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ORIENTAL INSURANCE CO. LTD., BY ITS DIVISIONAL CONTROLLER V/S PRADEEP KUMAR JAIN & OTHERS, decided on Tuesday, April 4, 2017.
[ In the High Court of Karnataka Circuit Bench At Dharwad, M.F.A. Nos. 20020, 20021, 20171 & 20779 of 2011 (MV). ] 04/04/2017
Judge(s) : S.N. SATYANARAYANA
Advocate(s) : Ravindra R Mane, Shivakumar S. Badawadagi, T. Hanumareddy, Shivakumar S. Badawadagi, Veeresh R. Budhihal, Ravindra R Mane, M.G. Gadgoli.
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    (Prayer: This Miscellaneous First Appeal is filed under Section 173(1) of M.V. Act praying to set aside the judgment and award dated 4.9.2010 passed in MVC No.578/2009 on the file of MACT-X Ballari etc.This Miscellaneous First Appeal is filed under Section 173(1) of M.V. Act praying to set aside the judgment and award dated 4.9.2010 passed in MVC No.1404/2008 on the file of MACT-X Ballari etc.This Miscellaneous First Appeal is filed under Section 173(1) of M.V. Act praying to set aside the judgment and award dated 4.9.2010 passed in MVC No.1404/2008 on the file of MACT-X Ballari etc.This Miscellaneous First Appeal is filed under Section 173(1) of M.V. Act praying to modify the judgment and award dated 04.09.2010 passed in MVC No.1404/2008 on the file of MACT-X Ballary by enhancing the compensation etc.)1. These four appeals arise out of the common judgment passed in MVC No.1404/2008 and MVC Nos.578 and 579 of 2009 on the file of MACT-X Ballari.2. The appeal in MFA No.20020/2011 and 20171/2011 are in respect of the judgment and award passed in MVC No.1404/2008. The said claim petition was filed by the wife children and mother of G. Manjunathgouda who died in a road traffic accident which has taken place on 8.11.2008 at about 11.30 p.m. involving an ambassador car bearing registration No.KA-34/M-1288 and NEKRTC bus bearing registration No.KA-32/F-1294. The two appeals which are filed against the said MVC judgment are one by 5th respondent insurer in MFA No.20020/2011 and another by 2nd respondent NEKRTC in MFA No.20171/2011. Both appeals are with reference to the quantum and as well as liability.3. In the very same claim petition one more appeal is filed in MFA No.20779/2011 which is by the claimants themselves seeking enhancement of compensation. In addition to these three appeals which are arising out of MVC No.1404/2008 there is one more appeal filed by 5th respondent insurer in MFA No.20021/2011. This appeal is challenging the common judgment which is with reference to MVC No.578/2009 filed by Pradeepkumar Jain who was the person who lodged the complaint with reference to the accident dated 8.11.2008.4. The brief facts leading to these four appeals are that: on 8.11.2008 a road traffic accident took place involving an ambassador car bearing registration No.KA-34/M-1288 belonging to M/s. Siruguppa Sugars and Chemicals Limited. The said car involved in an accident with NEKRTC bus bearing registration No.KA-32/F-1294. The accident has taken place at 11.30 p.m. Immediately within one hour from that time the complaint was lodged with Tekkalakote police of Ballari district by inmate of the car namely Pradeepkumar Jain.5. Based on the complaint lodged by him FIR was registered investigation was taken up and thereafter charge sheet was filed against the driver of NEKRTC bus for rash and negligent driving and causing the accident. In the meanwhile three claim petitions came to be filed. One by the driver of ambassador car in MVC No.579/2009 and another by the person who lodged the police complaint on that day namely Pradeepkumar Jain an inmate of the car in MVC No.578/2009. In the said accident another inmate of the car Manjunathgouda succumbed to the injuries at the spot on the same day. His widow minor children and aged mother filed claim petition in MVC No.1404/2008. All these claim petitions were filed on the file of MACT-X Ballari which was clubbed together and taken up for consideration.6. In the said proceedings the 1st and 2nd respondents were driver and owner of NEKRTC bus and respondents 3 4 and 5 were driver owner and insurer of ambassador car in MVC No.1404/2008 and 578/2009. However in MVC No.579/2009 the driver of the ambassador car was not made as party. It is only owner and insurer of the car arrived as respondents No.3 and 4. In the said proceedings the driver and owner of the car namely M/s.Siruguppa Sugars and Chemicals Limited remained exparte. It is only the driver and owner of NEKRTC bus who are respondents No.1 and 2 and