in the high court of karnataka dharwad...

IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

DATED THIS THE 28th DAY OF MARCH, 2019

PRESENT

THE HON’BLE MRS. JUSTICE B.V. NAGARATHNA

AND

THE HON’BLE MR. JUSTICE BELLUNKE A.S.

M.F.A. No.24179/2012 [ MV ]

Connected with

M.F.A. Nos.24180/2012, 24181/2012, 24182/2012,

24183/2012, 24184/2012, 24185/2012, 23566/2012,

23567/2012, 23568/2012, 101478/2014, 101479/2014,

101480/2014, 101481/2014, 101482/2014,

101483/2014 & 101484/2014 [MV]

IN M.F.A. No.24179/2012:

BETWEEN: 1. MOHANDAS NAIR S/O. E. KUMARAN NAIR,

AGE: 40 YEARS, R/O: B. 302, YOGESHWARA, CHS, KATEMANEVALI, KALYAN (EAST),

MAHARASHTRA STATE – 421 306.

2. SMT. LATHIKA MOHANDAS NAIR, W/O. MOHANDAS NAIR, AGE: 36 YEARS, R/O: B. 302, YOGESHWARA, CHS, KATEMANEVALI, KALYAN (EAST), MAHARASHTRA STATE – 421 306. ... APPELLANTS

R

MFA No.24179/2012

& Connected cases

- 2 -

(BY SRI P.G. CHIKKANARAGUND, ADVOCATE) AND: 1. M/S. VIVEK TRANSPORTERS,

H.NO.99, SECTOR 17, GURGAUN, HARYANA STATE, REP. BY ITS PROPRIETOR,

2. M/S. RELIANCE GENERAL INSURANCE CO. LTD.,

REGIONAL OFFICE, NO.28, 5TH FLOOR, SOUTHERN PORTION, EAST WING, CENTURY BUILDING, M.G. ROAD, BANGALORE. REP. BY ITS REGIONAL MANAGER. ... RESPONDENTS (BY SRI HARISH S. MAIGUR, ADVOCATE FOR R-1; SRI NAGARAJ C. KOLLOORI, ADVOCATE FOR R-2)

THIS MFA IS FILED U/SEC. 173(1) OF MV ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 31.12.2011 PASSED IN MVC NO.30/2009 ON THE FILE OF THE MEMBER, ADDITIONAL MACT, KUMTA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. IN M.F.A. No.24180/2012: BETWEEN:

AISHWARYA D/O. MOHANDAS NAIR, AGE: MINOR, AGED ABOUT 11 YEARS, REP. BY HER NEXT FRIEND/MOTHER SMT. LATHIKA MOHANDAS NAIR, AGE: 36 YERAS, R/O: B.302, YOGESHWARA, CHS, KATEMANEVALI, KALYAN (EAST), MAHARASHTRA STATE – 421 306. ... APPELLANT (BY SRI P.G. CHIKKANARAGUND, ADVOCATE) AND:

MFA No.24179/2012

& Connected cases

- 3 -

1. M/S. VIVEK TRANSPORTERS,

H.NO. 99, SECTOR 17, GURGAUN, HARYANA STATE, REP. BY ITS PROPRIETOR.


REGIONAL OFFICE, NO.28, 5TH FLOOR, SOUTHERN PORTION, EAST WING, CENTURY BUILDING, M.G. ROAD, BANGALORE. REP. BY ITS REGIONAL MANAGER. ... RESPONDENTS (BY SRI G.N. RAICHUR, ADVOCATE FOR R-2; SRI HARISH S. MAIGUR ADVOCATE FOR R-1) THIS MFA IS FILED U/SEC. 173(1) OF MV ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 31.12.2011 PASSED IN MVC NO.31/2009 ON THE FILE OF THE MEMBER, ADDITIONAL MACT, KUMTA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. IN M.F.A. No.24181/2012:

BETWEEN:

SMT. LATHIKA MOHANDAS NAIR W/O. MOHANDAS NAIR, AGE: 36 YEARS, R/O: B.302, YOGESHWARA, CHS, KATEMANEVALI, KALYAN (EAST), MAHARASHTRA STATE – 421 306. ... APPELLANT (BY SRI P.G. CHIKKANARAGUND, ADVOCATE) AND: 1. M/S. VIVEK TRANSPORTERS,

H.NO.99, SECTOR 17, GURGAUN, HARYANA STATE, REP. BY ITS PROPRIETOR.

MFA No.24179/2012

& Connected cases

- 4 -

2. M/S. RELIANCE GENERAL INSURANCE CO. LTD., REGIONAL OFFICE, NO.28,

5TH FLOOR, SOUTHERN PORTION, EAST WING, CENTURY BUILDING, M.G. ROAD, BANGALORE. REP. BY ITS REGIONAL MANAGER. ... RESPONDENTS (BY SRI HARISH S. MAIGUR, ADVOCATE FOR R-1; R-2 SERVED)

THIS MFA IS FILED U/SEC. 173(1) OF MV ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 31.12.2011 PASSED IN MVC NO.32/2009 ON THE FILE OF THE MEMBER, ADDITIONAL MACT, KUMTA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

IN M.F.A. No.24182/2012:

BETWEEEN:

SRI MOHANDAS NAIR, S/O. KUMARAN NAIR, AGE: 40 YEARS, R/O: B.302, YOGESHWARA, CHS, KATEMANEVALI, KALYAN (EAST), MAHARASHTRA STATE – 421 306. ... APPELLANT (BY SRI P.G. CHIKKANARAGUND, ADVOCATE) AND: 1. M/S. VIVEK TRANSPORTERS,



REGIONAL OFFICE, NO.28, 5TH FLOOR, SOUTHERN PORTION, EAST WING, CENTURY BUILDING, M.G. ROAD, BANGALORE. REP. BY ITS REGIONAL MANAGER. ... RESPONDENTS

MFA No.24179/2012

& Connected cases

- 5 -

(BY SRI G.N. RAICHUR, ADVOCATE FOR R-2; SRI HARISH S. MAIGUR ADVOCATE FOR R-1)

THIS MFA IS FILED U/SEC. 173(1) OF MV ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 31.12.2011 PASSED IN MVC NO.33/2009 ON THE FILE OF THE MEMBER, ADDITIONAL MACT, KUMTA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. IN M.F.A. No.24183/2012:

BETWEEN: SMT. SUNITHA UNNIKRISHNAN W/O. LATE UNNIKRISHNAN K. NAIR, AGE: 35 YEARS, R/O: KUMARAN NIVAS, POST: CHUNNANGAD, OTTAPALAM, KERALA STATE. ... APPELLANT (BY SRI P.G. CHIKKANARAGUND, ADVOCATE) AND: 1. M/S. VIVEK TRANSPORTERS,



REGIONAL OFFICE, NO.28, 5TH FLOOR, SOUTHERN PORTION, EAST WING, CENTURY BUILDING, M.G. ROAD, BANGALORE. REP. BY ITS REGIONAL MANAGER.

3. SMT. LATHIKA MOHANDAS NAIR,

W/O. MOHANDAS NAIR, AGE: 36 YEARS, R/O: B.302, YOGESHWARA, CHS, KATEMANEVALI, KALYAN (EAST), MAHARASHTRA STATE – 421 306.

MFA No.24179/2012

& Connected cases

- 6 -

4. THE NEW INDIA ASSURANCE CO. LTD., DIVISIONAL OFFICE, DHARWAD. REP. BY ITS DIVISIONAL MANAGER. ... RESPONDENTS

(BY SRI R.R. MANE ADVOCATE FOR R-4; SRI NAGARAJ C. KOLLOORI, ADVOCATE FOR R-2; SRI HARISH S. MAIGUR, ADVOCATE FOR R1; R-3 SERVED)


IN M.F.A. No.24184/2012:

BETWEEN:

SMT. SUNITHA UNNIKRISHNAN, W/O. LATE UNNIKRISHNAN K. NAIR, AGE: 35 YEARS, R/O: KUMARAN NIVAS, POST: CHUNNANGAD, OTTAPALAM, KERALA STATE. ... APPELLANT (BY SRI P.G. CHIKKANARAGUND, ADVOCATE) AND:






MFA No.24179/2012

& Connected cases

- 7 -

W/O. MOHANDAS NAIR, AGE: 36 YEARS, R/O: B.302, YOGESHWARA, CHS, KATEMANEVALI, KALYAN (EAST), MAHARASHTRA STATE – 421 306.

4. THE NEW INDIA ASSURANCE CO. LTD., DIVISIONAL OFFICE, DHARWAD. REP. BY ITS DIVISIONAL MANAGER. ... RESPONDENTS

(BY SRI NAGARAJ C. KOLLORI ADVOCATE FOR R-2; SRI R.R. MANE ADVOCATE FOR R-4; SRI HARISH S. MAIGUR, ADVOCATE FOR R-1; R-3 SERVED)


IN MFA NO.24185/2012: BETWEEN:

1. SMT. SUNITHA UNNIKRISHNAN,

W/O. LATE UNNIKRISHNAN K. NAIR, AGE: 35 YEARS, R/O: KUMARAN NIVAS, POST: CHUNNANGAD, OTTAPALAM, KERALA STATE.

2. MINOR SACHIN S/O. LATE UNNIKRISHNAN K. NAIR, AGE: 13 YEARS, MINOR, REP. BY HIS NEXT FRIEND MOTHER PETITIONER NO.1. R/O: KUMARAN NIVAS, POST: CHUNNANGAD, OTTAPALAM, KERALA STATE.

3. E. KUMARAN NAIR S/O. GOVINDAN NAIR,

AGE: 73 YEARS,

MFA No.24179/2012

& Connected cases

- 8 -

R/O: KUMARAN NIVAS, POST: CHUNNANGAD,

OTTAPALAM, KERALA STATE.

4. SMT. SUBHADRA NAIR W/O. KUMARAN NAIR, AGE: 65 YEARS, R/O: KUMARAN NIVAS, POST: CHUNNANGAD, OTTAPALAM, KERALA STATE. ... APPELLANTS

(BY SRI P.G. CHIKKANARAGUND, ADVOCATE) AND:





3. LATHIKA MOHANDAS NAIR W/O. MOHANDAS NAIR,

AGE: 36 YEARS, R/O: B.302, YOGESHWARA, CHS,

KATEMANEVALI, KALYAN (EAST), MAHARASHTRA STATE – 421 306.

4. THE NEW INDIA ASSURANCE CO. LTD.,

DIVISIONAL OFFICE, DHARWAD. REP. BY ITS DIVISIONAL MANAGER. ... RESPONDENTS

(BY SRI HARISH S. MAIGUR, ADVOCATE FOR R-1; SRI P.H. PAWAR ADVOCATE FOR R-2; SRI R.R. MANE ADVOCATE FOR R-4; R-3 SERVED)

MFA No.24179/2012

& Connected cases

- 9 -

THIS MFA IS FILED U/SEC. 173(1) OF MV ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 31.12.2011 PASSED IN MVC NO.36/2009 ON THE FILE OF THE MEMBER, ADDITIONAL MACT, KUMTA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. IN M.F.A. No.23566/2012: BETWEEN: NEW INDIA ASSURANCE CO. LTD., BY ITS DIVISIONAL MANAGER, DIVISIONAL OFFICE, DHARWAD, HEREIN REPRESENTED BY NEW INDIA ASSURANCE CO. LTD., REGIONAL OFFICE, MOTOR THIRD PARTY HUB OFFICE, SRINATH COMPLEX, 2ND FLOOR, NEW COTTON MARKET, HUBLI – 580 029. REP. BY ITS AUTHORIZED SIGNATORY. ... APPELLANT (BY SRI R.R. MANE, ADVOCATE) AND:


W/O. LATE UNNIKRISHNAN K. NAIR, AGE: 35 YEARS, OCC: HOUSEHOLD, R/O: KUMARAN NIVAS, POST: CHUNNANGAD, OTTAPALAM, KERALA STATE.

2. M/S. VIVEK TRANSPORTERS, R/O: H.NO.99, SECTOR 17, GURGAUN, HARYANA STATE, REPRESENTED BY ITS PROPRIETOR.


5TH FLOOR, SOUTHERN PORTION, EAST WING, CENTURY BUILDING, M.G.ROAD, BANGALORE.

MFA No.24179/2012

& Connected cases

- 10 -

REP. BY ITS REGIONAL MANAGER.

4. SMT. LATHIKA MOHANDAS NAIR, W/O. MOHANDAS NAIR, AGE: 36 YEARS, R/O: B 302,

YOGEESHWARA CHS, KATEMANEVALI, KALYAN (EAST), THANE, MAHARASHTRA STATE – 121 306. ... RESPONDENTS (BY SRI NAGARAJ C. KOLLOORI, ADVOCATE FOR R-3; SRI HARISH S. MAIGUR, ADVOCATE FOR R-2; R-1 AND R-4 ARE SERVED)

THIS MFA IS FILED U/S 173(1) OF MV ACT, 1988 AGAINST THE JUDGMENT AND AWARD DATED:31-12-2011 PASSED IN MVC NO.34/2009 ON THE FILE OF MEMBER, ADDL. MACT, KUMTA, AWARDING THE COMPENSATION OF RS.1,63,132/- WITH INTEREST AT THE RATE OF 6% P.A., FROM THE DATE OF PETITION TILL THE DATE OF PAYMENT.

IN M.F.A. No.23567/2012: BETWEEN:

NEW INDIA ASSURANCE CO. LTD., BY ITS DIVISIONAL MANAGER, DIVISIONAL OFFICE, DHARWAD, HEREIN REPRESENTED BY NEW INDIA ASSURANCE CO. LTD., REGIONAL OFFICE, MOTOR THIRD PARTY HUB OFFICE, SRINATH COMPLEX, 2ND FLOOR, NEW COTTON MARKET, HUBLI – 580 029. REP. BY ITS AUTHORIZED SIGNATORY. ... APPELLANT (BY SRI R.R. MANE, ADVOCATE) AND: 1. SMT. SUNITHA UNNIKRISHNAN,

W/O. LATE UNNIKRISHNAN K. NAIR, AGE: 35 YEARS, OCC: HOUSEHOLD,

MFA No.24179/2012

& Connected cases

- 11 -

R/O: KUMARAN NIVAS, POST: CHUNNANGAD, OTTAPALAM, KERALA STATE.

