United India Insurance Company Limited Vs Smt Chintamani

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS 16^TH THE DAY OF APRIL 2025

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BEFORE

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THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

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MISCELLANEOUS FIRST APPEAL NO.5121 OF 2023 (MV-D) C/W

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MISCELLANEOUS FIRST APPEAL NOS.5123/2023, 5124/2023, 5125/2023, 5128/2023, MFA.CROB.NOS.119/2023, 120/2023, 121/2023 & 122/2023 (MV-D)

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IN MFA NO.5121/2023:

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BETWEEN:

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UNITED INDIA INSURANCE COMPANY LIMITED

¶9

REP. BY ITS DIVISIONAL MANAGER UNITED INDIA INSURANCE CO.LTD NO.1137/947, 2^ND FLOOR RUB BUILDING A.A.CIRCLE, B.H.ROAD SHIVAMOGGA-577 201

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…APPELLANT

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(BY SRI RAVISH BENNI, ADVOCATE)

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AND :

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SMT.CHINTAMANI W/O.K.C.LOKANATH AGED ABOUT 61 YEARS R/AT AMBEDKAR COLONY ARALIKOPPA

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HOSANAGARA POST & TALUK

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SHIVAMOGGA DISTRICT -577 418

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MAHANTESHA NAIKA S/O.DAKYANAIKA AGED ABOUT 43 YEARS R/AT SRI MATHA CHOWDAMMA TEMPLE

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2

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6^TH CROSS HOSAMANE BADAVANE SHIVAMOGGA TOWN -577 201

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SRI JAGADEESHA D.S. S/O.D.S.SHEKHARAPPA MAJOR R/AT N.T.ROAD, HARKERE SHIVAMOGGA-577 202

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ROYAL SUNDRAM GENERAL INSURANCE COMPANY DOOR NO.667/1-667/1-1149/1 PRATAP ARCAD, 1^ST FLOOR NEAR JAIL CIRCLE SHIVAMOGGA-577 201

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SRI AMRUGAM S/O.CHINNASWAMY AGED ABOUT 61 YEARS AMBEDKAR COLONY GUDDEKOPPA HOSANAGARA TALUK-577 414

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… RESPONDENTS

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(BY SRI MAHESH R.UPPIN, ADVOCATE FOR R-1; SRI R.GOPAL, ADVOCATE FOR R-3; SRI RAVI S.SAMPRATHI, ADVOCATE FOR R-4; SRI SHARADI S.SHETTY, ADVOCATE FOR R-5; R-2 IS AND UNREPRESENTED)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 14.03.2023 PASSED IN MVC.NO.1028/2018 BY THE SENIOR CIVIL JUDGE AND ADDITIONAL MACT, HOSANAGARA.

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3

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IN MFA NO.5123/2023:

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BETWEEN:

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UNITED INDIA INSURANCE COMPANY LIMITED REP. BY ITS DIVISIONAL MANAGER UNITED INDIA INSURANCE CO. LTD. NO.1137/947, 2^ND FLOOR RUB BUILDING A.A.CIRCLE, B.H.ROAD SHIVAMOGGA-577 201

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…APPELLANT

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(BY SRI RAVISH BENNI, ADVOCATE)

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AND :

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SMT.JAYALAKSHMI W/O.MAHENDRA P.C. AGED ABOUT 45 YEARS R/AT AMBEDKAR COLONY ARALIKOPPA HOSANAGARA POST AND TALUK SHIVAMOGGA DISTRICT-577 418

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MAHANTESHA NAIKA S/O.DAKYANAIKA AGED ABOUT 43 YEARS R/AT SRI MATHA CHOWDAMMA TEMPLE 6^TH CROSS, HOSAMANE BADAVANE SHIVAMOGGA TOWN-577 201

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SRI JAGADEESHA D.S. S/O.D.S.SHEKHARAPPA MAJOR R/AT N.T.ROAD HARKERE SHIVAMOGGA-577 202

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ROYAL SUNDRAM GENERAL INSURANCE COMPANY DOOR NO.667/1-667/1-1149/1

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4

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PRATAP ARCADE, 1^ST FLOOR NEAR JAIL CIRCLE SHIVAMOGGA-577 201

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SRI AMRUGAM S/O.CHINNASWAMY AGED ABOUT 61 YEARS AMBEDKAR COLONY GUDDEKOPPA

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HOSANAGARA TALUK-577 414

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… RESPONDENTS

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(BY SRI MAHESH R.UPPIN, ADVOCATE FOR R-1; SRI R.GOPAL, ADVOCATE FOR R-3; SRI RAVI S.SAMPRATHI, ADVOCATE FOR R-4; R-2 AND R-5 ARE SERVED AND UNREPRESENTED)

¶42

THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 14.03.2023 PASSED IN MVC.NO.1032/2018 BY THE SENIOR CIVIL JUDGE AND ADDITIONAL MACT, HOSANAGARA.

