Karnataka High Court
The Divisional Manager vs Ibrahimsab Mohammedsab Walikar on 15 February, 2022
Bench: S.Vishwajith Shetty
1 M.F.A.21769/2013
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 15 T H DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE S.VISHWAJITH SHETTY
M.F.A. No.21769/2013 (MV)
B ETWEEN
THE DIV IS IONAL MANAGER,
HDFC ERGO GENERAL INSURANCE
COMPANY LIMITED,
OP P. KIMS MAIN GATE,
VIDYANAGAR, HUBLI,
NOW REPRES ENT ED BY ITS
AUT HORIZED SIGN AT ORY,
THE HDFC ERGO GENERAL INSU RANCE
COMPANY LIMITED, 1ST FLOOR,
H.M. GENEVA HOUSE NO.14,
B ANGALORE-56 0052. ...APPELLANT
(B Y SRI.S.K.KAYAKAMAT H AND SRI. ANJANEYA M.
ADVOCATES)
AND
1 . IB RAHIMSAB MOHAMMEDSAB WALIKAR,
AGE: 37 YEARS, OCC: AGRICU LT URAL WORK,
R/O: HIR E NASHIB I, NOW AT KOTUMU CHAGI,
TQ : GADAG.
2 . SHRI PRAKAS H TAMMANAGOU DA
TAMMANAGOUDAR,
AGE: MAJ OR, OCC:B USINESS,
R/O: KOTABAL, TQ : RON.
3 . THE DIV IS IONAL MANAGER,
CHOLAMANDALAM GENERAL INSURANCE
COMPANY LIMITED,
DESHPANDE NAGA R, HUB LI.
4 . SHRI RAG HAVEND RA RAVINDRA B ARAD,
2 M.F.A.21769/2013
AGE: MAJ OR, OCC: BU SINESS,
R/O: DURGA B AR, OPP. DU RGA VIHA R,
GADAG. ...RESPONDENTS
(B Y SRI.G.N.NARASAMMANAVAR, ADVOCATE FOR R2;
SRI.RAV INDRA R. MANE, ADVOCATE FOR R3;
NOTICE SERVED ON R1 AND R4)
THIS MISCEL LANE OUS FIRST APPEAL IS F IL ED
U NDER SECTION 173(1) OF MOTO R VEH ICLES ACT,
1988, AGA INST T HE JU DGMENT AN D AWARD DAT ED
31. 10.2012 PASSED IN MVC No.354/ 2011 ON T HE FILE
OF DIST RICT JUDGE AND MEMBER, MACT, GADAG,
AWARDING THE COMPENSATION OF RS. 45,000/-
WITH INTER EST A T THE RATE OF 6% P.A, FROM THE
DATE OF PETIT ION T ILL REAL IZ ATIO N.
THIS AP PEAL COMING ON F OR ADM ISSION, TH IS
DAY THE COURT DEL IVERED THE FOL LOWING:
J U D G M E N T
The instant appeal is preferred by the insurer
of the offending Maruti Swift car bearing
registration No.KA-26/M-2736 challenging the
judgment and award dated 31 s t October 2012
passed by the M.A.C.T., Gad ag (for brevity "the
Tribunal") in M.V.C.No.354/2011.
2. Though this appeal is listed for
ad mission, with the consent of the learned
counsels app earing for the p arties, the appeal is
taken up for final disposal.
3 M.F.A.21769/2013
3. The p arties to this app eal are referred
to by their rankings b efore the Tribunal for the
sake of convenience.
4. Brief facts of the case that would be
relevant for the purpose of disposal of this app eal
are:
On 28.08.2011 at about 10.00 a.m., when
the injured claimant along with other persons was
traveling in a Tom Tom Piaggio Ap e vehicle
bearing reg istration No.KA-26/8310 for coolie
work, the offend ing Swift car bearing registration
No.KA-26/M-2736, which was d riven in a rash and
negligent manner, came from opposite sid e and
dashed ag ainst the Piagg io Ape vehicle in which
the claimant was traveling and caused the
accid ent. In the said accident, the claimant and
many other inmates, who were traveling in the
said Piaggio Ap e vehicle, were injured and totally
five persons had succumb ed to the injuries
subsequently. A Police case was registered
immediately after the accident in question in
Crime No.101/2011 by the jurisd ictional Police as
4 M.F.A.21769/2013
ag ainst the d rivers of both the vehicles for the
offences punishable und er Sections 279, 337, 338
and 304A of IPC. It is under these circumstances,
the claimant had filed a petition under Section
166 of the Motor Vehicles Act, 1988, claiming
comp ensation in resp ect of the injuries suffered
by him in the accident in q uestion. In the said
claim petition, respondent Nos.1 and 2 were the
owner and insurer of the Piagg io Ape vehicle while
respondent Nos.3 and 4 were the owner and
insurer of the Maruti Swift car.
