National Insurance Company Limited Vs Malleshappa

NATIONAL INSURANCE COMPANY LIMITED REGIONAL OFFICE NATIONAL INSURANCE COMPANY LTD SUBHARAM COMPLEX M G ROAD BENGALURU – 560 001 REPRESENTED BY ITS DEPUTY MANAGER REKHA S MENON

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…APPELLANT

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Digitally signed by MADHUSHREE H Location: High Court of Karnataka

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(BY SRI. L SREEKANTA RAO, ADVOCATE)

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AND:

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MALLESHAPPA S/O CHIKKAMUGAPPA AGED ABOUT 61 YEARS

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LAKSHMAMMA W/O MALLESHAPPA AGED ABOUT 55 YEARS

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BOTH ARE RESIDING AT DRONAKUNTE GOWRIBIDANUR TALUK CHIKKABALLAPURA DISTRICT – 561 210.

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HC-KAR

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NIRMALA K G MAJOR D/O DAYANANDA K G NO.2651 CHICKPET DODDABALLAPUR DISTRICT BANGALORE RURAL DISTRICT – 561 203 (RC OWNER OF S. N. BUS BEARING REG. NO.KA-43/4995)

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SUNIL K H MAJOR S/O HANUMANTHARAYAPPA KURUDI VILLAGE GOWRIBIDANUR TALUK CHIKKABALLAPURA DISTRICT – 561 210.

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…RESPONDENTS (BY SRI. SHRIPAD V SHASTRI, ADVOCATE FOR R1 TO R3; R4 IS SERVED AND UNREPRESENTED)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 20.11.2021 PASSED IN MVC NO.5857/2019 ON THE FILE OF THE CHIEF JUDGE, COURT OF SMALL CAUSES & MEMBER PRL. MOTOR ACCIDENT CLAIMS TRIBUNAL, BENGALURU (SCCH-1); AND ALLOW THE APPEAL WITH COSTS.

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IN MFA NO.1817/2022:

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BETWEEN:

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NATIONAL INSURANCE COMPANY LIMITED REP. BY ITS DIVISIONAL MANAGER VIDYA POORNA BUILDING NEAR HEAD POST OFFICE UDUPI TALUK AND DISTRICT NOW REP. BY ITS MANAGER REKHA MENON REGIONAL OFFICE NATIONAL INSURANCE COMPANY LTD., SUBHARAM COMPLEX

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HC-KAR

M G ROAD

BENGALURU – 560 001.

...APPELLANT

(BY SRI. L SREEKANTA RAO., ADVOCATE)

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AND:

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GOPALAIAH. K. Y., S/O YELAYAPPA AGED ABOUT 42 YEARS

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USHA K. G., D/O GOPALAIAH. K. Y., AGED ABOUT 12 YEARS

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ANKITH. K. G., S/O GOPALAIAH K Y AGED ABOUT 10 YEARS

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SINCE RESPONDENTS 2 & 3 ARE MINORS THEY ARE REPRESENTED BY THEIR FATHER AND NATURAL GUARDIAN GOPALAIAH. K. Y. THE I RESPONDENT

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ALL ARE RESIDING AT: KADARANAHALLI, KURUDI, GOWRIBIDANUR TALUK CHIKKABALLAPURA DISTRICT KARNATAKA – 561 208.

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NIRMALA. K. G., MAJOR NO.2651, CHICKPET DODDABALLAPUR DISTRICT BANGALORE RURAL DISTRICT – 561 203 (RC OWNER OF S. N. BUS BEARING REG. NO.KA-43/4995)

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SUNIL. K. H., MAJOR S/O HANUMANTHARAYAPPA KURUDI VILLAGE

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HC-KAR

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GOWRIBIDANUR TALUK CHIKKABALLAPURA DISTRICT – 561 210. (RC OWNER OF AUTORICKSHAW BEARING REG NO.KA-40 -A-0122)

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...RESPONDENTS

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(BY SRI. SHRIPAD V SHASTRI, ADVOCATE FOR R1 TO R3; SRI. V. SUBHASH REDDY, ADVOCATE FOR R4; R5 IS SERVED AND UNREPRESENTED)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT, PRAYING TO a) MODIFY THE JUDGMENT AND AWARD DATED 20.11.2021 PASSED IN MVC NO.5858/2019 ON THE FILE OF THE CHIEF JUDGE, COURT OF SMALL CAUSES & MEMBER, PRL. MOTOR ACCIDENT CLAIMS TRIBUNAL AT BENGALURU, (S.C.C.H-1); b) ALLOW THE APPEAL WITH COSTS AND ETC

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THESE APPEALS COMING ON FOR FINAL HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE T.M.NADAF

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ORAL JUDGMENT

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These two appeals filed by the respondent –

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Insurance Company calling in question the common judgment and award dated 20.11.2021, in MVC.No.5857/2019 and MVC.No.5858/2019, passed by the Chief Judge, Court of Small Causes Judge and Member Prl. Motor Accident Claims Tribunal at Bengaluru (SCCH1), (for short 'Tribunal') on the ground of liability, as well

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HC-KAR

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as quantum. MFA.No.1827/2022 is directed against the MVC.No.5857/2019 and MFA.No.1817/2022 is directed against the MVC.No.5858/2019.