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IN MFA NO.5124/2023:

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BETWEEN:

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UNITED INDIA INSURANCE COMPANY LIMITED REP. BY ITS DIVISIONAL MANAGER UNITED INDIA INSURANCE CO.LTD. NO.1137/947, 2^ND FLOOR RUB BUILDING A.A.CIRCLE, B.H. ROAD SHIVAMOGGA-577 201

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…APPELLANT

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(BY SRI RAVISH BENNI, ADVOCATE)

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AND :

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SMT.DHANALAKSHMI W/O.MARUSWAMY

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5

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AGED ABOUT 47 YEARS R/AT AMBEDKAR COLONY ARALIKOPPA HOSANAGARA POST & TALUK SHIVAMOGGA DISTRICT-577 418

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MAHANTESHA NAIKA S/O.DAKYANAIKA AGED ABOUT43 YEARS R/AT SRI MATHA CHOWDAMMA TEMPLE 6^TH CROSS, HOSAMANE BADAVANE SHIVAMOGGA TOWN-577 201

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SRI JAGADEESHA D.S. S/O.D.S.SHEKHARAPPA MAJOR R/AT N.T.ROAD, HARKERE SHIVAMOGGA-577 202

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ROYAL SUNDRAM GENERAL INSURANCE COMPANY DOOR NO.667/1-667/1-1149/1 PRATAP ARCADE, 1^ST FLOOR NEAR JAIL CIRCLE SHIVAMOGGA-577 201

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SRI AMRUGAM S/O.CHINNASWAMY AGED ABOUT 61 YEARS AMBEDKAR COLONY, GUDDEKOPPA HOSANAGAR TALUK-577 414

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… RESPONDENTS

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(BY SRI MAHESH R.UPPIN, ADVOCATE FOR R-1; SRI R.GOPAL, ADVOCATE FOR R-3; SRI RAVI S.SAMPRATHI, ADVOCATE FOR R-4; SRI SHARADI S.SHETTY, ADVOCATE FOR R-5; R-2 IS SERVED AND UNREPRESENTED)

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6

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 14.03.2023 PASSED IN MVC.NO.1030/2018 BY THE SENIOR CIVIL JUDGE AND ADDITIONAL MACT, HOSANAGARA.

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IN MFA NO.5125/2023:

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BETWEEN:

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UNITED INDIA INSURANCE COMPANY LIMITED REP. BY ITS DIVISIONAL MANAGER UNITED INDIA INSURANCE CO.LTD. NO.1137/947, 2^ND FLOOR RUB BUILDING A.A.CIRCLE, B.H.ROAD SHIVAMOGGA-577 201

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…APPELLANT

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(BY SRI RAVISH BENNI, ADVOCATE)

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AND :

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SMT.TULASIMANI

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W/O.AMRUGAM AGED ABOUT 48 YEARS R/AT AMBEDKAR COLONY ARALIKOPPA, HOSANAGRA TALUK SHIVAMOGGA DISTRICT-577 418 DEAD BY HER LRS.

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ANNAPOORNA K.A. D/O.AMRUGAM AGED ABOUT 28 YEARS

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ROOPA K.A. D/O.AMRUGAM AGED ABOUT 26 YEARS

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R-1 & R-2 ARE R/AT AMBEDKAR COLONY ARALIKOPPA

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7

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HOSANAGARA TALUK SHIVAMOGA DISTRICT-577 418

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MAHANTESHA NAIKA S/O.DAKYANAIKA AGED ABOUT 43 YEARS R/AT SRI MATHA CHOWDAMMA TEMPLE 6^TH CROSS, HOSAMANE BADAVANE SHIVAMOGGA TOWN-577 201

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SRI JAGADEESHA D.S. S/O.D.S.SHEKHARAPPA MAJOR R/AT N.T.ROAD HARKERE SHIVAMOGGA-577 202

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ROYAL SUNDRAM GENERAL INSURANCE COMPANY DOOR NO.667/1-667/1-1149/1 PRATAP ARCAD, 1^ST FLOOR NEAR JAIL CIRCLE SHIVAMOGGA-577 201

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… RESPONDENTS

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(BY SRI R.GOPAL, ADVOCATE FOR R-4; SRI RAVI S.SAMPRATHI, ADVOCATE FOR R-5; R-1, R-2 & R-3 ARE SERVED & UNREPRESENTED)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 14.03.2023 PASSED IN MVC.NO.1029/2018 BY THE SENIOR CIVIL JUDGE AND ADDITIONAL MACT, HOSANAGARA.