the insurer of ambassador car who contested the claim petition. So far as owner of the ambassador car though it is stated that they are exparte the records would disclose that written statement was filed by them. Thereafter they did not participate in the proceedings.7. When the entire pleadings on record is seen the claimants are fixing the liability for causing the accident on the driver of the NEKRTC bus only. Whereas the NEKRTC bus has taken up the defence that the accident is caused not only due to rash and negligent driving of their driver but also due to contributory negligence on the part of the driver of the car which is not taken into consideration by the police at the time of investigation and the same has resulted in charge sheet being wrongly filed against its driver.8. With these rival contentions the matter went into trial where on behalf of the claimants evidence was adduced in all the three claim petitions giving evidence as PWs.1 to 3 and several documents were also produced and marked. So far as the respondent is concerned officer of M/s. Siruguppa Sugars was examined as RW.1 and driver of NEKRTC bus was examined as RW.2.9. Based on the pleadings and oral and documentary evidence produced in the form of Exs.P.1 to P.14 and R.1 to R.3 the Tribunal proceeded to allow all the three claim petitions in awarding compensation to the claimants in MVC No.1404/2008 i.e. the legal heirs of deceased Manjunathgouda in a sum of Rs.13 30 500/- payable with interest at 6% p.a. from the date of petition till the date of realization. So far as the claimant in MVC No.578/2009 who is the complainant Pradeepakumar Jain is concerned compensation is awarded to him in a sum of Rs.10 000/- with interest. So far as the driver of the car belonging to M/s.Siruguppa Sugars and Chemicals Limited compensation was awarded in a sum of Rs.4 000/- with interest at 6% p.a. The liability to pay the compensation was distributed equally between the insurer of car and NEKRTC in the ratio of 50% each.10. Challenging the same the insurer of the car filed two appeals because in MVC No.579/2009 the liability to pay compensation of Rs.4 000/- was squarely put on the owner of NEKRTC bus. Therefore the insurer of the car challenged the judgment so far as it pertains to MVC No.1404/2008 and MVC No.578/2009 where the liability to pay 50% of the compensation was saddled on the insurer of the car. So far as NEKRTC is concerned it filed two appeals in all i.e. in respect of the compensation awarded to the claimant in respect of legal representatives of Manjunathgouda and the compensation awarded to the complainant who is claimant in MVC No.578/2009. So far as the compensation awarded in MVC No.579/2009 is concerned the same was accepted and compensation was paid.11. Now coming to the appeal filed by the NEKRTC with reference to the judgment passed in MVC No.578/2009 the same was numbered in MFA No.20170/2011 which came to be dismissed by coordinate bench of this Court for non prosecution. Now what remains for consideration on behalf of NEKRTC is only the appeal in MFA No.20171/2011 which is challenging the liability to pay 50% of the compensation to the legal representatives of the deceased Manjunathgouda.12. When all these four matters came up for admission i.e. two by the insurer of the car one by the NEKRTC and another by the claimants in MVC No.1404/2008 came up for admission the counsels appearing for all the parties requested this Court to secure LCR and to dispose of the matter at the stage of admission itself. Accordingly common LCR in MVC No.1404/2008 MVC Nos.578 and 579 of 2009 on the file of MACT-X Ballari is secured and the matter is taken up for final disposal.13. Heard the learned counsel for all the appellants in all the four appeals and also the respondents. On going through the material available on record it is seen that the accident dated 8.11.2008 is not in dispute. It is also not in dispute that at the relevant time the deceased Manjunathgouda and the complainant Pradeepkumar Jain were inmates of the car belonging to M/s. Siruguppa Sugars which was driven by its driver Tayanna who is claimant in MVC No.579/2009.14. Initially while filing the complaint Pradeepkumar Jain mentioned in the complaint that the accident has taken place due to rash and negligent driving of the driver of NEKRTC bus based on which complaint was registered and the same had come up for prosecution in C.C.No.664/2008 on the file of JMFC Siruguppa. The very same complainant Pradeepkumar Jain gave altogether