2. M/S. VIVEK TRANSPORTERS, R/O: H.NO.99, SECTOR 17, GURGAUN, STATE: HARYANA, REPRESENTED BY ITS PROPRIETOR.


5TH FLOOR, SOUTHERN PORTION, EAST WING, CENTURY BUILDING, M.G. ROAD, BANGALORE. REP. BY ITS REGIONAL MANAGER.


W/O. MOHANDAS NAIR, AGE: 36 YEARS, R/O: B.302, YOGEESHWARA CHS, KATEMANEVALI, KALYAN (EAST), THANE, MAHARASHTRA STATE – 121 306. ... RESPONDENTS (BY SRI HARISH S. MAIGUR ADVOCATE FOR R-2; SRI NAGARAJ C. KOLLOORI, ADVOCATE FOR R-3; R-1 AND R-4 ARE SERVED)

THIS MFA IS FILED U/S 173(1) OF MV ACT, 1988 AGAINST THE JUDGMENT AND AWARD DATED: 31-12-2011 PASSED IN MVC NO.35/2009 ON THE FILE OF MEMBER, ADDL. MACT, KUMTA, AWARDING THE COMPENSATION OF RS.1,55,000/- WITH INTEREST AT THE RATE OF 6% P.A., FROM THE DATE OF PETITION TILL THE DATE OF PAYMENT.

IN M.F.A. No.23568/2012:

BETWEEN:

NEW INDIA ASSURANCE CO. LTD., BY ITS DIVISIONAL MANAGER, DIVISIONAL OFFICE, DHARWAD, HEREIN REPRESENTED BY NEW INDIA ASSURANCE CO. LTD.,

MFA No.24179/2012

& Connected cases

- 12 -

REGIONAL OFFICE, MOTOR THIRD PARTY HUB OFFICE, SRINATH COMPLEX, 2ND FLOOR, NEW COTTON MARKET, HUBLI – 580 029. REP. BY ITS AUTHORIZED SIGNATORY. ... APPELLANT (BY SRI R.R. MANE, ADVOCATE) AND:


W/O. LATE UNNIKRISHNAN K. NAIR, AGE: 35 YEARS, OCC: HOUSEHOLD, R/O: KUMARAN NIVAS, POST: CHUNNANGAD, OTTAPALAM, KERALA STATE.

2. MINOR SACHIN S/O. LATE UNNIKRISHNAN K. NAIR, AGE: 13 YEARS, OCC: STUDENT, MINOR REPRESENTED BY HIS NEXT FRIEND, MOTHER, RESPONDENT NO. 1, R/O: KUMARAN NIVAS, POST: CHUNNANGAD, OTTAPALAM, KERALA STATE.

3. SRI E. KUMARAN NAIR S/O. GOVINDAN NAIR, AGE: 73 YEARS, OCC: HOUSEHOLD, R/O: KUMARAN NIVAS, POST: CHUNNANGAD, OTTAPALAM, KERALA STATE.

4. SMT. SUBHADRA NAIR W/O. E. KUMARAN NAIR,

AGE: 65 YEARS, OCC: HOUSEHOLD, R/O: KUMARAN NIVAS, POST: CHUNNANGAD, OTTAPALAM, KERALA STATE.

5. M/S. VIVEK TRANSPORTERS, R/O: H.NO.99, SECTOR 17, GURGAUN, HARYANA STATE, REPRESENTED BY ITS PROPRIETOR.


MFA No.24179/2012

& Connected cases

- 13 -



W/O. MOHANDAS NAIR, AGE: 36 YEARS, R/O: B.302,

YOGEESHWARA CHS, KATEMANEVALI, KALYAN (EAST), THANE, MAHARASHTRA STATE – 121 306. ... RESPONDENTS (BY SRI P.G. CHIKKANARAGUND, ADVOCATE FOR R1-R4, R7; SRI P.H. PAWAR ADVOCATE FOR R-6; SRI HARISH S.MAIGUR, ADVOCATE FOR R-5)

THIS MFA IS FILED U/S 173(1) OF MV ACT, 1988 AGAINST THE JUDGMENT AND AWARD DATED: 31-12-2011 PASSED IN MVC NO.36/2009 ON THE FILE OF MEMBER, ADDL. MACT, KUMTA, AWARDING THE COMPENSATION OF RS.74,11,000/- WITH INTEREST AT THE RATE OF 6% P.A., FROM THE DATE OF PETITION TILL THE DATE OF PAYMENT. IN M.F.A. NO.101478/2014

BETWEEN: RELIANCE GENERAL INSURANCE CO. LTD., REGIONAL OFFICE, NO.28, 5TH FLOOR, SOUTHERN PORTION EAST WING, CENTURY BUILDING, M.G. ROAD, BANGALORE. NOW REP. BY ITS AUTHORIZED SIGNATORY, CTS NO.472-474, V.A. KALBURGI SQUARE, DESAI CIRCLE, DESHPANDE NAGAR, HUBLI. ... APPELLANT (BY SRI NAGARAJ C. KOLLOORI, ADVOCATE) AND:

1. MOHANDAS NAIR

MFA No.24179/2012

& Connected cases

- 14 -

S/O. E. KUMARAN NAIR, AGE: 38 YEARS, R/O. B.302, YOGESHWARA, CHS, KATEMANEVALI, KALYANA (EAST), MAHARAHSTRA STATE.

2. SMT. LATHIKA MOHANDAS NAIR W/O. MOHANDAS NAIR, AGE: 38 YEARS, R/O. B.302, YOGESHWARA, CHS, KATEMANEVALI, KALYANA (EAST), MAHARASHTRA STATE.

3. M/S. VIVEK TRANSPORTERS, R/O. H.NO.99, SECTOR 17, GURGAUM,

HARYANA, HARRYANA STATE, REP. BY ITS PROPRIETOR. ... RESPONDENTS

(BY SRI P.G. CHIKKANURGUND, ADVOCATE FOR R-1 TO R-2; SRI HARISH S. MAIGUR, ADVOCATE FOR R-3)

THIS MFA IS FILED U/SEC. 173(1) OF MV ACT 1988, AGAINST JUDGMENT AND AWARD DATED 31.12.2011, PASSED IN MVC NO.30/2009 ON THE FILE OF THE ADDITIONAL MACT KUMTA, AWARDING THE COMPENSATION OF RS.1,55,000/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT. IN M.F.A. No.101479/2014:

BETWEEN:

RELIANCE GENERAL INSURANCE COMPANY, REGIONAL OFFICE, NO.28, 5TH FLOOR, SOUTHERN PORTION EAST WING, CENTURY BUILDING, M.G. ROAD, BANGALORE. NOW REPRESENTED BY ITS AUTHORISED SIGNATORY, CTS NO.472-474, V.A. KALBURGI SQUARE, DESAI CIRCLE, DESHPANDE NAGAR, HUBLI. ... APPELLANT

MFA No.24179/2012

& Connected cases

- 15 -

(BY SRI NAGARAJ C. KOLLOORI, ADVOCATE) AND: 1. AISHWARYA D/O. MOHANDAS NAIR, MINOR, AGE: 13 YEARS, R/O B.302,

YOGESHWARA, CHS, KATEMANEVALI, KALYANA (EAST), MAHARAHSTRA STATE. REP. BY HER NEXT FRIEND/MOTHER SMT. LATHIKA MOHANDAS NAIR, AGE: 33 YEARS.

2. M/S. VIVEK TRANSPORTS, R/O. H.NO.99, SECTOR 17, GURGAUM,


(BY SRI P.G. CHIKKANARGUND, ADVOCATE FOR R-1; SRI HARISH S.MAIGUR, ADVOCATE FOR R-2) THIS MFA IS FILED U/SEC. 173(1) OF MV ACT, 1988, AGAINST JUDGMENT AND AWARD DATED: 31.12.2011, PASSED IN MVC NO.31/2009 ON THE FILE OF THE ADDITIONAL MACT KUMTA, AWARDING THE COMPENSATION OF RS.54,731/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT. IN M.F.A. No.101480/2014:

BETWEEN:

RELIANCE GENERAL INSURANCE COMPANY, REGIONAL OFFICE, NO. 28, 5TH FLOOR, SOUTHERN PORTION EAST WING, CENTURY BUILDING, M.G. ROAD, BANGALORE. NOW REPRESENTED BY ITS AUTHORISED SIGNATORY, CTS NO.472-474, V.A. KALBURGI SQUARE, DESAI CIRCLE, DESHPANDE NAGAR, HUBLI. ... APPELLANT

MFA No.24179/2012

& Connected cases

- 16 -

(BY SRI: NAGARAJ C. KOLLOORI, ADVOCATE) AND: 1. SMT. LATHIKA MOHANDAS NAIR,

W/O. MOHANDAS NAIR, AGE: 33 YEARS, R/O. B.302, YOGESHWARA, CHS, KATEMANEVALI, KALYANA (EAST), MAHARAHSTRA.

2. M/S. VIVEK TRANSPORTS, R/O. H.NO.99, SECTOR 17, GURGAUM,


(BY SRI P.G. CHIKKANARGUND, ADVOCATE FOR R-1; SRI HARISH S. MAIGUR, ADVOCATE FOR R-2)

THIS MFA IS FILED U/SEC.173(1) OF MV ACT 1988, AGAINST JUDGMENT AND AWARD DATED:31.12.2011, PASSED IN MVC.NO.32/2009 ON THE FILE OF THE ADDITIONAL MACT KUMTA, AWARDING THE COMPENSATION OF RS.38,262/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.

IN M.F.A. NO.101481/2014

BETWEEN:

RELIANCE GENERAL INSURANCE COMPANY, REGIONAL OFFICE, NO. 28, 5TH FLOOR, SOUTHERN PORTION EAST WING, CENTURY BUILDING, M.G. ROAD, BANGALORE. NOW REP. BY ITS AUTHORISED SIGNATORY, CTS NO.472-474, V.A. KALBURGI SQUARE, DESAI CIRCLE, DESHPANDE NAGAR, HUBLI. ... APPELLANT (BY SRI NAGARAJ C. KOLLOORI, ADVOCATE.)

MFA No.24179/2012

& Connected cases

- 17 -

AND: 1. MOHANDAS NAIR

S/O. E. KUMARAN NAIR, AGE: 42 YEARS, R/O. B.302, YOGESHWARA, CHS, KATEMANEVALI, KALYANA (EAST), MAHARAHSTRA STATE.

2. M/S. VIVEK TRANSPORTERS, R/O. H.NO.99, SECTOR 17, GURGAUN,


(BY SRI P.G. CHIKKANARGUND, ADVOCATE FOR R-1; SRI HARISH S. MAIGUR, ADVOCATE FOR R-2)

THIS MFA IS FILED U/SEC.173(1) OF MV ACT, 1988, AGAINST JUDGMENT AND AWARD DATED:31.12.2011, PASSED IN MVC.NO.33/2009 ON THE FILE OF THE ADDITIONAL MACT KUMTA, AWARDING THE COMPENSATION OF RS.69,566/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.

IN M.F.A. NO.101482/2014: BETWEEN:

RELIANCE GENERAL INSURANCE COMPANY, REGIONAL OFFICE, NO.28, 5TH FLOOR, SOUTHERN PORTION EAST WING, CENTURY BUILDING, M.G. ROAD, BANGALORE. REP. BY ITS REGIONAL MANAGER, NOW REPRESENTED BY ITS AUTHORISED SIGNATORY, CTS NO.472-474, V.A. KALBURGI SQUARE, DESAI CIRCLE, DESHPANDE NAGAR, HUBLI. ... APPELLANT (BY SRI NAGARAJ C. KOLLOORI, ADVOCATE) AND:

MFA No.24179/2012

& Connected cases

- 18 -

1. SMT. SUNITHA

W/O. UNNIKRISHNAN, W/O. LATE UNNIKRISHNAN K. NAIR, AGE: 37 YEARS, R/O. KUMARAN NIVAS, POST: CHUNNANGAD, OTTAPALAM, KERALA STATE.

2. KUMAR SACHIN S/O. LATE UNNIKRISHNAN K. NAIR,

AGE: 15 YEARS, R/O. KUMARAN NIVAS, POST: CHUNNANGAD, OTTAPALAM, KERALA STATE.

(RESPONDENT NO.2 IS BEING MINOR REPRESENTED BY RESPONDENT NO.1 MOTHER AS MINOR GUARDIAN)

3. E. KUMARAN NAIR S/O. GOVINDAN NAIR,

AGE: 75 YEARS, R/O. KUMARAN NIVAS, POST: CHUNNANGAD, OTTAPALAM,

KERALA STATE.

4. SMT. SUBHADRA W/O. E. KUMARAN NAIR, AGE: 67 YEARS, R/O. KUMARAN NIVAS, POST: CHUNNANGAD, OTTAPALAM, KERALA STATE.

5. M/S. VIVEK TRANSPORTS, R/O. H.NO.99, SECTOR NO.17, GURGAUM,

HARYANA, HARRYANA STATE, REP. BY ITS PROPRIETOR.


W/O. MOHANDAS NAIR, AGE: 38 YEARS, R/O. B.302,

YOGGESHWARRA CHS, KATEMANEVALI, KALYAN (EAST) THANE, MAHARASHTRA STATE.