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IN MFA NO.5128/2023:

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BETWEEN:

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UNITED INDIA INSURANCE COMPANY LIMITED REP.BY ITS DIVISIONAL MANAGER

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8

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UNITED INDIA INSURANCE CO.LTD. NO.1137/947, 2^ND FLOOR RUB BUILDING, A.A.CIRCLE B.H.ROAD SHIVAMOGGA-577 201

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… APPELLANT

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(BY SRI RAVISH BENNI, ADVOCATE)

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AND :

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SMT.GOWRAMMA W/O.RAJENDRA AGED ABOUT 57 YEARS R/AT AMBEDKAR COLONY ARALIKOPPA HOSANAGARA POST & TALUK SHIVAMOGGA DISTRICT-577 418

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MAHANTESHA NAIKA S/O.DAKYANAIKA AGED ABOUT 43 YEARS R/AT SRI MATHA CHOWDAMMA TEMPLE 6^TH CROSS, HOSAMANE BADAVANE SHIVAMOGGA TOWN-577 201

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SRI JAGADEESHA D.S. S/O.D.S.SHEKHARAPPA MAJOR R/AT N.T.ROAD, HARKERE SHIVAMOGGA-577 202

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ROYAL SUNDRAM GENERAL INSURANCE COMPANY DOOR NO.667/1-667/1-1149/1 PRATAP ARCADE, 1^ST FLOOR NEAR JAIL CIRCLE SHIVAMOGGA-577 201

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SRI AMRUGAM S/O.CHINNASWAMY

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9

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AGED ABOUT 61 YEARS AMBEDKAR COLONY GUDDEKOPPA

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HOSANAGARA TALUK-577 414

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… RESPONDENTS

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(BY SRI MAHESH R.UPPIN, ADVOCATE FOR R-1; SRI R.GOPAL, ADVOCATE FOR R-3; SRI RAVI S.SAMPRATHI, ADVOCATE FOR R-4; R-2 & R-5 ARE SERVED & UNREPRESENTED)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 14.03.2023 PASSED IN MVC.NO.1033/2018 BY THE SENIOR CIVIL JUDGE AND ADDITIONAL MACT, HOSANAGARA.

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IN MFA.CROB.NO.119/2023:

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BETWEEN:

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SMT.GOWRAMMA

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W/O.RAJENDRA AGED ABOUT 57 YEARS, R/AT AMBEDKAR COLONY ARALIKOPPA HOSANAGARA POST & TALUK SHIVAMOGGA DISTRICT-577 418

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… CROSS OBJECTOR

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(BY SRI VEERESH M. UPPIN ALONG WITH SRI MAHESH R.UPPIN, ADVOCATES)

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AND :

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SRI MAHANTESHA NAIKA S/O.DAKYANAIKA AGED ABOUT 43 YEARS HINDU, LORRY DRIVER BESIDE SHRI MATHA CHOWDAMMA TEMPLE

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6^TH CROSS, HOSAMANE BADAVANE

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10

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SHIVAMOGGA TOWN-577 201 DRIVER OF MAHINDRA LOADKING BEARING REG.NO.KA-20-B-7352

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JAGADEESHA D.S. S/O.D.S.SHEKHARAPPA HINDU, MAJOR R/AT N.T.ROAD, HARKERE SHIVAMOGGA-577 201 OWNER OF MAHINDRA LOADKING BEARING REG.NO.KA-20-B-7352

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UNITED INDIA INSURANCE COMPANY REP.BY ITS DIVISIONAL MANAGER AMEER AHAMAD CIRCLE POLICY NO.2404003116P116960662 SHIVAMOGGA-577 201

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ROYAL SUNDRAM GENERAL INSURANCE COMPANY DOOR NO.667/1-667/1-1149/1 PRATAP ARCAD, 1^ST FLOOR NEAR JAIL CIRCLE SHIVAMOGGA-577 201 POLICY NO.MOQ1153035. BY ITS MANAGER

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AMRUGAM S/O.CHINNASWAMY HINDU AGED ABOUT 61 YEARS AMBEDKAR COLONY GUDDEKOPPA HOSANAGARA TALUK SHIVAMOGGA DISTRICT-577 414

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… RESPONDENTS

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(BY SRI RAVISH BENNI, ADVOCATE FOR R-3; SRI RAVI S.SAMPRATHI, ADVOCATE FOR R-4)

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11

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THIS MISCELLANEOUS FIRST APPEAL CROB. IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988, PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 14.03.2023 PASSED IN MVC.NO.1033/2018 BY THE SENIOR CIVIL JUDGE AND ADDITIONAL MACT, HOSANAGARA.