a different version stating that there was contributory negligence on the part of the driver of the car also in causing the accident and it is not because of the exclusive carelessness of the driver of NEKRTC bus. He would also state that on the road haystack was piled up by the villagers which is also a cause for the accident. However the learned Magistrate taking that into consideration has acquitted the driver of the NEKRTC bus for the offence punishable under Sections 279 338 and 304-A of IPC. Placing reliance on that NEKRTC tried to assert that contributory negligence is there on the part of the driver of car also and it is not just the driver of the NEKRTC which has caused the accident.15. To counter the same no evidence is led on behalf of M/s. Siruguppa Sugars to demonstrate that it is only NEKRTC bus which has caused the accident. Per contra the evidence which is adduced by NEKRTC being accepted the Court below proceeded to fix the liability to pay compensation at the rate of 50% on the NEKRTC bus and 50% on the insurer of the car belonging to M/s. Siruguppa Sugars. Though in this proceedings there is challenge by the owner of NEKRTC bus and insurer of car with regard to quantum and liability at the time of argument they fairly conceded that their contention with reference to quantum is only incidental to the challenge to liability in the judgment thereby giving up their argument on that count.16. In the said proceedings the learned counsel for the claimants in MVC No.1404/2008 tried to impress upon this Court that though compensation is awarded fastening the liability on both the vehicles the quantum of compensation which is awarded is on lower side and the same is required to be reconsidered. After hearing the learned counsel appearing for all the parties and on going through the material available on record this Court feel that there is no substance in the appeal filed by NEKRTC in MVC No.1404/2008 for the reason that admittedly after the accident complaint is lodged by Pradeepkumar Jain against the driver of the NEKRTC which is not challenged. There is no attempt to file a counter complaint by NEKRTC driver accusing rash and negligent driving against the driver of ambassador car thereby the 1st respondent in the Court below namely driver of NEKRTC bus accepted the accusation made against him with reference to alleged offence under Section 279 338 and 304-A of IPC.17. In that view of the matter any attempt on the part of the NEKRTC in trying to say that the liability to pay compensation is on the driver of the car in causing the accident cannot be considered. Therefore the appeal filed by the NEKRTC challenging the quantum of compensation and as well as liability in MFA No.20171/2011 does not stand to reason and accordingly the same is dismissed.18. The another two sets of appeals which are filed with reference to liability and compensation filed on behalf of the insurer of the car is looked into this Court find in the evidence available on record that the driver of the ambassador car belonging to M/s.Siruguppa Sugars has taken passengers who are not authorized persons to travel in the said car. As could be seen from the judgment in C.C.No.664/2008 which is delivered on the basis of material available on record in the said criminal prosecution clearly discloses that the driver of M/s. Siruguppa Sugars who did not have any manner of right to utilize the said car for carrying private passengers in the said car has taken Manjunathgouda and Pradeepkumar as passengers in the said car and when he was taking them in the said car the accident has taken place thereby causing the death of Manjunathgouda and injuries to Pradeepkumar. Therefore the claim petition filed by them in holding that the owner and insurer of the said car also responsible to compensate appears to be just and proper. Therefore filing of the claim petition against them is acceptable.19. In the claim petition filed by the legal representatives of Manjunathgouda and complainant Pradeepkumar Jain it has come on record that at the relevant time of accident the car which is insured with Oriental Insurance Company Limited was covered by act only policy which policy does not cover the liability arising out of the death or injury to the passengers in the car. What is covered under the act policy is only the liability towards third parties to the accident permissible under the policy. Therefore in the instant case though the finding of the Tribunal in fixing 50% of the liability on the owner and insurer