Partly allowed

The New India Assurance Co. Ltd. v. T Jayanna

Karnataka HC6 Dec 2024MFA/2838/2017

Case brief

AI extract

What is this about?

Appeals arising from a road accident where an overloaded Tempo Trax collided with a KSRTC bus, killing several passengers. The High Court held the insurer liable only up to the permitted 11+1 passengers, but directed it to deposit entire awards with liberty to recover excess from the owner; enhanced compensation in a Section 163A claim.

What did the court decide?

Insurer to deposit full awards within four weeks with liberty to recover excess over 11+1 passenger coverage from the Tempo Trax owner; claimants in MVC No.6531/2011 granted enhanced compensation of R

The New India Assurance Co. Ltd. Vs T Jayanna — Insurance | Karnataka HC (2024)

¶1

¶2

NC: 2024:KHC:50374-DB MFA No.2838/2017 AND CONNECTED WITH MATTERS

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6^TH DAY OF DECEMBER, 2024 PRESENT

¶4

THE HON'BLE MRS. JUSTICE K.S.MUDAGAL AND

¶5

THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL MISCELLANEOUS FIRST APPEAL NO.2838/2017 (MV-D)

¶6

C/W

¶7

MISCELLANEOUS FIRST APPEAL NO.304/2014 (MV-D) MISCELLANEOUS FIRST APPEAL NO.2426/2015 (MV-D) MISCELLANEOUS FIRST APPEAL NO.2833/2017 (MV-D) MISCELLANEOUS FIRST APPEAL NO.2834/2017 (MV-D) MISCELLANEOUS FIRST APPEAL NO.2835/2017 (MV-D) MISCELLANEOUS FIRST APPEAL NO.2836/2017 (MV-D) MISCELLANEOUS FIRST APPEAL NO.2837/2017 (MV-D)

¶8

Digitally signed by RUPA V Location: HIGH COURT OF KARNATAKA

¶9

IN M.F.A. No.2838/2017:

¶10

BETWEEN:

¶11

THE NEW INDIA ASSURANCE CO LTD BRANCH OFFICE, B.H.ROAD, TUMKUR MOTOR THIRD PARTY CLAIMS HUB M G ROAD, BANGALORE - 1 BY DULY CONSTITUTED ATTORNEY.

¶12

…APPELLANT

¶13

(BY SRI. K. SURYANARAYANA RAO, ADV.,)

¶14

AND:

¶15

T. JAYANNA S/O LATE THIMMAIAH AGED ABOUT 62 YEARS.

¶16

K.P. PANKAJA W/O JAYANNA

¶17

¶18

NC: 2024:KHC:50374-DB MFA No.2838/2017 AND CONNECTED WITH MATTERS

¶19

AGED ABOUT 51 YEARS.

¶20

J.P. TANUJA D/O JAYANNA AGED ABOUT 29 YEARS.

¶21

ALL ARE R/AT. N.NANDIHALLI VILLAGE NITTUR HOBLI, GUBBI TALUK.

¶22

RAGHAVENDRA S/O KALLESHAPPA MAJOR IN AGE R/AT. NRUPATHUNGA EXTN 2ND MAIN, 2ND CROSS TUMKUR TOWN - 572 101.

¶23

MANAGING DIRECTOR KSRTC, WILSON GARDEN K H ROAD, SHANTHINAGAR BANGALORE - 560 027.

¶24

…RESPONDENTS

¶25

(BY SRI. MOUNESH S.B. ADV., FOR SRI. V.B. SIDDARAMAIAH, ADV., FOR R2 & R3 SRI. S. RAJASHEKAR, ADV., FOR R5 R1 & R4 SERVED)

¶26

THIS MFA IS FILED U/S 173(1) OF MV ACT, PRAYING TO CALL FOR THE RECORDS IN MVC NO.105/12 ON THE FILE OF THE COURT OF THE SENIOR CIVIL JUDGE AND ADDL. MACT-17 GUBBI AND SET ASIDE THE JUDGMENT AND AWARD DATED 15.09.2016 AS AGAINST THE APPELLANT IN THE ENDS OF JUSTICE.

¶27

IN M.F.A. No.304/2014:

¶28

BETWEEN:

¶29

SMT. RANGAMMA W/O N. MANJAPPA AGED ABOUT 42 YEARS.

¶30

N. MANJANNA S/O LATE NANJAPPA @ NANJEGOWDA AGED ABOUT 51 YEARS.

¶31

¶32

NC: 2024:KHC:50374-DB MFA No.2838/2017 AND CONNECTED WITH MATTERS

¶33

BOTH ARE R/O. NO.23 11TH "A" CROSS SWIMMING POOL EXTENSION MALLESWARAM, BANGALORE-560003.

¶34

...APPELLANTS

¶35

(BY SRI. N.S. BHAT, ADV.,)

¶36

AND:

¶37

RAGHAVENDRA

¶38

S/O KALASAPPA, MAJOR R/AT. NRUPATHUNGA EXTENSION II MAIN, II CROSS TUMKUR-572101.

¶39

THE REGIONAL MANAGER THE NEW INDIA ASSURANCE CO. LTD., REGIONAL OFFICE NO.2/B, UNITED BUILDING ANNEXE, MISSION ROAD BANGALORE-560027.

¶40

THE KARNATAKA STATE ROAD TRANSPORT CORPORATION KENGAL HANUMANTHAIAH DOUBLE ROAD, SHANTHINAGARA BANGALORE-560027 BY ITS MANAGING DIRECTOR.

