Karnataka High Court
The Divisional Manager vs Mustaqahamed on 7 December, 2021
Bench: Ravi V.Hosmani
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 07 T H DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE RAVI V.HOSMANI
M.F.A.No.21119/2010 (MV)
C/W
M.F.A.No21120/2010 &
M.F.A.No.21121/2010
IN M .F.A.No.21119/2010 (MV)
BETWEEN:
THE DIVISIONAL MANAGER,
NATIONAL INSURA NCE COMPANY LTD ,
SUJATA COMPLEX, P.B.ROAD HUBLI .
... APPELLANT
(BY SRI. RAJASHEKAR S. ARANI, AD VOCATE)
AND
1 . SMT RAYEESA,
W/O LATE AKBAR MIRAKAR,
AGE 25 YEARS , OCC:HOUS EHOLD W ORK,
R/O BASTI ONI D HARWAD .
2 . KUMARI TASNIYA D/O LATE AKBAR MIRAJKAR,
AGE 8 YEA RS, OCC:NIL.
3 . KUMARI MAHEK S/ O AKBAR MIRAJKAR,
AGE 6 YEA RS OCC:NIL
RESPOND ENT NO.2 AND 3 ARE MINORS
REPRES ENTED BY RESPOND ENT NO.1 MOTHER.
4 . SHANKARAPPA S/O BASAPPA HADAPA D,
AGE:MAJOR, OCC: OWNER OF T EMPO TRAX
2
NO.KA- 25/A- 9634
R/O MANAGUNDI V ILLGE,
TQ AND DIST:DHA RWAD.
... RES PONDENTS
(BY SMT. SRIVANI TA NEELOPANT FOR SRI. ARUN
NEELOPANT, ADV ., SRI.SHRIHARSH A . NEELOPANTH FOR R1)
(BY SRI. PAWAN M.N. AND K .S . AMMINABHAVI FOR R4)
(R2 AND R3 MINOR REPTD. BY R1)
THIS MISC.FIRST APPEAL IS FI LED UNDER S ECT ION
173(1) OF MOTOR VEHICLES ACT , 1988, PRAYING THI S COURT
TO CALL FOR THE RECORDS , HEAR THE PARTIES , AN D ALLOW
THE APPEAL AS PRAYED FOR BY SETTING ASIDE THE
JUDGMENT AND AWARD DATED 12.10.2009 PASSED BY THE
FAST TRACK COURT III, DHARW AD IN M.V.C.No.378/2006
WITH COST IN THE INTEREST OF JUSTICE AND EQUITY.
IN M.F.A.No21120/2010
BETWEEN
THE DIVISIONAL MANAGER,
NATIONAL INSURA NCE COMPANY LTD ,
SUJATA COMPLEX, P.B.ROAD , HUBLI.
... APPELLANT
(BY SRI. RAJASHEKAR S. ARANI, AD VOCATE)
AND
1 . MUSTAQAHAMED,
S/O SHABUDDIN N AVALGUNDKAR,
AGE 28 YEARS , OCC:BAR BENDING W ORK
R/O GALI ONI DHA RWAD.
2 . SHANKARAPPA S/O BASAPPA HADAPA D,
AGE MAJOR, OCC: OWNER OF T EMPO TRAX
3
BEARING N O KA- 25/A-9634
R/O MANAGUNDI V ILLAGE,
TQ AND DIST:DHA RWAD.
... RES PONDENTS
(BY SMT. SRIVANI TA NEELOPANT FOR SRI. SRI .SHRIHARSH A .
NEELOPANT, SRI . ARUN NEELOPANT, FOR R1)
(BY SRI. PAWAN M.N. AND K .S . AMMINABHAVI FOR R4)
(R2 & R3-MINORS , REPTD. BY R1)
THIS MISC.FIRST APPEAL IS FI LED UNDER S ECT ION
173(1) OF MOTOR VEHICLES ACT , 1988, PRAYING THI S COURT
TO CALL FOR THE RECORDS , HEAR THE PARTIES , AN D ALLOW
THE APPEAL AS PRAYED FOR BY SETTING ASIDE THE
JUDGMENT AND AWARD DATED 12.10.2009 PASSED BY THE
FAST TRACK COURT III, DHARW AD IN M.V.C.No.400/2006
WITH COST IN THE INTEREST OF JUSTICE AND EQUITY.