7. THE NEW INDIA ASSURANCE CO. LTD.,

MFA No.24179/2012

& Connected cases

- 19 -

DIVISIONAL OFFICE, DHARWAD, REP. BY ITS DIVISIONAL MANAGER. ... RESPONDENTS

(BY SRI P.G. CHIKKANARGUND, ADVOCATE FOR R1-R4 & R6; SRI HARISH MAIGUR, ADVOCATE FOR R-5; SRI R.R. MANE, ADVOCATE FOR R-7; R-2 MINOR, REP. BY R-1)

THIS MFA IS FILED U/SEC.173(1) OF MV, ACT, AGAINST JUDGMENT AND AWARD DATED:31.12.2011, PASSED IN MVC.NO.36/2009 ON THE FILE OF THE ADDITIONAL MACT KUMTA, AWARDING THE COMPENSATION OF RS.74,11,000/- WITH INTEREST AT THE RATE OF 9% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT. IN M.F.A. No.101483/2014:

BETWEEN:

RELIANCE GENERAL INSURANCE COMPANY, REGIONAL OFFICE, NO. 28, 5TH FLOOR, SOUTHERN PORTION EAST WING, CENTURY BUILDING, M.G. ROAD, BANGALORE. NOW REPRESENTED BY ITS AUTHORISED SIGNATORY, CTS NO.472-474, V.A.KALBURGI SQUARE, DESAI CIRCLE, DESHPANDE NAGAR, HUBLI. ... APPELLANT (BY SRI NAGARAJ C. KOLLOORI, ADVOCATE) AND: 1. SMT. SUNITHA W/O. UNNIKRISHNAN,

W/O. LATE UNNIKRISHNAN K. NAIR, AGE: 32 YEARS, R/O. KUMARAN NIVAS, POST: CHUNNANGAD, OTTAPALAM, KERALA STATE.

2. M/S. VIVEK TRANSPORTERS, R/O. H.NO.99, SECTOR NO.17, GURGAUM,

HARYANA, HARRYANA STATE, REP. BY ITS PROPRIETOR.

MFA No.24179/2012

& Connected cases

- 20 -


W/O. MOHANDAS NAIR, AGE: 38 YEARS, R/O. B.302, YOGGESHWARRA CHS,

KATEMANEVALI, KALYAN (EAST), THANE, MAHARASHTRA STATE.

4. THE NEW INDIA ASSURANCE CO. LTD., DIVISIONAL OFFICE, DHARWAD, REP. BY ITS DIVISIONAL MANAGER. ... RESPONDENTS

(BY SRI P.G. CHIKKANARGUND, ADVOCATE FOR R-1 & R-3; SRI HARISH S. MAIGUR, ADVOCATE FOR R-2; SRI R.R. MANE, ADVOCATE FOR R-4)

THIS MFA IS FILED U/SEC.173(1) OF MV, ACT 1988, AGAINST JUDGMENT AND AWARD DATED:31.12.2011, PASSED IN MVC.NO.34/2009 ON THE FILE OF THE ADDITIONAL MACT KUMTA, AWARDING THE COMPENSATION OF RS.1,63,132/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT. IN M.F.A. No.101484/2014:

BETWEEN:

RELIANCE GENERAL INSURANCE COMPANY, REGIONAL OFFICE, NO.28, 5TH FLOOR, SOUTHERN PORTION EAST WING, CENTURY BUILDING, M.G. ROAD, BANGALORE. NOW REPRESENTED BY ITS AUTHORISED SIGNATORY, CTS NO.472-474, V.A. KALBURGI SQUARE, DESAI CIRCLE, DESHPANDE NAGAR, HUBLI. ... APPELLANT (BY SRI NAGARAJ C. KOLLOORI, ADVOCATE) AND: 1. SMT. SUNITHA

W/O. UNNIKRISHNAN,

MFA No.24179/2012

& Connected cases

- 21 -

W/O.LATE UNNIKRISHNAN K. NAIR, AGE: 32 YEARS, R/O. KUMARAN NIVAS, POST: CHUNNANGAD, OTTAPALAM,

KERALA STATE. 2. M/S. VIVEK TRANSPORTS,

R/O. H NO. 99, SECTOR NO. 17, GURGAUM, HARVANA, HARRYANA STATE,

REP. BY ITS PROPRIETOR. 3. SMT. LATHIKA MOHANDAS NAIR,

W/O. MOHANDAS NAIR, AGE: 38 YEARS, R/O. B.302, YOGGESHWARRA CHS, KATEMANEVALI, KALYAN (EAST), THANE,

MAHARASHTRA STATE. 4. THE NEW INDIA ASSURANCE CO. LTD.,

DIVISIONAL OFFICE, DHARWAD, REP. BY ITS DIVISIONAL MANAGER. ... RESPONDENTS

(BY SRI P.G. CHIKKANARGUND, ADVOCATE FOR R-1 & R-3; SRI HARISH S.MAIGUR, ADVOCATE FOR R-2; SRI R.R. MANE ADVOCATE FOR R-4)

THIS MFA IS FILED U/SEC.173/(1) OF MV ACT, 1988, AGAINST JUDGMENT AND AWARD DATED: 31.12.2011, PASSED IN MVC NO.25/2009 ON THE FILE OF THE ADDITIONAL MACT KUMTA, AWARDING THE COMPENSATION OF RS.1,55,000/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.

Reserved on : 18.12.2018;

Judgment pronounced on : 28.03.2019.

THESE APPEALS COMING ON FOR ADMISSION ON

18.12.2018 AND THE SAME HAVING BEEN HEARD AND RESERVED,

THIS DAY, BELLUNKE, J. PRONOUNCED THE FOLLOWING:

MFA No.24179/2012

& Connected cases

- 22 -

JUDGMENT

Though these appeals are listed for orders, with the

consent of learned counsel on both sides, they are heard

finally and at length.

2. Miscellaneous First Appeal Nos.24179/2012,

24180/2012, 24181/2012, 24182/2012, 24183/2012,

24184/2012 and 24185/2012 have been filed by the

claimants being aggrieved by the judgment and award

dated 31.12.2011 passed by the Member, Additional Motor

Accident Claims Tribunal, Kumta (hereinafter referred to as

the ‘Tribunal’ for the sake of brevity), in

M.V.C.Nos.30/2009, 31/2009, 32/2009, 33/2009,

34/2009, 35/2009 and 36/2009 respectively.

3. M.F.A.Nos.101478/2014, 101479/2014, 101480 /

2014, 101481/2014, 101482/2014, 101483/2014 and

101484/2014 have been filed by Reliance General

Insurance Company aggrieved by the very same judgment

and awards dated 31.12.2011 passed by the Tribunal in

MFA No.24179/2012

& Connected cases

- 23 -

M.V.C.Nos.30/2009, 31/2009, 32/2009, 33/2009,

34/2009, 35/2009 and 36/2009 respectively.

4. M.F.A.Nos.23566/2012, 23567/2012 and

23568/2012 have been filed by New India Assurance

Company assailing the judgment and award dated

31.12.2011 passed by the Tribunal in M.V.C.Nos.34/2009,

35/2009 and 36/2009 respectively.

5. For the sake convenience, the parties shall be

referred to as per their status before the Tribunal.

6. Factual matrix of the aforesaid cases for the

purpose of these appeals are as under:

On 12.11.2008, at about 8.00 p.m., the injured

claimants along with other persons, three of whom died

were proceeding in a Santro Car bearing registration

No.MH-05/AJ-2719 from Mumbai towards Kottayam,

driven by Mohandas Nair who is the first claimant in

M.V.C.No.30/2009 and injured claimant in

M.V.C.No.33/2009. According to the claimants, he was

MFA No.24179/2012

& Connected cases

- 24 -

driving the said car in very slow and careful manner.

When they reached a place called Holegadde of Kumta

taluk, on National Highway (N.H.17), a lorry bearing

registration No.HR-55/E-8624 belonging to the first

respondent was parked negligently by its driver during the

course of his employment under the first respondent on

the middle of the road without any indicator or parking

light. That the driver of the car could not see the parked

lorry and suddenly dashed to the hind portion of the said

lorry. Due to the impact, Anushree and her father died on

the spot and other inmates sustained grievous injuries.

That the accident in question occurred solely due to the

negligent parking of the said lorry on the middle of N.H.17

by the driver of the 1st respondent without proper care,

circumspection and vigil.

7. On account of the above said accident, while

some of the inmates of the Santro car sustained injuries,

the other inmates viz., Anushree, Savin and Unnikrishnan

died on account of the serious injuries sustained by them.

MFA No.24179/2012

& Connected cases

- 25 -

Since the accident had occurred due to rash and negligent

act of the driver of the lorry bearing registration No.HR-

55/E-8624, respondents, i.e., owner and insurer of the

lorry were sued by the injured claimants claiming

compensation for the injuries suffered by them as well as

by other claimants seeking compensation for the death of

Anushree, Savin and Unnikrishnan.

8. The claimants in M.V.C.No.30/2009 contended

that they had spent `15,000/- towards transportation of

dead body of Anushree and spent `5,000/- towards funeral

and obsequies ceremony. It is further contended that the

deceased Anushree was five year old and she was a very

intelligent and healthy child. Therefore, they sought a total

compensation of `5,20,000/- on all the heads with interest

at 12% p.a.

9. The claimant in M.V.C.No.31/2009 was admitted

to K.M.C. Hospital, Manipal for further treatment and is

said to have spent a sum of `25,000/-towards medical

MFA No.24179/2012

& Connected cases

- 26 -

expenses. Therefore, she claimed a total compensation of

`2,47,000/- on all the heads with interest at 12% p.a.

10. The claimant in M.V.C.No.32/2009 was treated

as an inpatient till 26.12.2008 and even after discharge

from the hospital, she took follow-up treatment and is said

to have spent a sum of `40,000/- towards medical

expenses. She was working as an Executive Assistant at

Accenture services Private Ltd., at Mumbai and was

drawing a monthly salary of `40,000/-. Therefore, she

claimed compensation of `8,62,000/- on all the heads with

interest at 12% p.a.

11. The claimant in M.V.C.No.33/2009 was treated

as an inpatient till 05.12.2008. He is said to have spent a

sum of `1,00,000/- towards medical treatment. He was

working as an Excise Executive in M/s.SAM Engineering

Pvt. Ltd., Mumbai, and drawing a monthly salary of

`25,000/-. Therefore, he claimed a total compensation of

`11,22,000/- on all heads with interest at 12% p.a.

MFA No.24179/2012

& Connected cases

- 27 -

12. The claimant in M.V.C.No.34/2009 was admitted

to K.M.C. Hospital, Manipal, for further treatment. She

underwent major surgeries. She is said to have spent

more than `80,000/- towards medical expenses and she

requires future medical assistance. Therefore, she claimed

a total compensation of `4,02,000/- on all the heads with


13. The claimant in M.V.C.No.35/2009 claimed

compensation for the death of her son, namely Savin. It

was contended that the deceased Savin was aged five

years at the time of accident. He was a hale and healthy

child. The claimant has lost love, care and affection of the

deceased. Therefore, she claimed a total compensation of

`5,20,000/- on all the heads with interest at 12% p.a.

14. The claimants in M.V.C.No.36/2009 claimed

compensation for the death of Unnikrishnan. The deceased

was working as a Supervisor in Mills Bowley Concrete

Products at Dubai, U.A.E. and was drawing monthly salary

of 7,000 Dirhams. Therefore, they claimed a total

MFA No.24179/2012

& Connected cases

- 28 -

compensation of `1,20,40,000/- on all the heads with


15. The respondent/owner of the lorry, though

served with summons, did not contest the petitions and

hence, he was placed ex parte in all the cases.

Respondent No.2 - Reliance Insurance Company appeared

through its counsel and filed its written statement. Apart

from the formal denials, the respondent No.2 - Reliance

Insurance Company contended that the claimants had to

prove that the vehicle in question was insured with the

respondent as on the date of accident. The liability, if any,

on this respondent was subject to terms and conditions of

the policy. It had to be proved that the driver of the lorry

had a valid driving licence as on the date of the accident.

The owner of the lorry violated the statutory terms and

conditions of the policy, as the driver of the lorry had no

effective driving licence as on the date of accident. That

the accident had not taken place as alleged in the

petitions. The age, income of the injured as well as

MFA No.24179/2012

& Connected cases

- 29 -

deceased persons was not admitted. It denied that the

deceased died on account of injuries sustained in the

accident. Therefore, it prayed for dismissal of all the

petitions.

16. The Tribunal framed the following issues in the

respective claim petitions and conducted a common trial of

the cases:

ISSUES IN M.V.C. No.30/2009

1. Whether the petitioners prove that deceased

minor Anushree died due to the road traffic

accident referred in para No.22 of the petition?

2. Whether the petitioners further prove that the

accident has occurred due to the negligence of

the driver of lorry bearing Reg. No.HR-55/E-

8624?

3. Whether the respondent No.2 proves that the


the driver of the Car?

4. Whether the petitioners are entitled for

compensation as claimed in the petition? If

yes, what is the quantum and from whom?

5. What order or award?

MFA No.24179/2012

& Connected cases

- 30 -

ISSUES IN M.V.C.No.31/2009

1. Whether the petitioner proves that she has

sustained injuries mentioned in column No.11

of the petition in the accident referred in para

No.22 of the petition?

2. Whether the petitioner further proves that the

said accident has occurred due to the

negligence of the driver of the lorry bearing

Reg. No.HR-55/E-8624?




4. Whether the petitioner is entitled for




The issues framed in M.V.C.Nos.32/2009 and

33/2009 are similar which are as follows:

ISSUES

1. Whether the petitioner proves that he/she has




MFA No.24179/2012

& Connected cases

- 31 -




Reg. No.HR 55/E-8624?




4. Whether the petitioner proves his/her age,

occupation and income?


compensation as claimed in the petition? If yes,

what is the quantum and from whom?



1. Whether the petitioner proves that she has







Reg. No.HR 55/E 8624?




MFA No.24179/2012

& Connected cases

- 32 -

4. Whether the respondent No.4 proves that it is

not liable to pay any compensation for the

reasons stated in para 4 and 5 of the petition?

5. Whether the petitioner proves her age and

occupation?







Savin died due to the road traffic accident

referred in para 22 of the petition?




Reg. No.HR-55/E 8624?






reasons stated in para 4 and 5 of the written

statement?

MFA No.24179/2012

& Connected cases

- 33 -







Unnikrishnan died due to the road traffic

accident referred in para 22 of the petition?



the driver of the lorry bearing Reg.No.HR-55/E

8624?






reasons stated in para 4 and 5 of the written

statement?