¶41

...RESPONDENTS

¶42

(BY SMT. SUMANGALA A. SWAMY, ADV., FOR R3 SRI. K. SURYANARAYANA RAO, ADV., FOR R2 R2 SERVED)

¶43

THIS MFA IS FILED U/S 173(1) OF MV ACT, PRAYING TO ALLOW THIS MEMORANDUM OF MISCELLANEOUS FIRST APPEAL AND TO MODIFY THE JUDGMENT AND AWARD DATED 18.07.2013 PASSED BY MACT, BANGALORE (SCCH-11) IN MVC NO.6531/2011 BY HOLDING THAT THE RESPONDENT NOS.1 TO 3 ARE JOINTLY AND SEVERALLY LIABLE TO PAY COMPENSATION AMOUNT DIRECTED TO BE PAYABLE BY INSURER - RESPONDENT-2 & RESPONDENT-3 AND TO ENHANCE THE COMPENSATION TO MAKE IT JUST AND PROPER.

¶44

¶45

NC: 2024:KHC:50374-DB MFA No.2838/2017 AND CONNECTED WITH MATTERS

¶46

IN M.F.A. NO.2426/2015:

¶47

BETWEEN:

¶48

THE NEW INDIA ASSURANCE CO., LTD., MOTOR THIRD PARTY CLAIMS HUB M G ROAD, BANGALORE-1 BY DULY CONSTITUTED ATTORNEY.

¶49

...APPELLANT

¶50

(BY SRI. K. SURYANARAYANA RAO, ADV.,)

¶51

AND:

¶52

KEMPARAJU AGED ABOUT 48 YEARS S/O DODDAIAH.

¶53

LAKKAMMA AGED ABOUT 42 YEARS W/O KEMPARAJU.

¶54

BOTH ARE RESIDIDNG AT SATHUAMANGALA KASABA HOBLI TUMKUR TALUK-572101.

¶55

RAGHAVENDRA

¶56

S/O KALLESHAPPA MAJOR IN AGE R/AT NRUPATHUNGA EXTN 2ND MIAN, 2ND CROSS TUMKUR TOWN-572101.

¶57

...RESPONDENTS

¶58

(BY SRI. MOUNESH S.B. ADV., FOR SRI. V.B. SIDDARAMAIAH, ADV., FOR R2 SRI. S.N. SAMEER, ADV., FOR SATTVA LAW ASSTS. FOR R1 R3 SERVED)

¶59

THIS MFA IS FILED U/S 173(1) OF MV ACT, PRAYING TO CALL FOR THE RECORDS IN MVC NO.764/11 ON THE FILE OF THE COURT OF FAST TRACK AND ADDL. MOTOR ACCIDENT CLAIMS TRIBUNAL-V, TUMKUR AND SET ASIDE THE JUDGMENT AND AWARD DATED 3.9.2014 AS AGAINST THE APPELLANT IN THE ENDS OF JUSTICE.

¶60

¶61

NC: 2024:KHC:50374-DB MFA No.2838/2017 AND CONNECTED WITH MATTERS

¶62

IN M.F.A. NO.2833/2017:

¶63

BETWEEN:

¶64

THE NEW INDIA ASSURANCE CO LTD BRANCH OFFICE, B.H.ROAD, TUMKUR MOTOR THIRD PARTY CLAIMS HUB M G ROAD, BANGALORE - 1 BY DULY CONSTITUTED ATTORNEY.

¶65

...APPELLANT

¶66

(BY SRI. K. SURYANARAYANA RAO, ADV.,)

¶67

AND:

¶68

LAKSMIDEVAMMA W/O LATE THIMMAIAH AGED ABOUT 52 YEARS.

¶69

KEMPAMMA W/O SHETTALLAYYA AGED ABOUT 76 YEARS.

¶70

RAMU S/O LATE THIMMAIAH AGED ABOUT 31 YEARS.

¶71

ALL ARE R/AT BAREETHOTA (MARUTHIPALYA) THYAGATUR VILLAGE, NITTUR HOBLI GUBBI TALUK - 572 114.

¶72

RAGHAVENDRA S/O KALLESHAPPA MAJOR IN AGE R/AT. NRUPATHUNGA EXTN 2ND MAIN, 2ND CROSS TUMKUR TOWN - 572 101.

¶73

MANAGING DIRECTOR KSRTC WILSON GARDEN K H ROAD, SHANTHINAGAR BANGALORE - 560 027.

¶74

...RESPONDENTS

¶75

(BY SRI. VIKYATH B, ADV., FOR R1 AND R3 SRI. S. RAJASHEKAR, ADV., FOR R5 R2 & R4 SERVED)

¶76

¶77

NC: 2024:KHC:50374-DB MFA No.2838/2017 AND CONNECTED WITH MATTERS

¶78

THIS MFA IS FILED U/S 173(1) OF MV ACT, PRAYING TO CALL FOR THE RECORDS IN MVC NO.836/11 ON THE FILE FO THE COURT OF THE SENIOR CIVIL JUDGE AND ADDL. MACT-17 GUBBI AND SET ASIDE THE JUDGMENT AND AWARD DATED 15.09.2016 AS AGAINST THE APPELLANT IN THE ENDS OF JUSTICE.

¶79

IN M.F.A. NO.2834/2017:

¶80

BETWEEN:

¶81

THE NEW INDIA ASSURANCE CO. LTD BRANCH OFFICCE, B.H.ROAD, TUMKUR MOTOR THIRD PARTY CLAIMS HUB M.G.ROAD, BANGALORE-1 BY DULT CONSTITUTED ATTORNEY.

