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2023 DIGILAW 1050 (KAR)

Regional Manager v. Manjunatha

2023-09-01

H.B.PRABHAKARA SASTRY

body2023
JUDGMENT 1. The present respondent No.1, as a claimant had instituted a claim petition under 166 of the Motor Vehicles Act, 1988 (hereinafter for brevity referred to as "the M.V. Act") in M.V.C.No.69/2014, before the Court of the learned Senior Civil Judge and Motor Accidents Claims Tribunal, Chinthamani, (hereinafter for brevity referred to as "the Tribunal"), against the present respondents No.2 to 4 and the present appellant, arraigning them as respondents, claiming a compensation of a sum of Rs.25, 00, 000.00 with interest thereupon for the grievous injuries sustained by him on account of the road traffic accident. 2. The summary of the case of the claimant before the Tribunal was that, he, as a driver of Lorry bearing registration No.AP-09/TA-1658 along with Lorry cleaner Sri. Harinath Reddy was proceeding from RCL Priya Cement Factory to Bangalore. On the way near Loluru Cross of Singamala Mandalam, Ananthapura District, Andhra Pradesh on the date 7/5/2011, at about 4:30 a.m., a vehicle was coming from opposite side by putting its head lights on. Due to the headlight of the said opposite side vehicle, he (the claimant) could not notice a parked Lorry bearing registration No.AP-21/V-8758 on the centre of the road, without any signal or parking lights. It was the case of the claimant that the said accident has occurred only due to the negligent parking of the Lorry bearing registration No.AP-21/V-8758. Due to the said accident, he (the claimant) sustained grievous injuries. It was further the case of the claimant that, after the accident, he was shifted to the Government Hospital, Ananthapur for treatment. Later, he was referred to higher medical centre, as such, he took further treatment at M.S. Ramaiah Hospital, Bangalore as an in-patient for a period of seventeen (17) days. He has undergone a surgical operation of his left leg which got amputated. He spent huge amount of not less than a sum of Rs.70, 000.00 towards medical treatment. He is unable to move around without the help of crutches. The claimant has further stated in his claim petition that, at the time of the road traffic accident, he was working as a Driver with M/s. Arunchalam Logistics Pvt. Ltd. (respondent No.4 herein) and was drawing a monthly salary of a sum of Rs.22, 000.00. He was the sole earning member in his family comprising of his wife, children and aged parents. He was the sole earning member in his family comprising of his wife, children and aged parents. Due to the accident, he is unable to attend to his duties, as such, the entire family is in financial difficulty. With this, he claimed compensation of a sum of Rs.25, 00, 000.00 from the respondents before the Tribunal. 3. In response to the summons served upon them, the respondents No.1, 3 and 4 before the Tribunal appeared through their respective counsel, however, it is only respondent No.1 and respondent No.4 who have filed their separate objections. The respondent No.1 denied all the contentions taken up by the claimant in his clam petition. It contended that the claim amount was exorbitant and exaggerated. However, it admitted that it had issued a policy in favour of respondent No.2 pertaining to vehicle bearing No.AP-21/V-8758. The respondent No.4 (appellant herein) in its Statement of Objections admitted that it is the insurer of the motor vehicle Lorry bearing registration No.AP-09/TA1658 and the policy was in force as on the date of the alleged accident. However, it contended that the driver of the said Lorry did not possess a valid Driving Licence at the time of the occurrence of the road traffic accident. It specifically contended that the insured has breached the terms and conditions of the policy of insurance, as such, it is not liable to indemnify the third respondent. It also contended that had the claimant taken little care and caution, he could have avoided the accident. Further, stating that the quantum of compensation claimed is higher, excessive and exorbitant, it prayed to dismiss the claim petition as against it. 4. Based on the pleadings of the parties, the Tribunal framed the following issues for its consideration: 1. Whether the petitioner proves that the accident occurred due to negligent parking of the lorry bearing Reg.No.AP-21-V-8758 by its driver and in the said accident, the petitioner sustained injuries? 2. Whether the petitioner is entitled for compensation? If so, how much and from whom? 3. Whether this Tribunal has no territorial jurisdiction to entertain the petition? 