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IN MFA.CROB.NO.120/2023:

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BETWEEN:

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DHANALAKSHMI W/O.MARUSWAMY AGED ABOUT 47 YEARS R/AT.AMBEDKAR COLONY ARALIKOPPA

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HOSANAGARA POST & TALUK SHIVAMOGGA DISTRICT-577 418

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… CROSS OBJECTOR

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(BY SRI VEERESH M. UPPIN ALONG WITH SRI MAHESH R.UPPIN, ADVOCATES)

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AND :

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SRI MAHANTESHA NAIKA S/O.DAKYANAIKA AGED ABOUT 43 YEARS HINDU, LORRY DRIVER BESIDE SHRI MATHA CHOWDAMMA TEMPLE

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6^TH CROSS, HOSAMANE BADAVANE SHIVAMOGGA TOWN-577 201 DRIVER OF MAHINDRA LOADKING BEARING REG.NO.KA-20-B-7352

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JAGADEESHA D.S. S/O.D.S.SHEKHARAPPA HINDU, MAJOR R/AT.N.T.ROAD, HARKERE SHIVAMOGGA-577 201 OWNER OF MAHINDRA LOADKING BEARING REG.NO.KA-20-B-7352

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12

¶128

UNITED INDIA INSURANCE COMPANY REP.BY ITS DIVISIONAL MANAGER AMEER AHAMAD CIRCLE POLICY NO.2404003116P116960662 SHIVAMOGGA-577 201

¶129

ROYAL SUNDRAM GENERAL INSURANCE COMPANY DOOR NO.667/1-667/1-1149/1 PRATAP ARCADE 1^ST FLOOR, NEAR JAIL CIRCLE SHIVAMOGGA-577 201 POLICY NO.MOQ1153035

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AMRUGAM S/O.CHINNASWAMY HINDU AGED ABOUT 61 YEARS AMBEDKAR COLONY GUDDEKOPPA HOSANAGARA TALUK SHIVAMOGGA DISTRICT-577 414

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… RESPONDENTS

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(BY SRI RAVISH BENNI, ADVOCATE FOR R-3; SRI RAVI S.SAMPRATHI, ADVOCATE FOR R-4)

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THIS MISCELLANEOUS FIRST APPEAL CROB. IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988, PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 14.03.2023 PASSED IN MVC.NO.1030/2018 BY THE SENIOR CIVIL JUDGE AND ADDITIONAL MACT, HOSANAGARA.

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IN MFA.CROB.NO.121/2023:

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BETWEEN:

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SMT.CHINTAMANI W/O.K.C.LOKANATH AGED ABOUT 61 YEARS

¶137

13

¶138

R/AT AMBEDKAR COLONY ARALIKOPPA HOSANAGARA POST & TALUK SHIVAMOGGA DISTRICT-577 418

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… CROSS OBJECTOR

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(BY SRI VEERESH M. UPPIN ALONG WITH SRI MAHESH R.UPPIN, ADVOCATES)

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AND :

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SRI MAHANTESHA NAIKA S/O.DAKYANAIKA AGED ABOUT 43 YEARS HINDU, LORRY DRIVER BESIDE SHRI MATHA CHOWDAMMA TEMPLE 6^TH CROSS, HOSAMANE BADAVANE SHIVAMOGGA TOWN-577 201 DRIVER OF MAHINDRA LOADKING BEARING REG.NO.KA-20-B-7352

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JAGADEESHA D.S. S/O.D.S.SHEKHARAPPA HINDU, MAJOR R/AT N.T.ROAD, HARKERE SHIVAMOGGA-577 201 OWNER OF MAHINDRA LOADKING BEARING REG.NO.KA-20-B-7352

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UNITED INDIA INSURANCE COMPANY REP.BY ITS DIVISIONAL MANAGER AMEER AHAMAD CIRCLE POLICY NO.2404003116P116960662 SHIVAMOGGA-577 201

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ROYAL SUNDRAM GENERAL INSURANCE COMPANY DOOR NO.667/1-667/1-1149/1 PRATAP ARACAD 1^ST FLOOR, NEAR JAIL CIRCLE SHIVAMOGGA-577 201 POLICY NO.MOQ1153035

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14

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AMRUGAM

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S/O.CHINNASWAMY HINDU AGED ABOUT 61 YEARS AMBEDKAR COLONY GUDDEKOPPA HOSANAGARA TALUK SHIVAMOGGA DISTRICT-577 414

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… RESPONDENTS

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(BY SRI RAVISH BENNI, ADVOCATE FOR R-3; SRI RAVI S.SAMPRATHI, ADVOCATE FOR R-4)

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THIS MISCELLANEOUS FIRST APPEAL CROB. IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988, PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 14.03.2023 PASSED IN MVC.NO.1028/2018 BY THE SENIOR CIVIL JUDGE AND ADDITIONAL MACT, HOSANAGARA.

