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2023 Supreme(Online)(Kar) 37246
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF FEBRUARY, 2023 BEFORE THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO. 779 OF 2018 C/W MISCELLANEOUS FIRST APPEAL NO.4623 OF 2018(MV-D)
IN MFA NO.779/2018 BETWEEN:
M/S. RELIANCE GENERAL INSURANCE CO., LTD., 1ST FLOOR, MYSORE TRADE CENTRE, OPP. KSRTC BUS STAND, MYSORE - 570 001.
REPRESENTED BY ITS MANAGER LEGAL, REGIONAL OFFICE, NO.28, 5TH FLOOR, EAST WING, CENTENARY BUILDING, M.G ROAD, BANGALORE - 560 001.
Digitally signed …APPELLANT by RAMYA D Location: HI GH (BY SRI D.VIJAYAKUMAR, ADVOCATE)
COURT OF KARNATAKA AND:
1. SRI. PUTTARAJU, S/O SANNATHAMMEGOWDA, AGED ABOUT 46 YEARS, 2. KOWSHIK (PLAINTIFF), S/O PUTTARAJU, AGED ABOUT 21 YEARS, 3. PREETHI (PLAINTIFF), D/O PUTTARAJU, AGED ABOUT 19 YEARS, 4. SRI. H.K.KRISHNAPPA, S/O HALINA KEMPAIAH, DECEASED BY LRS.
R1 TO R3 ARE TREATED AS LRS. ALL ARE RESIDING AT NO.107/3, 14TH CROSS, II MAIN, B.M.SHREE NAGAR, METTAGALLI, MYSORE - 570 016. 5. MANJUNATHA J, S/O JAYASHANKARAPPA MAJOR, NO.251, BEGURU, GUNDLUPETE TALUK, CHAMARAJ NAGAR - 571 313.
6. NAGARAJE GOWDA, S/O SOFI GOWDA, NO. 146, KESTHUR KOPPAL, K.R NAGAR TALUK, MYSORE DISTRICT - 570 001.
…RESPONDENTS (BY SRI K.SHANTHARAJ, ADVOCATE FOR R1-R3; R1 TO R3 ARE LRS OF DECEASED R4 VIDE ORDER DATED 15.02.2023; R5, R6 SERVED & UNREPRESENTED)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 10.11.2017 PASSED IN MVC NO.371/2015 ON THE FILE OF THE JUDGE, ADDITIONAL COURT OF SMALL CAUSES, MYSURU, AS A PRESIDING OFFICER, MACT, MYSURU, AWARDING COMPENSATION OF RS.15,96,660/- WITH INTEREST AT 9% P.A. FROM THE DATE OF PETITION TILL ITS REALISATION FROM THE RESPONDENTS NO.1 TO 3.
IN MFA NO.4623/2018 BETWEEN:
1. PUTTARAJU, S/O SANNATHAMMEGOWDA, AGED ABOUT 46 YEARS, 2. KOWSHIK P, S/O PUTTARAJU, AGED ABOUT 21 YEARS, 3. PREETHI P, D/O PUTTARAJU, AGED ABOUT 19 YEARS, ALL ARE RESIDING AT NO.107/3, 14TH CROSS, 2ND MAIN, B.M.SHREENAGAR, METTAGALLI, WARD-33 MYSORE - 570 007.
…APPELLANTS (BY SRI. SHANTHARAJ K, ADVOCATE)
AND:
1. MANJUNATHA J, S/O JAYASHANKARAPPA, AGE MAJOR, RESTING AT NO.251, BEGURU, GUNDLUPETE TALUK, CHAMARAJANAGARA DISTRICT - 571 111.
2. NAGARAJEGOWDA, S/O SOFIGOWDA, AGED MAJOR, RESIDING AT NO.146, KESTHUR KOPPAL, K.R.NAGAR TALUK, MYSORE DISTRICT - 571 602. 3. THE RELIANCE GENERAL INSURANCE CO. LTD., REPRESENTED BY ITS MANAGER, 1ST FLOOR, MYSORE TRADE CENTRE, OPP. KSRTC BUS STAND, MYSORE - 570 001.
