BRANCH MANAGER NATIONAL INSURANCE CO LTD Vs. GOVINDAPPA

JUDGEMENT

(1.) THE second respondent insurance company in MVC.No.4256/2011 on the file of MACT, Mayo Hall Unit, Bangalore, has come up in this appeal challenging the liability fastened on it in the aforesaid proceedings.

(2.) BRIEF facts leading to this appeal are as under: Respondents 1 and 2 herein are the parents and younger brother of deceased Chandrashekar, an inmate of Maruthi Omni bearing registration No.KA -03/MD 6015, which was hit by Canter bearing registration No.KA -07/9817, owned by fourth respondent and insured with appellant herein. The accident is not in dispute, so also death of Chandrashekar due to injuries suffered in said accident. The claim petition filed by them against the owner and insurer of Canter was taken up for consideration and disposed of by the Tribunal by awarding compensation in a sum of Rs.4,35,600/ - payable with interest at 6% pa., from the date of petition till date of payment of entire amount.

(3.) THE second respondent insurance company being aggrieved by the judgment so far as it pertains to saddling liability on the insurer of Canter has come up in this appeal primarily on two grounds; first one is that deceased Chandrashekar s/o claimants 1 and 2 and brother of claimant No.3 was traveling in Maruthi Omni van bearing registration No.KA -03/MD 6015 in the course of his employment and as such, claimants were required to seek compensation by initiating proceedings under the Provisions of ESI Act and not by initiating proceedings under Section 166 of the MV Act. The second one is that there is an error on the part of claimants in filing claim petition against the owner and insurer of Canter without arraigning the driver, owner and insurer of the vehicle in which deceased was traveling. It is further contended by him that there are serious lapses on the part of claimants while filing the claim petition; fist of that is non impleading the driver, owner and insurer of Maruthi Omni, for the reason that the sketch of the place of accident produced and marked as Ex.P4 clearly indicate that the accident has taken place at the junction of a highway and service road near Chemasandra Gate on Bangalore NH -4 road. It is his specific contention that there is violation of Rule 9 of Regulations 1989 on the part of driver of Maruthi Omni, which is the root cause for accident. That is, while entering the highway, the driver of Maruthi Omni ought to have followed Rule 9 of the Rules of the Road Regulations 1989, which imposes a condition that the vehicle entering the highway should watch for the traffic coming on the right side of it and then it should enter the highway. In the instant case, the driver of Maruthi Van has not taken proper precaution as required under Rule 9 of the Regulations and further, there is a breach on the part of owner of Maruthi van in not informing said accident to its insurer and claimants in not arraigning them as party to the claim proceedings. Heard the learned Counsel for appellant as well as contesting respondents before the Tribunal. Perused the judgment impugned as well as lower court record which includes pleadings of both the parties as well as oral and documentary evidence available on record. On going through the same, it is clearly seen that except stating that claimants ought to have approached the ESI authorities under Section 53, the other defences are not taken by insurance company in the right earnestness. There is nothing in the written statement to demonstrate that the claim petition fails for non joinder of parties i.e., driver, owner and insurer of Maruthi Omni and the same is not raised at the initial stage. Even at the time of recording of evidence by the Tribunal, the insurance company has not taken any steps to independently adduce evidence to demonstrate that there is breach of Regulation by the driver of Maruthi Omni, which has resulted in contributory negligence.