IN M.F.A.No.21121/2010
BETWEEN
THE DIVISIONAL MANAGER,
NATIONAL INSURA NCE COMPANY LTD ,
SUJATA COMPLEX, P.B.ROAD , HUBLI.
... APPELLANT
(BY SRI. RAJASHEKAR S. ARANI, AD VOCATE)
4
AND
1 . ABDUL RAZAK
S/O JABBARSA B BELGA UMKAR,
AGE 23 YEARS , OCC:PAINTER,
R/O BARA IMAM GALLI, DHARWAD .
2 . SHANKARAPPA S/O BASAPPA HADAPA D,
AGE MAJOR, OCC: OWNER OF T EMPO TRAX
NO KA-25/A- 9634
R/O MANAGUNDI V ILLAGE,
TQ AND DIST:DHA RWAD.
... RES PONDENTS
(BY SMT. SRIVANI TA NEELOPANT FOR SRI. SRI .SHRIHARSH A .
NEELOPANT, SRI . ARUN L. NEELOPA NT, FOR R1)
(BY SRI. PAWAN M.N. AND K .S . AMMINABHAVI FOR R2)
THIS MISC.FIRST APPEAL IS FI LED UNDER S ECT ION
173(1) OF MOT OR VEHICLES A CT, 1988, PRAYI NG THIS
HON'BLE COURT T O CALL FOR RECORDS, HEAR THE PARTIES,
AND ALLOW THE APPEAL AS PRAYED FOR BY SETTING ASIDE
THE JUDGMENT A ND AWARD DATED 12.10.2009 PA SSED BY
THE FAST TRACK COURT III , DHARWAD IN M.V.C.No.778/2006
WITH COST IN THE INTEREST OF JUSTICE AND EQUITY.
THESE APPEALS COMING ON FOR F INAL HEARING THIS
DAY, THE COURT , DELIVERED THE F OLLOWING:
5
JUDGMENT
These appeals are filed challenging the common
judgment and award dated 12.10.2009 passed by Fast
Track Court-III, Dharwad (for short, 'the Tribunal') in MVC
Nos.378/2006, 400/2006, 778/2006, these appeal are
filed by the appellant/insurer.
2. Brief facts giving rise to these appeal are that
on 10.10.2005, Akbar Mirajkar was riding his motorcycle
bearing registration no.KA-25/R-104 along with Abdul
Razak as pillion rider from Dharwad to Managundi village.
On the way, they saw Mustak Navalgundkar standing by
side of road near Mansur cross. They stopped their
motorcycle and were talking with Mustak. At that time
Tempo Trax bearing registration no.KA-25/A-9634 came
from Managundi headed towards Dharwad dashed against
motorcycle due to rash and negligence driving by its
driver leading to death of Akbar and injuries to Abdual
Razak and Mustak. Despite taking treatment they did not
recover fully. Hence, they filed claim petitions against
owner and insurer of tempo trax under Section 166 of
Motor Vehicles Act. Likewise, wife and two minor children
of Akbar filed claim petition.
3. On service of notice, only respondent
no.2/insurer filed objections denying negligence of driver
of tempo trax for causing accident and contending that
Police filed charge sheet against deceased-motorcycle
rider himself. It was alleged that motorcycle rider did not
have driving licence. Though, issuance of insurance policy
was admitted, it was denied that driver of tempo trax was
holding valid and effective driving licence.
4. Based on pleadings, Tribunal framed following
issues:
IN MVC NO.378/2006
1. Whether the pe titione r prove that on
10.10.2005 5.00 P.M. on
Dharwad/Managundi ro ad, near Mansur
Cross, when A kbar S/o N azirsab @
Nazirahmad Miraj kar and his friend by
stopping the ir hero Honda Motor Cycle
Bearing Re gistratio n No. KAS-25/ R-1604
were talking with one Mustaq
Navalgundakar by the side of the road,
there was accident due to wrongful use of
tempo trax bearing Reg. No. KA- 25/ A-9634
and due to the accident said Akbar S/o
NazirrahmadM iraj kar sustaine d injuries and
died at the Hospital?
