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2019 DIGILAW 1099 (KAR)

National Insurance Co. Ltd. v. Anasuya

2019-06-04

P.G.M.PATIL

body2019
JUDGMENT : P.G.M. Patil, J. The Insurer-National Insurance Co. Ltd. being aggrieved by the judgment and award dated 08.07.2009 passed in MVC No.188/2005 by the Civil Judge, (Sr.Dn.) and Additional MACT, Khanapur has filed this appeal. 2. It is the case of the claimants before the Tribunal that on 14.08.2004 Shri. Suresh Kesarekar and one Shri. Uday Hattarwad of Nandgad were returning from Madigunji towards Nandgad via Kahanpur Cross carefully and slowly from left side of the road on a motor cycle bearing Registration No.Ka-22/K-634. When they came near Honakal Cross on NH-4A road the motor cycle dashed to the backside of truck bearing No.MEH- 5997 at about 6.00 a.m. which was illegally parked on road by respondent No.1 who is the owner of the said truck without following the traffic rules and regulations. Because of the accident, Suresh Kesarekar and said Uday sustained simple and grievous injuries. They were taken to the Government Hospital, Belgaum for treatment. Unfortunately said Suresh succumbed to the injuries sustained in the accident at about 10.35 a.m. on the date of accident. Deceased Suresh was the only earning member and he was young, energetic, hardworking and upcoming and industrious, aged about 28 years. He had begun his career as coolie due to poverty of his parents. The claimants have lost the love and affection of their life and their life is in dark. The claimants spent Rs.12,000/- for the treatment and funeral expenses of the deceased. The accident occurred due to rash and negligent act on the part of the respondent No.1-driver of the truck No.MEH-5997 and respondent No.2-Owner and respondent No.3- Insurer are liable to pay the compensation. It is further stated that if respondent No.1 had been alert, cautious and careful in his duties as driver of above said truck under the employment of respondent No.2 by following the rules and regulations, they could have avoided the accident. Therefore, all the respondents are jointly and severally liable to pay compensation. 3. In response to the notice, respondent No.1 did not appeared before the Tribunal. Hence he was placed ex-parte. Respondents No.2 and 3 have appeared and filed their objections separately. Respondent No.2 filed written statement. Therefore, all the respondents are jointly and severally liable to pay compensation. 3. In response to the notice, respondent No.1 did not appeared before the Tribunal. Hence he was placed ex-parte. Respondents No.2 and 3 have appeared and filed their objections separately. Respondent No.2 filed written statement. He denied the material averments in the claim petition, he has admitted the accident and also the fact that respondent No.1 was the driver of the truck bearing MEH-5997 and was parked on the extreme left side of the road. He has denied any negligence in parking the truck. He has contended that the owner and insurer of the motor cycle are also necessary parties in the case. If the claimants are entitled for compensation, the liability be fixed on respondent No.3, who is the insurer of the vehicle. Respondent No.3 filed written statement denying the material averments made in the petition. He has denied the age, occupation and income of the deceased. He further contended that the accident has occurred solely due to rash and negligent driving of the vehicle by the deceased Suresh Kesarekar. As can be seen from the records available that respondent No.1 being the driver of the tanker in question taken all the precautions by keeping parking lights on and keeping a branch of a tree to indicate that his vehicle was parked on the extreme left said of the road. Therefore, respondent No.1 is not responsible for the accident in question and therefore the petition be dismissed. 4. Based on the pleadings of the parties, the Tribunal framed issues. 5. In support of their claim petition, three witnesses were examined as PW1 to PW3 and in all ten documents have been marked as Ex.P.1 to Ex.P.10. The respondents have not produced any oral or documentary evidence. 6. Learned member of the Tribunal after hearing both the parties passed the impugned judgment awarding compensation of Rs.6,21,000/- with interest at 9% p.a. from the date of petition till the date of deposit. The respondents No.2 and 3 are jointly and severally liable to pay compensation. Respondent No.3 was directed to deposit compensation amount. 7. 6. Learned member of the Tribunal after hearing both the parties passed the impugned judgment awarding compensation of Rs.6,21,000/- with interest at 9% p.a. from the date of petition till the date of deposit. The respondents No.2 and 3 are jointly and severally liable to pay compensation. Respondent No.3 was directed to deposit compensation amount. 7. The insurer being dissatisfied with the impugned judgment has filed this appeal on the ground that the accident in question occurred solely due to the rash and negligent driving of the vehicle by the deceased and the Tribunal has erroneously fastened the liability on the appellant to the extent of 75%. 8. It is further contended that the Tribunal ought to have fixed the liability on the part of the deceased at 75%. 9. Heard the learned counsel for the parties. 10. A short question which arise for consideration before this Court is as to whether the appellant-insurer has made out the grounds to reduce the liability fastened against him and also to reduce the compensation amount. 11. It is the contention of the insurer before the Tribunal that the offending vehicle namely truck bearing No.MEH-5997 was parked on the extreme left side of the road with indicator and therefore there was no negligence on the part of the driver of the said vehicle. It was contended that the accident occurred at about 6.00 a.m. in the morning and therefore the vehicle was visible by the users of the road and as such the deceased Suresh drove the said vehicle in a negligent manner and he is responsible for the accident. 12. It is not disputed that the jurisdictional police registered the case against the deceased Suresh and abated summary was filed against him. The insurer has not produced any evidence before the Tribunal in support of his contention. The Tribunal on the basis of material on record has come to the conclusion that there was negligence on the part of the deceased to the extent of 25% and there is negligence on the part of respondent No.1 to the extent of 75% in causing the accident. 11. The Tribunal on the basis of material on record has come to the conclusion that there was negligence on the part of the deceased to the extent of 25% and there is negligence on the part of respondent No.1 to the extent of 75% in causing the accident. 11. Therefore, the finding recorded by the tribunal, holding that there is negligence on the part of the deceased to the extent of 25% and the negligence on the part of the respondent No.1 the driver of the tanker to the extent of 75% is based on the material on record and does not call for interference. The appellant has not made out any grounds to fix the negligence against the deceased for more than 25%. The Tribunal on proper assessment of evidence on record has awarded just compensation. It does not call for interference by this Court. Accordingly the point for consideration is answered in the negative. In the result, this Court proceed to pass the following: ORDER The appeal is hereby dismissed. The amount of compensation deposited by the insurance company shall be transmitted to the tribunal for disbursement.