5. The Tribunal had partly allowed the
claim p etition and award ed a total comp ensation
of `45,000/- with interest @ 6% per annum from
the date of petition till realization. The Tribunal
had held the d rivers of both the vehicles guilty in
the accident in question and had saddled the
liability to pay compensation at 70% on the owner
and insurer of the offend ing Maruti Swift Car while
30% of the liab ility was saddled on the owner of
the Piaggio Ap e vehicle and the Tribunal had
5 M.F.A.21769/2013
exonerated the liab ility of the insurer of the
Piaggio Ape vehicle in which the claimant was
traveling. Being agg rieved by the same, the
insurer of the Maruti Swift car is b efore this court.
6. Learned counsel for the insurer submits
that since the charg e sheet was filed as ag ainst
the d rivers of both the vehicles, which were
involved in the accid ent, the Tribunal ought to
have saddled the liab ility on the owners of both
the vehicles in equal p roportion. He submits that
the Tribunal was not justified in saddling the
liability at 70% on the owner of the Maruti Swift
car while saddling 30% liab ility on the owner of
the Piagg io Ape vehicle.
7. Learned counsel appearing for
respondent Nos.2 and 3 have arg ued in support of
the impugned judgment and award and have
prayed to dismiss the appeal.
6 M.F.A.21769/2013
8. I have carefully considered the rival
arg uments addressed on both sides and also
perused the material available on record.
9. The undisputed facts of the case are that
on 28.08.2011, the claimant, who was traveling in
Tom Tom Piaggio Ap e vehicle bearing registration
No.KA-26/8310, was injured in the accident which
was alleged ly caused by the driver of the
offending Maruti Swift car b earing registration
No.KA-26/M-2736. In the said accid ent, five
persons had died and many other inmates of the
two vehicles had suffered injuries. The
involvement of b oth the vehicles in the accident in
question is not in dispute. It is also not in
dispute that five persons had died and several
others were injured in the said accident. The
Police had reg istered a criminal case as ag ainst
both the d rivers of the vehicles, which were
involved in the accident and both the drivers were
charg e sheeted for the offences punishab le und er
Sections 279, 337, 338 and 304A of IPC. The
7 M.F.A.21769/2013
Tribunal having appreciated the oral and
documentary evidence available on record has
rightly come to a conclusion that the d rivers of
both the vehicles, which were involved in the
accid ent in question, were guilty of contrib utory
negligence.
10. Taking into consideration that the Piaggio
Ape vehicle in which the claimant was traveling
was a light motor vehicle compared to the
offending Maruti Swift car, which alleged ly d ashed
ag ainst the Piaggio Ap e vehicle and caused the
accid ent, the Tribunal has apportioned the liab ility
at 70:30 i.e., 70% on the Maruti Swift car and
30% on the Piaggio Ap e vehicle. Since the
offending Maruti Swift car was duly insured by the
app ellant/insurer, the Tribunal had d irected the
insurer to p ay 70% of the comp ensation amount
while 30% of the comp ensation was directed to b e
paid by the owner of the Piaggio Ape vehicle since
the driver of the said vehicle did not possess valid
8 M.F.A.21769/2013
and effective driving licence as on the d ate of the
accid ent.
11. In my consid ered view, having reg ard to
the oral and documentary evid ence availab le on
record and also consid ering the fact that the
offending Maruti Swift car, which allegedly caused
the accident, was a b igger vehicle compared to
the vehicle in which the claimant was traveling ,
the Tribunal was fully justified in apportioning the
contributory negligence at 70:30 on the Maruti
Swift car and Piaggio Ape vehicle respectively. I
find no illeg ality or irregularity in such a finding
recorded by the Tribunal and therefore, the
contention urg ed by the learned counsel for the
app ellant/insurer that the Tribunal was not
justified in saddling the liab ility to the tune of
70% on the owner and insurer of the offending
Maruti Swift car is liab le to be rejected.
Accordingly, I find no merit in this appeal.
The Miscellaneous First Appeal is, therefore,
dismissed.
9 M.F.A.21769/2013
The amount in deposit is d irected to be
transmitted to the Tribunal for the purpose of
disbursement.
Sd/-
JUDGE
KNM/-