2. To what co mpensatio n the claimants are
entitle d to? A nd from whom?
3. To what o rde r o r award?
IN MVC NO.400/2006
1. Whether the petitio ner pro ve that on
10.10.2005 5.00 P.M. on
Dharwad/Managundi ro ad, near Mansur
Cross, when petitioner was standing by the
road side , dece ased Akbar S/o Nazirsab @
Nazirahmed M irajakar along with his friend
by name Abdul Razaq Gabbarsab came on
hero Honda Motor Cycle Bearing
Registratio n No. KAS-25/R- 1604 by seeking
him they stoppe d it by the road side and
were talking, the re was accide nt due to
wrongful use of te mpo trax bearing
Registratio nNo.AK -25/A- 9634 and due to
the accident petitioner sustained inj uries?
2. To what co mpensatio n the claimants are
entitle d to? A nd from whom?
3. To what o rde r o r award?
IN MVC NO.778/2006
1. Whether the pe titione r prove that on
10.10.2005 5.00 P.M. on
Dharwad/Managundi ro ad, near Mansur
Cross, pe titione r was trave ling as a pillion
ride r, then the re was accident due to
wrongful use of Te mpo Trax bearing No.KA-
25/A- 9634, due to the said accident,
petitio ner sustaine d injuries?
2. To what co mpensatio n the claimants are
entitle d to? A nd from whom?
3. To what o rde r o r award?
5. As three claim petitions arose out of same
accident, they were clubbed together and common
evidence was recorded. Claimant no.1 in MVC
No.378/2006 and claimants in other cases were examined
as PW.1 to PW.3. Exhibit P1 to P7 were marked. On
behalf of respondents an official of insurer was examined
as RW1 and copy of insurance policy was marked as
Exhibit R1.
6. On consideration, Tribunal answered issue no.1
in all the cases in the affirmative; issue no.2 determining
compensation of Rs.4,34,000/- in MVC No.378/2006,
Rs.15,000/- in MVC no.400/2006 and Rs.25,000/- in MVC
no.778/2006 and issue no.3 by allowing claim petition in
part and holding respondent-insurer and owner jointly and
severally liable to pay same. Assailing the same, insurer
is in appeal.
7. Sri.R.S.Arani, learned counsel for
appellant/insurer submits that impugned award passed by
Tribunal was contrary to facts of case and evidence on
record. He further submitted that accident occurred due to
sole negligence of driver of motorcycle. Tribunal
erroneously held entire negligence against driver of tempo
trax. It was submitted that though PW.1 admitted during
cross examination that compliant/charge sheet was filed
against deceased Akbar, rider of motorcycle for causing
accident, Tribunal by relying only upon Exhibit.P1-private
complaint, filed by father of claimant in MVC
No.778/2006, 7 days after date of accident, held
negligence against driver of tempo trax. Learned counsel
further submitted that as claimants suppressed the fact of
registering of charge sheet against deceased/rider of
motorcycle, adverse inference has to be drawn that
accident occurred solely on account of negligence of
motorcycle rider and sought for setting aside award.
8. On the other hand, Miss. Vanitha, advocate
appearing for Sriharsh A Neelopanth, counsel for
claimants/respondents supported award and opposed
insurer's appeal. It was submitted that Tribunal on
consideration of entire material available on record had
decided issues and conclusion arrived at were not
perverse. Therefore, no interference was called for. It
was submitted that deceased Akbar was 28 years of age
working as mason, survived by wife and two minor
children and Tribunal had awarded only sum of
Rs.4,34,000/-. In respect of other claims award is
Rs.15,000/- and 25,000/- which were fully justified and
therefore, no interference was called for.
