The Divisional Manager Vs Baby

NOW REPRESENTED BY REGIONAL OFFICE, HUBLI, 2^ND FLOOR,"SUMANGALA COMPLEX", LAMINGTON ROAD, HUBLI-580 020 REPRESENTED BY ITS DEPUTY MANAGER SRI. BALAKRISHNA K. NAYAK

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…APPELLANT

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(BY SRI. ASHOK N.PATIL., ADVOCATE)

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Digitally signed by KORLAHALLI BHARATHIDEVIKRISHNACHARYA Location: HIGH COURT OF KARNATAKA

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AND:

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BABY W/O RAJU GOUDA, AGED ABOUT 26 YEARS OCC: HOUSEWIFE R/O CHITRAGI, KADEBEGA, TALUK: KUMTA.

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ADITYA S/O RAJU GOUDA AGED ABOUT 7 MONTHS R/O CHITRAGI, KADEBAGA,

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TALUK:KUMTA

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(BEING MINOR REP BY HIS MINOR GUARDIAN - PETITIONER NO.1)

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CHANDRU NARAYAN GOUDA AGED ABOUT 58 YEARS R/O GANJAGERI, MANKI, POST: ADUKAL, TALUK: HONAVAR

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GANAPI W/O CHANDRU GOUDA AGED ABOUT 55 YEARS OCC: HOUSEWIFE, R/O GANJAGERI, MANKI, POST:ADUKAL, TALUK: HONAVAR.

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VENKATESH V. MAHALE R/O CANARA ELECTRICAL TRADERS, BUNDER ROAD, HONAVAR, TALUK: HONAVAR

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…RESPONDENTS

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(BY SRI. S N NAIK AND SRI. G.M RAGHU, ADVOCATES FOR R1 AND R2,

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R3-CHANDRU NARAYAN GOUDA - SERVED, R4-SRI.GANAPATI -SERVED. R5-VENKATESH V. MAHALE, SERVED, BUT R3 TO R5 UNREPRESENTED)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:18.09.2014 PASSED IN MVC NO.16/2013 ON THE FILE OF THE MEMBER, ADDITIONAL MACT, KUMTA, AWARDING COMPENSATION OF Rs.8,00,000/WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL PAYMENT.

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THIS APPEAL, COMING ON FOR DISMISSAL, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE UMESH M ADIGA

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ORAL JUDGMENT

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This appeal is filed by the respondent (insurer)

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challenging the judgment and award dated 18^th September 2014, passed by the Court of Addl.M.A.C.T., Kumta, (for short `Tribunal), in MVC.No.16/2013.

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The parties are referred to as per their rankings before the Tribunal.

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Brief facts of the case of the claimants are that,

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husband of petitioner No.1, father of petitioner No.2 and son of petitioner Nos.3 and 4, by name Raju Chandru Gouda (rider of motor cycle) met with an accident on 16.01.2012, around 8.30 p.m., near Huralihakkal, Manki, Honnavar Taluk, due to rash and negligent driving of the Car bearing registration No.KA-30-M-567 by its driver. As a result of which, he sustained grievous injuries and succumbed to the injuries at the spot.

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Further contentions of the claimants were that,

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deceased was aged about 28 years at the time of the accident and was earning Rs.9,000/- per month and maintaining the family. With these reasons, they prayed to award compensation.

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The respondent No.2-insurer denied the

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contentions of the claimants. It is further contended that deceased rode his vehicle at the wrong side and hit the offending car. Deceased was responsible for the occurance of the accident. It is further contended that liability of respondent No.2 is restricted to the terms and conditions of insurance policy. With these reasons, it prayed to dismiss the claim petition.

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From the rival contentions of the parties, the Tribunal framed necessary issues for its determination.

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The claimants to prove their case examined one

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witness as PW-1 and marked 7 documents as per Exs.P-1

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to P-7. The respondents examined one witness as RW-1 and marked 9 documents as per Exs.R-1 to R-9.

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After hearing both the parties the Tribunal held that accident occurred due to negligence of driver of the offending car. The Tribunal also held that claimants were dependent upon the deceased and assessed the age of the deceased as 26 years at the time of the accident; his earning at Rs.7,500/- per month; applied multiplier `17'; deducted 1/3^rd of income towards personal expenses and awarded total compensation of Rs.8 lakhs.

