The National Insurance Co.Ltd. Vs Bhaskar Shetty

THE APPELLANT IS REP. HEREIN BY: THE ADMINISTRATIVE OFFICER, NATIONAL INSURANCE CO.LTD., BANGALORE REGIONAL OFFICE, SUBHARAM COMPLEX, 144, MAHATMA GANDHI ROAD, BENGALURU-560 001.

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…APPELLANT

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(BY SRI.K.SRIDHARA, ADVOCATE)

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AND:

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BHASKAR SHETTY S/O LATE MAHABALA SHETTY, AGED 55 YEARS R/O ADOPLAMANE ARDI, ALBADI VILLAGE, KUNDAPURA-576 201.

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SANDEEP S/O KORAGA HANDA, R/O NILUVANGILU POST & VILLAGE,

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MFA No. 4930 of 2018

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KOPPA TALUK, CHICKMAGALUR DISTRICT-577 126.

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UNITED INDIA INSURANCE CO.LTD CRESCENT COURT 1^ST FLOOR, K.M.ROAD, CHICKMAGALURU BRANCH OFFICE: KUNDAPURA-576 201.

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SRI CHANDRASHEKAR SHETTY AGED 50 YEARS S/O PADMAYYA SHETTY, R/O SHREE POOJA, NEAR CHETHAN HOSPITAL, HEBRI, KARKALA-574 104.

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…RESPONDENTS

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(BY SRI. B.C.SEETHA RAMA RAO, ADVOCATE FOR R-3; R-2 AND R-4 ARE SERVED AND UNREPRESENTED; V/O DT:23/05/2023-NOTICE TO R-1 IS HELD SUFFICIENT)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT, 1988, PRAYING TO CALL FOR THE RECORDS AND SET ASIDE THE JUDGMENT AND AWARD DATED 28.02.2018 PASSED IN M.V.C.NO.630/2015 BY THE COURT OF THE SENIOR CIVIL JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, AT KUNDAPURA AND ETC.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 13.10.2025 AND COMING ON FOR PRONOUNCEMENT THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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MFA No. 4930 of 2018

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CORAM: HON'BLE DR. JUSTICE K.MANMADHA RAO

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CAV JUDGMENT

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The present appeal is filed to set aside the Judgment and Award dated 28.02.2018, passed in MVC No.630/2015 on the file of the Senior Civil Judge and Additional Motor Accident Claims Tribunal, Kundapura (herein after referred to as ‘the Tribunal’ for short) and dismiss the claim petition in MVC No.630/2015.

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The appellant herein is the respondent No.4 before the Tribunal and The respondent No.1 herein is the petitioner/claimant before the tribunal and the respondents No.2 to 4 herein are the respondents No.1 to 3 before the Tribunal.

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The facts leading to the filing of this appeal are as follows:

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The claim petition is filed under Section 166 of the Motor Vehicles Act, 1988. The case of the petitioner/claimant is that on 25.01.2015 at about 11:20

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a.m., while traveling as a pillion rider on a motorcycle bearing Reg.No.KA-20-EF-7406 from Belve towards Someshwara side, near a Milk Dairy at Ardi-Albadi, a motorcycle bearing Reg. No.KA-18-X-2608, (offending motor cycle) driven by its rider in a rash and negligent manner at high speed, came from the opposite direction and dashed against the petitioner’s vehicle. As a result, the petitioner sustained grievous injuries including (i) multiple facial bone fractures (fracture of both nasal bones, anterior and posterior wall of right maxillary sinus, floor of right orbit, and right zygomatic arch) and (ii) abrasions of size 2x1 cms. over the right upper eyelid. The petitioner was immediately shifted to KMC Hospital, Manipal, Udupi Taluk, where he was treated as an inpatient and discharged on 02.02.2015 after undergoing surgery and also treated for the several other injuries suffered by the claimant.

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The petitioner states that he spent about Rs.1,00,000/- on treatment, nourishing food, medicines, and attendant charges and requires a further sum of Rs.25,000/- for future treatment. Prior to the accident, the

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MFA No. 4930 of 2018

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petitioner was hale and healthy and working as a mason, earning Rs.15,000/- per month. Due to the injuries sustained, he is unable to resume his avocation and has suffered permanent physical disablement, disfigurement, mental agony, and loss of amenities of life. The claimant, therefore, claims a total compensation of Rs.10,00,000/with interest at 12% per annum from the date of accident till realization. The claimant submits that the respondent No.1, being the R.C. owner-cum-driver of the offending motorcycle, and respondent No.2, the insurer under Policy No.2414003114P105296756, are jointly and severally liable

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to pay the compensation. It is further stated that Crime No.11/2015 was registered by Shankaranarayana Police Station against respondent No.1.

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Upon service of notice, respondent No.1 remained ex-parte . The respondent No.2–Insurance Company denied the entire claim, contending that the rider of the offending motorcycle did not possess a valid and effective driving license at the time of the accident and that the petition suffers from misjoinder and non-joinder of

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MFA No. 4930 of 2018

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necessary parties since the insurer and the insured of the petitioner’s motor cycle are necessary and proper parties to the petition before the Tribunal.

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The respondent No.4, the insurer of the

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petitioner’s motorcycle, stated that respondent No.4 and respondent No.3 were formal parties, as no specific relief was sought against them. It denied the personal particulars of the claimant and contended that the claim amount is exorbitant, requesting that any interest awarded be restricted to 6% per annum. It was further stated that the accident took place only because of the rash and negligent driving of the offending motorcycle.