of car of M/s. Siruguppa Sugars appears to be just and proper. The same cannot be fastened on the insurer in as much as in the policy terms and conditions the insurer was not liable to satisfy the award. Therefore the Tribunal has committed an error in fastening 50% liability which was saddled on the owner of the car being shifted on the insurer. Therefore the said judgment so far as it pertains to shifting the liability on the insurer of the car is concerned is struck down and the insurer of the ambassador car bearing registration No.KA-34/M-1288 is exonerated from satisfying the liability of 50% of the compensation awarded. Therefore the said 50% of the compensation which is saddled on the on the owner of the said car namely M/s. Siruguppa Sugars and Chemicals Limited will have to be borne and paid by the said company which is 4th respondent in MVC No.1404/2008 and MVC No.578/2009.20. Accordingly the appeals in MFA Nos.20020/2011 and 20021/2011 filed by the respondent insurer of the ambassador car in MVC No.1404/2008 and MVC No.578/2009 are allowed.21. Now what remains is the appeal filed by the claimants in MVC No.1404/2008 seeking enhancement of compensation. After hearing the learned counsel for appellants and as well as NEKRTC and also the 4th respondent M/s.Siruguppa Sugars this Court feel that on facts the death of Manjunathgouda as inmate of car bearing registration No.KA-34/M-1288 is not in dispute. It is also not in dispute that at the relevant time he was aged about 45 years and he was working as Teacher in V.V. Sangha High School on monthly salary of Rs.7 884/- per month. Though it is stated that he was earning 15 to 20 thousand rupees by giving tuition to the students the same is not established. Therefore the Court below has taken his salary at Rs.6 219/- (after standard deductions) and another 50% is added towards future prospects and by taking his notional income at Rs.10 161/- the Tribunal has calculated the compensation payable to him under the head loss of dependency after deducting 1/4th towards his personal upkeep which works out to Rs.12 80 286/-.22. In addition to that the compensation is also awarded in a sum of Rs.32 000/- towards loss of consortium and love and affection Rs.10 000/- towards loss of estate and another Rs.8 000/- towards transportation and funeral expenses. With this the compensation is taken to Rs.13 30 286/- which is rounded of to Rs.13 30 500/- payable with interest at 6% p.a. from the date of claim petition till the date of deposit of entire amount. In the fact situation the compensation awarded by the Tribunal is just and proper. The same is considered by taking future prospects and also the other conventional heads namely compensation payable for loss of estate loss of consortium and loss of love and affection. In that view of the matter this Court feel that enhancement of compensation is not required to be considered. The same cannot be considered under any of the heads on which the compensation is already rightly decided. Accordingly the appeal in MFA No.20779/2011 filed by the claimants in MVC No.1404/2008 is hereby dismissed.23. While dismissing the appeals it is observed that the compensation which was awarded by the Tribunal to all the three claimants shall be received by them at the rate of 50% from the owner and insurer of NEKRTC bus and remaining 50% from the owner of the ambassador car bearing registration No.KA-34/M-1288 which is M/s. Siruguppa Sugars and Chemicals Limited situated at Deshnur post Siruguppa taluk Ballari district. Accordingly all these four appeals are disposed of.24. As and when this matter was concluded learned counsel Sri Veeresh Budihal has brought to the notice of this Court that the 4th respondent in MFA No.20779/2011 namely M/s. Siruguppa Sugars and Chemicals Limited is now renamed as M/s NSL Sugars (Tungabhadra) Limited. Therefore that 50% of the compensation amount which is saddled on the owner of the car M/s. Siruguppa Sugars and Chemicals Limited may be recovered from M/s.NSL Sugars (Tungabhadra) Limited. Ordered accordingly.25. In view of the appeal filed by the insurer is allowed the amount in deposit in MFA Nos.20020/2011 and 20021/2011 filed by the respondent insurer of the car in MVC No.1404/2008 and MVC No.578/2009 is ordered to be refunded to the appellant oriental insurance company limited. So far as the amount deposited by the appellant NEKRTC in MFA No.20171/2011 is concerned the same shall be transferred to the Tribunal for disbursement to the claimants in MVC No.1404/2008.