5. Whether the petitioners prove the age,

occupation and income of the deceased?





MFA No.24179/2012

& Connected cases

- 34 -

17. After hearing both sides, the Tribunal held that

owner and insurer of lorry were liable to pay compensation

and directed them to pay compensation in M.V.C.Nos.30,

31, 32 and 33/2009. In M.V.C.Nos.34, 35 and 36/2009,

the Tribunal apportioned negligence in the following ratio:

owner of the lorry to pay 75% compensation and owner of

the car liable to pay 25% of the compensation.

18. Being aggrieved by the said judgment and

awards, the claimants, the insurer of lorry as well as the

insurer of the car have filed their respective appeals.

19. M.F.A.No.24179/2012 is filed by the claimants

in M.V.C.No.30/2009, who are parents of the deceased for

the death of their child. It is contended that the deceased

– minor girl was hale and healthy at the time of accident.

She was intelligent and good in her studies. The Tribunal

failed to notice that the deceased was aged about five

years. The Tribunal has awarded a meager compensation

of `54,500/-. The appellants are parents of the minor girl

MFA No.24179/2012

& Connected cases

- 35 -

and they have lost the love, care and affection of their

deceased daughter. The Tribunal has committed an error

in not considering the age of the child and that she would

have earned an income for the family in future. Thereby,

the Tribunal erred in not granting just compensation. It is

contended that this Court in various cases has awarded

compensation of `4,00,000/- for the death of a minor child

aged between 5-10 years. The Tribunal has failed to grant

any compensation towards medical expenses,

transportation of dead body, funeral expenses etc.

Compensation awarded on the heads of “loss of estate”,

“loss of love and affection” is also very low. Therefore,

they have sought enhancement of compensation.

20. M.F.A.No.24180/2012 is filed assailing the

quantum of compensation awarded in M.V.C.No.31/2009 in

respect of minor child Aishwarya. Thus, as a result of the

accident, the minor claimant has lost her educational

prospects. Though the claim was for `3,62,000/-, the

Tribunal has awarded only a sum of `54,731/-. The

MFA No.24179/2012

& Connected cases

- 36 -

marriage prospects of the injured has been affected. The

minor claimant took treatment as an inpatient from

12.11.2008 to 17.11.2008. The compensation awarded

under the head medical expenses is also on the lower side.

Therefore, the appellant/claimant has sought for

enhancement of compensation.

21. M.F.A.No.24181/2012 is filed by the claimant in

MVC No.32/2009. The appellant/ claimant was injured in

the aforesaid accident. The appellant contends that the

Tribunal has failed to consider the injuries and multiple

abrasions sustained by her on her body. Claimant suffered

a lot of pain and agony. The Tribunal has awarded a

meager compensation towards the medical expenses and

also on other heads. The claimant has spent more than

`40,000/- towards treatment. Disability suffered by the

claimant has not been properly assessed even though

there was enough evidence on record. Therefore, the

claimant has sought for modification of judgment and

award of the Tribunal.

MFA No.24179/2012

& Connected cases

- 37 -


M.V.C.No.33/2009. It is contended that the Tribunal has

failed to consider the injuries sustained by him in the

accident. The Tribunal has failed to consider the disability

suffered by the claimant to the extent of 10% to particular

limb and 15% to the whole body. The Tribunal failed to

consider the grievous injuries suffered by him and has

awarded a meager compensation under the head, pain and

suffering. The compensation awarded under medical

expenses is also very low, which is against the facts and

evidence on record.


M.V.C.No.34/2009. It is contended that the claimant had

suffered fracture and permanent disability. The Tribunal

has awarded a very meager compensation of `1,63,132/-

as against `4,02,000/- claimed by the claimant. The

claimant had undergone treatment in K.M.C. Hospital,

Manipal from 13.11.2008 to 03.12.2008. The amount

awarded under medical expenses, attendant charges etc.

MFA No.24179/2012

& Connected cases

- 38 -

are all very low. The claimant had spent more than a lakh

of rupees towards medical expenses.


M.V.C.No.35/2009. The claimant had claimed

compensation in respect of death of her minor son in the

accident. The Tribunal has awarded a meager

compensation of `1,55,000/-. It is contended that in the

case of death of a minor child, this Court has awarded

compensation of `4,00,000/-. It is further contended that

the claimant has spent more than `20,000/- towards

transportation of dead body and funeral expenses. The

Tribunal committed an error in granting meager

compensation. Therefore, the claimant has sought for

enhancement of compensation.

25. M.F.A.No.24185/2012 is filed by the claimants

in M.V.C.No.36/2009 for the death of Unnikrishnan, who

was the husband of first appellant, father of second

appellant and son of third and fourth appellants. It is

contended that the deceased Unnikrishnan was working in

MFA No.24179/2012

& Connected cases

- 39 -

a foreign company at Dubai. The work certificate has been

produced at Ex.P-14. The documents at Ex.P-27 to P-32

were also produced to show that the deceased was getting

a salary of `78,000/- per month. It is contended that the

Tribunal has wrongly assessed the income of the deceased

at `45,500/-. The Tribunal has not at all added any

amount towards future prospects to the income of the

deceased as per the law laid down by the Apex Court in

the case of Santosh Devi vs. National Insurance

Company Ltd. reported in 2012 ACJ 1428 and that the

Tribunal has awarded very meager compensation under all

the heads.

26. All the claimants in their respective appeals

have urged a common contention that the Tribunal

committed an error in fastening only 75% liability on

second respondent driver of the lorry on the ground that

there was contributory negligence on the part of the driver

of the car as well as lorry and fastened 25% on the part of

the driver and owner of the car. According to the

MFA No.24179/2012

& Connected cases

- 40 -

appellants – claimants, the evidence on record clearly

shows that there was no road flag or indicator or parking

light as per Section 122 of Motor Vehicle Act, 1988

(hereinafter referred to as “the Act”, for the sake of

convenience). Therefore, the claimants have prayed that

the entire liability ought to be fastened on the driver of the

lorry only.

27. M.F.A.Nos.23566/2012, 23567/2012 and

M.F.A.No.23568/2012 have been filed by New India

Assurance Co. Ltd., challenging the judgment and award of

the Tribunal in M.V.C.Nos.34/2009, 35/2009 and 36/2009.

It is contended that the claimants in all the cases had

attributed the entire negligence on the driver/owner of the

lorry for having parked the lorry on the middle of the road

without any indicator or parking light. That the lorry was

parked on a National Highway without tail-lights or blinkers

or self-radiating triangles or guard or lamps or any other

device to warn other motorists, which was the sole reason

for the accident. The driver of the car could not have

MFA No.24179/2012

& Connected cases

- 41 -

avoided the accident as the parked lorry was not visible

during the night hours at 8.00 p.m., when the accident

had occurred. It is further contended that the prosecution

of the driver of the car was proved to be erroneous and

thereby the driver of the car was acquitted in the criminal

case lodged against him.

28. It is further contended that the lorry had

already met with an accident and was left on the road

without taking any precaution. The driver of the car could

not have tried to avoid the collision by applying brakes as

the lorry had been parked at the spot coming in the way of

the car on N.H.No.17. Therefore, fixing negligence on the

driver of the car to an extent of 25% is erroneous. The

owner of the car and victims of the accident cannot be

considered as joint tort feasors. The Tribunal ought to

have saddled the entire liability on the owner and insurer

of the lorry in question. It is further contended that the

seating capacity of the Santro car is 4+1 whereas the

driver of Santro car had seated seven persons at the time

MFA No.24179/2012

& Connected cases

- 42 -

of the accident and thereby had violated the conditions of

the policy and also relevant provisions of the Law. Though

four inmates filed M.V.C.Nos.30, 31, 32 and 33/2009

before the Tribunal, the Tribunal has not clubbed these

four cases with M.V.C.Nos.34, 35 and 36/2009 and that

there is miscarriage of justice. The persons were carried in

the car against its seating capacity. Therefore, liability of

this insurer cannot be apportioned between the said

insurer and owner of the car with that of owner and insurer

of the lorry. Therefore, the said insurer has prayed to allow

its appeals and set aside the judgment and award of the

Tribunal.

29. On the other hand, M.F.A.Nos.101478, 101479,

101480, 101481, 101482, 101483 and 101484 of 2014

have been filed by Reliance General Insurance Company

Ltd., challenging the judgment and award of the Tribunal

in M.V.C.Nos.30 to 36/2009 on the aspect of liability as

well as on quantum of compensation awarded by the

Tribunal. It is contended that the accident had occurred

MFA No.24179/2012

& Connected cases

- 43 -

due to the sole negligence on the part of the driver of

Santro car bearing registration No.MH-05/AJ-2719. It is

further contended that on the date of accident, the policy

issued to the lorry bearing registration No.HR-55/E-8624

was not in force, since the policy issued to the lorry stood

cancelled as being void ab initio because the cheque,

which was issued by the owner of the lorry towards the

premium amount, came to be dishonoured. This aspect

has not at all been considered by the Tribunal. Therefore,

the liability, if any, be saddled on the owner and insurer of

the car only. Alternatively, it is contended that the

compensation awarded by the Tribunal in all the cases

under all heads is exorbitant and hence, prayed to reduce

the same.

30. Thus, being dissatisfied with the judgment and

award passed by the Tribunal, respective claimants as well

as insurance companies have preferred these appeals.

MFA No.24179/2012

& Connected cases

- 44 -

31. We have heard learned counsel for the

respective parties at length and perused the material on

record as well as original record.

32. Learned counsel for the appellants/claimants,

Sri P.G. Chikkanaragund, submitted that the happening of

the accident in question is not in dispute. That the

claimants, by placing the material evidence on record,

have proved the negligent act of the driver of the offending

lorry. The drivers of both the vehicles may be joint tort

feasors. Therefore, the claimants are at liberty to recover

the compensation from any of the joint tort feasors.

Reliance Insurance company, insurer of lorry has failed to

prove that the cheque issued towards payment of premium

had bounced. As far as the motor car is concerned, there

is no defence. The said vehicle was covered under a valid

insurance policy as on the date of accident. There is also

no evidence on record to show that none of the drivers had

any valid driving licence as on the date of accident. When

MFA No.24179/2012

& Connected cases

- 45 -

all these factors stand proved, the claimants are entitled

for just compensation.

33. It is further submitted by learned counsel for

the appellants/claimants that the Tribunal has erred in not

awarding just compensation that was due to the

appellants/claimants. The Tribunal erred in awarding a

very meager compensation in the case of death of minor

children. The Tribunal has not rightly assessed the income

of the deceased Unnikrishnan who was working in a foreign

country. The Tribunal has not properly assessed the

medical evidence on record and thereby committed error

in assessing the disability suffered by the respective

injured/claimants.

34. Learned counsel also furnished a chart

describing the status of the respective claimants and

compensation awarded by the Tribunal. The same is

extracted herein below:

“ (a) In M.F.A.No.24179/2012 arising out of

M.V.C.No.30/2009 the Tribunal has awarded

MFA No.24179/2012

& Connected cases

- 46 -

compensation of `1,55,000/- for the death of their

minor child aged 5 years.

(b) In M.F.A.No.24180/2012 arising out of

M.V.C.No.31/2009, the Tribunal has awarded

compensation of `54,731/- to the minor claimant

for the injuries sustained in the accident.

(c) In M.F.A.No.24181/2012 arising out of


compensation of `38,262/- to the claimant for the

injuries sustained in the accident.

(d) In M.F.A.No.24182/2012 arising out of


compensation of `69,566/- to the claimant for the

injuries sustained in the accident.

(e) In M.F.A.No.24183/2012 arising out of


compensation of `1,63,132/- to the claimant for

the injuries sustained in the accident.

(f) In M.F.A.No.24184/2012 arising out of


compensation of `1,55,000/- to the claimant for

the death of her minor child aged five years.

(g) In M.F.A.No.24185/2012 arising out of


compensation of `74,11,000/- to the claimants for

the death of Unnikrishnan. ”

MFA No.24179/2012

& Connected cases

- 47 -

35. Learned counsel for the claimants vehemently

argued that the accident occurred on account of the

negligent act of the driver of the lorry. The lorry was

parked on the middle of the road. It was pitch dark and

there were no safety measures taken by the driver of lorry.

There was no indication whatsoever for vehicles

proceeding behind the parked lorry and therefore the

accident occurred. However, learned counsel submitted

that the claimants are entitled to recover compensation

from any one of the joint tort feasors.

36. Per contra, learned counsel Sri.Nagaraj

C.Kolloori for Reliance General Insurance Co. Ltd., who has

also filed the appeals against the judgment and award,

drew our attention to the spot mahazar at Ex.P-3. Relying

on the said document, he vehemently submitted that the

lorry was parked on the extreme left side of the road. The

said vehicle is a container lorry. Said vehicle had covered

only two feet of the tar road on the road side and it was

not parked in the middle of the road as alleged. The said

MFA No.24179/2012

& Connected cases

- 48 -

vehicle had already met with an accident and hence it was

not under the control of its owner or driver. Since a case

was registered, it was under the police custody.

Therefore, the vehicle could not be removed from the spot.

There was sufficient light and visibility for the car driver to

see the parked lorry. That, the car being driven at high

speed by its driver, it resulted in the accident and left side

of the car was damaged and that further proves that

negligence was on the part of the driver of the car.

Claimants have not impleaded the driver of the car in three

claim cases. Even then, the Tribunal has come to the

conclusion that there was only 25% negligence on the

driver of the car. Therefore, this finding of the Tribunal is

erroneous. That in other cases 100% negligence has been

attributed to the driver of the lorry, which is not correct.

37. It is further contended that policy bearing

No.131538233413003, which was issued by the company

in respect of the lorry, was void ab intio from the date of

its issuance as the cheque issued towards payment of

MFA No.24179/2012

& Connected cases

- 49 -

premium had bounced. Despite the fact of bouncing of

cheque being informed to the owner of the lorry, he had

not paid the premium. Therefore, the liability of the

Reliance General Insurance Company stands extinguished

and the insurer is not at all liable to satisfy the award.