4. What award? 5. Before the Tribunal, the claimant got himself examined as PW-1 and also examined three more witnesses from PW-2 to PW-4 and got marked documents from Exs.P-1 to P-29. On behalf of the respondents, neither any witness was examined nor any documents were got marked as exhibits. 6. 4. What award? 5. Before the Tribunal, the claimant got himself examined as PW-1 and also examined three more witnesses from PW-2 to PW-4 and got marked documents from Exs.P-1 to P-29. On behalf of the respondents, neither any witness was examined nor any documents were got marked as exhibits. 6. After framing the issues and recording the evidence led by both side, the Tribunal, by its impugned judgment dtd. 8/5/2019, allowed the claim petition in part, awarding a total compensation of a sum of Rs.19, 66, 600.00 with interest at the rate of Rs.9.00% per annum from the date of the petition till the deposit of the said amount before it, however, it fastened the liability at 70% on the part of the owner and insurer of the opposite vehicle Lorry bearing registration No.AP-21/V-8758 and held that the claimant himself being the driver of the Lorry bearing registration No.AP-09/TA-1658 has contributed to some extent in the occurrence of the road traffic accident and fixed the liability at 30% on him. As such, as against the respondents No.3 and 4 before the Tribunal, i.e. owner and insurer of the Lorry bearing registration No.AP-09/TA1658 of which the claimant was the driver, the liability to an extent of 30% was fixed. It is challenging the finding of the Tribunal holding that the respondent No.4 before it (appellant herein) being the insurer is also jointly and severally liable along with the respondent No.3, to the claimant to pay 30% of the awarded amount with interest thereupon, the said Insurance Company has preferred the present appeal. 7. Records were called for from the Tribunal and the same are placed before this Court. 8. Learned counsel for the appellant (Insurance Company) is appearing through video conference. Learned counsel for respondent No.1 (claimant) and learned counsel for respondent No.2 (insurer of Lorry bearing registration No.AP-21/V-8758) are appearing physically before the Court. 9. Heard the argument of the learned counsels for the parties. 10. Learned counsel for the appellant (Insurance Company) in his brief argument contended that, the second respondent herein which is the insurer of the opposite side vehicle, upon whom 70% of the liability was saddled, had challenged the very same impugned judgment before this Court in M.F.A.No.8739/2019, however, the said appeal came to be dismissed by the judgment of this Court dtd. 11/12/2019. 11/12/2019. Further, according to the information given to him, the said Insurance Company has also satisfied the award to an extent of 70%, as such, the present appellant would not challenge the occurrence of the road traffic accident involving the insured vehicle and also the quantum of compensation awarded by the Tribunal. However, his argument is only on single point that the claimant himself being the driver of the insured vehicle Lorry bearing registration No.AP-09/TA-1658 and a tortfeaser is not entitled to any compensation from the Insurance Company for his contribution in the occurrence of the road traffic accident. In that regard, he relied upon four judgments which would be referred to at the relevant stages hereafterwards. 11. Per contra, the learned counsel for the respondent No.1 (claimant) in her brief argument submitted that, even though the finding of the Tribunal that the claimant has contributed in the accident to an extent of 30% has not been challenged by him, still, the present appellant being the insurer of the Lorry bearing registration No.AP-09/TA-1658 of which the claimant was the Driver is liable to indemnify and pay 30% of the compensation to the claimant as ordered by the Tribunal. In her support, she relied upon a judgment of the Gujarat High Court and another jugment which would be referred to at the relevant stage hereafterwards. 12. The learned counsel for the respondent No.2/Insurer of Lorry bearing registration No.AP-21/V8758 submitted that since it is a matter between the appellant/Insurance Company and the respondent No.1/claimant, he has no argument to make. However, he stated that he concedes the fact that challenging the impugned judgment and award passed by the Tribunal, they had preferred an appeal in M.F.A.No.8739/2019 before this Court and the same came to be dismissed on the date 11/12/2019 and that thereafter respondent No.2 herein (Insurer of Lorry bearing registration No.AP-21/V8758) has fully satisfied the award at 70% imposed upon it. 13. The learned counsel for respondent No.1/claimant also conceded that the respondent No.2/ Insurance Company has satisfied the award to an extent of 70% of the total liability fastened upon it. 14. 