The Divisional Manager vs Basalingamma And Ors
2022 Latest Caselaw 9380 Kant

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            IN THE HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH

          DATED THIS THE 22ND DAY OF JUNE 2022

                        BEFORE

       THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR
                MFA No.202195/2018 (MV)

BETWEEN:

THE DIVISIONAL MANAGER,
ORIENTAL INSURANCE COMPANY
LTD., N.G. COMPLEX, 1ST FLOOR,
OPP: MINI VIDHANA SOUDHA,
KALABURAGI.
                                           ... APPELLANT
(BY SRI. MANVENDRA REDDY, ADVOCATE)

AND:

1.     BASALINGAMMA
       W/O MALLAPPA @ MALLAYYA KURKUMBALI,
       AGE: 59 YEARS,
       OCC: HOUSEHOLD,
       R/O AMBEDKAR NAGAR, YADAGIR,
       NOW AT SADYAPUR,
       TQ. SHAHAPUR-585223.

2.     MALLIKARJUN S/O MALLAPPA
       @ MALLAYYA KURKUMBALI,
       AGE: 24 YEARS,
       OCC: STUDENT,
       R/O AMBEDKAR NAGAR, YADAGIR,
       NOW AT SADYAPUR,
       TQ. SHAHAPUR-585223.

3.     SABAMMA D/O MALLAPPA
       @ MALLAYYA KURKUMBALI,
       AGE: 22 YEARS,
                             2


     OCC: HOUSEHOLD,
     R/O AMBEDKAR NAGAR, YADGIR,

     NOW AT SADYAPUR,
     TQ. SHAHAPUR-585223.

  4. MALLAMMA
     W/O DODDA SABANNA,
     AGE: 54 YEARS,
     OCC: AGRICULTURE,
     R/O SHETAGARA,
     TQ. & DIST. YADAGIR-585201.
     (OWNER OF MAHENDRA TRACTOR
     BEARING NO.KA-33/T-4039 & T-4040)

  5. DEVINDRAPPA
     S/O YANKAPPA NANDELLI,
     AGE: 37 YEARS,
     OCC: AGRICULTURE,
     R/O KOULOOR,
     TQ. & DIST: YADAGIR-585201
     (OWNER OF TUM TUM AUTO BEARING
     NO.KA-33/9201)
                                         ... RESPONDENTS

( BY SRI. S.S.SAJJANSHETTY, ADVOCATE FOR R1 TO R3;
  BY SRI. SHIVAKUMAR MALIPATIL, ADVOCATE FOR R4;
      R5 -SERVED)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, PRAYING TO
CALL FOR THE RECORDS AND SET ASIDE THE JUDGMENT AND
AWARD DATED 27.06.2018 PASSED BY THE SENIOR CIVIL
JUDGE AND MACT, SHAHAPUR, IN MVC NO.229/2014 BY
ALLOWING THE APPEAL AS PRAYED FOR.


     THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:-
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                         JUDGMENT

This appeal is filed by the Insurance

Company/Respondent No.2 in the claim petition challenging

the judgment and award dated 27.06.2018 passed by the

Senior Civil Judge and Additional Motor Vehicle Claims

Tribunal, Shahapura, in MVC No.229/2014.

2. For the sake of convenience, the parties herein

are referred as per the ranks occupied by them before the trial

Court.

3. The brief factual matrix leading to the case are

that, 02.01.2014 at about 5.45 a.m., the deceased Mallappa

@ Mallaiah, the husband of claimant No.1 and father of

claimants No. 2 and 3 was proceeding in Tum-Tum Atuo

bearing Registration No.KA.33/9201 from Abbe-Tumakuru

towards Yadgiri. When the said auto reached to Cittapura-

Yadgiri main road near Don Basco School, the driver of the

tractor-trailer bearing Registration No. KA.33/T.4039 and

KA.33/T.4040 drove it in rash and negligent manner and

dashed to the Tum-Tum Auto resulting in deceased Mallappa

sustaining grievous injuries and later on 11.01.2014, he

succumbed because of injuries, in RIMS Hospital at Raichur.

Hence, the claimants have filed this claim petition.

4. Respondents No.1 and 3 did not contest the

matter, while Respondent No.2-Insurance Company filed

objections denying the allegations and assertions made in the

claim petition. It is contended that there is no actionable

negligence on the part of the driver of the tractor-trailer and

disputed the claim of the claimants.

5. The Tribunal after appreciating the oral and

documentary evidence, has awarded compensation of

Rs.6,17,000/- under various heads and fastened the liability

on the respondents, and the primary liability was fastened on

Respondent No.2- Insurance Company. Being aggrieved by

this judgment and award, Respondent No.2-Insurer has filed

this appeal.

6. Heard the arguments advanced by the learned

counsels appearing on both sides and perused the records.

7. Learned counsel for the appellants would contend

that, there is head-on-collision between the said two vehicles.

But, the Tribunal has not considered the contributory

negligence on the part of the deceased ie., the driver of Tum-

Tum Auto and hence, he would seek for interference with the

impugned judgment and award by this Court, by allowing the

appeal. However, he submits that, regarding quantum, there

is no dispute.

8. Learned counsels for the respondents would

support the judgment and award passed by the Tribunal.

9. Having heard the arguments advanced by the

learned counsels and perusing the records, it is evident that

there is no dispute of the fact that the deceased succumbed to

injuries caused due to accident in question. The records

further disclose that the driver of the tractor-trailer was

prosecuted by submitting the charge sheet against him. Even

on perusal of the scene of offence, mahazar and the sketch, it

is evident that the driver of the tractor-trailer moved on the

wrong side and the Tum-Tum Auto was moving on the left

side, while proceeding towards Yadgiri. Hence, the Tribunal

has appreciated the oral and documentary evidence in a

proper perspective and has rightly fastened the liability on the

driver of the tractor-trailer. No case is made-out to show that

there is any contributory negligence on the part of the driver

of Tum-Tum Auto.

10. Under these circumstances, the appellant-

Insurance Company has failed to make-out any case for

admitting the appeal. There is no dispute regarding the

quantum and the liability is also undisputed.

11. Considering these facts and circumstances, the

appeal is devoid of any merits and needs to be rejected.

Accordingly, I proceed to pass the following: -

ORDER

The appeal stands dismissed.

Sd/-

JUDGE

KGR*