National Insurance Co. Ltd. and Others vs Shanker and Others

B. Manohar, J.—1. National Insurance Company Limited has filed MFA No. 31030/2009 challenging the judgment and award dated 31st January, 2009 made in MVC No. 293/2006 by the MACT, Bidar (hereinafter referred to as ''Tribunal'') fastening liability on them to compensate the claimants, whereas the claimants being not satisfied with the quantum of compensation awarded by the Tribunal have filed MFA No. 30352/2009 seeking for enhancement of compensation.

Since the common judgment and award passed by the Tribunal have been challenged in these two appeals, both the appeals are clubbed together and disposed of by this common judgment.

For the sake of convenience, the parties are referred to as in the claim petition.

Appellants in MFA No. 30352/2009 are the claimants and they are the parents of Babu. They filed a claim petition contending that their son, Babu was travelling towards Bidar in a Maxicab bearing Regn. No. KA-28/4445 belonged to the 1st respondent. Due to rash and negligent driving of the said Maxicab, it turned turtle. The son of claimants and other co-passengers were travelling in the Maxi Cab and sustained grievous injuries. The son of the claimants subsequently succumbed to the said injuries. The claimants claimed that prior to death, their son was working as a tailor and earning more than a sum of Rs. 7,000/- p.m and sought for compensation due to the death of their son in the accident.

The contesting respondents filed objections to the claim petition.

After trial, the Tribunal held that due to rash and negligent driving of Maxi cab, the accident had occurred and the claimants, who are legal representatives of the deceased, are entitled to compensation. Taking into consideration the income of deceased as Rs. 4,000/- p.m, deducting 50% thereof, applying the multiplier 18 since he was aged about 25 years and was a bachelor, awarded compensation of Rs. 4,38,000/- with interest at 6% p.a. from the date of judgment and directed the 2nd respondent in the claim petition to deposit the amount. Being aggrieved by the judgment and award fastening liability on the Insurance Company. The Insurance Company has filed MFA No. 31030/2009, whereas the claimants have filed MFA No. 30352/2009 being aggrieved by the judgment and award awarding interest from the date of judgment instead of awarding from the date of filing of the petition till realisation.

Smt. Preeti Patil, learned Advocate appearing for the appellant/Insurance Company in MFA No. 31030/2009 contended that the judgment and award passed by the Tribunal fastening liability on the insurer to pay compensation to the claimants is contrary to law. As on the date of accident, the driver of Maxi cab was having LMV (NT) and he cannot drive the transport vehicle. The judgment and award passed by the Tribunal holding that the owner as well as the Insurance Company are jointly and severally liable to compensate the claimants is contrary to law. In support of her contentions, she relied upon the judgments reported in , AIR 2004 SC 1796 in the case of ITC Ltd. -vs- Person In-charge, Agricultural Market Committee, , ILR 2015 Kar. 2064 in the case of Mohammed @ Mohd. Haneef -vs- Mallayya @ Mallappa and Another, unreported judgments in MFA No. 5525/2012 c/w MFA No. 2174/2012 (DD 7.10.2015) and MFA No. 21079/2009 c/w MFA Crob. No. 745/2009 (DD 8.11.2013).

On the other hand, Sri K.M. Ghate, learned Advocate appearing for the claimants, who are respondents in MFA No. 31030/2009 and appellants in MFA No. 30352/2009 contended that in the accident in question, other five injured persons had filed claim petitions in MVC Nos. 297 to 301 of 2006 and they came to be allowed along with the claim petitions of the claimants. Being aggrieved by the judgment and award passed by the Tribunal, the National Insurance Company Limited had preferred MFA No. 30329/2008 and the claimants also filed appeals. This Court disposed of MFA No. 30329/2008 modifying the judgment and award passed by the Tribunal and liability foisted on the insurer was set aside and the owner was held liable to satisfy the award. However, in terms of the judgment of Hon''ble Supreme Court directed the Insurance Company to compensate the claimants and recover the same from the owner of the vehicle. Against the said judgment made in MFA No. 30329/2008, the Insurance Company has not preferred any appeal. Therefore, the judgment passed by this Court in the said appeal has become final. Hence, the Insurance Company cannot contend that no direction can be issued to the Insurance Company to pay compensation and recover from the owner of the vehicle. The issue raised in MFA No. 31030/2009 is covered by the earlier judgment and sought for dismissal of the appeal filed by the Insurance Company.

I have carefully considered the arguments addressed by the Advocates appearing for the parties and perused the judgment and award, oral and documentary evidence adduced by the parties.

The records clearly disclose that MFA No. 30329/2008 was filed against the judgment and award made in MVC No. 235/2006 arising out of the very same judgment and award. In the said appeal, this Court by its judgment dated 19.9.2014 had allowed the appeal filed by the Insurance Company modifying the judgment and award of the Tribunal and liability foisted on the insurer was also set aside and further held that the owner is liable to satisfy the award. However, in terms of the judgment passed by the Supreme Court, this Court had directed the Insurance Company to satisfy the award and thereafter recover from the owner of the vehicle. The instant appeals have been preferred against the judgment and award made in MVC No. 293/2006. The Insurance Company has not preferred any appeal challenging the judgment passed by this Court in MFA No. 30329/2008. Hence, the judgment made in MFA No. 30329/2008 has become final. Therefore, no different view can be taken in respect of MVC No. 293/2006. There must be consistency in the judgment of this Court. Without going into the merit of the case, MFA No. 31030/2009 requires to be disposed of in terms of the judgment made in MFA No. 30329/2008 and other connected appeals (DD 19.9.2014). Accordingly, I pass the following:

ORDER

MFA No. 31030/2009 is allowed in part. The judgment and award dated 31st January, 2009 made in MVC No. 293/2006 is modified. The owner of the offending vehicle is liable to satisfy the award. However, in terms of the judgment of the Hon''ble Supreme Court, the National Insurance Company Limited is directed to satisfy the award and thereafter recover the same from the owner. Further, as per the judgment made in MFA No. 30329/2008 and other connected appeals, the claimants in MVC No. 293/2006 are entitled to interest from the date of filing of the claim petition till the date of realisation and not from the date of judgment passed by the Tribunal.

Accordingly, MFA No. 30352/2009 is also allowed in part.

The amount in deposit made in MFA No. 31030/2009 is directed to be transferred to the MACT, Bidar.