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2013 DIGILAW 186 (KAR)

Principal, St. Mary's Convent v. G. Venkateshwaralu, United India Insurance Co. Ltd.

2013-02-14

S.N.SATYANARAYANA

body2013
JUDGMENT S.N. Satyanarayana, J.—These three appeals arise out of common accident. Two claim petitions were filed separately, one by Sri. G. Venkateshwaralu in MVC No. 3190/2007 and another by Sri. G. Venkateshwaralu and Smt. Vijay Kumari, W/o Sri. G. Venkateshwaralu in MVC No. 2495/2007. Brief facts leading to these appeals are that on 07.11.2006 at about 4.25 p.m., claimant in MVC No. 3190/2007 namely Sri. G. Venkateshwaralu was riding his TVS Moped bearing No. KA-04/EL-8647 along with his minor child Mamatha as pillion on the said TVS Moped. He was on the way home to bring his child Mamatha from school. On the way said TVS Moped was hit by Motor Cycle bearing No. KA-04/EQ-8904 resulting in rider of the Motor Cycle and the child which was travelling on the TVS Moped falling down. At that time bus belonging to St. Mary's Convent of T. Dasarahalli bearing registration No. KA-02/C-7718 came in the same direction, hit the Moped which had fallen down, thereby causing the death of minor child and injuries to rider of Moped. Hence two claim petitions came to be filed, one by the rider of the Motor Cycle, which is numbered as MVC No. 3190/2007 filed seeking compensation for the injuries suffered by Sri. G. Venkateshwaralu. Similarly, the parents of deceased minor child filed claim petition seeking compensation for the death of minor child in MVC No. 2495/2007, both claim petitions were heard separately. 2. In both claim petitions, first and second respondents were, insurer and owner of Motor Cycle which caused the accident, i.e., Motor Cycle bearing No. KA-04/EQ-8904. So far as third respondent is St. Mary School of T. Dasarahalli, which is the owner of school bus bearing No. KA-02/C-7718. On appreciation of oral and documentary evidence available on record, the Tribunal partly allowed both the claim petitions. In MVC No. 2495/2007 filed by parents of deceased Mamatha compensation was awarded in a sum of Rs. 1,80,000/- payable with interest at 6% p.a., from the date of petition till realisation and the liability to pay the said compensation is apportioned in the ratio of 50% on second respondent, owner of Motor Cycle bearing No. KA-04/EQ-8904 and the remaining 50% on third respondent - school, which is the owner of bus bearing No. KA-02/C-7718. 3. 1,80,000/- payable with interest at 6% p.a., from the date of petition till realisation and the liability to pay the said compensation is apportioned in the ratio of 50% on second respondent, owner of Motor Cycle bearing No. KA-04/EQ-8904 and the remaining 50% on third respondent - school, which is the owner of bus bearing No. KA-02/C-7718. 3. Similarly the claim petition which was filed by the rider of TVS Moped in MVC No. 3190/2007 was also partly allowed awarding compensation in a sum of Rs,84,080/- payable with interest at 6% p.a., from the date of petition till realisation and liability to pay the same was saddled on the owner and insurer of Motor Cycle bearing No. KA-04/EQ-8904 at 75% and on the owner of the school bus of St. Mary's Convent at 25%. Being aggrieved by the Judgment and Award in both the claim petitions so far as it pertains to awarding 50% of liability in MVC No. 2495/2007 and 25% of liability in MVC No. 3190/2007, two appeals came to be filed in MFA No. 285/2009 (MVC No. 2495/2007) and MFA No. 9669/2008 (MVC No. 3190/2007) by third respondent - school. 4. Simultaneously another appeal came to be filed by the parents of deceased minor child, who are claimants in MVC No. 2495/2007 seeking enhancement of compensation, which is in MFA No. 2466/2009. Though the claim petitions were heard by different MACT of Bangalore, both the appeals filed by the School and also the claimants in MVC No. 2495/2007 are taken up together for disposal in the presence of counsel appearing for claimants in both the claim petition before the Tribunal and also counsel appearing for respondent Nos. 1 to 3 in the said proceedings. 