Research › Search › Judgment

Karnataka High Court · body

2019 DIGILAW 1500 (KAR)

Ashok v. Farukahamad

2019-07-01

P.G.M.PATIL

body2019
JUDGMENT : P.G.M. PATIL, J. 1. The owner of the trailer being aggrieved by the common judgment and award dated 17.4.2012, passed in MVC Nos. 173/2010 and 221/2009, by the Senior Civil Judge and MACT, Hangal, has filed these appeals. 2. It is the case of the claimants before the tribunal that on 6.3.2009 at about 4.30 a.m. , on Hangal-Mundgod road, near forest check post of Kopparasikoppa village, when the deceased Mailarappa was going on his motorcycle bearing registration No.KA-27/K-1765, towards Kopparasikoppa side along with the petitioner in MVC No.173/2010, as a pillion rider, the driver of the tractor trailer No.KA-27/T-3571 and KA-27/T- 4698, drove the same in a rash and negligent manner from Hangal side and dashed against the motorcycle. Due to the impact Mailarappa sustained head injury and died on the spot and the pillion rider sustained grievous injuries. 3. Mvc No.221/2009 was filed by the legal representatives of the deceased Mailarappa. They have contended that the deceased was hale and healthy and was doing mason work and earning Rs.7,000/- per month and contributing the same for the family. Due to his untimely death, they have lost their dependency and therefore, they claimed compensation of Rs.22,25,000/- against the owners and insurers of both the tractor and the trailer. 4. The injured claimant filed MVC No.173/2010 claiming compensation of Rs.2,10,000/- against the said owners and insurers of the offending vehicles. He has further stated that he has taken treatment with private doctors in addition to treatment at KIMS hospital at Hubballi and spent Rs.20,000/- towards medical treatment. 5. In pursuance of the notice, the respondents appeared before the tribunal . Respondents No.1 and 3 filed the written statement denying the averments made in the claim petitions and submitted that the claim petitions are not maintainable. They have further stated that the accident was not due to the rash and negligent driving of the tractor. The driver of the tractor was having valid driving licence and therefore they are not liable to pay compensation. 6. Respondent No.2 filed the written statement denying the petition averments as false and untenable. He contended that the driver of the tractor was not possessing valid and effective driving licence and the accident was also not due to his negligence. 7. Respondent No.4 has filed the written statement denying the petition averments. 6. Respondent No.2 filed the written statement denying the petition averments as false and untenable. He contended that the driver of the tractor was not possessing valid and effective driving licence and the accident was also not due to his negligence. 7. Respondent No.4 has filed the written statement denying the petition averments. He has further contended that the driver of the tractor is a necessary party and that the owner of the tractor and trailer has violated the policy conditions and therefore he is not liable to be pay compensation. He has further contended that the driver of the tractor bearing No.KA-27/T-4697 drove the same for which trailer bearing No.KA- 27/T-4698 was not attached. Therefore he is not liable to pay any compensation. 8. On the basis of pleadings of the parties, the tribunal framed issues. Both the cases were clubbed together and common evidence was recorded and disposed of by common judgment. In support of their claim petitions, the claimants got examined two witnesses as PW.1 and PW.2 and got marked 6 documents as Exs.P.1 to P.6. The respondents have got examined 3 witnesses as RWs.1 to 3 and got marked 8 documents as Exs.R.1 to R.8. The tribunal after hearing both the parties, passed the impugned judgment awarding a compensation of Rs.6,88,000/- in MVC No.221/2009 and compensation of Rs.18,700/- in MVC No.173/2010 with interest at 6% p.a. from the date of petition tillits realization. The tribunal fixed the liability against respondent No.3 owner of the trailer and exonerated the insurer and also the owner of the tractor. 9. The owner of the trailer being aggrieved by the impugned judgment has filed these appeals on the grounds that the tribunal should have considered the driving licence, insurance policy of the trailer involved in the accident which were intact and the liability ought to have been saddled upon the insurer and that the tribunal has committed serious error in exonerating respondents No.3 and 4, when there is a valid and effective insurance policy. 10. Heard the learned counsels appearing for the respective parties. 11. A short question which arises for consideration before this Court is as to whether the appellant owner of the trailer has made out grounds to set aside the liability saddled against him and to saddle the liability on the insurer. 12. 10. Heard the learned counsels appearing for the respective parties. 11. A short question which arises for consideration before this Court is as to whether the appellant owner of the trailer has made out grounds to set aside the liability saddled against him and to saddle the liability on the insurer. 12. The learned counsel for the appellant in both the cases submitted that admittedly though both the tractors and trailers were insured with two different insurance companies, both the insurance companies are liable to satisfy the award and that the liability saddled against the owner of the trailer is liable to be set aside. The learned counsel has relied on the judgment in the case of United India Insurance Company Limited vs. Sanna Thayanna and others, 2015 9 LAWS(KAR) 366, decided by this Court on 1.9.2015. 13. This Court in the said case considered the similar circumstances and relying on the judgment in the case of The Branch Manager, New India Assurance Co. , Ltd. , vs. Boregowda and others, (2008) ILR(Kar) 64, held in paragraph No.16 as follows: "16. It is because of the reason that either a tractor or a trailer alone cannot be used for carrying on any activities as discussed above. It is in this background, a Division Bench of this Court in the case of The Branch Manager, New India Assurance Co., Ltd. , v/s. Boregowda and others, (2008) ILR(Kar) 64 has held that tractor and trailer may be belonged to different owners and may be insured with different insurance companies, when they moved together and accident takes place and injuries caused or death takes place, owners and insurers of both tractor and trailer are liable to answer the claim equally." 14. In the instant case also the tractor involved in the accident belongs to respondent No.1 before the tribunal and the trailer belongs to respondent No.3 before the tribunal and it is also admitted that the tractor was insured with respondent No.2 and trailer was insured with respondent No.4 before the tribunal . Under these circumstances, it is just and necessary to make both the insurers liable to pay compensation in the ratio of 50:50 as held in the judgment stated supra. It is not disputed that the insurance policy in respect of the tractor and the trailer involved in the accident were in force and there is no breach of policy conditions. Under these circumstances, it is just and necessary to make both the insurers liable to pay compensation in the ratio of 50:50 as held in the judgment stated supra. It is not disputed that the insurance policy in respect of the tractor and the trailer involved in the accident were in force and there is no breach of policy conditions. 15. Under these circumstances, this Court holds that both the appeals deserve to be allowed and the liability saddled against owner of the trailer has to be set aside and the liability has to be saddled on both the insurers in the ratio of 50:50. Hence the point for consideration is answered accordingly. 16. In the result, this Court proceed to pass the following: ORDER Both the appeals are allowed. The judgment and award dated 17.4.2012, passed in MVC No.221/2009 and MVC No.173/2010, by the Senior Civil Judge and Addl . MACT, Hangal , so far as exonerating respondents No.1, 2 and 4 before the tribunal and saddling the liability against respondent No.3 is set aside. It is ordered that respondent No.1 and 2 on one hand and respondents No.3 and 4 on the other hand are jointly and severally liable to satisfy the award and their liability is fixed in the ratio of 50:50. Respondents No.2 and 4 being the insurers are directed to deposit compensation amount of their part before the tribunal, within a period of 8 weeks. The amount of compensation deposited in both the appeals shall be refunded to the appellant.