¶82

...APPELLANT

¶83

(BY SRI. K. SURYANARAYANA RAO, ADV.,)

¶84

AND:

¶85

GANGAMMA W/O LATE LAKSHMAIAH AGED ABOUT 62 YEARS.

¶86

MANJULA D/O LAKSHMAIAH

¶87

AGED ABOUT 32 YEARS.

¶88

NAGARAJA S/O LAKSHMAIAH AGED ABOUT 28 YEARS.

¶89

ALL ARE R/AT CHIKKAKATTIGENAHALLI VILLAGE KOPPA POST, KASABA HOBLI GUBBI TALUK-572114.

¶90

RAGHAVENDRA S/O KALLESHAPPA MAJOR IN AGE R/AT NRUPATHUNGA EXTN 2ND MAIN, 2ND CROSS TUMKUR TOWN-572101.

¶91

¶92

NC: 2024:KHC:50374-DB MFA No.2838/2017 AND CONNECTED WITH MATTERS

¶93

MANAGING DIRECTOR KSRTC, WILSON GARDEN K H ROAD, SHANTHINAGAR BANGALORE-560027.

¶94

...RESPONDENTS

¶95

(BY SRI. MUSHTAQ AHMED, ADV., FOR R1 TO R3 SRI. S. RAJASHEKAR, ADV., FOR R5 R4 SERVED)

¶96

THIS MFA IS FILED U/S 173(1) OF MV ACT, PRAYING TO CALL FOR THE RECORDS IN MVC NO.886/11 ON THE FILE FO THE COURT OF THE SENIOR CIVIL JUDGE AND ADDL. MACT-17 GUBBI AND SET ASIDE THE JUDGMENT AND AWARD DATED 15.9.2016 AS AGAINST THE APPELLANT IN THE ENDS OF JUSTICE.

¶97

IN M.F.A. .NO.2835/2017:

¶98

BETWEEN:

¶99

THE NEW INDIA ASSURANCE CO. LTD BRANCH OFFICCE, B.H.ROAD, TUMKUR MOTOR THIRD PARTY CLAIMS HUB M.G.ROAD, BANGALORE-1 BY DULT CONSTITUTED ATTORNEY.

¶100

...APPELLANT

¶101

(BY SRI. K. SURYANARAYANA RAO, ADV.,)

¶102

AND:

¶103

GANGAMMA W/O LATE LAKSHMAIAH AGED ABOUT 62 YEARS.

¶104

MANJULA D/O LAKSHMAIAH AGED ABOUT 32 YEARS.

¶105

NAGARAJA S/O LATE LAKSHMAIAH AGED ABOUT 28 YEARS.

¶106

ALL ARE R/AT CHIKKAKATTIGENAHALLI VILLAGE KOPPA POST, KASABA HOBLI

¶107

¶108

NC: 2024:KHC:50374-DB MFA No.2838/2017 AND CONNECTED WITH MATTERS

¶109

GUBBI TALUK-572114.

¶110

RAGHAVENDRA S/O KALLESHAPPA MAJOR IN AGE R/AT NRUPATHUNGA EXTN 2ND MAIN, 2ND CROSS TUMKUR TOWN-572101.

¶111

MANAGING DIRECTOR KSRTC, WILSON GARDEN K H ROAD, SHANTHINAGAR BANGALORE-560027.

¶112

...RESPONDENTS

¶113

(BY SRI. FAYAZ SAB B.G. ADV., FOR R1 TO R3 SRI. S. RAJASHEKAR, ADV., FOR R5 V/O/DTD:07.11.2024 APPEAL AGAINST R4 IS DISMISSED)

¶114

THIS MFA IS FILED U/S 173(1) OF MV ACT, PRAYING TO CALL FOR THE RECORDS IN MVC NO.887/ 11 ON THE FILE OF THE COURT OF THE SENIOR CIVIL JUDGE AND ADDL. MACT-17 GUBBI AND SET ASIDE THE JUDGMENT AND AWARD DATED 15.9.2016 AS AGAINST THE APPELLANT IN THE ENDS OF JUSTICE.

¶115

IN M.F.A. NO.2836/2017:

¶116

BETWEEN:

¶117

THE NEW INDIA ASSURANCE CO. LTD BRANCH OFFICCE, B.H.ROAD, TUMKUR MOTOR THIRD PARTY CLAIMS HUB M.G.ROAD, BANGALORE-1 BY DULY CONSTITUTED ATTORNEY.

¶118

...APPELLANT

¶119

(BY SRI. K. SURYANARAYANA RAO, ADV.,)

¶120

AND:

¶121

GANGANNA S/O LATE KARIYAPPA AGED ABOUT 46 YEARS.

¶122

SHIVAKUMARA S/O GANGANNA

¶123

¶124

NC: 2024:KHC:50374-DB MFA No.2838/2017 AND CONNECTED WITH MATTERS

¶125

AGED ABOUT 24 YEARS.

¶126

BOTH ARE R/AT. VARADENAHALLI VILLAGE KASABA HOBLI, GUBBI TALUK-572114.

¶127

RAGHAVENDRA S/O KALLESHAPPA MAJOR IN AGE R/AT. NRUPATHUNGA EXTN 2ND MAIN, 2ND CROSS TUMKUR TOWN-572101.

¶128

MANAGING DIRECTOR KSRTC, WILSON GARDEN K H ROAD, SHANTHINAGAR BANGALORE-560027.