…RESPONDENTS (BY SRI. D.VIJAYAKUMAR, ADVOCATE FOR R3; NOTICE TO R1 TO R2 ARE DISPENSED WITH VIDE ORDER DATED 28.02.2020)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 10.11.2017 PASSED IN MVC NO.371/2015, ON THE FILE OF THE JUDGE, ADDITIONAL SMALL CAUSES AND SENIOR CIVIL JUDGE, MYSURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS, COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
MFA No.779/2018 is filed by the Insurance Company challenging the judgment and award passed by the Tribunal on the ground that the driver of the goods auto was not rash and negligent but the deceased herself had come to the wrong side of the road. Therefore, the deceased was entirely responsible for the accident and challenging on the quantum of compensation.
2. MFA No.4623/2018 is filed by the claimants seeking enhancement of the compensation as monthly salary of the deceased was taken on the lesser side which is contrary to the evidence on record. Therefore, prays for enhancement of compensation.
3. The brief facts of the case are that on
13.08.2014 at about 3.15 p.m., the deceased-Chandrakala was riding her TVS Scooty bearing No.KA-09-EC-6160 near Preethi Granite Factory Road of Hebbal Industrial Area, at that time, a goods auto bearing No.KA-45-5332 driven by its driver in a rash and negligent manner from opposite side and dashed against the TVS Scooty. Due to impact, the deceased succumbed to the injuries. Therefore, the claimants have preferred to file claim petition under Section 166 of Motor Vehicles Act, 1988 (hereinafter referred to as 'MV Act' for short).
4. Heard the arguments on both sides and perused the records.
REGARDING RASH AND NEGLIGENT ASPECT:
5. Learned counsel for the Insurance Company submitted that the deceased was entirely responsible to the accident as she has driven her two wheeler towards the wrong side of the road. Further, it is submitted that the driver of the auto rickshaw was coming on his correct side and if the deceased had proceeded on her correct side then the accident would not have been occurred but the deceased had taken her two wheeler towards the wrong side of the road and hit the auto rickshaw and fell down herself and succumbed to the injuries and therefore, with reference to the spot mahazar and spot sketch, learned counsel argued that which clearly shows that the deceased was entirely rash and negligent in driving the two wheeler and caused accident. Therefore, the Tribunal has wrongly appreciated the evidence on record and without evaluating the evidence found that the deceased was completely rash and negligent and thus the accident was caused. Therefore, prays to set aside the judgment and award of the Tribunal. Further, it is submitted that the quantum of compensation awarded by the Tribunal is on the higher side. Further, it is submitted that the claimants themselves in their claim petition and in their evidence stated that the deceased was receiving salary of Rs.10,000/- p.m. and that is accordingly considered and granted compensation. Therefore, it is submitted that even otherwise the compensation amount may not be held as on higher side but awarded just compensation. Therefore, prays at least to hold contributory negligence on part of the deceased as it is proved from the spot mahazar and spot sketch. Further, it is submitted that just because the charge sheet is filed against the driver of the auto rickshaw that alone cannot be made as a ground to say that the driver of the auto rickshaw was completely rash and negligent. Therefore, prays to re-appreciate the evidence on record. Hence, prays to set aside the judgment and award passed by the Tribunal.
6. On the other hand, learned counsel for the claimant submitted that the deceased had not taken two wheeler on the wrong side of the road, but was riding the vehicle on her correct side, but the autorickshaw had come to wrong side of the road and hit the claimant and this is clearly established in the police records. Further more, there is no contra evidence on behalf of the Insurance Company to prove that the autorickshaw was not rash and negligent. Therefore, the Tribunal is correct in evaluating the evidence on record and correctly came to the conclusion that the driver of the autorickshaw was rash and negligent in driving the autorickshaw. Further submitted that the compensation amount awarded is on the lesser side. The