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The appellant - Insurance Company is before this Court on a short point calling in question, the direction of the Tribunal directing to pay the entire compensation awarded to the claimants with liberty to recover 50% towards the 'contributory negligence' from the owner of the Autorickshaw who has contributed 50% negligence and responsible for accident.

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Heard Sri.Sreekanta Rao, learned counsel appearing for the appellant in the both the appeals and Sri.Sreepad Shastri, learned counsel appearing for respondent Nos.1 and 2 in MFA.No.1827/2022 and respondent Nos.1 to 3 in MFA.No.1817/2022.

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Sri.Sreekanta Rao, learned counsel vehemently submitted that the Tribunal has properly considered the contributory negligence at the rate of 50% against the

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HC-KAR

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driver of the Autorickshaw. However, while awarding compensation, directed the Insurer of the Bus to pay the entire compensation and recover 50% from the owner of the Autorickshaw.

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In terms of the law laid down by the Hon'ble Apex Court, the insurer of the Bus is liable to compensate the third party claimant i.e., the inmates of the Authorickshaw to the extent of contributory negligence attributed to the bus driver. However, the direction on the Insurance Company to make good the 50% to the claimants and recover from the owner of the vehicle i.e., Auto Rickshaw is not sustainable in law. On this he seeks to allow the appeal and set-aside the direction of payment of 50% with liberty is recover from the owner of the Autorickshaw.

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Sri.Sreepad V. Shastri, learned counsel with all vehemence submitted that, since there is involvement of two vehicles, as per the law laid down by the Hon'ble Apex

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HC-KAR

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Court in the case of UNITED INDIA INSURANCE COMPANY LIMITED VS. K.M.POONAM AND OTHERS¹ and the judgment KHENYEI VS. NEW INDIA ASURANCE CO. LTD & OTHERS² submits that the Tribunal keeping in mind the law laid down by the Hon'ble Apex Court has directed the Insurance Company primarily to pay the entire compensation, with liberty to recover 50% from the owner of the Autorickshaw. Accordingly, sought to dismiss both the appeals.

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7. Having heard learned counsel for the parties,

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the only point which arise for consideration of this Court in both the appeals is:

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“Whether the Tribunal is justified in directing the appellant - Insurance Company to pay the entire compensation amount to the claimants, with a liberty to recover it from the owner of the

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1 2015(15)SCC297

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2 2015(9)SCC273

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HC-KAR

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Autorickshaw to extent of contributory

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negligence?”

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My answer to the above point of consideration is in ‘affirmative’ for the following reasons:

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It is not in dispute that the claimants are inmates of

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Autorickshaw and third party to the Bus. The Tribunal has rightly considered the negligence on the part of both the drivers of Bus as well as Autorickshaw and has rightly held that both have contributed at the rate of 50% to the accident. As there is involvement of more than one vehicle, in view of the law laid down by the Hon'ble Apex Court in the case K.M.POONAM AND OTHERS as well as

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KHENYEI supra the claimants may institute a petition against owner of the vehicle and Insurance Company of any one vehicle or both. As per the principle of law laid down by the Hon'ble Apex Court the insurer of one vehicle even if there is contributory negligence on the other would compensate and thereafter recover from the owner of the other offending vehicle. In view of the settled position of

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HC-KAR

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the law, there is no infirmities found in the impugned judgment and award passed by the Tribunal.

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Accordingly, this Court proceeds to pass the

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following:

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ORDER

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i. Both the appeals being devoid of merit stands dismissed.

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ii. The common judgment and award dated 20.11.2021 in MVC.Nos.5857/2019 and 5858/2019 passed by the Chief Judge, Court of Small Causes and Member Prl. Motor Accident Claims Tribunal at Bengaluru is confirmed.

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iii. The amount in deposit in both the appeals shall be transmitted to the concerned Tribunal for disbursement.

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iv. The balance amount in both the appeals along with interest at the rate of 6% per annum from the date of petition till realisation shall be deposited by the

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