¶129

...RESPONDENTS

¶130

(BY SRI. MUSHTAQ AHMED, ADV., FOR R1 & R2 SRI. S. RAJASHEKAR, ADV., FOR R4 R3 SERVED)

¶131

THIS MFA IS FILED U/S 173(1) OF MV ACT, PRAYING TO CALL FOR THE RECORDS IN MVC NO.888/11 ON THE FILE OF THE COURT OF THE SENIOR CIVIL JUDGE AND ADDL. MACT-17, GUBBI AND SET ASIDE THE JUDGMENT AND AWARD DATED 15.9.2016 AS AGAINST THE APPELLANT IN THE ENDS OF JUSTICE.

¶132

IN M.F.A. NO.2837/2017:

¶133

BETWEEN:

¶134

THE NEW INDIA ASSURANCE CO LTD BRANCH OFFICE, B.H.ROAD, TUMKUR MOTOR THIRD PARTY CLAIMS HUB M G ROAD, BANGALORE - 1 BY DULY CONSITUTED ATTORNEY.

¶135

...APPELLANT

¶136

(BY SRI. K. SURYANARAYANA RAO, ADV.,)

¶137

AND:

¶138

MANGALGOWRAMMA W/O LATE NARASIMHA MURTHY

¶139

10 -

¶140

NC: 2024:KHC:50374-DB MFA No.2838/2017 AND CONNECTED WITH MATTERS

¶141

AGED ABOUT 31 YEARS.

¶142

BHARATH S/O NARASIMHAMURTHY AGED ABOUT 10 YEARS.

¶143

GANGANARASIAH S/O LATE DASAPPA AGED ABOUT 61 YEARS.

¶144

ALL ARE R/AT. CHIKKAKATTIGENAHALLI VILLAGE, KOPPA POST, KASABA HOBLI GUBBI TALUK - 572 114.

¶145

RAGHAVENDRA S/O KALLESHAPPA MAJOR IN AGE

¶146

R/AT NRUPATHUNGA EXTN 2ND MAIN, 2ND CROSS TUMKUR TOWN - 572 101.

¶147

MANAGING DIRECTOR KSRTC, WILSON GARDEN, K H ROAD SHANTHINAGAR, BANGALORE - 560 027.

¶148

...RESPONDENTS

¶149

(BY SRI. H.S. SIDDARAMAIAH, ADV., FOR R1 & R3 SRI. S. RAJASHEKAR, ADV., FOR R5 R2 & R4 SERVED)

¶150

THIS MFA IS FILED U/S 173(1) OF MV ACT, PRAYING TO CALL FOR THE RECORDS IN MVC NO.889/11 ON THE FILE OF THE COURT OF THE SENIOR CIVIL JUDGE AND ADDL. MACT-17 GUBBI AND SET ASIDE THE JUDGMENT AND AWARD DATED 15.9.2016 AS AGAINST THE APPELLANT IN THE ENDS OF JUSTICE.

¶151

THESE APPEALS HAVING BEEN HEARD AND RESERVED ON 26.11.2024, COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY VIJAYKUMAR A. PATIL J., DELIVERED THE FOLLOWING:

¶152

CORAM: HON'BLE MRS. JUSTICE K.S.MUDAGAL and HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

¶153

11 -

¶154

NC: 2024:KHC:50374-DB MFA No.2838/2017 AND CONNECTED WITH MATTERS

¶155

CAV JUDGMENT

¶156

( PER: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL )

¶157

Challenging the judgment and awards of the Motor Vehicle Accident Claims Tribunal, the Insurance Company and one of the claimants have filed these appeals. The particulars

¶158

of the cases are as under:

¶159

*Sl.* *No.*	*MFA No.*	*MVC No.*	*Clai*	*ms Tri*	*bunal*	*File*	*d by*
1.	MFA No.2838/2017	MVC No.105/2012	Sr. and XVII,	Civil Addl. Gubb	Judge MACT- i	New Assura Co. Ltd	India nce .
2.	MFA No.2426/2017	MVC No.764/2011	Fast Tum	Track akuru	Court,	New Assura Co. Ltd	India nce .
3.	MFA No.2833/2017	MVC No.836/2011	Sr. and XVII,	Civil Addl. Gubb	Judge MACT- i	New Assura Co. Ltd	India nce .
4.	MFA No.2834/2017	MVC No.886/2011	Sr. and XVII,	Civil Addl. Gubb	Judge MACT- i	New Assura Co. Ltd	India nce .
5.	MFA No.2835/2017	MVC No.887/2011	Sr. and XVII,	Civil Addl. Gubb	Judge MACT- i	New Assura Co. Ltd	India nce .
6.	MFA No.2836/2017	MVC No.888/2011	Sr. and XVII,	Civil Addl. Gubb	Judge MACT- i	New Assura Co. Ltd	India nce .
7.	MFA No.2837/2017	MVC No.889/2011	Sr. and XVII,	Civil Addl. Gubb	Judge MACT- i	New Assura Co. Ltd	India nce .
8.	MFA No.304/2014	MVC No.6531/2011	MAC (SCC	T, Ben H-11)	galuru	Claima	nt

¶160

For the purpose of convenience, the parties are

¶161

referred to henceforth as the Insurance Company and the claimants.