13. The learned counsel for respondent No.1/claimant also conceded that the respondent No.2/ Insurance Company has satisfied the award to an extent of 70% of the total liability fastened upon it. 14. In the light of the above, since the occurrence of the road traffic accident on the date, time and place as contended by the claimant in the claim petition and involvement of the two vehicles including the Lorry bearing registration No.AP-09/TA-1658 and another Lorry bearing registration No.AP-21/V-8758 and the present claimant sustaining grievous injuries in the said accident are not in dispute, rather the appeal bearing M.F.A.No.8739/2019 filed by the present respondent No.2/ Insurance Company before this Court having been dismissed as devoid of merit, the aspect of occurrence of the road traffic accident, the entitlement of the claimant for compensation and the quantification of the compensation awarded by the Tribunal need not be revisited by this Court. As such, the only point that arises for consideration is: Whether the finding of the Tribunal that the present appellant which is the insurer of the motor vehicle Lorry bearing registration No.AP-09/TA-1658 is jointly and severally liable to pay 30% of the compensation to the claimant along with respondent No.3 before the Tribunal (respondent No.4 herein) is erroneous, warranting interference at the hands of this Court? 15. The Tribunal, in paragraph 57 of its judgment has observed that, it is of the opinion that in the case before it, the offending driver had parked (his Lorry) without head lights (to be read as parking lights) in the middle of the road. The compensation amount to the tune of 70% has to be paid by the insurer of the offending vehicle and as the insured/driver has also contributed his part of negligence, his insurer is also to be directed to pay the compensation amount to the tune of 30% to the claimant. With this observation, the Tribunal fastened the liability to an extent of 30% upon the present appellant/Insurance Company jointly along with the owner of the motor vehicle Lorry bearing registration No.AP09/TA-1658 of which the claimant was the driver at the time of the occurrence of the road traffic accident. 16. Learned counsel for the appellant (Insurance Company) in his argument relied upon the following judgments in his support. (i) In the case of D. Jayamma and Another Vs. 16. Learned counsel for the appellant (Insurance Company) in his argument relied upon the following judgments in his support. (i) In the case of D. Jayamma and Another Vs. S. Govindaswamy and Six (6) Others reported in ILR 1982 (1) KARNATAKA 550, a Division Bench of this Court, while discussing the liability of the insurer under Sec. 110-A of the Motor Vehicles Act, 1939, observed in paragraph 12 of its judgment as below: "12. If the person injured in the accident in this case was an a employee for example, a cleaner in the lorry or a person employed for the purposes of loading and unloading then there would be on option for him either to claim higher compensation under Sec. 110-A of the Motor Vehicles Act proving actionable negligence an the part of the driver of the vehicle or to approach and get compensation under the Workmen's Compensation Act, without the necessity of proving negligence on the part of the driver. It is in such contingencies that Sec. 110- AA of the Motor Vehicles Act is attracted. But, where the accident is entirely due to the rash and negligent driving of the lorry by the deceased himself, his legal representatives cannot claim compensation under Sec. 110-A of the Motor Vehicles Act and therefore, Sec. 110-AA of the Motor Vehicles Act is not attracted" (ii) In the case of B. Prabhakar and another Vs. Smt. Bachima reported in 1983 SCC OnLine Kar 234, by referring to Jayamma's case (supra), a Division Bench of this Court, while analysing Sec. 110-AA of the Motor Vehicles Act, 1939, was pleased to observe in paragraph 5 of its judgment as below: "5. It becomes clear that before an application could be entertained by the Accidents Claims Tribunal under S.110 of the Motor Vehicles Act the cause of action should be such as could be entertained