Cholamandalam M S General Insurance Company Ltd. Vs Smt Nagamma

(BY SRI CHANDRASHEKARA N., ADVOCATE FOR R1 TO R3; R2 & R3 ARE MINORS REPRESENTED BY R1; VIDE ORDER DATED 24.04.2024 NOTICE TO R4 DISPENSED WITH; R5 SERVED)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 12.07.2023 PASSED IN MVC No.4526/2021 ON THE FILE OF THE XI ADDITIONAL SMALL CAUSES JUDGE AND ACMM, COURT OF SMALL CAUSES, MEMBER, MACT-12, BENGALURU SCCH-12, AWARDING COMPENSATION OF RS.25,55,500/- WITH INTEREST AT 6 PERCENT P.A. FROM THE DATE OF PETITION TILL REALIZATION.

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

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HC-KAR

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CORAM: HON'BLE MR. JUSTICE S.G.PANDIT and HON'BLE MR. JUSTICE K. V. ARAVIND

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE S.G.PANDIT)

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The appellant-Insurance Company, aggrieved by the

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judgment and award dated 12.07.2023 in M.V.C. No.4526/2021 passed by the XI Additional Small Causes and Additional Motor Accident Claims Tribunal, Bangalore (SCCH-12)¹ , is before this Court questioning the saddling of liability.

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Brief facts of the case are that the respondents-claimants filed claim petition under Section 166 of the Motor Vehicles Act, 1988² claiming compensation for the accidental death of one Sri.Narayanaswamy the husband of claimant No.1, in a road traffic accident that took place on 14.02.2021, involving TVS XL two wheeler bearing No.AP.02.BB.5325 and Autorickshaw bearing No.AP.39.TK.3644, near Jeelakunte Cross on Lepakshi road, Nagaragere, Gowribidanur Taluk. It is stated that the deceased was aged 40 years and was earning a sum of Rs.30,000/- per month as laborer and agriculturist.

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1 Tribunal

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2 M.V. Act

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HC-KAR

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2.1 On issuance of notice, respondent No.2 before the Tribunal remained ex parte and respondent No.1-Insurance Company appeared and filed its written statement contending that the driver of the offending vehicle autorickshaw had no valid and effective license as on the date of the accident, however admitted the Policy and its validity as on the date of accident. It has also stated that accident has taken place due to the negligence of the rider of motorcycle who was not wearing helmet and was not following the traffic rules and regulations.

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2.3 Claimants in support of their claim examined claimant

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No.1 the wife of the deceased as PW.1 and marked Exs.P1 to P16 and on behalf of the respondent, RW.1 was examined and documents Exs.R1 to R4 were marked.

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On appreciation of the material on record, Tribunal awarded a total compensation of Rs.25,55,500/- with interest at 6% per annum. While awarding the above compensation, Tribunal assessed the monthly income of the deceased at Rs.15,000/- per month, adopted multiplier of 14, deducted 1/4^th towards personal expenses of the deceased and added

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NC: 2026:KHC:2391-DB MFA No. 37 of 2024

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HC-KAR

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25% of the assessed income towards future prospects. The Insurance Company is before this Court in this appeal questioning the saddling of liability.

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Heard Sri Halashetti Jagadish Sidramappa, learned counsel for the appellant-Insurance Company and Sri.N.Chandrashekara, learned counsel for respondent Nos.1 to 3-claimants.

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Perused the entire appeal papers including Trial Court record.

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Learned counsel for the appellant-Insurance Company would submit that the Tribunal while passing the impugned judgment and award has failed to take into consideration the contention of the Insurance Company that accident had taken place solely due to the negligence of the deceased, he was not wearing helmet and had no driving license to drive the two wheeler. It is specifically contended that the deceased had sustained head injury and died, which shows that the deceased

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was negligent as he had failed to wear helmet. As the deceased was not wearing helmet and as the accident had taken place due to the negligence of the rider of the

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HC-KAR

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motorcycle, the Tribunal ought to have considered contributory negligence on the part of the rider of the motorcycle. Except the said contention, learned counsel for the Insurance Company has not canvassed any other contention.

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Per contra , learned counsel for the respondents-claimants would submit that the accident had taken place solely due to the negligence of the driver of the autorickshaw and it is not at the instance of the deceased rider of the motorcycle. Further, learned counsel would point out that Tribunal has directed the appellant-Insurance Company to compensate at the first instance with liberty to recover the same from the owner of the autorickshaw. As such, it is submitted that the Insurance Company is not an aggrieved person.

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6.1 Further, learned counsel would point out that the Insurance Company has not taken the contention in its written objections filed before the Tribunal that the rider of the motorcycle had no license. Further, it is also submitted that it is not the case of the Insurance Company that the rider of the motorcycle had no valid license as on the date of the accident. Thus, he would pray for dismissal of the appeal.

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NC: 2026:KHC:2391-DB MFA No. 37 of 2024

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HC-KAR

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Having heard learned counsel for the parties and on perusal of the entire appeal papers including Trial Court record, the only point that would fall for consideration is,

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Whether the impugned judgment and award warrants interference in the hands of this Court?

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7.1 The answer to the above point is in the 'Negative' for the following reasons.

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The accident that occurred on 14.02.2021 involving the two wheeler bearing No.AP.02.BB.5325 and Autorickshaw bearing No.AP.39.TK.3644 is not in dispute so also the death of Sri.Narayanaswamy the husband of claimant No.1 is not in dispute. The Insurance Company is before this Court questioning the saddling of liability or non-consideration of the contributory negligence on the part of the deceased rider of the motorcycle.

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The Tribunal has framed a specific issue, which reads as under;

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"3. Whether respondent No.1 proves that the accident occurred due to negligence of deceased who was riding his two wheeler?"

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HC-KAR

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We have gone through the objections filed by the Insurance Company to the claim petition before the Tribunal. In the objection statement, it is not the case of the Insurance Company that the deceased rider had no license to ride the two wheeler. However, it was the contention of the Insurance Company that the driver of the autorickshaw-offending vehicle had no valid and effective license, which the Tribunal had accepted and respondent No.2-owner of the autorickshaw has remained ex-parte. Taking note of the above position and the material on record, Tribunal has rightly ordered to pay and recover.

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Learned counsel for the Insurance Company vehemently contended that the deceased was not wearing helmet and due to head injury, the rider of the motorcycle died in the accident. The Insurance Company had suggested to PW.1 the wife of the deceased that the deceased was not wearing helmet and as such, due to head injury, he died. The said suggestion was denied by PW.1 and she has specifically answered that deceased was wearing Helmet. Moreover, the Tribunal on considering the material has given a specific finding that the

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HC-KAR

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accident had taken place due to the negligence of the driver of

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the autorickshaw-offending vehicle. When there is a specific finding that the accident had taken place due to negligence of the driver of the autorickshaw-offending vehicle, no contrary material is pointed out to prove the contention of the appellant that the rider of the motorcycle has also contributed his negligence in the occurrence of the accident.

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Learned counsel for the appellant has stated that the appellant is not on quantum and no ground is urged on the quantum of compensation awarded by the Tribunal.

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For the reasons recorded above, we are of the considered opinion that there is no merit in the appeal. Accordingly, the appeal stands dismissed.

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The amount in deposit be transmitted to the Tribunal.

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Sd/(S.G.PANDIT) JUDGE

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Sd/(K. V. ARAVIND) JUDGE

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MV, List No.: 1 Sl No.: 8

Cholamandalam M S General Insurance Company Ltd. v. Smt Nagamma

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Cholamandalam M S General Insurance Company Ltd. v. Smt Nagamma

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