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7. Based on the pleadings of the parties, the

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Tribunal framed the issues and recorded the evidence and the Tribunal held that the claim petition filed under Section 166 of the Motor Vehicles Act is allowed. The petitioner is awarded compensation of Rs.3,75,527/- with interest at 6% per annum from the date of the accident until realization. The respondents No.1 and 2 are jointly and

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MFA No. 4930 of 2018

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severally liable to pay 50% of the compensation, and respondents No.3 and 4 are jointly and severally liable to pay the remaining 50%. The respondent No.2 and respondent No.4 shall each deposit their respective 50% shares of the compensation in the Tribunal’s office within one month from today. The claimant may seek release of the deposited amount in accordance with the guidelines of the Apex Court in A.V.Padma & Ors. v. Venugopal & Others reported in (2012) 3 SCC 378 .

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It is contended by the learned counsel for the appellant-Insurance Company that the Tribunal has erred in fixing 50% liability on the Appellant by wrongly applying the doctrine of “composite negligence”. The claimant himself had pleaded and proved that the accident was solely due to the rash and negligent driving of the rider of motorcycle No.KA-18-X-2608, which came from Someshwara side in high speed and dashed against the claimant’s vehicle. Therefore, there was no negligence whatsoever on the part of the rider of motorcycle No.KA20-EF-7406, which was insured with the appellant.

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MFA No. 4930 of 2018

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Consequently, the concept of “composite negligence” was inapplicable.

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It is further contended that the Apex Court, in the case of Khenyei v. New India Assurance Co. Ltd. , reported in (2015) 9 SCC 273 clearly explained the distinction between contributory and composite negligence, holding that in cases of composite negligence, the injured person does not contribute to the accident and the negligence is that of two or more other persons. In view of the settled proposition of law, the finding of the Tribunal that both riders were equally negligent is wholly unsustainable in law.

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It is contended that the Tribunal erred in procedure by directing the impleadment of the appellant and the owner of the insured vehicle at the final stage of proceedings. The matter was posted for final orders on 26.02.2017, 22.07.2017, 03.07.2017, 05.08.2017, and 09.08.2017, and only by order dated 09.08.2017 did the Tribunal direct the claimant to implead the appellant and

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MFA No. 4930 of 2018

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the registered owner. Even though the appellant appeared and objected to such impleadment, the Tribunal, by order dated 23.11.2017, allowed I.A.No.2 and pronounced judgment without affording an opportunity to crossexamine the witnesses or lead evidence. This is in clear violation of the principles of natural justice and contrary to the settled law laid down by the Hon’ble Bombay High Court in National Insurance Co. Ltd. v. SK Ali , reported in 2014 SCC Online Bom 1370 . Therefore, the Award passed by the Tribunal is in breach of Section 168 of the MV Act.

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It is also contended that the Tribunal ignored the material evidence on record, including the fact that the Claimant himself stated in his Claim Petition and affidavit that the accident occurred due to the rash and negligent driving of the rider of motorcycle No.KA-18-X-2608. The police have also filed a charge-sheet against the said rider for offences punishable under Sections 279 and 337 IPC. Despite this, the Tribunal incorrectly recorded a finding of composite negligence and directed the appellant insurer of

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MFA No. 4930 of 2018

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motorcycle No.KA-20-EF-7406 to pay 50% of the

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compensation.

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The appellant would contend that the Tribunal, in para 13, of its judgment and Award, it is also observed that the petitioner’s motorcycle was moving almost on its proper lane, yet held the appellant liable for 50%. Further, the Tribunal has awarded Rs.1,00,000/- towards loss of amenities and a total compensation of Rs.3,75,527/-, which are exorbitant and disproportionate to the nature of injuries sustained. The findings of the Tribunal being contrary to law, facts, and evidence on record, the impugned judgment and Award dated 23.11.2017 are liable to be set aside.

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Heard the learned counsel appearing for the appellant and Respondent No. 3. Respondent Nos.1, 2 and 4 are unrepresented. The appellant and respondent No.3 are the Insurance Companies where the joint liability has been fixed by the Tribunal in the impugned Award dated 28.02.2018, passed in MVC No.630/2015 on the file of the Senior Civil Judge and Additional Motor Accident Claims

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MFA No. 4930 of 2018

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Tribunal, Kundapura. Further, it is observed that the respondent No.3 has not filed any appeal against the impugned Award, it seems Respondent No.3 has accepted the Award passed by the Tribunal.

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On hearing the learned counsel for both sides, perusal of the impugned Judgment and Award in 28.02.2018, passed in MVC No.630/2015 on the file of the Senior Civil Judge and Additional Motor Accident Claims Tribunal, Kundapura and the material on record, the Tribunal held that composite negligence on the part of both the motor cycles is held as 50% each. The vehicles were covered by the Policy, in view of the same, the respondent Nos.1, 2, 3 and 4 are jointly and severally liable to pay 50% of the compensation to the claimant and interest at the rate of 6% p.a., on the compensation awarded. Therefore, this Court is of the considered view that the impugned Judgment and Award does not call for any interference as there is no infirmity in the Judgment of the Tribunal. The appeal is liable to be dismissed.

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MFA No. 4930 of 2018

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In view of the above discussion, the following order is passed:

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i) The Miscellaneous First Appeal is dismissed.

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ii) The Judgment and Award dated 28.02.2018, passed in MVC No.630/2015 on the file of the Senior Civil Judge and Additional Motor Accident Claims Tribunal, Kundapura, are affirmed.

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ii) Apportionment of compensation shall be made as per the Award passed by the Tribunal.

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iii) The appellant is directed to deposit the

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compensation amount before the Tribunal within a period of three months. On such deposit, the claimants/respondents are directed to withdraw the amount in terms of the Award of the Tribunal.

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Sd/(DR.K.MANMADHA RAO) JUDGE

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BNV

The National Insurance Co.Ltd. v. Bhaskar Shetty

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The National Insurance Co.Ltd. v. Bhaskar Shetty

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