by the Claims Tribunal. It must give rise to a claim for compensation under S.110 of the Motor Vehicles Act. In other words, the accident must have occurred due to actionable negligence of the owner or the driver of the vehicle, causing injury or death of third party. When the accident occurred due to actionable negligence of the deceased himself being the driver, no claim by his legal representatives can be entertained by the Claims Tribunal under S. 110 of the Motor Vehicles Act. When the accident occurred due to actionable negligence of the deceased himself being the driver, no claim by his legal representatives can be entertained by the Claims Tribunal under S. 110 of the Motor Vehicles Act. That being so, S.110-AA of the Act would not come into play at all. For, the Claims Tribunal has no jurisdiction to entertain such an application and it has therefore rejected the same." With the said observation, the High Court dismissed the appeal filed by the employer and the insurer who had challenged an order made by the Commissioner for Workmen's Compensation, directing the employer to pay compensation to the claimant under the Workmen's Compensation Act. (iii) In the case of M/s. United India Insurance Co.Ltd. Vs. Kore Laxmi and Ors. reported in 2001(3) A.P.L.J.433(HC), the Hon'ble Andhra Pradesh High Court in paragraph 10 of its judgment was pleased to observe that the claim for compensation under the M.V. Act can be entertained by the Claims Tribunal only when it is shown that the accident occurred was due to the actionable negligence on the part of the driver of the vehicle or it has caused the injury or death of a third party. In the case before it, the accident had occurred due to the negligence on the part of the deceased himself and as such, no claim by his legal representatives could be entertained by the Claims Tribunal under Sec. 166 of the M.V. Act. (iv) In the case of The New India Assurance Co. Ltd., Vs. Smt. Omana Chetan and others in Miscellaneous First Appeal No.1548/2015 (MV) dtd. 22/9/2021, a Division Bench of this Court, in a similar case where the insurer of a Tata Sumo motor vehicle had challenged the fastening of the liability upon itself in a claim petition filed by the wife of the deceased owner of said Tata Sumo motor vehicle, was pleased to observe that the deceased owner himself being the tort-feaser, the insurer cannot be saddled with the liability to pay the compensation. 17. The learned counsel for the respondent No.1/claimant in her argument relied upon two judgments. (i) In the first judgment, which is in the case of Archit Saini and Anr. Vs. Oriental Insurance Company Ltd. And Ors. 17. The learned counsel for the respondent No.1/claimant in her argument relied upon two judgments. (i) In the first judgment, which is in the case of Archit Saini and Anr. Vs. Oriental Insurance Company Ltd. And Ors. reported in AIR 2018 SUPREME COURT 1143, with respect to fastening of liability in a motor vehicle accident case on the basis of contributory negligence and under Sec. 168 of the M.V. Act 1988, the Hon'ble Apex court was pleased to observe that, since the accident was caused due to parking of the offending vehicle which was the Gas Tanker in the middle of the road, without any indicator or parking lights, the High Court's finding which was contrary to the finding of the Tribunal and concluding that it was the case of contributory negligence on the part of the driver of the Car and deducting 50% of the total compensation awarded to claimants was held to be erroneous and claimants were held entitled to enhanced compensation without any deduction towards contributory negligence. In the instant case, the appeal is filed by the insurer of the Lorry of which the claimant himself was the driver. The Tribunal has identified the contributory negligence to an extent of 30% on the part of the claimant who was one among the two drivers of the two Lorries involved in the road traffic accident. Admittedly, the claimant who is the respondent No.1 herein has not challenged the said finding of the Tribunal and the appeal in M.F.A.No.8739/2019 filed by the insurer of the opposite vehicle also came to be dismissed. As such, the finding regarding the contributory negligence fixed on the part of the driver of the Lorry of which the claimant was himself a driver has reached its finality. Hence, in the absence of any appeal to alter the said finding of the said contributory negligence fixed on the part of the driver of the Lorry bearing registration No.AP-09/TA-1658 and in the present appeal filed by the