¶152

IN MFA.CROB.NO.122/2023:

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BETWEEN:

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SMT.JAYALAKSHMI W/O.MAHENDRA P.C. AGED ABOUT 45 YEARS R/AT AMBEDKAR COLONY ARALIKOPPA

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HOSANAGARA POST & TALUK SHIVAMOGGA DISTRICT-577 418

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… CROSS OBJECTOR

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(BY SRI VEERESH M. UPPIN ALONG WITH SRI MAHESH R.UPPIN, ADVOCATES)

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AND :

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SRI MAHANTESHA NAIKA S/O.DAKYANAIKA AGED ABOUT 43 YEARS

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HINDU, LORRY DRIVER

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15

¶162

BESIDE SHRI MATHA CHOWDAMMA TEMPLE 6^TH CROSS, HOSAMANE BADAVANE SHIVAMOGGA TOWN-577 201 DRIVER OF MAHINDRA LOADKING BEARING REG.NO.KA-20-B-7352

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JAGADEESHA D.S. S/O.D.S.SHEKHARAPPA HINDU, MAJOR R/AT N.T.ROAD, HARKERE SHIVAMOGGA-577 201 OWNER OF MAHINDRA LOADKING BEARING REG.NO.KA-20-B-7352

¶164

UNITED INDIA INSURANCE COMPANY REP. BY ITS DIVISIONAL MANAGER AMEER AHAMAD CIRCLE POLICY NO.2404003116P116960662 SHIVAMOGGA-577 201

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ROYAL SUNDRAM GENERAL INSURANCE COMPANY DOOR NO.667/1-667/1-1149/1 PRATAP ARACAD, 1^ST FLOOR NEAR JAIL CIRCLE SHIVAMOGGA-577 201 POLICY NO.MOQ1153035

¶166

AMRUGAM S/O.CHINNASWAMY HINDU AGED ABOUT 61 YEARS AMBEDKAR COLONY GUDDEKOPPA HOSANAGARA TALUK SHIVAMOGGA DISTRICT-577 414 … RESPONDENTS (BY SRI RAVISH BENNI, ADVOCATE FOR R-3; SRI RAVI S.SAMPRATHI, ADVOCATE FOR R-4)

¶167

16

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THIS MISCELLANEOUS FIRST APPEAL CROB. IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988, PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 14.03.2023 PASSED IN MVC.NO.1032/2018 BY THE SENIOR CIVIL JUDGE AND ADDITIONAL MACT, HOSANAGARA.

¶169

THESE MFAs. AND MFA.CROBs. HAVING BEEN HEARD AND RESERVED FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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CORAM: HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

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CAV JUDGMENT

¶172

The United India Insurance Company Limited, who was respondent No.3 before the tribunal, has preferred the appeals in MFA.Nos.5121/2023, 5123/2023, 5124/2023, 5125/2023 and 5128/2023 aggrieved by the judgment and award dated 14.03.2023 passed in MVC.Nos.1028/2018, 1032/2018, 1030/2018, 1029/2018 and 1033/2018 respectively passed by the Senior Civil Judge and Additional MACT, Hosanagar. Whereas, the claimants preferred the Cross-objections in MFA.Crob.Nos.119/2023, 120/2023, 121/2023 and 122/2023 aggrieved by the judgment and award dated 14.03.2023 passed in MVC.Nos.1033/2018, 1030/2018, 1028/2018 and

¶173

17

¶174

1032/2018 respectively by the Senior Civil Judge and Additional MACT, Hosanagar.

¶175

The Insurance Company preferred the appeals seeking to set-aside the impugned judgment and award and absolve the liability fastened against the Insurance Company of the insured vehicle namely, Mahindra Goods Vehicle and fix the entire liability on Royal Sundram General Insurance Company, which was respondent No.4 before the tribunal, the insurer of the Maruti Swift Car. Whereas, the claimants preferred the cross-objections in the aforesaid four claim petitions seeking to enhance the compensation.

¶176

Though these matters are listed for admission, with consent of learned counsels for parties, they are taken up for final disposal.

¶177

Parties to the appeals shall be referred to as per their status before the tribunal.

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18

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Brief facts of the case are as under:

¶180

On 28.08.2017 at about 1.00 p.m. at Bairinakoppa

¶181

Village, when all the deceased persons, who were inmates in Maruti Swift Car bearing registration No.KA-15-A-2204 were travelling on Shivamogga-Sagara road, the driver of Mahindra Loadking vehicle bearing registration No.KA-20/B-7352 drove the same in a rash and negligent manner and dashed against the Maruti Swift car, which lead to occurrence of accident. Due to the impact of collision of two vehicles, the inmates of the Maruti Swift Car namely namely, Marimuttu, Karthik, Kiran, Ashok Kumar and Naveena, despite being provided best treatment, succumbed to the injuries.

