver keeping a watch on the traffic on the left of the vehicle in the rear view mirror and exercising extreme caution while negotiating the turn.

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(2) Taking a right turn:-

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(a) the driver who wishes to turn right shall clearly and in good time indicate his intention to turn right by using either the direction indicator or by giving a hand signal;

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(b) before turning right, the driver shall in good time move to the right most lane;

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(c) while driving on a multi-lane road, where direction arrows pointing to the right are marked on the road, the driver shall remain in that lane while taking right turn;

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(d) before moving into the right lane, the driver shall keep in mind the traffic on his right and behind him, and change the lane only after giving a right-turn signal;

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(e) at uncontrolled pedestrian crossings, the driver shall give way to pedestrians.

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NC: 2023:KHC:20332 MFA No. 7605 of 2012

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(3) Taking a 'U' turn,-

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(a) a vehicle shall not make a 'U' turn-

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(i) where such 'U' turn is prohibited by a road sign or a traffic signal;

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(ii) on a busy road with continuous flow of traffic;

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(iii) on a major road, highway or expressway; and

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(iv) across a continuous single or a double solid line;

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(b) the driver shall not take a 'U' turn if there are any blind spots around the vehicle and shall start taking a 'U' turn only if it is safe to take a 'U' turn, after closely observing the traffic in the opposite direction and observing the traffic on the sides and behind the vehicle in the side view mirrors and rear view mirror;

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(c) the driver shall negotiate the right turn only after giving way to the other road users who have the right of way, including pedestrians and cyclists;

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(d) the driver shall ensure that he has a clear view of approaching traffic and shall not cause undue inconvenience to the other road users and also ensure safety of other road users;

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(e) a large vehicle may take the 'U' turn from the left lane only where permitted.

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9. Precautions to be taken at intersections .(1)The vehicle shall invariably slow down when approaching a road intersection, a road junction, a pedestrian crossing or a road corner, and shall not enter any such intersection, junction or crossing if it is likely to endanger the safety of other road users moving onto, or already on, such intersection, road junction, pedestrian crossing or road corner.

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(2) At intersections and junctions, vehicles approaching from the right side shall have the right of way;

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Provided that this sub-regulation shall not apply,-

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(a) when the junction or intersection is being regulated by manual signals by an authorized person, traffic lights or mandatory traffic signs; or

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(b) when the vehicle is exiting a minor road and entering a major road.

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(3) A motor vehicle shall not enter an intersection if the traffic on the intersection has come to a standstill even if it is on the main road or has a signal to proceed.

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Therefore, upon considering the entire scenario

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of the accident which was revealed from the police documents such as FIR, spot sketch, spot mahazar and charge sheet, the deceased has also contributed his rashness and negligence aspect towards occurrence of accident for the reasons stated above. Therefore, it cannot be said that the driver of the lorry was completely rash and negligent. But the aspect of rashness and negligent can be attributed in the ratio 30:70 between the deceased and driver of the lorry respectively. Accordingly, issue No.2 framed by the Tribunal is hereby modified.

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In the present case, the Tribunal has ordered 'pay and recovery' since the driver of the lorry was holding driving license to drive Light Motor Vehicle as per Ex.R1. But the offending vehicle lorry is heavy goods vehicle. Hence, the insurance company has to successfully establish its defense that the driver of lorry was not holding valid and effective driving license as per SubSection (2) of Section 149 of the MV Act. Therefore, as

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per Sub-Sections (1), (5), (7) of Section 149 of MV Act and also as per the principles of law down in the cases of

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National Insurance Co. Ltd., vs. Swaran Singh¹ , Pappuu and others vs. Vinod Kumar Lamba and another² , and full bench decision of this Court in the case of New India Assurance Co., Ltd., vs. Yallavva and

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another³ , principle of pay and recovery is applied. As such, the Insurance Company shall pay the compensation to the claimant at the first instance and then recover the same from the owner of the offending lorry bearing No. T.D.Q.3697. Hence, an order of pay and recovery is made.

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The respondents/claimants are entitled for compensation as apportioned by the Tribunal.

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Accordingly, I proceed to pass the following:

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ORDER

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i. The appeal is allowed .

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1 reported in 2004 ACJ 1

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2 reported in (2018) 3 SCC 208

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3 reported in ILR 2020 KAR 2239

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NC: 2023:KHC:20332 MFA No. 7605 of 2012

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ii. The judgment and award dated 07.03.2012 passed by the Tribunal in MVC No.5447/2010 is hereby modified to the extent that contributory negligence is attributed in the ratio of 30:70 between the deceased on one hand and driver of the lorry on the other hand respectively. Therefore, the claimant is entitled for 70% of the compensation amount what is determined by the Tribunal.

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