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Heard the arguments. Learned counsel for the appellant-insurer vehemently contends that the Tribunal has erroneously held that the accident occurred due to the negligence of driver of the car. The Tribunal lost sight of spot mahazar, as well as hand sketch map prepared by the police. Both documents reveal that motorcyclist came to wrong side of the road and hit the car. The claimants have not examined any eye witnesses to prove their

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contention. The respondent have examined driver of the

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car as RW-1 and he has in detail stated about the negligent acts of rider of the motorcycle, that was not rebutted.

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It is further contended by the advocate for insurer that in a criminal case registered against the driver of the car, he was acquitted. The copy of the judgment passed by the Prl.J.M.F.C., Court, Honnavar, dated 25.08.2012 in C.C.No.97/2012 is produced by the respondent at Ex.R-8. In the said judgment, it is observed that motor cyclist came to the wrong side of the road and hit the car. On that reason the learned Magistrate, giving the benefit of doubt, acquitted RW-1 from the alleged charges. These materials were not properly appreciated by the Tribunal. In the alternative he contends that at the worst it could be considered as contributory negligence of drivers of both the vehicle and contribution of rider of motor cycle was 90%. He further contends that in all the

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cases the insurer need not challenge the chargesheet. Hence come to erroneous conclusion.

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In support of the said contentions, learned counsel for the appellant relied upon the decision rendered by the Division Bench of this Court in the case of Mahadevi and

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others -vs- Shivaputra, MFA.No.201689/2016 (MV), disposed of on 20^th November 2020. With these reasons,

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the learned counsel for appellant prayed to exonerate the insurer from its liability to pay the compensation.

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The points that arise for consideration are:

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(i) Whether the Tribunal is erred in holding that accident had taken place due to the negligence of driver of the car and does it call for any interference by this Court?

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(ii) What order?

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Accident in question and death of rider of motor

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cycle is not in dispute. Who is responsible for causing the accident is questioned before this Court. Manner is which accident occurred also not in dispute. Admittedly, PW1 is

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not an eye witness to the incident. In her evidence, she has reiterated the averments of the claim petition. She has not explained as to why her husband went to wrong side of the road, as noted in the spot mahazar, as well as hand sketch map of the spot of the accident (Ex.R1).

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Ex.R-1 (or Ex.P3) reveals that road was from North to South and width of the tar road at the spot of the accident was 25 ft. and both side there was 10 ft. and 8 ft. width mud road. The spot of accident is at wrong side of the road. It appears, that the rider of the motorcycle came to the wrong side of the road and caused the accident.

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If we consider the charge sheet and its enclosures with evidenced of RW1, one can infer that accident was due to composite negligence of driver of both the vehicle in the ratio of 50:50

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There is no challenge in respect of the compensation awarded by the Tribunal. Since the accident

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had taken place due to the contributory negligence of the deceased to an extent of 50%, claimants are entitled for compensation to an extent of 50% of total compensation assessed.

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Claimants are also entitled for interest at the rate of 6% p.a. from the date of claim petition till its realization. Accordingly, I answer point No.1 partly in the affirmative.

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For the reasons discussed above. I proceed to pass the following :

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ORDER

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i) The Appeal is allowed in part .

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ii) The judgment and award dated 1 8^th September 2014, passed in MVC.No.16/2013, by the Addl.M.A.C.T., Kumta, stands modified.

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iii) The claimants are entitled for compensation of Rs.4,00,000/-, with interest at the rate of 6% p.a.,from the date of petition till its realization.

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iv) The appellant Insurance Company shall deposit the said amount within a period of six weeks from the date of award.

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v) The apportionment, release and deposit of the amount are as ordered by the Tribunal.

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vi) The amount in deposit before this Court shall be transmitted to the concerned Tribunal for disbursement in accordance with the aforesaid judgment. If there is any excess amount deposited by the insurer the same shall be refunded to the appellant-insurer.

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vii) No order as to costs.

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viii) Draw award accordingly.

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Registry is directed to send back the records along

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with a copy of this judgment to the concerned Tribunal.

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Sd/-

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(UMESH M ADIGA) JUDGE