¶182

5.1 The claimants in each of the claim petitions being the sole dependant of the deceased persons filed claim petitions seeking compensation against respondent Nos.1 to 5 namely, the driver of the Mahindra Loadking, the owner of Mahindra Loadking, Insurance Company of the Mahindra Loadking,

¶183

19

¶184

Insurance Company of the Maruti Swift Car and the owner of the Maruti Swift Car respectively.

¶185

5.2 Respondent No.1 before the tribunal was placed ex parte. Respondent Nos.2 to 4 filed written statement. Respondent No.5 did not prefer to file written statement. The contesting respondents denied their liability and sought for dismissal of the claim petitions. In fact, respondent No.3-the United India Insurance Company Limited of Mahindra Loadking goods vehicle took up a plea that there was no liability or negligence on the part of the Mahindra Loadking and the entire negligence is due to rash and negligent driving by the driver of the Maruti Swift Car and it also took up the plea that FIR and chargesheet came to filed against the driver of the Maruti Swift Car and since the driver of the car died in the accident, an abated chargesheet came to be filed against him for the offence punishable under Sections 279, 338, 304A of IPC. It was specifically pleaded that there was no negligence on the part of the driver of the Mahindra Loadking and

¶186

20

¶187

consequently, sought for dismissal of the claim petition as against respondent No.3.

¶188

5.3 On the basis of the materials placed on record, both oral and documentary, the tribunal awarded total compensation of Rs.22,67,000/in MVC.No.1028/2018, Rs.17,39,000/- in MVC.No.1032/2018, Rs.17,39,000/- in MVC.No.1030/2023, and Rs.16,46,000/in

¶189

MVC.No.1033/2018 along with interest @ 6% p.a. fixing the joint liability against respondent Nos.1 to 5 and directed respondent Nos.3 and 4, the Insurance Companies, to deposit compensation amount in the ratio of 50:50 within two months from the date of the order; Rs.8,69,500/in MVC.No.1029/2018 fixing the liability against respondent Nos.1 to 3 and directed respondent No.3 to deposit the compensation within two months from the date of the order.

¶190

5.4 Aggrieved by the same, United India Insurance Company Limited and the claimants are before this Court.

¶191

21

¶192

It is the vehement contention of Sri Ravish Benni, learned counsel for United India Insurance Company Limited that the judgment and award passed by the tribunal is illegal, arbitrary, erroneous and same requires to be set aside as far as the United India Insurance Company Limited is concerned and the liability of 50% is erroneous and the same requires to be set-aside and consequently, the entire liability to be fixed on respondent No.4-Royal Sundram General Insurance Company, the insurer of the Maruti Swift Car.

¶193

6.1 Learned counsel further contends that the Mahindra Loadking vehicle was proceeding in its regular course from Shivamogga to Sagara, whereas the Maruti Swift Car, which was proceeding from Sagara to Shivamogga came in a wrong side of the road and in a rash and negligent manner and dashed against the Mahindra Loadking Vehicle. All the seven (07) persons in both the vehicles were injured and five (05) persons in the Maruti Swift Car succumbed to the injuries due to the road traffic accident.

¶194

22

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6.2 It is further contended by learned counsel for the United India Insurance Company Limited that as per the sketch produced by the Insurance Company at Ex.R9, it is apparently very clear that the Mahindra Loadking vehicle was driving on the left side of the road without violating any rules and regulations, whereas the driver of the Maruti Swift Car came on the wrong side of the road and dashed against the Mahindra Loadking goods vehicle. Therefore, the entire negligence in occurrence of the accident is due to the rashness and negligence of the driver of the Maruti Swift Car. The Insurance Company has also produced Ex.R10-certified copy of spot mahazar, Ex.R12-statement of Mahantesha Naika and Ex.R13-certificed copy of the inquest report, which apparently go to prove and establish that the entire negligence is to be attributed on the driver of the Maruti Swift Car, who came on the wrong side of the road and dashed against the Mahindra Loadking vehicle.

¶196

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6.3 It is also contended by learned counsel for United India Insurance Company Limited that respondent No.4-Royal Sundram General Insurance Company of the Maruti Swift Car has settled the claim of Mahanthesh Naika, the driver of the Mahindra Loadking vehicle, who also incidentally suffered injuries, before the Lok Adalat on 12.03.2022. Therefore, learned counsel vehemently contends that when respondent No.4-Royal Sundram General Insurance Company settled the claim of the driver of the Mahindra Loadking goods vehicle, it has to be inferred that they have accepted the entire negligence and liability for the occurrence of accident and compensation.