Therefore, learned counsel prayed to dismiss the petitions

as against the said insurer.

38. Learned counsel Sri.R.R.Mane for New India

Assurance Co. Ltd., on the other hand, submitted that the

accident had occurred solely on account of negligent act of

the driver of the lorry. The lorry was parked without any

indicators on, thereby violating road safety regulations as

well as the provisions of the Motor Vehicle Act and Rules.

If there was any indication of the parking of the lorry, the

accident in question would not have happened at all. In

four cases, this insurer has not been made a party and the

liability has been fastened on the driver, owner and insurer

of the lorry. Therefore, learned counsel prayed to saddle

the liability to pay compensation entirely on the insurer of

MFA No.24179/2012

& Connected cases

- 50 -

the lorry only and prayed to allow the three appeals to the

extent of setting aside the judgment and award holding

this insurer was not liable to pay the compensation to the

claimants.

39. Learned counsel for the parties relied upon

various rulings in support of their contentions during the

course of their arguments.

40. We have given our anxious consideration to the

submissions made by learned counsel for the respective

parties. In our opinion, the following points would arise for

consideration:

“ 1) Whether the accident, which took place on

12.11.2008, involving the motor car bearing

registration No.MH-05/AJ-2719 and lorry

bearing registration No.HR-55/E-8624, was on

account of the rash and negligent act of any

one of the drivers of the vehicles or whether it

was on account of composite negligence on

the part of the respective vehicle drivers?

2) Whether the appellant-Reliance Insurance

Company proves that the cheque issued by

MFA No.24179/2012

& Connected cases

- 51 -

the respondent No.1/owner of the lorry

towards premium had bounced and therefore,

the said insurance company is not at all liable

to satisfy the awards?

3) Whether the appellants/claimants prove that

they are entitled for enhancement of

compensation? If yes, what is the quantum to

which they are entitled to and from whom

they are entitled to recover the same?

4) What order? ”

41. Before discussing the points for consideration, it

is necessary to discuss the law that is applicable in such a

situation with regard to the manner in which compensation

could be claimed by the victims of an accident involving

more than one vehicle.

42. On the aforesaid point, it is necessary to refer

to a Full Bench judgment of this Court in the case of

Karnataka State Road Transport Corporation, by its

Managing Director vs. Arun @ Aravind and others

reported in ILR 2004 KAR 26 (Arun @ Aravind). In the

said authority, it is held as under:

MFA No.24179/2012

& Connected cases

- 52 -

“14. In view of the above discussion, we

answer the referred question by holding that

the Full Bench decision in GANESH’s case does

not require any reconsideration. It is seen that

in an accident case, generally the Insurance

Company is liable to pay compensation as per

the terms of the policy. But, when the accident

is on account of composite negligence of two

or more vehicles, the claimant is entitled to

proceed against any of the tort-feasors for full

compensation for the injuries suffered or the

death caused, as the liability is joint and

several. The question of apportionment does

not arise, if the other joint tort-feasor has not

been impleaded as party. However, after

ascertaining and impleading the other joint

tort-feasor as a party, the tort-feasor can

exercise his right of contribution in accordance

with law. In other words, when the other joint

tort feasor is not a party, the Tribunal should

refrain from giving any finding about

apportionment or negligence, in the absence of

other tort feasor, to avoid any exercise in

futility and leave the said question of liability of

joint tort feasors to be adjudicated, if the joint

tort feasor who satisfies the award is able to

MFA No.24179/2012

& Connected cases

- 53 -

find out the name of the other joint tort feasor

and seeks to exercise right of contribution in

accordance with law.

43. Further, we also refer to the decision of the

Hon’ble Supreme Court in the case of Khenyei vs. New

India Assurance Co. Ltd. & Ors reported in 2015 ACJ

1441, (in Civil Appeal No.4244/2015 and connected

matters), wherein it has been held as under:

“What emerges from the aforesaid discussion

is as follows:

(i) In the case of composite negligence,

Plaintiff/claimant is entitled to sue both or

any one of the joint tort feasors and to

recover the entire compensation as liability

of joint tort feasors is joint and several.

(ii) In the case of composite negligence,

apportionment of compensation between

two tort feasors vis-à-vis the

Plaintiff/claimant is not permissible. He can

recover at his option whole damages from

any of them.

(iii) In case all the joint tort feasors have been

impleaded and evidence is sufficient, it is

open to the court/tribunal to determine

MFA No.24179/2012

& Connected cases

- 54 -

inter se extent of composite negligence of

the drivers. However, determination of the

extent of negligence between the joint tort

feasors is only for the purpose of their inter

se liability so that one may recover the

sum from the other after making whole of

payment to the Plaintiff/claimant to the

extent it has satisfied the liability of the

other. In case both of them have been

impleaded and the apportionment/ extent

of their negligence has been determined by

the court/tribunal, in main case one joint

tort feasor can recover the amount from

the other in the execution proceedings.

(iv) It would not be appropriate for the

court/tribunal to determine the extent of

composite negligence of the drivers of two

vehicles in the absence of impleadment of

other joint tort feasors. In such a case,

impleaded joint tort feasor should be left,

in case he so desires, to sue the other joint

tort feasor in independent proceedings

after passing of the decree or award.”

44. Therefore, in those cases in which the insurer of

the motor car was not made as a party (and negligence

has been fastened on the car driver to an extent of 25% in

MFA No.24179/2012

& Connected cases

- 55 -

those cases where it was made a party) the claim petitions

cannot be dismissed as contended by the learned counsel

for the appellant – New India Assurance Company, if it is

held to be a case of composite negligence on the part of

the respective vehicle drivers.

45. The principles of law enunciated above would

answer the contention urged by the counsel for the

appellant -insurance company namely, New India

Assurance Co. Ltd., particularly with regard to non-

impleading of the driver and owner of the motor car in four

of the claim petitions. When two or more vehicles are

involved in an accident, drivers and owners of the said

vehicles are joint tort feasors. In this case, the names of

joint tort feasors were known to the claimants as well as

respondents because the injured and the deceased persons

were inmates of the car, which dashed against the

stationed lorry. However, they did not implead the driver

and insurer of the car in four cases (M.V.C. Nos.30, 31, 32

and 33/2009). In other cases (M.V.C.Nos.34, 35 and

MFA No.24179/2012

& Connected cases

- 56 -

36/2009), they impleaded the driver of the motor car and

the insurer and in those cases, the Tribunal has fastened

75% negligence on the driver of the lorry and 25% on the

driver of the motor car. Therefore, in four cases, motor

car driver, owner and insurer were not made parties. In

such a case, the appellants-claimants would be entitled for

the entire compensation amount from the other joint tort

feasor i.e., the driver, owner and insurer of the lorry in

question. The joint tort feasor who satisfies the entire

award can seek relief by exercising right of subrogation

from the other tort feasor to the extent to which he was

made liable to pay compensation in excess of percentage

of the negligence saddled on it. Therefore, merely on the

ground that the driver of the car was not impleaded in the

instant claim petitions, the claimants cannot be denied the

compensation. In fact, the Tribunal should have ordered

for impleading the said car driver, owner and insurer by

exercising power under Order I Rule 10 of C.P.C.

Therefore, the non-impleadment of the driver, owner and

insurer of the car in four claim petitions does not in any

MFA No.24179/2012

& Connected cases

- 57 -

way exonerate them if it is found that the driver of the car

was also negligent in causing the accident in question.

Reg. POINT No.1:

46. Now, we shall proceed to examine the findings

of the Tribunal with regard to rash and negligent act of the

drivers of both the vehicles in question in order to

ascertain as to whether the accident occurred on account

of rash and negligent act of the lorry driver or whether the

driver of the car also contributed to the accident. The

undisputed facts are that on the fateful day i.e., on

12.11.2008, at about 8.00 p.m., the inmates of the Santro

car were proceeding on N.H.17. At that time, lorry bearing

registration No.HR-55/E-8624 was parked on the left side

of the road. The time of occurrence of the accident is 8’o

clock in the night. The car hit the lorry from behind and

that is how the accident had occurred. It is also on record

and we were also appraised at the time of arguments, the

fact that the lorry in question had also met with an

accident earlier and the rear portion of the lorry did not

MFA No.24179/2012

& Connected cases

- 58 -

have any indicators or any blinking lights on, so as to

indicate that a big container vehicle was stationed on the

left side of the road covering a portion of the road. The

accident in question had occurred in the month of

November at a time when there was pitch darkness.

47. Learned counsel for the Reliance Insurance

Company drew our attention to the spot mahazar. Based

on the spot mahazar learned counsel strongly submitted

that the container lorry in question had occupied only two

feet of the tar road and rest of the body of the vehicle was

on the extreme left side of the road. Therefore there was

no negligence on the part of the lorry driver. The container

lorry measures atleast 8 feet in width and 30 feet in

length. Admittedly, it was transporting motor cars. The

panchanama also discloses that on account of the accident

caused to the said vehicle, no indicator was visible to the

vehicles coming behind it. Further, the driver of the

container lorry had not installed and switched on any red

light sign or other signal to warn that the vehicle was a

MFA No.24179/2012

& Connected cases

- 59 -

stranded one. It is also mentioned in the panchanama that

after looking at the container lorry parked on the road, the

driver of the car appears to have applied brake and there

were brake marks on the road. In spite of that the car

dashed to the container lorry. The front portion of the car

was extensively damaged.

48. Learned counsel for Reliance Insurance Company

submitted that the lorry in question was stranded on

account of an earlier accident caused with another vehicle.

The said vehicle was under the control of the police and

hence, the driver cannot be held liable for the accident of

the Santro car. But it is important to observe that

immediately after an accident, the vehicle is required to be

removed from the spot at the cost of the owner of the

vehicle. If the owner allows the same to be stranded,

even if on the left side of the road, it would still pose

danger to the vehicles coming behind it, particularly, when

no indicator is switched on. The accident had taken place

at 8.00 p.m. in the month of November and at that hour,

MFA No.24179/2012

& Connected cases

- 60 -

there would be darkness. Hence, suitable steps had to be

taken by the driver of the lorry. But no precautionary

measures were taken by the lorry driver to indicate that to

the other vehicles coming behind the lorry that it was

stranded on the road. A statutory duty was cast on the

lorry driver to take all safety measures indicating the

presence of lorry, which was parked on the road. Merely

because it occupied only two feet width of the tar road,

would not by itself absolve the driver of the lorry of his

negligence.

49. It was also submitted that the vehicle in

question was parked at that place since several days prior

to the date of accident. That also goes to show that the

driver or the owner of the vehicle were not diligent in

removing the vehicle from that spot. Having regard to the

nature of the vehicle that was parked on the left side of

the road definitely it can be said that it was hazardous to

other vehicular traffic. It is in utter violation of all safety

measures by parking such a huge lorry on the National

MFA No.24179/2012

& Connected cases

- 61 -

Highway without lights or blinking indicators or self-

radiating triangles or guard or any other device which

could warn other motorists coming behind the parked

lorry. Definitely, the instant case is one of total negligence

on the part of the driver of the lorry.

50. It has to also be borne in mind that motor car

driver had applied brake and brake marks have also been

found on the road. This would indicate that the driver of

the motor car has tried to avoid hitting the lorry, but

ultimately could not do so. It is also important to note

that the lorry, which was stranded on the left side of the

road, was lying there since several days prior to the

accident. Therefore, there was no negligence on the part of

the car driver in not noticing the stranded vehicle. Had the

lorry had the indicators on, so as to indicate that it was

parked on the side of the road, the car driver, with the

help of headlights, could have noticed the lorry from a

distance and could have avoided the accident. Therefore,

the Tribunal was not right in fastening 25% negligence on

MFA No.24179/2012

& Connected cases

- 62 -

the motor car driver and quantifying 75% liability on the

driver, owner and insurer of the lorry. Therefore, in those

cases where it is held that the motor car driver was also

negligent in causing the accident to an extent of 25%, we

find reason to interfere as the said finding does not take

into consideration the total negligence on the part of the

driver of the lorry as discussed above.

51. Learned counsel for the insurer of the motor car

viz., the New India Assurance Company Limited, submitted

that where the motor car insurance company, driver or

owner were not impleaded as respondents, the petition

should have been dismissed on that count by the Tribunal.

In this case, we have found that the lorry driver was solely

negligent in causing the accident. It is not a case of

composite negligence. Therefore, the injured or the legal

heirs of the deceased, who have suffered on account of the

accident, can recover compensation from the joint

tort-feasor namely, driver of the lorry and its owner are

vicariously liable. Hence, point No.1 is answered in favour

MFA No.24179/2012

& Connected cases

- 63 -

of claimants and the New India Assurance Co. Ltd., and

against Reliance Insurance Co. Ltd. It is held that there

was no negligence on the part of the driver of the car and

that the driver of the lorry was negligent resulting in the

accident. This is not a case of composite negligence.

Reg. POINT No.2:

52. The appellant - Reliance General Insurance

Company in MFA.No.101480/2014 has taken a strong

contention that the cheque issued by respondent No.1

lorry owner towards payment of premium had bounced;

the said fact was intimated to the owner of the lorry and

accordingly they had cancelled the policy. Hence, the said

insurance company was not at all liable to satisfy the

awards in question.

53. In order to substantiate this plea, the insurance

company had examined RW.1, its official and has relied on

Ex.R.1-the bounced Cheque, Ex.R.2-bank memo, Ex.R.3-

copy of the notice issued by it to the first respondent and

Ex.R4-the notice issued to Regional Transport Authority. It

MFA No.24179/2012

& Connected cases

- 64 -

is admitted by him in the cross-examination that, he was

working in Bangalore office; the vehicle in question was

insured by its company and the policy was issued by

Gurgoan Branch at New Delhi. He did not deny that the

first respondent was having a fleet of transport vehicles.

