In the High Court of Karnataka at Bangalore
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE Dated this the 11th day of July, 2014 Before THE HON’BLE MR JUSTICE HULUVADI G RAMESH Miscellaneous First Appeals 5639 c/w 5637, 5259, 5260, 5261 & 5638 / 2010 (MV) Between In MFA 5639/2010 1 Smt Mahalaxmi, 30 yrs W/o late Ananda Mogaveera 2 Shruthi, 10 yrs 3 Shrutika, 8 yrs 4 Shreya, 6 yrs 2-4 are children of late Ananda Mogavera 5 Macha Mogaveera, 66 yrs S/o Bacha Mogaveera 6 Abbakka, 61 yrs W/o Macha All are r/a Abbanna House, Koradi Yedthare Village, Byndoor Post Kundapura Taluk, Udupi Appellants 2 In MFA 5638/2010 Abbanna Mogaveera, 66 yrs S/o Doddayy, Koradi Yedthare Village, Kundapura Taluk Udupi District Appellant (By Sri Mahesh Kiran Shetty, Adv.) And 1 S SathishKumar S/o N Subramanian R/o 3 rd Main Road, N T Pet, Bangalore 2 New India Assurance Co Ltd Dharmapuri Br.Off: T Nagar, Chennai 3 Smt Nirmala Shedthi, 36 yrs W/o late Nagayya Shetty 4 Smt Muttamma Shedthi, 61 yrs W/o Bacha @ Bachyya Shetty 5 Bacha @ Bachyya Shetty, 66 yrs S/o Heriyanna Shetty All are r/a Kunjalli, Yedthare Village Kundapura Taluk, Udupi 6 United India Insurance Co Ltd common respondents Br: Karkala, Srinivasa Complex in MFA 5639 & Ananthashayana Road, Karkala 5638/2010 (By Sri S V Hegde Mulkhand, Adv. For R2; Sri O Mahesh, Adv. For R6) 3 In MFA 5637/2010 1 Smt Nirmala Shedthi, 36 yrs W/o late Nagayya Shetty 2 Smt Muttamma Shedthi, 61 yrs W/o Bacha @ Bachyya Shetty 3 Bacha @ Bachyya Shetty, 66 yrs S/o Heriyanna Shetty All are r/a Kunjalli, Yedthare Village Kundapura Taluk, Udupi Appellants (By Sri Mahesh Kiran Shetty, Adv.) And 1 G V Sharvanan, 35 yrs S/o Gowrappan R/o Maniyambadi Village & Post Arepatti Taluk, Dharmapuri District Tamil Nadu 2 S Sathish Kumar S/o N Subranaian R/o 3rd Main Road, N T Pet Bangalore 3 New India Assurance Co Ltd Dharmapuri Br.Off: T Nagar, Chennai Respondents (By Sri Hegde Mulkhand, Adv. For R3) 4 In MFA 5259/2010 & 5260/2010 & 5261/2010 Branch Manager United India Insurance Co Ltd Br: Karkala, Srinivasa Complex Ananthashayana Road, Karkala By Div. Manager United India Insurance Co Ltd # 78, Krishna Complex G B Panth Marg, Udupi By its Manager Appellant (By Sri O Mahesh, Adv.) And 1 Smt Mahalaxmi, 31 yrs W/o late Ananda Mogaveera 2 Shruthi, 10 yrs 3 Shrutika, 8 yrs 4 Shreya, 6 yrs 2-4 are children of late Ananda Mogavera 5 Macha Mogaveera, 66 yrs S/o Bacha Mogaveera 6 Abbakka, 61 yrs W/o Macha All are r/a Abbanna House, Koradi Yedthare Village, Byndoor Post Kundapura Taluk, Udupi 5 7 S Shashikumar S/o N Subramanian 3rd Main Road, N T Pet, Bangalore 8 New India Assurance Co LTd Dharmapuri Br.Off: T Nagar, Chennai 9 Smt Nirmala Shedthi, 39 yrs W/o late Nagayya Shetty 10 Smt Muttamma Shedthi, 64 yrs W/o Bachyya Shetty 11 Bachyya Shetty, 69 yrs S/o Heriyanna Shetty 9-11 are r/o Kunjalli Yedthare Village & Post Respondents in Kundapura Taluk MFA 5259/2010 (By Sri M P Srikanth, Adv. For R3 & 8; Sri Mahesh Kiran Shetty, Adv. For R1-4 1 Badiya Gonda, 44 yrs S/o Subbayya Gonda R/o Kyarthoor Mallimane Ganganadu, Byndoor Village Kundapura Taluk 2 S Shashikumar S/o N Subramanian 3rd Main Road, N T Pet, Bangalore 3 New India Assurance Co Ltd Dharmapuri By its Branch Manager 6 4 Smt Nirmala Shedthi, 39 yrs W/o late Nagayya Shetty 5 Smt Muttamma Shedthi, 64 yrs W/o Bachyya Shetty 6 Bachyya Shetty, 69 yrs S/o Heriyanna Shetty 9-11 are r/o Kunjalli Yedthare Village & Post Respondents in Kundapura Taluk MFA 5260/2010 (By Sri Mahesh Kiran Shetty, Adv. For R2; Sri M P Srikanth, Adv. For R3) 1 Abbanna Mogaveera, 66 yrs S/o Doddayya, R/o Koradi Yadthare Village, Kundapura Tq 2 S Shashikumar S/o N Subramanian 3rd Main Road, N T Pet, Bangalore 3 New India Assurance Co Ltd Dhrmapuri Br.Off: T Nagar, Chennai 4 Smt Nirmala Shedthi, 39 yrs W/o late Nagayya Shetty 5 Smt Muttamma Shedthi, 64 yrs W/o Bachyya Shetty 6 Bachyya Shetty, 69 yrs S/o Heriyanna Shetty 7 9-11 are r/o Kunjalli Yedthare Village & Post Respondents in Kundapura Taluk MFA 5261/2010 (By Sri S V Hegde Mulkhand, Adv.for R3) First Appeals are filed under S.173(1) of the Motor Vehicles Act praying to set aside/modify the award dated 30.3.2010 in MVC 1135/2004; 1054/2004; 926/2004; 1132/2004 by the MACT, Kundapua. First Appeals coming on for hearing this day, Court delivered the following: JUDGMENT These set of appeals arise out of the award passed by the Sr. Civil Judge & Addl. MACT, Kundapura in MVC 926/2004, 1054/2004, 1132/2004 and 1135/2004 on 30 th March, 2010. The Tribunal while disposing the matter has fastened the liability on the owner and insurer of the lorry as well as on the owner and insurer of the jeep in the ratio of 50:50. Challenging the said finding, three appeals are filed by the insurer – United India Insurance Company so also seeking enhancement of compensation, claimants are before this Court in the other three appeals. 