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6.4 Learned counsel further contends that there is absolutely no material on record, either oral or documentary with regard to the negligence of the Mahindra Loadking vehicle, much less any contributory negligence against the driver of the Mahindra Loadking vehicle. On these grounds, he contends that the liability of 50% fixed against respondent

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No.3, the United India Insurance Company Limited is arbitrary, illegal and the same requires to be set-aside in its entirety. On these grounds, he seeks to allow his appeals.

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Per contra , Sri Mahesh R.Uppin, learned counsel for cross-objectors, who are the claimants in MVC.Nos.1033/2018, 1030/2018, 1028/2018 and 1032/2018, seeks enhancement of compensation on several grounds urged in the cross-objections.

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The occurrence of accident, involvement of the vehicles, death of five inmates in the Maruti Swift Car having occurred in the road traffic accident involving the Maruti Swift Car and Mahindra Loadking vehicle are established and proved by production of exhibits in each of the cases.

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Now coming to the computation of compensation in each of the cases, let me take up each of the case one by one. In the case of death of Naveena in MVC.No.1033/2018:-

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The claimant is none other than the mother of the deceased Naveena; the deceased was aged 27 years as on the

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date of occurrence of accident; in view of lack of material to show the income, the tribunal taken the notional income at Rs.11,000/- for the accident of the year 2017; as the deceased was aged 27 years, the multiplier is applied at '17; as the deceased was a bachelor and unmarried and aged less than 40 years, 40% is added towards future prospects and 50% is deducted towards personal and living expenses; therefore, the tribunal awarded Rs.15,71,000/- towards loss of dependency and Rs.75,000/- towards loss of estate, funeral expenses and cost of transportation of the body and accordingly, awarded total compensation of Rs.16,46,000/-. However, this Court is of the opinion that the tribunal is justified in considering the aspects of age, avocation, income, future prospects, personal and living expenses and awarding the compensation under all the heads. Therefore, I do not find any good ground or cogent reason to agree with submission of learned counsel for claimant warranting interference for enhancement of compensation, as the tribunal

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has taken into consideration all the aspects including age, avocation, income, appropriate multiplier and deductions and awarded just and reasonable compensation and the same is retained.

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In the case of death of Kiran in MVC.No.1030/2018:-

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The claimant is none other than the mother of the deceased Kiran; the deceased was aged 23 years as on the date of occurrence of accident; in view of lack of material to show the income, the tribunal taken the notional income at Rs.11,000/- for the accident of the year 2017; as the deceased was aged 23 years, the multiplier is applied at '18; as the deceased was a bachelor and unmarried and aged less than 40 years, 40% is added towards future prospects and 50% is deducted towards personal and living expenses; therefore, the tribunal awarded Rs.16,64,000/- towards loss of dependency and Rs.75,000/- towards loss of estate, funeral expenses and cost of transportation of the body and accordingly, awarded total compensation of Rs.17,39,000/-.

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However, this Court is of the opinion that the tribunal is justified in considering the aspects of age, avocation, income, future prospects, personal and living expenses and awarding the compensation under all the heads. Therefore, I do not find any good ground or cogent reason to agree with submission of learned counsel for claimant warranting interference for enhancement of compensation, as the tribunal has taken into consideration all the aspects including age, avocation, income, appropriate multiplier and deductions and awarded just and reasonable compensation and the same is retained.

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In the case of death of Marimuttu in MVC.No. 1028/2018:-

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The claimant is none other than the mother of the deceased Marimuttu; the deceased was aged 34 years as on the date of occurrence of accident; he was said to be working in Shri Kshethra Dharmasthala Rural Development Project® and earning a salary of Rs.16,820/- per month; the tribunal

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has taken the income at Rs.15,220/- after deducting transport allowance of Rs.1,600/-; as the deceased was aged 34 years, the multiplier is applied at '16; as the deceased was earning a fixed salary, 50% is added towards future prospects; as the deceased was a bachelor and unmarried, 50% is deducted towards personal and living expenses; therefore, the tribunal awarded Rs.21,92,000/- towards loss of dependency and Rs.75,000/- towards loss of estate, funeral expenses and cost of transportation of the body and accordingly, awarded total compensation of Rs.22,67,000/-. However, this Court is of the opinion that the tribunal is justified in considering the aspects of age, avocation, income, future prospects, personal and living expenses and awarding the compensation under all the heads. I do not find any good ground or cogent reason to agree with submission of learned counsel for claimant warranting interference for enhancement of compensation, as the tribunal has taken into consideration all the aspects including age, avocation, income, appropriate multiplier and

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deductions and awarded just and reasonable compensation and the same is retained.