He has not produced the policy copy. It is admitted that

the there is no document to show that the cheque, which

had been returned without encashment, was issued in

respect of the cover note which they had issued for this

container lorry in question. Further, there is no document

to show that Exs.R3 and R4 were actually served on the

respondent. Though they had the RPAD card, it is said to

have been misplaced with other files that was not

produced before the tribunal. It is admitted that the

cheque issued pertains to the cover note number

mentioned on the back side of the cheque at Ex.R1. But

that does not tally with the cover note that was issued in

respect of the vehicle which met with an accident. The

cover note bearing No.200702418353 was in force till

14.12.2008 and it was issued in respect of the vehicle

MFA No.24179/2012

& Connected cases

- 65 -

involved in this case. But the cover note mentioned on the

back side of the cheque does not contain the aforesaid

cover note number. Therefore, absolutely there is no

evidence on record to show that the cheque that was

issued towards the premium was indeed the cheque that

was issued in respect of this vehicle which met with an

accident. There is also no evidence on record to show that

the non-encashment of cheque and cancellation of the

policy was duly intimated to the owner of the vehicle in

question. Therefore, we hold that the insurance company

is liable to satisfy the award that has been fastened

against the driver and owner of the container lorry bearing

registration No.HR-55/E 8624. Fastening of liability on the

insurance company which had issued cover note for the

container lorry registration No.HR-55/E 8624 is hence

affirmed. Accordingly for the above said reasons we

answer point No.2 in the negative.

MFA No.24179/2012

& Connected cases

- 66 -

REG. POINT No.3:

54. In these appeals, the claimants have sought for

enhancement of compensation awarded by the Tribunal.

(a) MFA No.24179/2012 : MVC.No.30/2009 :

55. This claim petition is filed under Section 163-A

of the Act. This is a case of death of a five year old girl

who was studying in second standard. The claimants are

the parents of the deceased girl. The Tribunal has awarded

global compensation of `1,55,000/-. Learned counsel for

the appellants relying on the decision of the Hon’ble

Supreme Court in the case of Kishan Gopal and others

vs. Lala and others reported in 2013 ACJ 2594,

contended that the deceased boy in the said case was

aged about 10 years. The deceased boy was found to be

assisting his parents in agricultural work. Having regard to

the drastically falling rupee value, the Hon’ble Supreme

Court assessed the income of the deceased at `30,000/-

per annum and adopting ‘15’ multiplier, compensation of

`4,50,000/- plus `50,000/- towards conventional heads

MFA No.24179/2012

& Connected cases

- 67 -

was granted. Hence, learned counsel has sought

enhancement of compensation in this case to `5,00,000/-.

56. In this case, the deceased is a minor girl of five

years age and being of a tender age, she could not have

been of any assistance to her parents so as to earn any

income as such. By relying on the judgment of the Hon’ble

Supreme Court in RESHMA KUMARI AND OTHERS Vs.

MADAN MOHAN AND ANOTHER reported in 2013 ACJ

1253, wherein the Hon’ble Supreme Court has elucidated

on the considerations to be made in the case of death of

children who are below the age of 15 years, we assess the

notional income of the deceased minor child at `15,000/-

per annum as per clause 6(a) of the Second Schedule

dealing with non-earning persons and the multiplier of ‘15’

is applied, having regard to the fact that the deceased was

aged only five years. Thus, the compensation would be

`2,25,000/- [`15,000/- x ‘15’ ]. Further, we deem it just

and proper to award a sum of `2,000/- towards funeral

MFA No.24179/2012

& Connected cases

- 68 -

expenses and a sum of `2,500/- towards loss of estate.

The break up is as follows:

Sl. No.

Heads of compensation Amount awarded

1 Loss of dependency `2,25,000/-

2 Funeral expenses `2,000/-

3 Loss of estate `2,500/-

TOTAL : `2,29,500/-

57. Thus, the appellants are entitled for total

compensation of `2,29,500/-, which shall carry interest at

the rate of 6% per annum from the date of the accident till

realisation.

(b) In MFA No.24180/2012 : MVC.No.31/2009 :

58. The injured in this case is an eight year old girl.

She suffered the following injures i.e., 1) abrasion over

cheek below the left lower eye-brow, 2) bleeding from left

eye and 3) fracture of left maxilla bone, 4) closed head

injury with diffuse cerebral edema as per Exs.P-8 and 9—

the discharge summary and wound certificate.

MFA No.24179/2012

& Connected cases

- 69 -

59. Based on the evidence on record, the nature of

injuries suffered by injured, nature of treatment taken and

considering the age of the injured who was eight years old

girl etc., the Tribunal has awarded compensation of

`54,731/- on all the heads. No doctor was examined to

prove that the girl has suffered any permanent disability as

such. Though the Tribunal found that the injured was

shifted from Maharashtra State to Kumta and then to a

Hospital at Manipal for treatment, in the absence of any

documentary evidence, only conveyance allowance of

`8,000/- was granted by the Tribunal; towards pain and

suffering `45,000/- and towards medical expenses

`1,731/- was awarded.

60. Therefore, having regard to the facts and

circumstances and nature of injuries suffered by the

injured girl, we find that the compensation awarded under

the head of pain and suffering in a sum of `45,000/- for

the three injuries stated in the wound certificate appears

to be a little low. Therefore, an additional sum of `10,000/-

MFA No.24179/2012

& Connected cases

- 70 -

on the head of pain and suffering is granted. The discharge

summary shows that the claimant was in-patient from

13.11.2008 to 17.11.2008. Hence, on other heads, i.e.,

conveyance, attendant charges, transportation and other

incidental expenditure, compensation is enhanced to

`20,000/- and towards loss of amenities `10,000/- is

granted. The break up is as under:

Sl.

No. Heads of compensation

Amount

awarded

1 Pain and suffering `55,000/-

2 Medical expenses `1,731/-

3 Conveyance, attendant charges, transportation and other incidental expenses

`20,000/-

4 Loss of amenities `10,000/-

TOTAL : `86,731/-

Therefore, the petitioner in MVC.No.31/2009 would

be entitled for total compensation of `86,731/- and the

enhanced compensation would be `32,000/-. The

enhanced compensation shall carry interest at the rate of

6% per annum from the date of claim petition till the date

of realisation.

MFA No.24179/2012

& Connected cases

- 71 -

(c) MFA No.24181/2012 : MVC.32/2009 :

61. So far as this case is concerned, the claimant

suffered only two injuries i.e. open head injuries with CSF,

Rhinorrhoea with facial soft tissue injury. CT Scan showed

moderate diffuse hemispherical edema with compression

with the ventricle and basal cistern. On all the heads,

including pain and suffering, medical expenses and

incidental charges, the Tribunal has awarded `38,262/-.

The wound certificate pertaining to this petitioner is

marked at Ex.P.15. As per the wound certificate, the

injuries are termed as simple injuries. There is no

permanent disability as such. There is also no medical

evidence to show that she required any future treatment

etc. The reasons stated by the Tribunal regarding non-

awarding of loss of income is sustainable in law. In the

absence of evidence of loss of income during the treatment

period, the Tribunal has not awarded compensation as she

must have availed leave from her employer and even some

of the medical expenses as per Ex.P.10 is said to have

MFA No.24179/2012

& Connected cases

- 72 -

been reimbursed. However, we note that the claimant was

an in-patient from 13.11.2008 to 26.11.2008 on account

of the head injury with cerebral edema. Therefore, the

compensation awarded by the Tribunal requires a slight

modification and the petitioner is entitled for a limited

enhancement. In the circumstances, we re-assess the

compensation as under:

Sl.


Amount

awarded



3 Conveyance, attendant charges, special diet and other incidental expenses

`20,000/-

TOTAL : `60,262/-


be entitled for total compensation of `60,262/- and the



of realisation.

MFA No.24179/2012

& Connected cases

- 73 -

(d) MFA No.24182/2012: MVC.No.33/2009 :

62. This petitioner in this case is said to have

suffered the following injuries: 1) Multiple lineal lacerated

wounds with extensor tendon injury over left ring finger,

2) Intra-articular comminuted fracture of proximal phalanx

left 2nd toe, closed head injury with diffuse axonal injury

with left parital III nerve injury with fracture of left

maxilla. Ex.P.16-wound certificate, Ex.P.19-discharge

summary and Ex.P.25-original out patient records file are

relied upon. He was also found to be an inpatient from

13.11.2008 to 21.11.2008. The Tribunal has awarded

`40,000/- towards pain and suffering, `11,566/- towards

medical expenses as per the medical bills. Though it found

that he was working and earning `21,750/- per month, the

Tribunal has not awarded any amount towards loss of

income and also holding that Ex.P.18 shows that the

medical bills are reimbursed. Since, there is no loss of

pay, the Tribunal has not awarded compensation on the

head of loss of income. Towards conveyance allowance,

MFA No.24179/2012

& Connected cases

- 74 -

attendant’s charges and special diet, etc., `8,000/- has

been awarded.

63. The disability certificate issued by Dr.Ashok

Yeraguddi showed that the petitioner has sustained loss of

flexion movement of meta tarsal phalanx joint and

proximal inter phalanx joint at 2nd left toe – 5%, decreased

in grip strength at left hand – 5%, decreased vision in left

eye and weakness at left eye muscle.

64. PW.3-the doctor has been examined to prove

the disability suffered by the petitioner. As per his

evidence there is permanent disability to the left upper

limb of 5% and left lower limb of 5% and whole body

disability of 15%. There is also decrease in the power of

vision. The disability certificate is at Ex.P.22. That there is

no evidence on record to show that he has resigned from

his job due to accidental injuries as till the month of May-

2010 he had worked and received salary. Since disability

was found to be only 5% to upper and lower limbs, the

Tribunal found that he is not entitled for compensation on

MFA No.24179/2012

& Connected cases

- 75 -

the head of disability. The future medical expense for five

years is also taken into consideration. In all, a sum of

`69,566/- has been awarded.

65. Having regard to the nature of injuries suffered

and the treatment which the petitioner might have

undergone for the injuries, we find that the compensation

granted to the petitioner under the head of conveyance

and incidental charges, and future unhappiness is on the

lower side. Hence, the compensation under the head of

conveyance and incidental charges is enhanced to

`20,000/- and compensation under the heads of loss of

amenities and future unhappiness & inconvenience is

enhanced to `50,000/-. The break up is as under:

Sl.


Amount

awarded




`20,000/-

4 Loss of amenities and future unhappiness & inconvenience

`50,000/-

TOTAL : `1,21,566/-

MFA No.24179/2012

& Connected cases

- 76 -


be entitled for total compensation of `1,21,566/- and the



of realisation.

(e) MFA No.24183/2012: MVC.No.34/2009 :

66. In this appeal, the appellant has suffered closed

fracture of surgical neck of left humerus and pan facial

fracture (right and left mandible, rami). She was in-patient

from 13.11.2008 to 03.12.2008 in Kasturba Hospital. The

Tribunal has awarded total compensation of `1,63,132/-.

67. The Tribunal has considered the wound

certificate-Ex.P.12, discharge summary-Ex.P.7, medical

certificate issued by K.M.C.Hospital-Ex.P.8. In addition to

that, the nature of treatment given to the petitioner has

also been considered by the Tribunal. Having regard to the

said facts, the Tribunal has awarded compensation of

`45,000/- on the head of pain and suffering.

MFA No.24179/2012

& Connected cases

- 77 -

68. We have also considered the material on record

and nature of treatment undergone by the petitioner. That

a surgery was conducted and implants were fixed to the

humerus bone and that was removed, then staples were

also removed. Left humerus abduction splint was applied.

She has also suffered deep cut lacerated wounds. She has

taken treatment at several Hospitals. Therefore, we find

that the compensation awarded by the Tribunal on the

head ‘pain and suffering’ is on lower side. Having regard to

all the aforesaid facts and the medical documents available

on record, we find that this petitioner could be awarded a

sum of `60,000/- in place of `45,000/-towards pain and

suffering.

69. So far as the compensation awarded by the

Tribunal on the head of medical expenses, the same is

based on the documentary evidence and hence,

sustainable in law, facts and evidence on record.

70. The compensation of `9,000/- awarded under

the head loss of income during the period of treatment is

MFA No.24179/2012

& Connected cases

- 78 -

concerned, the same is clarified stating that the petitioner

being housewife and there would be loss of income during

the period of treatment on account of engaging the service

of household work, we assess the same at the rate of

`3,000/- per month and hence, the compensation of

`9,000/- awarded under this head by the Tribunal is

undisturbed.

71. The Tribunal, taking into consideration Ex.P.38-

disability certificate and considering the facial injury, has

found that the whole body disability is to an extent of

23%. The doctor has also been examined as PW.3.

Photograph at Ex.P39 is also produced to show that there

was disfiguration i.e., a scar on the face. Wound certificate

is produced at Ex.P.12. Therefore, the Tribunal has

awarded `20,000/- towards future unhappiness and

inconvenience.

72. Since the disability is not shown to be affecting

her daily life, compensation has not been awarded on that

ground. Having regard to the disfiguration and

MFA No.24179/2012

& Connected cases

- 79 -

unhappiness suffered, we find that compensation can be

increased to `40,000/- on the head of loss of amenities

and future unhappiness & inconvenience due to

disfigurement on face and reduction in the shoulder

movement. Thus, the compensation granted to the

petitioner under all heads is re-assessed in the following

manner:

Sl.


Amount

awarded



3

Loss of income during laid up period on account of engaging the services for the house work at the rate of `3,000/- per month

`9,000/-


`20,000/-

5

Loss of amenities and loss of future unhappiness and inconvenience due to disfigurement on face

`40,000/-

TOTAL : `2,10,132/-

The petitioner is entitled to enhanced compensation

of `2,10,132/- and the enhanced compensation shall carry

MFA No.24179/2012

& Connected cases

- 80 -

interest at the rate of 6% per annum from the date of

claim petition till the date of realisation.

(f) MFA No.24184/2012: MVC.No.35/2009 :

73. This is a case of death of a child aged five

years. The claimants are the parents of the deceased girl.

The Tribunal has awarded a global compensation of

`1,55,000/-. Learned counsel for the appellants relying on

the decision of the Hon’ble Supreme Court in the case of

Kishan Gopal and others vs. Lala and others, reported

in 2013 ACJ 2594, have contended that the said decision

may be followed in the instant case. In the said case the

deceased boy was aged about ten years. The deceased boy

was found to be assisting his parents in agricultural work.