¶162

12 -

¶163

NC: 2024:KHC:50374-DB MFA No.2838/2017 AND CONNECTED WITH MATTERS

¶164

The claim petitions were filed under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act') claiming compensation before the Motor Vehicle Accident Claims Tribunals by the legal heirs of the deceased claiming compensation for the death of the deceased in a road traffic accident that occurred on 27.06.2011. It was contended that the deceased were proceeding in a Tempo Trax bearing registration No.KA-17-9957 as passengers from Gubbi to Tumakuru. It was further contended that when the said Tempo Trax was proceeding on National Highway (N.H.206) near Dr.Siddartha Dental College, Tumakuru at about 12.30 p.m., the driver of the Tempo Trax drove the same in high speed, rash and negligent manner and dashed against the KSRTC bus bearing registration No.KA-17/F-953 coming from opposite direction which resulted in the accident. In the said accident, some inmates of the Tempo Trax suffered grievous injuries and some died.

¶165

The said accident was reported to the jurisdictional police. Tumakuru Rural police registered FIR in Crime No.211/2011 against the driver of the Tempo Trax for the offences punishable under Sections 279, 337, 338, 304A of the

¶166

13 -

¶167

NC: 2024:KHC:50374-DB MFA No.2838/2017 AND CONNECTED WITH MATTERS

¶168

Indian Penal Code, 1860. It was also contended that the vehicle involved in the accident was insured with the New India Assurance Co. Ltd. and the policy was in force at the time of accident. Hence, the claimants sought compensation for the damages suffered by them due to the untimely death of their family members.

¶169

In MVC No.6531/2011 (MFA No.304/2014), claim petition was filed under Section 163A of the Act seeking compensation for the death of Somashekara.

¶170

Respondent Nos.1 to 3 appeared through their counsel. Respondent No.1 - owner of the vehicle did not file written statement. Respondent No.2 - Insurance Company and the respondent No.3 - Karnataka State Road Transport Corporation appeared and filed objections.

¶171

Respondent No.2 - Insurance Company admitted the issuance of policy covering the risk of the vehicle bearing registration No.KA-17-9957 for the period 27.12.2010 to 26.12.2011. It was contended that the policy covers 11 occupants excluding the driver. However, the owner of the vehicle, knowing fully well allowed to carry more than 26

¶172

14 -

¶173

NC: 2024:KHC:50374-DB MFA No.2838/2017 AND CONNECTED WITH MATTERS

¶174

passengers violating the terms and conditions of the policy issued in his favour. Hence, the Insurance Company is not liable to pay any compensation for the breach of conditions of the policy. It was further contended that the passengers were carried in violation of permit condition as a stage carriage passenger vehicle. Hence, the Insurance Company is not liable to pay any compensation as claimed in the petitions. It was also contended that the accident was caused due to the rash and negligent driving of KSRTC bus by its driver and the police have filed charge sheet against the driver of Tempo Trax as the KSRTC bus belongs to State owned Corporation. They sought dismissal of the claim petitions.

¶175

8. Respondent - KSRTC filed objections denying the

¶176

aspect of negligence on the part of its driver. It was contended that the driver of the Tempo Trax was negligent and on investigation, filed charge sheet against the driver of the Tempo Trax. It was further contended that due to rash and negligent driving of the driver of the Tempo Trax, accident was caused and 15 passengers died on the spot. Hence, the answering respondent is not liable to pay any compensation and sought for dismissal of the claim petitions.

¶177

15 -

¶178

NC: 2024:KHC:50374-DB MFA No.2838/2017 AND CONNECTED WITH MATTERS

¶179

The Addl. MACT, Gubbi consolidated six claim petitions i.e. MVC Nos.836/2011, 105/2012, 886/2011, 887/2011, 888/2011 and 889/2011 and recorded the evidence of the parties. Claimants examined themselves as PW-1 to PW7 and got marked Exs.P1 to P28. Respondents examined RW-1 and RW-2 and got marked Exs.R1 to R11. On hearing the parties, the Tribunal by impugned awards partly allowed the claim petitions directing the Insurance Company to pay the compensation.

¶180

In MVC No.764/2011, claimants were examined as PWs-1 and 2 and got marked Exs.P1 to P9, respondents examined RW-1 and got marked Exs.R1 to R20. The claim petition was allowed in part. In MVC No.6531/2011, the Tribunal recorded the evidence. Claimant No.1 examined herself as PW-1 got marked Exs.P1 to P15. Respondent examined RWs-1 and 2 and got marked Exs.R1 to R27. The Tribunal allowed the claim petition filed under Section 163A of the Act by directing respondent No.1 therein- owner of the vehicle to pay the compensation.

¶181

16 -

¶182

NC: 2024:KHC:50374-DB MFA No.2838/2017 AND CONNECTED WITH MATTERS

¶183

The compensation awarded by the Tribunals in all

¶184

the claim petitions are as follows:

¶185

*Sl.* *No.*	*MVC No.*	*Compensation* *awarded in* *Rs.*	*Interest* %
1.	MVC No.105/2012	6,59,000/-	8%
2.	MVC No.764/2011	5,89,000/-	6%
3.	MVC No.836/2011	6,23,000/-	8%
4.	MVC No.886/2011	5,51,000/-	8%
5.	MVC No.887/2011	5,51,000/-	8%
6.	MVC No.888/2011	7,56,000/-	8%
7.	MVC No.889/2011	8,67,000/-	8%
8.	MVC No.6531/2011	1,90,500/-	6%

¶186

Being aggrieved, the Insurance Company has filed

¶187

the above 7 appeals challenging its liability and claimant has filed 1 appeal seeking to shift the liability on the Insurance Company and for enhancement of compensation.

¶188

Sri.K.Suryanarayana Rao, learned counsel

¶189

appearing for the Insurance Company submits that the Tribunal committed error in directing the Insurance Company to satisfy the award without appreciating the evidence on record in its proper prospective. It is submitted that the Insurance Company is liable to pay compensation to the legal heirs of the deceased passengers only to the extent of policy coverage i.e.