5. Heard the counsel for appellant and respondents in all the appeals. Perused the Judgment impugned in both the claim petitions with reference to pleadings, oral and documentary evidence available on record. On going through the same, it is seen that the accident is not in dispute. It is further not in dispute that at the relevant time of accident, G. Venkateshwaralu was riding TVS Moped along with the deceased minor child as pillion on the said TVS Moped, which was being brought back from the school. On going through the same, it is seen that the accident is not in dispute. It is further not in dispute that at the relevant time of accident, G. Venkateshwaralu was riding TVS Moped along with the deceased minor child as pillion on the said TVS Moped, which was being brought back from the school. It is further not in dispute that the said accident has taken place on 07.11.2006 at about 4.25 p.m., due to rash and negligent driving of Motor Cycle bearing No. KA-04/EQ-8904, i.e., Motor Cycle belonging to second respondent in both the claim petitions and insured with first respondent. It is further not in dispute that damage to the claimant and also death of child is caused due to involvement of bus bearing NoKA-02/C-7718 belonging to third respondent - St. Mary's Convent is not in dispute. Therefore contributory negligence on the part of both the rider and owner of Motor Cycle bearing No. KA-04/EQ-8904 and that of the school bus cannot be disputed. When it comes to question of extent of contribution, in one of the claim the Tribunal while deciding MVC No. 3190/2007 held that the liability of Motor Cycle bearing No. KA-04/EQ-8904 is to an extent of 75% and that of the bus bearing No. KA-02/C-7718 at 25%, which was not challenged by the insurer of the said Motor Cycle. When once it is held that the extent is 50% in one case, the same cannot be 75% in another claim arising out of claim petition. In that view of the matter, appeal filed by third respondent - School in MFA No. 285/2009 is required to be allowed so far as it pertains to ratio of liability that is fastened at 50% on the owner and insurer of Motor Cycle bearing No. KA-04/EQ-8904. With this the ratio of liability of Motor Cycle and School Bus is also modified to 75% and 25% as it was done in MVC No. 2495/2007. 6. In the result, appeal filed by third respondent - St. Mary's Convent challenging the Judgment and Award dated 23.05.2008 passed in MVC No. 3190/2007 in MFA No. 9669/2008 does not survive for consideration in the light of observation made in MFA No. 285/2009. Accordingly the same is dismissed so far as ratio is concerned. 6. In the result, appeal filed by third respondent - St. Mary's Convent challenging the Judgment and Award dated 23.05.2008 passed in MVC No. 3190/2007 in MFA No. 9669/2008 does not survive for consideration in the light of observation made in MFA No. 285/2009. Accordingly the same is dismissed so far as ratio is concerned. When it comes to quantum of compensation, compensation awarded under all the heads appears to be just and proper except for awarding loss of future earning due to disability which is not supported by any documents. Hence the same is reduced from Rs. 84,080/- to Rs. 40,080/-. To that extent, the appeal filed by third respondent in MFA No. 9669/2008 is allowed. 7. When it comes to third appeal in MFA No. 2466/2009 filed by the legal representatives of deceased Mamatha, the compensation awarded by the Tribunal in a sum of Rs. 1,80,000/- for the death of minor child is on lower side. Therefore considering the ratio laid down by the Delhi High Court reported in 2010 ACJ 242, the compensation awarded to claimants in a sum of Rs. 1,80,000/- is increased to Rs. 2,25,000/-. They shall be entitled to receive the said compensation with interest at 6% p.a., from the date of petition till realisation. Accordingly the said appeal is allowed in part. All the three appeals are disposed of, in the aforesaid terms. A copy of this Judgment is marked to D.D.P.I., Bangalore South to take appropriate steps against the Management of St. Mary's Convent for running the school bus without insurance policy, thereby putting the life of several students into jeopardy. In that behalf, necessary action should be taken against the Management of the said school. A copy of the said Judgment is also required to be sent to the D.C.P., Bangalore North to initiate appropriate proceedings under the Motor Vehicles Act for launching prosecution against said school for having run the bus without insurance coverage.