8 Heard the counsel representing the respective parties. It is the argument of the claimants and also the insurer of the jeep in question as to the finding rendered by the Tribunal fastening liability to the extent of 50% that it is a clear case of rash and negligent driving of the driver of lorry in question. Even as per records and evidence on record, looking to the factual position, spot panchanama and the evidence of the witnesses, it is the lorry which came to the extreme side of the road crossing the median of the road on NH 17; the width of the road is 24 feet but still the Tribunal proceeded to fix the liability in the ratio of 50:50. Even as per the spot panchanama, the vehicle was parked on the right side of the mud road which is 9 feet wide, the front side of the jeep has been smashed and also there is damage caused to the right side of the lorry which goes to show that it is the lorry driver who is responsible for causing the accident and the ratio of negligence held by the Tribunal is erroneous. Accordingly, both the insurer of the jeep and the claimants submit that liability has to be saddled on the owner and insurer of the lorry in question. 9 Per contra, insurer of the lorry submitted, might be the jeep would have been parked on the western side of the mud road, may be the road width is 9 feet but it is not that at the time of accident the lorry and the jeep were found there but after the accident, the jeep was shifted on the mud road to facilitate movement of vehicles and that cannot form the basis to fix liability on the lorry. Rightly the Tribunal having considered that the driver of the jeep is also negligent in the happening of the accident, has fixed the liability and the said finding cannot be faulted. So far as the finding rendered by the Tribunal is concerned, even to go by the spot mahazar and the evidence of the witnesses, the spot of the accident is shown at a distance of 6 ft from the western edge of the tar road towards east, the width of the road is 24 ft. May be the median is at 12 feet on either edge of the tar road. Necessarily the lorry coming from Karwar side has gone to the right extreme side of the road in the sense, coming almost 6 ft on the right side from the western edge of the road. In other words, the lorry has come to the right extreme side of the 10 road and dashed against the jeep due to which the driver and the inmates sustained injuries and some of them succumbed to the injuries. In that view of the matter, I feel the finding rendered by the Tribunal on the ground that blood stains are found on the middle of the road would not necessary be understood as if the accident has taken place on the median of the road. May be blood stains have fallen on the on the median because the injured or the deceased must have fell down there but as per the explanation given in the spot mahazar itself and also the photographs of the deceased depict that there is no overtaking except the oral evidence. Thus, in my opinion, 90% fault is on the driver of the lorry in the happening of the accident and 10% would be there on the driver of the jeep. The finding of the Tribunal has to be modified accordingly. So far as compensation is concerned, in MVC 1135/2004 (MFA 5639/2010), having regard to the nature of injuries sustained, claimants would be awarded another Rs.30,000/- over and above the compensation 11 awarded by the Tribunal with 6% interest from the date of petition till deposit. In MVC 1132/2004 (MFA 5638/2010), the claimant who has sustained injuries would be entitled to another Rs.20,000/- over and above the compensation awarded by the Tribunal which is towards loss of amenities and enjoyment in life and incidental expenses.