¶190

11+1. The Insurance Company cannot be asked to pay

¶191

17 -

¶192

NC: 2024:KHC:50374-DB MFA No.2838/2017 AND CONNECTED WITH MATTERS

¶193

compensation more than the policy coverage. Admittedly, the passengers travelling in the Tempo Trax bearing No.KA-179957 were more than permissible limit. Hence, there is a clear violation of policy condition. The Tribunal has erred in directing the Insurance Company to pay the compensation for more than 11 passengers. In support of his contentions, he placed reliance on the judgment of the Hon'ble Supreme Court in National Insurance Company Ltd. Vs. Anjana Shyam and others¹ . He submits that the Insurance Company is liable to pay the compensation to the permitted number of passengers as per the insurance policy and in case of other passengers, the owner of the vehicle shall be saddled with the liability. He seeks to allow the appeals filed by the Insurance Company.

¶194

Per contra, learned counsel for the claimants and learned counsel for the KSRTC support the impugned judgment and awards of the Tribunals and submit that the Tribunals, considering the evidence available on record, have rightly saddled the liability on the Insurance Company to pay the compensation which do not call for any interference. It is

¶195

1 (2007) 7 SCC 445

¶196

18 -

¶197

NC: 2024:KHC:50374-DB MFA No.2838/2017 AND CONNECTED WITH MATTERS

¶198

further submitted that the Insurance Company cannot contend that they would pay the compensation to only 11+1 passengers as per the policy conditions as they cannot chose the claimants as per their whims and fancies. It is also submitted that this Court may direct the Insurance Company to satisfy the awards in respect of 11+1 claim and further direct it to deposit the compensation insofar as other claims of the other passengers and recover the same from the owner of the vehicle. In support of their contentions, they placed reliance on the judgment of the Hon'ble Supreme Court in United Insurance Company Ltd. Vs. K.M.Poonam and others² . They seek to dismiss the appeals.

¶199

Sri.N.S.Bhat, learned counsel appearing for the claimants in MVC No.6531/2011 (MFA No.304/2014) submits that one Sri.Somashekara K.M. was also traveling in Tempo Trax bearing No.KA-17-9957 and died in the said accident. The legal heirs of deceased Somashekara have filed claim petition at MACT, Bengaluru under Section 163A of the Act. The Tribunal, without appreciating the evidence has awarded

¶200

2 (2015) 15 SCC 297

¶201

19 - NC: 2024:KHC:50374-DB MFA No.2838/2017 AND CONNECTED WITH MATTERS

¶202

meager compensation of Rs.1,90,500/- by assessing the income of the deceased at Rs.24,000/- p.a. which is contrary to law. It is submitted that the Tribunal has erred in directing respondent No.1 - owner of the vehicle to pay the compensation. The said finding of the Tribunal runs contrary to the finding recorded by the other Tribunals. The accident in the instant case and the accident in the connected cases is one and the same. Hence, he seeks to shift the liability on the Insurance Company by directing it to pay the compensation. He therefore, seeks to allow the appeal.

¶203

Considering the rival submissions of the parties and examining the materials on record including the Trial Court records, the point that arises for consideration are:

¶204

Whether the Tribunal was justified in directing the Insurance Company to pay the compensation to all the inmates of the vehicle bearing No.KA-17-9957 in MVC Nos.836/2011 and connected cases?

¶205

2) Whether the Tribunal was justified in directing the Insurance Company to deposit the compensation amount and recover the same from the owner of the vehicle in MVC No.764/2011?

¶206

20 -

¶207

NC: 2024:KHC:50374-DB MFA No.2838/2017 AND CONNECTED WITH MATTERS

¶208

3) Whether the impugned judgment of the Tribunal in MVC No.6531/2011 calls for any interference?

¶209

ANALYSIS

¶210

The Tribunal partly allowed the claim petition in MVC Nos.836/2011 and connected 5 claim petitions by directing respondent No.2 - Insurance Company to deposit the compensation amount awarded by it. The Tribunal has recorded the finding that the driver of the Tempo Trax bearing registration No.KA-17-9957 was negligent. The said finding of the Tribunal is based on the oral testimony of the witnesses examined before the Tribunal and based on the documentary evidence. The said finding is not challenged by the Insurance Company in the appeals filed by them. The challenge is only with regard to the liability to pay compensation to all the inmates.

¶211

The primary contention of the Insurance Company is that their liability as per the policy is only to the extent of 11+1 passengers and not more than that. The Tribunal while answering issue No.2, recorded the finding that the driver of the Tempo Trax has been charge sheeted for the offences of

¶212

21 - NC: 2024:KHC:50374-DB MFA No.2838/2017 AND CONNECTED WITH MATTERS

¶213

violation of conditions of permit. However, the Fast Track Court, Tumakuru has already passed the judgment in MVC Nos.689/2011 and 764/2011 which are produced as Ex.P28 wherein the said Tribunal has considered the permit in respect of the Tempo Trax in question and opined that there is no mention as to the number of persons for whom premium is paid and in MVC Nos.822/2011 to 825/2011, 897/2011 and other cases, respondent - Insurance Company was saddled with the liability and the Insurance Company satisfied the awards in the said cases arising out of the same accident. Be that as it may, the issue with regard to payment of compensation as directed by the Tribunal is required to be affirmed.