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In the case of death of Karthik in MVC.No.1032/2018:-

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The claimant is none other than the mother of the deceased Karthik; the deceased was aged 20 years as on the date of occurrence of accident; he was a B.Com student and involved in stone crushing work; however, in view of lack of material to show the income, the tribunal taken the notional income at Rs.11,000/- for the accident of the year 2017; as the deceased was aged 20 years, the multiplier is applied at '18; as the deceased was a bachelor and unmarried and aged less than 40 years, 40% is added towards future prospects and 50% is deducted towards personal and living expenses; therefore, the tribunal awarded Rs.16,64,000/- towards loss of dependency and Rs.75,000/- towards loss of estate, funeral expenses and cost of transportation of the body and accordingly, awarded total compensation of Rs.17,39,000/-. However, this Court is of the opinion that the tribunal is

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justified in considering the aspects of age, avocation, income, future prospects, personal and living expenses and awarding the compensation under all the heads. Therefore, I do not find any good ground or cogent reason to agree with submission of learned counsel for claimant warranting interference for enhancement of compensation, as the tribunal has taken into consideration all the aspects including age, avocation, income, appropriate multiplier and deductions and awarded just and reasonable compensation and the same is retained.

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In the case of death of Ashok Kumar in MVC.No. 1029/2018:

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There is no cross-objection preferred by the claimants in this case. Therefore, the compensation awarded by the tribunal at Rs.8,69,500/- does not call for interference and the same is retained.

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Now coming to the aspect of 50% of negligence attributed as against respondent No.3, United India Insurance

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Company Limited, the insurer of Mahindra Loadking goods vehicle, I am in agreement with learned counsel for United India Insurance Company Limited. Admittedly, the FIR and chargesheet are laid against the driver of the Maruti Swift Car and since he had died, an abated chargehseet came to be filed for the offence punishable under Sections 279, 338, 304A of IPC. The Investigating Agency/Police have neither filed any FIR nor the chargesheet pursuant to investigation against the driver of the Mahindra Loadking vehicle. Under the circumstances, admittedly, the Police have not filed any case against the driver of the Mahindra Loadking goods vehicle.

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Learned counsel for United India Insurance Company Limited has relied upon a judgment of this Court in MFA No.1036/2022 c/w. MFA.No.4058/2022 [Decided on 04.03.2024], whereby para-11 of the said judgment reads as under:

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"11. On careful perusal of the records and submission of learned counsel for both parties, it is

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not in dispute that the FIR and chargesheet have been laid against the rider of the motor cycle. However, no case is filed against the driver of the maxi cab. Therefore, the question of fastening any liability against the owner of the maxi cab does not arise as it is the negligence and fault of the rider of the motor cycle, due to which, the accident occurred. Hence, the entire liability will have to be fastened as against respondent No.1-owner-cumrider of the motor cycle and the liability as against respondent No.3 will have to be absolved in view of there being no FIR or chargesheet against the driver of the said maxi cab. Under the circumstance, the entire liability is ordered to be fastened against respondent No.1-owner-cum-rider of the motor cycle."

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In view of the submissions of learned counsel for United India Insurance Company Limited and having perused entire materials on record including the FIR and chargesheet and judgment of this Court mentioned hereinabove, I am in agreement with learned counsel for United India Insurance Company Limited that since there is no FIR and chargesheet

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filed against the driver of the Mahindra Loadking goods vehicle, of which the United India Insurance Company Limited is the insurer, no liability can be fixed against it. Under the circumstances, when there is no material on record to implicate the United Insurance Company, the tribunal has committed an error in fixing the liability on it. However, there is no evidence placed on record to show that the driver of the Mahindra Loadking goods vehicle contributed to the occurrence of accident by his fault and negligence. In view of the same, fixing of 50% liability as against the United India Insurance Company Limited deserves to be set-aside and accordingly, it is set-aside.

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In view of the aforesaid discussions, I pass the following:

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ORDER

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i) The appeals preferred by the United India Insurance Company Limited are allowed;

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ii) The Cross-objections preferred by the claimants are dismissed;

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iii) The impugned judgments and award dated 14.03.2023 passed in MVC.Nos.1028/2018, 1032/2018, 1030/2018, 1029/2018 and 1033/2018 by the Senior Civil Judge and Additional MACT, Hosanagar, are modified;

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iv) The liability of 50% fixed as against the United India Insurance Company Limited by the tribunal is hereby set-aside;

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v) The entire negligence and liability is fixed as against Royal Sundram General Insurance Company, who is respondent No.4 before the tribunal and the insurer of the Maruti Swift Car and in view of the policy being in force, respondent No.4-Royal Sundram General Insurance Company is liable to pay the entire compensation amount to the claimants in all the cases;

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vi) If any amount is already deposited, the balance compensation shall be paid by respondent No.4-Royal Sundram General Insurance Company, within a period of six weeks from the date of receipt of a copy of the order;

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