Having regard to the drastically falling rupee value, the

Hon’ble Supreme Court assessed the income of the

deceased at `30,000/- per annum and adopting 15

multiplier, compensation of `4,50,000/- plus `50,000/-

towards conventional heads was granted. Hence, learned

MFA No.24179/2012

& Connected cases

- 81 -

counsel sought enhancement of compensation in this case

to `5,00,000/-.

74. In this case, the deceased is a minor girl of five

years age and being of a tender age, she could not have

been of any assistance to her parents so as to earn any

income as such. But, in the present case, the claim

petition has been filed under Section 166 of the Act.

Hence, we assess the notional income of the deceased

minor child at `15,000/- per annum and apply the

multiplier of ‘15’, having regard to the fact that the

deceased was aged only five years. Thus, the

compensation under the head of loss of dependency would

be `2,25,000/-.

75. Further, a sum of `80,000/- (`40,000/- to each

parent) is awarded towards loss of love and affection as

per the latest dictum of the Hon’ble Supreme Court in

MAGMA GENERAL INSURANCE CO. LTD. Vs. NANU

RAM ALIAS CHUHRU RAM AND ANOTHER reported in

2018 ACJ 2782.

MFA No.24179/2012

& Connected cases

- 82 -

76. Further, we deem it just and proper to award a

sum of `15,000/- towards funeral expenses and a sum of

`15,000/- towards loss of estate. Thus, the appellants are

entitled for total compensation of `3,35,000/- which shall

carry interest at the rate of 6% per annum from the date

of claim petition till realistion. The break up is as under:

Sl. No.

Heads of compensation Amount awarded

1 Loss of dependency `2,25,000/-

2 Loss of love and affection `80,000/-



TOTAL : `3,35,000/-

(g) MFA No.24185/2012: MVC.No.36/2009 :

77. The petitioners are the wife, son and parents of

the deceased, who died in the accident. He was said to be

aged about 40 years, working as Supervisor in Bowley

Concrete Products at Dubai in U.A.E., drawing monthly

income of `78,000/-. To prove that he was working in the

said Company in Dubai Ex.P.9, Exs.P.14 to P16 were

MFA No.24179/2012

& Connected cases

- 83 -

produced. To prove the income of the deceased Exs.P.17

to P23, Exs.P.25 to 28 were produced. PW.2 was also

examined to prove the documents.

78. After appreciating the evidence on record, the

Tribunal came to a conclusion that the basic salary of the

deceased as on the date of death was 3,500/- dirhams per

month. On perusal of Exs.P.17, 25 and 26, the income of

the deceased is assessed at 6117 Dirhams. The age of the

deceased is held to be 41 years as on the date of accident.

After applying multiplier ‘14’, the Tribunal has awarded

compensation towards loss of dependency at `73,71,000/-

(by converting the Dirhams into Indian Rupees i.e., 1

Dirham = `13/- on 12/11/2008 being date of accident).

But the claimants have contended that as per the salary

certificate issued at Ex.P.17 income of the deceased was

6,117 Dirhams per month.

79. The Tribunal does not appear to have awarded

any compensation towards future prospects on the income

of the deceased. Having regard to the age of the deceased,

MFA No.24179/2012

& Connected cases

- 84 -

claimants are entitled to compensation towards future

prospects on his monthly income that the deceased would

have earned had he been alive. As per the decision of the

Hon’ble Supreme Court National Insurance Company

vs. Pranay Sethi reported in AIR 2017 SC 5157, the

claimants/appellants are entitled to 30% future prospects

in this Case. In this case, 30% of monthly income of the

deceased would be 1835.1 Dirhams. The income of the

deceased including future prospects would be 7952.1

Dirhams [6117+1835.1 = 7952.1]. After deducting 1/4th

(1988 Dirhams) from the income of the deceased towards

personal expenses, the net income of the deceased would

be 5964.075 Dirhams, that has to be multiplied by ‘14’

multiplier. The exchange rate of one dirham is found to be

`13 INR as on 12/11/2008, the date of accident. Thus, the

monthly income in terms of Indian rupees is `77,532/-

[5964 dirhams x `13/- ] and the annual income is

`9,30,384/-. By applying the multiplier of ‘14’, the

appellants/claimants are entitled to compensation towards

MFA No.24179/2012

& Connected cases

- 85 -

loss of dependency at `1,30,25,376/- (5964 dirhams x `13

x 12 x ‘14’).

80. The Tribunal has awarded `25,000/- towards

funeral expenses & transportation of dead body; towards

loss of love and affection to petitioner No.2, `5,000/-; and

towards loss of consortium to petitioner No.1 `10,000/-,

which requires re-assessment.

81. Therefore, on the head of “loss of parental

consortium” to petitioner No.2, a sum of `40,000/- is

awarded and a sum of `40,000/- is awarded to petitioner

No.1 towards “loss of spousal consortium” to petitioner

No.2. Further, a sum of `40,000/- each is awarded to

petitioner Nos.3 and 4 towards loss of love and affection.

In addition, a sum of `15,000/- is awarded towards loss of

estate and a sum of `15,000/- is awarded towards funeral

expenses. Thus, the compensation is re-assessed as

under:

MFA No.24179/2012

& Connected cases

- 86 -

Sl.


Amount

awarded

1 Loss of dependency: (5964 dirhams x `13 x 12 x ‘14’)

`1,30,25,376/-

2 Towards loss of spousal consortium to petitioner No.1

`40,000/-

3 Towards loss of parental consortium to petitioner No.2

`40,000/-

4

Towards loss of love and affection to petitioner Nos.2 and 3 @ `40,000/- each

`80,000/-



TOTAL : `1,32,15,376/-

82. Accordingly, we quantify the compensation

payable to the petitioners at `1,32,15,376 which shall

carry interest at the rate of 6% per annum from the date

of accident till realistion.

83. With regard to apportionment, petitioner No.1 is

widow, petitioner No.2 is minor son and petitioner Nos.3

and 4 are parents of the deceased. Therefore, 40% of the

total compensation is ordered to be apportioned in favour

of petitioner No.1 and 40% in favour of petitioner No.2 and

MFA No.24179/2012

& Connected cases

- 87 -

remaining 20% is ordered to be apportioned in favour of

petitioner Nos.3 and 4 equally.

84. 75% of the compensation awarded to petitioner

No.1 shall be deposited in any Post Office or Nationalized

Bank Fixed Deposit for an initial period of ten years. She

shall be entitled to draw periodical interest accrued on the

said deposit. The balance compensation shall be released

to her, after due identification.

85. The entire compensation with proportionate

interest awarded to the minor son, in the event he has not

yet attained majority, shall be deposited in any Post Office

or in any Nationalized Bank until he attains the age of

majority. After the son attains the majority, 75% of the

compensation amount with accrued interest shall be

deposited in any postal office deposit or in any nationalized

bank for a further period of ten years. He shall be entitled

to draw periodical interest accrued on the said deposit.

The balance compensation shall be released to him after

due identification.

MFA No.24179/2012

& Connected cases

- 88 -

86. The parents of the deceased shall be entitled to

receive the compensation due to them on the same being

deposited before the Tribunal after depositing 50% of the

same in any Post Office or in a Nationalized Bank, for an

initial period of five years.

87. Apportionment and disbursement of all the

cases in which the compensation has been enhanced

except in M.F.A.No.24185/2012, shall be as per the award

of the Tribunal.

88. In the result, the following order is passed:

ORDER

(i) The appeals filed by the claimants

namely MFA Nos.24179, 24180,

24181, 24182, 24183, 24184 and

24185 of 2012 succeed in part;

(ii) MFA Nos.23566, 23567 and 23568 of

2012 are allowed. The amount in

deposit before this Court be refunded

to the appellant-insurer in these

appeals;

MFA No.24179/2012

& Connected cases

- 89 -

(iii) MFA Nos.101478, 101479 101480,

101481, 101482, 101483 and 101484

of 2014 are dismissed;

(iv) The appellant - Reliance General

Insurance Company Limited is

directed to satisfy the awards by

paying the enhanced compensation to

the respective respondents-claimants

within a period of twelve weeks from

today;

(v) The amount in deposit made by the

appellant-Reliance General Insurance

Company Limited in the aforesaid

appeals shall be transmitted to the

Tribunal forthwith;

(vi) Parties to bear their respective costs;

(BELLUNKE A.S.) JUDGE

MFA No.24179/2012

& Connected cases

- 90 -

Per NAGARATHNA J.

89. I have had the benefit of reading the judgment

of brother Bellunke J. and concur with the same, but wish

to add this supplementary opinion.

90. It is not in dispute that on 12/11/2008, at 08.00

p.m., Santro car bearing registration No.MH-05/AJ-2719

proceeding from Mumbai towards Kottayam dashed

against lorry bearing registration No.HR-55/E-8624

belonging to the first respondent, which was parked on

National Highway No.17 (NH17) at a place called

Holegadde, Kumta Taluk, Uttara Kannada District. The

contention of the claimants is that the driver of the car

could not see the parked lorry and dashed to the hind

portion of the lorry. It is the claimants’ contention that the

accident occurred solely due to the negligent parking of

the lorry on the highway by the first respondent/driver

without taking due care. Some of the passengers of the

Santro car sustained injuries while two minor children,

MFA No.24179/2012

& Connected cases

- 91 -

Anushree and Savin as also Unnikrishnan who died on

account of serious injuries sustained by them.

91. The insurer of the lorry contended that the

accident had occurred on account of negligent driving of

the car. Secondly, it was contended that on account of

there being non-payment of premium, the insurance policy

issued in respect of the lorry in question was cancelled. It

was contended that the cheque issued towards payment of

premium had bounced and the insurer had cancelled the

policy. In the circumstances, it was contended that the

insurance company is not liable to satisfy the awards.

92. On the question of liability to satisfy the awards,

two points would arise for consideration. The first is,

whether there was negligence on the part of the driver and

owner of the lorry, in which event, the insurer of the lorry

would be responsible to satisfy the award or whether there

was negligence also on the part of the driver of the Santro

car and therefore, it was a case of composite negligence or

whether the driver of the car only was negligent in causing

MFA No.24179/2012

& Connected cases

- 92 -

the accident? If it is held that there was negligence on the

part of the driver and owner of the lorry, whether its

insurer is liable to satisfy the awards or it has to be

exonerated on account of non-payment of premium

leading to cancellation of the policy covering the lorry, is

the second question which arises for consideration.

93. Though a detailed discussion has been made on

the aforesaid points by Hon’ble brother Bellunke J., and I

agree with his conclusions, nevertheless, I would seek to

highlight on the first point with reference to the provisions

of the Motor Vehicles Act, 1988 (hereinafter referred to as

“the Act” for short) and the Central Motor Vehicles Rules,

1989 (hereinafter referred to as “the Rules” for short) and

the relevant judgments.

REG. POINT NO.1:

94. Section 122 of the Motor Vehicles Act, 1988

deals with leaving vehicles in dangerous position. It states

that no person in charge of a motor vehicle shall cause or

allow the vehicle or any trailer to be abandoned or to

remain at rest on any public place in such a position or in

MFA No.24179/2012

& Connected cases

- 93 -

such a condition or in such circumstances as to cause or

likely to cause danger, obstruction or undue inconvenience

to other users of the public place or to the passengers.

The owner of the vehicle has the right to drive the vehicle

on the road and also the right to park the vehicle, but the

parking of the vehicle cannot cause any danger or

obstruction to other passers-by or passengers. This is a

restriction on the road to park the vehicle. The aforesaid

restriction on the road to park a vehicle is a reasonable

restriction and emanates from a duty to take care. In

Kumari Jyothi & Others vs. Mohd. Usman Ali &

Others, [ILR 2002 KAR 893] (Kumari Jyothi), a Co-

ordinate Bench of this Court found that the lorry in the said

case was parked in the middle of NH9 with a full load of

sugarcane with no signs or indicators with regard to

parking of the lorry on the road; that, normally, when any

vehicle had to be parked on account of break down, atleast

some stones would be kept around the vehicle to give

some signal or warning to others. In the said case, that

was not done and that there were also well grown trees

MFA No.24179/2012

& Connected cases

- 94 -

and it was difficult to see the parked lorry. Referring to

Section 122 of the Act, the Division Bench held that the

driver of the parked lorry was alone to be blamed as he

had parked the lorry in the middle of the road without any

sign or indications for the other road users. That the

Tribunal therein was not justified in placing the blame to

an extent of 50% each on the driver of the lorry and the

motorcyclist and that the driver of the lorry was solely

negligent.

95. Reference could also be made to the judgment

of the Gujarat High Court in Premlata Nilamchand

Sharma vs. Hirabhai Ranchhodbhai Patel, [1983 ACJ

290] and the judgment of the Delhi High Court in Pushpa

Rani Chopra vs. Anokha Singh, [1975 ACJ 396],

wherein it has been held that where the place was dark

and the vehicle was parked without any sign or indication

to warn other road users, negligence is on the driver of the

parked vehicle and not the driver of any vehicle which

dashes into such parked vehicle.

MFA No.24179/2012

& Connected cases

- 95 -

96. Similarly, in the case of New India Assurance

Co. Ltd. vs. Asha Prasad & others, [2011 ACJ 2641],

another Co-ordinate Bench of this Court has held that the

driver of the truck had parked the vehicle without giving

any indication such as parking light as signal and the

accident occurred around 1.30 a.m. At that time, the

place was completely dark as there was no street light.

Further, from the perusal of the recitals of the mahazar or

panchnama therein, it was clear that the deceased had

tried his best to avoid the accident by applying brakes

which was supported by the tyre marks found on the road

to the extent of 50 ft. and inspite of it, he could not avoid

the collision and as a result he rammed his car against the

truck. In the said case, the Tribunal, on the basis of the

fact that there were brake marks on the road, had

apportioned negligence to an extent of 25% on the driver

of the car and 75% on the driver of the offending vehicle

(truck), which was affirmed by this Court, but in the

aforesaid judgment, there is no reference to the earlier

MFA No.24179/2012

& Connected cases

- 96 -

judgment of the Division Bench of this Court in the case of

Kumari Jyothi.