insurer of one of the vehicle, the finding regarding contributory negligence which is not in dispute cannot be modified or set aside. Hence, the judgment of the Hon'ble Apex Court in Archit Saini's case (supra) would not enure to the benefit of the respondent No.1 herein (claimant). Hence, the judgment of the Hon'ble Apex Court in Archit Saini's case (supra) would not enure to the benefit of the respondent No.1 herein (claimant). (ii) The learned counsel for respondent No.1/claimant has also relied upon one more judgment of the Full Bench of the Gujarat High Court in the case of Valiben Laxmanbhai Thakore (Koli) and others Vs. Kandla Dock Labour Board and another reported in 2021 ACJ 2262. In the said case, the deceased Laxmanbhai Thakore had succumbed to the injuries in a motor vehicle accident, wherein he was driving an Ambulance during the course of his employment, the Tribunal dismissed the claim petition observing that the deceased driver of the Ambulance was found to be solely negligent, as such, the claimants were not entitled to any compensation. The said judgment and award was the subject matter of challenge in the appeal before the Gujarat High Court. After hearing both side and considering the materials placed before it, the Full Bench of the Gujarat High Court held that, in their opinion, by accepting the additional premium, the Insurance Company indemnifies the owners for paid Driver and/or Conductor and risk of Driver/Conductor was covered under it. Upon death or injury caused to the paid Driver and/or Conductor, the Insurance Company would be liable to satisfy such claim irrespective of the self negligence. Thus, the reference was answered accordingly. In Valiben Laxmanbhai Thakore's case (supra), the Insurance Company has accepted an additional premium covering the liability towards the Driver, whereas in the case on hand, as rightly pointed out by the learned counsel for the appellant (Insurance Company), the Insurance policy which is at Ex.P-29 does not show the collection of any such premium. It shows that the OD premium of Rs.26, 523.00 and Third Party (TP) premium of Rs.6, 895.00 was collected. Thus, no additional premium covering the risk of the present nature of case on hand was collected by the Insurance Company. As such, the judgment of the Gujarat High Court in Valiben Laxmanbhai Thakore's case (supra), also would not enure to the benefit of the respondent No.1/claimant. On the other hand, the four judgments relied upon by the learned counsel for the appellant (Insurance Company), discussed above, wherein the Insurance Company was exonerated from its liability to indemnify for the act of the claimant himself who was the tort-feaser squarely applies to the case on hand. 18. On the other hand, the four judgments relied upon by the learned counsel for the appellant (Insurance Company), discussed above, wherein the Insurance Company was exonerated from its liability to indemnify for the act of the claimant himself who was the tort-feaser squarely applies to the case on hand. 18. However, the Tribunal, without considering these aspects and also without attributing any reasons for fastening the liability upon the appellant (Insurance Company) has held the respondent No.4 before it (appellant herein) also as jointly and severally liable to indemnify the claimant along with respondent No.3 before it. Since the said finding of the Tribunal fastening the liability upon the respondent No.4 before it (present appellant) is erroneous, the same warrants interference at the hands of this Court. Accordingly, I proceed to pass the following: O R D E R [i] The appeal filed by the appellantInsurance Company stands allowed; [ii] The impugned judgment and award, passed by the learned Senior Civil Judge and Motor Accidents Claims Tribunal, Chinthamani, dtd. 8/5/2019, in M.V.C.No.69/2014, stands set aside, however confining it to fastening the liability upon the respondent No.4 before it who is the present appellant; Consequently, the petition against the respondent No.4 before the Tribunal (appellant herein) stands dismissed. [iii] The rest of the terms of the impugned judgment and award passed by the Tribunal remains un-altered. Draw the modified award accordingly. The statutory amount and the amount, if any deposited in the Tribunal by the appellant be refunded to it, after the period of appeal and if no appeal is preferred, provided the said amount or portion of it has not yet been released. Registry to transmit a copy of this judgment to the concerned Tribunal, along with its records, without delay.