¶214

Insofar as saddling of liability on the Insurance Company, we are of the considered view that the Insurance Company cannot be saddled with the liability to pay compensation to all the inmates of the Tempo Trax bearing registration No.KA-17-9957. The Insurance Company is liable to honour the claims insofar as 11+1 passengers as per the permit. Any direction with regard to saddling of liability on the Insurance Company more than the permit or sitting capacity would run contrary to the terms and conditions of the policy as

¶215

22 -

¶216

NC: 2024:KHC:50374-DB MFA No.2838/2017 AND CONNECTED WITH MATTERS

¶217

well as it would be in violation of the statutory provisions of law. Hence, the Insurance Company is required to be saddled with liability insofar as 11+1 passengers only. However, it would be difficult for the Tribunals and Courts to choose the claimants when there are more claim petitions than the liability of the Insurance Company, there cannot be any preferential settling the claims of some of the claimants. In the absence of any such mechanism, we are of the considered view that the interest of justice would be met if the Insurance Company is directed to deposit the entire compensation as awarded by the Tribunals restricting its liability only to the extent of 11+1 passengers and by expressly granting liberty to it to recover the compensation paid by it insofar as other claims from the owner of the Tempo Trax bearing registration No.KA-17-9957. Our view gains support from the judgment of the Hon'ble Supreme Court in the case of K.M.Poonam's case referred to supra.

¶218

Hon'ble Supreme Court in Poonam's case referred to supra has considered the issue of payment of compensation and liability of the Insurance Company vis-à-vis owner of the vehicle when the vehicle involved in the accident is insured and

¶219

23 -

¶220

NC: 2024:KHC:50374-DB MFA No.2838/2017 AND CONNECTED WITH MATTERS

¶221

limits to certain passengers if the passengers are in excess of permitted limit. It would be useful to extract the relevant paragraphs of the aforesaid judgment for ready reference:

¶222

"36. The liability of the insurer, therefore, is confined to the number of persons covered by the insurance policy and not beyond the same. In other words, as in the present case, since the insurance policy of the owner of the vehicle covered six occupants of the vehicle in question, including the driver, the liability of the insurer would be confined to six persons only, notwithstanding the larger number of persons carried in the vehicle. Such excess number of persons would have to be treated as third parties, but since no premium had been paid in the policy for them, the insurer would not be liable to make payment of the compensation amount as far as they are concerned. However, the liability of the Insurance Company to make payment even in respect of persons not covered by the insurance policy continues under the provisions of subsection (1) of Section 149 of the Act, as it would be entitled to recover the same if it could prove that one of the conditions of the policy had been breached by the owner of the vehicle.

¶223

37. In the instant case, any of the persons travelling in the vehicle in excess of the permitted number of six passengers, though entitled to be compensated by the owner of the vehicle, would still be entitled to receive the compensation amount from the insurer, who could then recover it from the insured owner of the vehicle. As

¶224

24 -

¶225

NC: 2024:KHC:50374-DB MFA No.2838/2017 AND CONNECTED WITH MATTERS

¶226

mentioned hereinbefore, in the instant case, the insurance policy taken out by the owner of the vehicle was in respect of six passengers, including the driver, travelling in the vehicle in question. The liability for payment of the other passengers in excess of six passengers would be that of the owner of the vehicle who would be required to compensate the injured or the family of the deceased to the extent of compensation awarded by the Tribunal.

¶227

38. Having arrived at the conclusion that the liability of the Insurance Company to pay compensation was limited to six persons travelling inside the vehicle only and that the liability to pay the others was that of the owner, we, in this case, are faced with the same problem as had surfaced in Anjana Shyam case [ National Insurance Co. Ltd. v. Anjana Shyam , (2007) 7 SCC 445 : (2007) 3 SCC (Cri) 416].

¶228

39. The number of persons to be compensated being in excess of the number of persons who could validly be carried in the vehicle, the question which arises is one of apportionment of the amounts to be paid. Since there can be no pick and choose method to identify the five passengers, excluding the driver, in respect of whom compensation would be payable by the Insurance Company, to meet the ends of justice we may apply the procedure adopted in Baljit Kaur case [ National Insurance Co. Ltd. v. Baljit Kaur , (2004) 2 SCC 1 : 2004 SCC (Cri) 370] and direct that the Insurance Company should deposit the total amount of compensation

¶229

25 -

¶230

NC: 2024:KHC:50374-DB MFA No.2838/2017 AND CONNECTED WITH MATTERS

¶231

awarded to all the claimants and the amounts so deposited be disbursed to the claimants in respect to their claims, with liberty to the Insurance Company to recover the amounts paid by it over and above the compensation amounts payable in respect of the persons covered by the insurance policy from the owner of the vehicle, as was directed in Baljit Kaur case [ National Insurance Co. Ltd. v. Baljit Kaur , (2004) 2 SCC 1 : 2004 SCC (Cri) 370].

¶232

40. In other words, the appellant Insurance Company shall deposit with the Tribunal the total amount of the amounts awarded in favour of the awardees within two months from the date of this order and the same is to be utilised to satisfy the claims of those claimants not covered by the insurance policy along with the persons so covered. The Insurance Company will be entitled to recover the amounts paid by it, in excess of its liability, from the owner of the vehicle, by putting the decree into execution. For the aforesaid purpose, the total amount of the six awards which are the highest shall be construed as the liability of the Insurance Company. After deducting the said amount from the total amount of all the awards deposited in terms of this order, the Insurance Company will be entitled to recover the balance amount from the owner of the vehicle as if it is an amount decreed by the Tribunal in favour of the Insurance Company. The Insurance Company will not be required to file a separate suit in this regard in order to recover

¶233

26 -

¶234

NC: 2024:KHC:50374-DB MFA No.2838/2017 AND CONNECTED WITH MATTERS

¶235

the amounts paid in excess of its liability from the owner of the vehicle ."

