THE BRANCH MANAGER UNITED INDIA INSURANCE CO. LTD. THROUGH ITS DIVISIONAL MANAGER Vs. JAYASHREE, MAYUR, M.S. PATTAR AND THE DIVISIONAL CONTROLLER NWKRTC

JUDGEMENT

(1.) THIS appeal by the insurer is directed against the judgment and award dated 20.05.2010 passed by MACT -VI, Bijapur, in MVC No. 309/2007. At about 11.00 a.m. on 12.10.2006 an accident ensued on account of collision between Tata Sumo bearing registration No. KA -28/M -3057 and bus belonging to NWKRTC bearing registration No. KA -28/F -1092. In the said accident, one Vijayamahantesh, an inmate of the Tata Sumo as well as the driver of the Tata Sumo died. The accident occurred near Biraladinni village on NH -13. In respect of this accident, the jurisdictional Police registered a criminal case against the driver of the Tata Sumo and finally filed a report before the jurisdictional Court to that effect. In respect of death of Vijayamahantesh, his wife and son filed claim petition under Section 166 of the Motor Vehicles Act seeking compensation of Rs. 32,44,610/ - under various heads. The claim petition was filed against the owner and insurer of the Tata Sumo as well as the Divisional Controller of NWKRTC (for short 'Corporation'). The claimants inter alia contended that the accident was solely due to the negligence of the driver of the Tata Sumo; that the deceased was working as Special Land Acquisition Officer for Railway Project at Sindhanoor and was earning monthly salary of Rs. 14,742/ - and he was the only bread earner of the family. Nevertheless, Corporation was also made a party.

(2.) THE claim petition was contested by the owner and insurer of the Tata Sumo as well as by the Corporation. Owner of the Tata Sumo though denied all the allegations made by the claimants with regard to the accident, nevertheless, contended that the vehicle was validly insured with the United India Insurance Company Limited and that policy was in force as on the date of the accident and therefore, he is entitled to be indemnified by the insurer. The insurer of the Tata Sumo contended that the accident was solely due to the negligence of the driver of the bus and that there was no negligence on the part of the driver of the Tata Sumo. Alternatively contended that the accident was on account of the negligence of the driver of both the vehicles thereby, therefore, accident was due to the composite negligence, as such, compensation payable if any to the claimants will have to be apportioned among the insurer of the Tata Sumo and the Corporation. However, the insurer admitted issuance policy in respect of Tata Sumo and its validity as on the date of the accident. It also contended that the compensation claimed is highly excessive and exorbitant. The Corporation in its objection though reiterated the petition averments that the accident was due to the negligence of the driver of the Tata Sumo, contended that there was no negligence on the part of its driver as such even on the basis of the very averments made in the petition, Corporation is not a necessary party to the claim petition. The Corporation also filed an additional written statement before the Tribunal contending that even as per the Police record, there was no negligence on the part of the driver of the bus and that the negligence was only on the part of the Tata Sumo. Therefore, it sought for dismissal of the claim petition as against the Corporation.

(3.) ON behalf of the claimants, first claimant examined herself as P.W. 1. She examined two witnesses as P.Ws.2 and 3 in respect of service of the deceased as well as the monthly salary drawn by him. She also examined one Kallappa S/o. Basappa Ilageri, Beeraladinni, who is stated to be an eyewitness, as P.W. 4. The claimants relied on documentary evidence marked as Exs. P1 to P13.