9. From above submissions, occurrence of accident
leading to death of Akbar and injuries to Mustak and
Abudul Razak are not in dispute. Tribunal held entire
negligence against driver of tempo trax and after
assessing compensation, held appellant/insurer liable to
pay same. Claimants are not in appeal. Insurer is in
appeal challenging finding of Tribunal on negligence and
liability. Therefore, only point that arises for consideration
is
"Whether, finding of Tribunal regarding
negligence of driver of tempo trax calls for
interference?"
10. In order to establish that accident occurred due
to rash and negligent driving by driver of tempo trax,
claimants produced copy of private complaint, spot
panchanama, postmortem report, order sheet in private
complaint, certified copy of private complaint. From
Exhibit P.1 to P6, it is seen that private complaint is filed
by father of Abdul Razak, claimant in MVC no.778/2006. It
is stated in private complaint that on date of accident,
when Akbar and Abdul Razak were riding motorcycle on
Dharwad-Managundi road, they found Mustak waiting by
side of road near Manasoor cross. When they stopped to
talk with Mustak, a tempo trax dashed against them
without sounding horn. It is specifically stated in the
complaint that at the time of accident, motorcycle was
parked on its stand by the side of road. This version is
reiterated by PW.1, 2 and 3 in their deposition. Even
contents of Exhibit P.2 spot panchanama indicates that
road at accident spot runs north to south, with width of
road being 14 feet and with 5 feet kacha road on either
side. Accident spot lies at a distance of 5 feet from
Western edge towards East, with 9 feet from spot to the
Eastern edge of road i.e. at a distance of 2 feet from the
midline of road. This fact militates against the assertion
in the private complaint and deposition of claimants.
Further, during cross examination of PW.1, it is elicited
that complaint and charge sheet were registered against
deceased Akbar. However, same was not stated by them
either in the claim petition or during deposition. Reason
being obvious. Further, though, private complaint and
order sheet in private complaint is filed, whether any
charge sheet was filed in pursuance to private complaint
is not disclosed. It is settled law that finding of Police
investigation or criminal courts regarding negligence
would not by the Tribunal. Tribunal has required to
assess evidence on record and decide negligence. From
Exhibit P.2-spot panchanama, damages are noted on the
motorcycle and on front wheel, front fork head light and
right side petrol tank are damaged. Damages noted on
tempo trax are near head light on driver side. The normal
width of a jeep would be 5 feet. The accident spot is edge
at a distance of 5 feets from Western edge as width of
road is 14 feets at the accident spot, motorcyclist was on
wrong side. Damage caused to motorcycle would indicate
that it was a head on collision. Taking note of said facts,
apportioning entire negligence upon driver of tempo trax
would not be justified. It would be appropriate to
apportion negligence of 30% against driver of tempo trax
and 70% against rider of motorcycle. Therefore,
claimants would be entitled to 30% of compensation
assessed as deceased himself contributed to accident 70%
in MVC no.378/2006. Point for consideration is answered
accordingly.
11. Despite finding on negligence, claimants in MVC
no.400/2006 and MVC no.778/2006 being 3 r d parties and
not have contributed to accident, they would be entitled
to recover entire compensation from either of two tort-
feisers. They having chosen to recover the same from
appellant, they would be entitled to recover entire award
from appellant/insurer. The remedy of appellant would be
to seek reimbursement from owner of motorcycle if it
chooses by separate proceedings. Hence, MFA
No.21119/2010 is allowed in part. Appellant is held liable
to an extent of 30% of award i.e.Rs.1,30,200/- with
appropriate interest.
12. In the result, I pass the following :
ORDER
MFA No.21119/2010 is allowed in part.
MFA No.21120/2010 and MFA No.21121/2010
are allowed in part.
Insofar as negligence, appellant would
be liable to pay entire compensation to the
claimants with liberty to recover same from
owner of motorcycle if, they chooses to.
Amount in deposit is ordered to be
transmitted to Tribunal.
Direction is issued to
appellant/insurer to deposit the balance
compensation amount within six weeks before
Tribunal.
Sd/-
JUDGE
H MB