¶236

[Emphasis supplied]

¶237

The Hon'ble Supreme Court, in the aforesaid

¶238

judgment has considered the judgment in the case of Anjana

¶239

Shyam and others referred to supra relied by the learned counsel for the Insurance Company and it has also considered another decision in the case of National Insurance Company Ltd. Vs. Baljit Kaur³ and held that the Insurance Company should deposit the total compensation amount awarded to all the claimants and the amount so deposited to be disbursed to the claimants in respect of their claims with liberty to the Insurance Company to recover the amounts paid by it over and above the compensation amount payable in respect of the persons covered by the insurance policy from the owner of the vehicle.

¶240

In view of the aforesaid enunciation of law and keeping in mind the evidence available on record, we are of the considered view that the Insurance Company is liable to deposit the entire compensation amount as directed by the Tribunal

¶241

3 (2004) 2 SCC 1

¶242

27 - NC: 2024:KHC:50374-DB MFA No.2838/2017 AND CONNECTED WITH MATTERS

¶243

with liberty to recover the excess amount paid by it to the claimants from the owner of the Tempo Trax bearing registration No.KA-17-9957. In view of the same, the appeals filed by the Insurance Company have to be disposed of reserving liberty as stated supra . In view of the aforesaid finding, we answer point Nos.1 and 2 in the affirmative.

¶244

So far as MVC No.6531/2011 (MFA No.304/2014), the legal heirs of deceased Somashekara K.M. filed claim petition under Section 163A of the Act claiming compensation of Rs.10,00,000/-. The Tribunal, considering the age of the deceased as 22 years, considered the annual income of the deceased at Rs.24,000/-, applied '11' multiplier considering the age of the mother of the deceased and deducted 1/3^rd towards his personal and living expenses. It is not in dispute that the deceased Somashekar was also one of the inmates of the Tempo Trax bearing registration No.KA-17 F-9957. This Court already recorded the finding that the Insurance Company is liable to pay the compensation to all the claimants and liberty is reserved to the Insurance Company to recover the excess amount paid, from the owner of the vehicle. In view of the said finding, the impugned judgment and award of the Tribunal

¶245

28 -

¶246

NC: 2024:KHC:50374-DB MFA No.2838/2017 AND CONNECTED WITH MATTERS

¶247

dated 18.07.2013 passed in MVC No.6531/2011 is modified by directing the Insurance Company to pay the compensation amount to the claimant.

¶248

So far as entitlement of compensation in MVC No.6531/2011, the Tribunal has committed grave error in assessing the income, multiplier. Hence, the same requires to be re-assessed considering the stipulations provided in second Schedule to the Act. As per the second Schedule, we re-assess the income of the deceased at Rs.40,000/- p.a. The deceased was aged about 22 years at the time of accident. Hence, appropriate multiplier would be 17 and deduction would be 1/3^rd towards his personal and living expenses. Hence, the compensation towards loss of dependency to the claimants in the aforesaid claim petition is calculated as under:

¶249

Rs.40,000 x 17 x 2/3 = Rs.4,53,333/-

¶250

Further, the claimants are entitled to compensation

¶251

of Rs.2,000/- under the head of funeral expenses, Rs.5,000/towards loss of consortium and Rs.2,500/- under the head of loss of estate as per the second Schedule. Hence, the compensation is re-determined as under:

¶252

29 -

¶253

NC: 2024:KHC:50374-DB MFA No.2838/2017 AND CONNECTED WITH MATTERS

¶254

Sl. No.	Particulars	Compensation awarded in Rs.
1.	Loss of dependency	4,53,333/-
2.	Funeral expenses	2,000/-
3.	Loss of consortium	5,000/-
4.	Loss of estate	2,500/-
	TOTAL	4,62,833/-
	Compensation awarded by the Tribunal	1,90,500/-
	Enhanced compensation	2,72,333/-

¶255

The aforesaid compensation amount carries interest at

¶256

the rate of 6% p.a. from the date of petition till realization.

¶257

For the aforementioned reasons, we pass the following:

¶258

ORDER

¶259

i. MFA Nos.2838/2017, 2426/2017, 2833/2017, 2834/2017, 2835/2017, 2836/2017 and 2837/2017 are allowed-in-part.

¶260

ii. MFA No.304/2014 is allowed-in-part. The claimant is entitled to compensation of Rs.4,62,833/- (1,90,500 awarded by the Tribunal plus enhanced compensation of Rs.2,72,333/-) with interest at 6% p.a. from the date of petition till realization.

¶261

iii. The New India Assurance Co. Ltd. is directed to deposit the compensation before the Tribunal within a period of

¶262

30 -

¶263

NC: 2024:KHC:50374-DB MFA No.2838/2017 AND CONNECTED WITH MATTERS

¶264

four weeks from the date of receipt of the copy of this order, in all the claim petitions.

¶265

iv. The New India Assurance Co. Ltd. is granted liberty

¶266

to recover the compensation deposited by it in excess of the permitted passengers from the owner of the Tempo Trax bearing registration No.KA-17 F-9957, in accordance with the observations in the body of this judgment.

¶267

v. Registry shall transmit the TCRs along with the

¶268

amount in deposit, if any.

¶269

Sd/(K.S.MUDAGAL) JUDGE

¶270

Sd/(VIJAYKUMAR A. PATIL) JUDGE

¶271

¶272

List No.: 1 Sl No.: 1