97. In the context of a highway, persons traveling

on a highway could proceed at a faster pace than in a city

or town unless there is a traffic restriction or other

obstruction to slow down. Hence, any vehicle, which is

parked on the highway without any sign or indication with

regard to its parking, must take care regarding the parking

of the vehicle so that it does not cause any obstruction to

the other passengers on the highway. In the case of

Nirmal Bhutani & others vs. Haryana State &

another, [AIR 1983 Punjab and Haryana 188: 1983

ACJ 640], where a road roller was parked on the road

without any sign or indication with regard to its standing

there and the place was particularly dark, it was held that

the road roller standing on the road in such a manner was

a grave and unexpected hazard for road users and it

constituted a breach of duty of care which was owed by

the driver of the road roller to other road users. It was

MFA No.24179/2012

& Connected cases

- 97 -

held that the accident was caused due to negligence of the

driver of the road roller in leaving it parked unmarked on

the main highway. It was further held that where a motor

vehicle is left parked on a highway in such a manner that it

constitutes a hazard or danger to the road users, the onus

must be held to be upon one who seeks to avoid liability

arising from the accident with such vehicle, to establish

that despite such parking of the motor vehicle, the

accident took place due to a fault or negligence of the

other party or such other party could have avoided the

accident by reasonable care and caution.

98. Further, in the case of Shashikala Swain &

others vs. Md. Khairuddin & another, [AIR 2000

Orissa 52: 2001 ACJ 1638], reference has been made to

Section 122 of the Act and the duty cast on the driver of a

stationary vehicle on a public place so as not to cause any

danger, obstruction or undue inconvenience to the users of

public place and also to the other passengers.

MFA No.24179/2012

& Connected cases

- 98 -

99. Further, under Section 126 of the Act, no

person driving or in charge of a motor vehicle shall cause

or allow the vehicle to remain stationary in any public

place, unless there is in the driver’s seat a person duly

licensed to drive the vehicle or unless the mechanism has

been stopped and a brake or brakes applied or such other

measures taken as to ensure that the vehicle cannot

accidentally be put in motion in the absence of the driver.

Section 127 has been amended with effect from

14/11/1994, wherein it states that where any motor

vehicle is abandoned or left unattended, on a public place

for ten hours or more or is parked in a place where parking

is legally prohibited, its removal by a towing service or its

immobilization by any means including wheel clamping

may be authorised by a police officer in uniform having

jurisdiction. Sub-section (2) of Section 127 states that

where an abandoned, unattended, wrecked, burnt or

partially dismantled vehicle is creating a traffic hazard,

because of its position in relation to the public place, or its

physical appearance is causing impediment to the traffic,

MFA No.24179/2012

& Connected cases

- 99 -

its immediate removal from the public place by a towing

service may be authorised by a police officer having

jurisdiction. Sub-section (3) of Section 127 states that

where a vehicle is authorised to be removed under sub-

section (1) or sub-section (2) by a police officer, the owner

of the vehicle shall be responsible for all towing costs,

besides any other penalty. Section 127 of the Act is an

enabling provision which empowers a police officer to tow

away an abandoned, unattended, wrecked, burnt or

partially dismantled vehicle, which is creating a traffic

hazard at the expense of the owner, but that does not

imply absence of duty on the part of the owner and driver

of the vehicle, which is left unattended in a public place. A

duty is cast on the driver as well as the owner of such a

vehicle to ensure that such a vehicle is towed away as

immediately as practicable and not left abandoned or

unattended, particularly on a highway where vehicles are

permitted to move at a faster pace than on other roads.

In the alternative, some other form of external lighting

ought to have been provided so as to give an indication

MFA No.24179/2012

& Connected cases

- 100 -

about the parked lorry, until a vehicle, which is

stationed/parked due to a break down or if it has met with

an accident is towed away, it is necessary that the said

vehicle does not become dangerous to other vehicles. For

that precautions, under Section 122 read with the relevant

Rules have to be followed by the driver and owner of the

stationed vehicle, particularly on a highway.

100. The display of lights of motor vehicles is

generally regulated by statute. Under Rule 109 of Central

Motor Vehicles Rules, 1989, every motor vehicle, other

than motor cycles and three-wheeled invalid carriages

shall be provided with one white or amber coloured

parking light on each side in the front. In addition to the

front lights, two red parking lights, one on each side in the

rear shall be provided. The front and rear parking lights

shall remain lit even when the vehicle is kept stationary on

the road. The proviso states that rear lamps can be the

same as the rear lamps referred to in sub-rule (2) of Rule

105. Sub-rule (2) of Rule 105 states that every motor

MFA No.24179/2012

& Connected cases

- 101 -

vehicle, other than three-wheeler, shall also carry two

lamps (hereinafter referred to as the rear lamp) showing

to the rear a red light visible in the rear from a distance of

one hundred and fifty-five metres; lamp, which may be the

rear lamp or some other device, illuminating with a white

light the whole of the registration mark exhibited on the

rear of the vehicle, including a construction equipment

vehicle, so as to render it legible from a distance of fifteen

metres to the rear. Sub-rule (5) of Rule 105 states that in

the case of a transport vehicle, the rear light may be fixed

at such level as may be necessary to illuminate the

registration mark. In sub-rule (6) of Rule 105, it is stated

that every heavy goods carriage, including trailers, shall be

fitted with a red indicator lamp of size of thirty centimeters

by ten centimeters on the extreme rear-most body cross-

beam and in case of a vehicle not constructed with body in

the rear, the indicator lamp shall be fitted near the right,

rear light above the rear number plate. Under Rule 107, it

is stated that every goods vehicle, including trailer and

semi-trailer, other than three-wheelers and vehicles with

MFA No.24179/2012

& Connected cases

- 102 -

overall width not exceeding 2.1 metres, shall be fitted with

two white lights at the top right and left corners showing

white light to the front and two red lights at the top right

and showing red light to the rear. The lights shall remain

lit when the vehicle is kept stationary on the road during

night and at the time of poor visibility. Provided that in

the case of goods carriage without a full body in the rear,

provision for fitting of the top light at the rear shall not be

necessary.

101. Revisiting the facts of this case, it is

noted that on 12/11/2008, at about 8.00 p.m., the Santro

car which was proceeding on NH17 dashed against the

stationary lorry, which was parked on the highway towards

the left side of the road. The car hit the lorry from behind.

Having regard to the aforesaid mandatory requirements, it

is noted in the sections of the Act as well as relevant Rules

and also the judgments referred to above, it is held that

the driver of the lorry was in breach of duty to take care

and was thus negligent. In the absence of any indication

MFA No.24179/2012

& Connected cases

- 103 -

by way of lights to indicate that the container lorry was

stationed on the left side of the road by covering a portion

of the road, the accident had occurred. Secondly, the

accident occurred at 8.00 p.m. in the month of November

when it was dark on the National Highway. The driver of

the Santro car was proceeding on the left side of the road

of the highway and could not see the container lorry

parked on the left side of the road as there were no lights

indicating that the said vehicle had been parked.

Therefore, there was negligence on the part of the lorry

driver in parking the lorry on the highway without any

light. Assuming for a moment that the lights of the lorry

were non-functional on account of the fact that it had

earlier met with an accident, then all efforts should have

been made to remove/tow away the lorry at the earliest

possible time. The same not having been done clearly give

rise to an inference that the driver and owner of the lorry

did not discharge their duty to take care and were

therefore negligent in causing the accident.

MFA No.24179/2012

& Connected cases

- 104 -

102. No negligence can be attributed to the driver

of the car as on a National Highway the vehicles would

normally move at a greater speed than on an ordinary

road or on a road in a city or a town. On account of there

being no indication whatsoever that the container lorry

was parked towards the left side of the road, the driver of

the car who was also proceeding on the left side could not

imagine or gauge or expect that there was a vehicle that

was parked towards the left side of the road. In the

absence of the driver of the car being aware about the

parking of the lorry towards left side of the road and the

car also proceeding towards the left side of the road, it hit

the lorry from behind. Even if the car was proceeding at a

moderate speed, the driver could not have avoided the

stationed lorry which was unattended and without any light

or indicator on so as to indicate to the drivers of the

vehicles proceeding in the same direction that the lorry

was parked to avoid hitting the lorry. In fact, in the

instant case the brake marks on the road as noted in the

panchnama would indicate that the driver of the vehicle

MFA No.24179/2012

& Connected cases

- 105 -

has tried his best to avoid a collision with the lorry, but

could not do so. Thus, total negligence was on the driver

of the lorry to have left it unattended and without any

parking lights on, which is in violation of the duty cast

under the Act as well as in common law. Hence, there

being a breach of duty to take care, it is held that the

driver and owner of the lorry were totally negligent and

committed a tortuous act in causing the accident and that

there was no composite negligence nor contributory

negligence on the part of the driver of the car. In the

result, the driver, owner and insurer of the car are

exonerated from their liability to satisfy the awards.

Hence, point No.1 is answered in favour of the claimants

and New India Assurance Co. Ltd., and against the

driver/owner and insurer of the lorry.

Reg. POINT No.2:

103. As far as the liability of the insurer of the

lorry to satisfy the awards is concerned, the further

contention is with regard to the alleged cancellation of the

MFA No.24179/2012

& Connected cases

- 106 -

policy cover note bearing No.200702418353 and as a

result the insurer of the lorry not being liable to satisfy the

award.

104. In New India Assurance Co. Ltd. vs. Rula

& others, [2000 ACJ 630], it has been observed in

paragraph No.9 as under:

“9. Thus, any contract of insurance

under Chapter 11 of the Motor Vehicles

Act, 1988 contemplates a third party who

is not a signatory or a party to the

contract of insurance but is,

nevertheless, protected by such contract.

As pointed out by this Court in New

Asiatic Insurance Co. Ltd. v. Pessumal

Dhanamal Aswani, 1958-65 ACJ 559

(SC), the rights of the third party to get

indemnified can be exercised only

against the insurer of the vehicle. It is

thus clear that the third party is not

concerned and does not come into the

picture at all in the matter of payment of

premium. Whether the premium has

been paid or not is not the concern of the

MFA No.24179/2012

& Connected cases

- 107 -

third party who is concerned with the

fact that there was a policy issued in

respect of the vehicle involved in the

accident and it is on the basis of this

policy that the claim can be maintained

by the third party against the insurer.”

105. It has been further held that subsequent

cancellation of the insurance policy on the ground that the

cheque through which premium was paid was dishonoured,

would not affect the rights of the third party which had

accrued on the issuance of the policy on the date on which

the accident occurred. If on the date of the accident, there

was a policy of insurance in respect of the vehicle in

question, the third party would have a claim against the

insurance company and the owner of the vehicle would

have to be indemnified in respect of the claim of that

party. Subsequent cancellation of insurance policy on the

ground of non-payment of premium would not affect the

rights already accrued in favour of the third party.

MFA No.24179/2012

& Connected cases

- 108 -

106. In National Insurance Co. Ltd. vs. Balkar

Ram & others [2013 ACJ 2416], the Hon’ble Supreme

Court held that the defence of the insurance company that

the policy of insurance was not valid since the cheque had

been dishonoured prior to the accident would not

exonerate them from making the payment of

compensation.

107. Reliance could also be placed on United India

Insurance Co. Ltd. vs. Laxmamma & others, [2012

ACJ 1307 (SC)], wherein it has been held that the

insurance company is liable to satisfy the award if the

intimation with regard to dishonour of the cheque and

cancellation of policy is communicated to the policy holder

after the date of the accident.

108. In the instant case, it is an admitted fact that

the cover note bearing No.200702418353 was issued in

respect of the lorry in question which was in force till

14.12.2008. The accident occurred on 12.11.2008. The

contention of the insurer of the lorry namely Reliance

MFA No.24179/2012

& Connected cases

- 109 -

General Insurance Company through its counsel is that the

premium amount was not paid by the owner of the lorry

and therefore, there was cancellation of the policy. There

are no documents to show that the cheque which had

bounced was indeed issued in respect of the aforesaid

cover note. The cheque which is produce as Ex.R-1

mentions the cover note number which does not tally with

the aforesaid cover note or for that matter, the cheque

was issued in respect of the offending lorry which met with

the accident. Therefore, there is no proof of the fact that

the cheque that was issued by the owner of the lorry was

indeed in respect of the premium or the consideration for

the issuance of the policy in respect of the lorry in

question. In the circumstances, it is held that the

insurance company has failed to prove that the cover note

issued in respect of the lorry in question had been

cancelled on account of non-payment of premium.

109. Having regard to the aforesaid decisions, it is

held that the appellant insurer, namely Reliance General

MFA No.24179/2012

& Connected cases

- 110 -

Insurance Company is liable to satisfy the awards in the

instant case.

Reg. POINT No.3:

110. On the issue regarding award of compensation

and the enhancement thereof, I agree with the assessment

made by Hon’ble Bellunke J., and do not wish to state

anything in that regard.

(B. V. NAGARATHNA) JUDGE

ORDER OF THE COURT

(i) The appeals filed by the claimants

namely MFA Nos.24179, 24180,

24181, 24182, 24183, 24184 and

24185 of 2012 succeed in part;

(ii) MFA Nos.23566, 23567 and 23568 of

2012 are allowed. The amount in

deposit before this Court be refunded

MFA No.24179/2012

& Connected cases

- 111 -

to the appellant-insurer in these

appeals;

(iii) MFA Nos.101478, 101479 101480,

101481, 101482, 101483 and 101484

of 2014 are dismissed;

(iv) The appellant - Reliance General

Insurance Company Limited is

directed to satisfy the awards by

paying the enhanced compensation to

the respective respondents-claimants;

(v) The amount in deposit made by the

appellant-Reliance General Insurance

Company Limited in the aforesaid

appeals shall be transmitted to the

Tribunal forthwith;

(vi) Parties to bear their respective costs;

Sd/-

JUDGE

Sd/- JUDGE

Naa/EM/mvs

in the high court of karnataka dharwad...

Documents