Karnataka High Court
Annasaheb S/O. Dhondiba Mali vs Bharat W/O. Kumar Gulle on 19 September, 2022
Bench: H.P.Sandesh
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MFA No. 26020 of 2011
C/W MFA No. 24986 of 2011
IN THE HIGH COURT OF KARNATAKA, DHARWAD
BENCH
DATED THIS THE 19TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 26020 OF 2011
(MV-D)
C/W
MISCELLANEOUS FIRST APPEAL NO. 24986 OF 2011
IN MFA No.26020/2011
BETWEEN:
1. SRI.ANNASAHEB S/O. DHONDIBA MALI,
AGE: 44 YEARS, OCC: BUSINESS, R/O: CHIKODI,TQ:
CHIKODI - 591 201,DIST: BELGAUM.(OWNER OF THE
MOTOR CYCLE BEARING NO.KA-23, K-1009)
...APPELLANT
(BY SRI. SHIVARAJ S BALLOLI, ADVOCATE)
AND:
1. BHARAT W/O. KUMAR GULLE,
AGE: 38 YEARS, OCC: HOUSEHOLD WORK,R/O:
KUPPANAWADI,TQ: CHIKODI,DIST: BELGAUM.
2. KUM. ABHINANDAN S/O. KUMAR GULLE,
AGE: 21 YEARS, OCC: STUDENT,R/O: KUPPANAWADI,TQ:
CHIKODI,DIST: BELGAUM.
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MFA No. 26020 of 2011
C/W MFA No. 24986 of 2011
3. KUM. POOJA S/O. KUMAR GULLE,
AGE: 21 YEARS, OCC: STUDENT,R/O: KUPPANAWADI,TQ:
CHIKODI,DIST: BELGAUM.
4. SALIM S/O. NOORAHAMAD MOMIN,
AGE: 46 YEARS, OCC: BUSINESS,R/O: SANKESHWAR,TQ:
HUKKERI,DIST: BELGAUM.
5. THE DIVISIONAL MANAGER,
THE NEW INDIA ASSURANCE CO., LTD.,TQ/DIST:
BELGAUM,
...RESPONDENTS
(BY SRI. M.Y.KATAGI, ADVOCATE FOR R5,
R1 TO R3 ARE SERVED,
NOTICE TO R4 IS HELD SUFFICIENT)
THIS MFA IS FILED U/SEC.173(1) OF MV ACT, AGAINST THE
JUDGMENT AND AWARD DTD:17-05-2011 PASSED IN
MVC.NO.1874/2005 ON THE FILE OF THE MEMBER, MACT AND
DISTRICT JUDGE, FAST TRACK COURT-I, CHIKODI, AWARDING THE
COMPENSATION OF RS.11,43,056/- WITH INTEREST AT THE RATE
OF 9% P.A., FROM THE DATE OF PETITION TILL REALIZATION.
IN MFA No.24986/2011
BETWEEN
1. THE DIVISIONAL MANAGER,
THE NEW INDIA ASSURANCE CO. LTD., BELGAUM
...APPELLANT
(BY SRI. M Y KATAGI, ADVOCATE)
AND
1. SMT. BHARATI W/O KUMAR GULLE,
AGE: 37 YEARS, OCC: HOUSEHOLD WORK,
R/O KUPPANAWADI, TQ. CHIKODI, DIST. BELGAUM
2. KUM. ABHINANDAN S/O KUMAR GULLE,
AGE: 20 YEARS, OCC: STUDENT,
R/O KUPPANAWADI, TQ. CHIKODI, DSIT. BELGAUM
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MFA No. 26020 of 2011
C/W MFA No. 24986 of 2011
3. KUM. POOJA D/O KUMAR GULLE,
AGE: 20 YEARS, OCC: STUDENT,
R/O KUPPANAWADI, TQ. CHIKODI, DSIT. BELGAUM
4. SALIM NOORAHMED MOMIN,
AGE:45 EARS, OCC: BUSINESS,
R/O SANKESHWAR, TQ. HUKKERI, DIST. BELGAUM
(OWNER OF TRUCK BEARING REGISTRATION
No.KA-22/7722)
5. ANNASAHEB DHONDIBA MALI
AGE: 43 YEARS, OCC: BUSINESS,
R/O CHIKODI, DIST. BELGAUM
(OWNER OF MOTOR CYCLE BEARING
REGD NO. KA-23/J-1009)
...RESPONDENTS
(R1 TO R4 ARE SERVED,
NOTICE TO R5 IS HELD SUFFICIENT)
THIS MFA IS FILED U/SEC.173(1) OF M.V. ACT, AGAINST THE
JUDGMENT AND AWARD DATED:17.05.2011, PASSED IN M.V.C.
NO.1874/2005 ON THE FILE OF THE MOTOR ACCIDENT CLAIMS
TRIBUNAL AND DISTRICT JUDGE, FAST TRACK COURT-I, CHIKODI,
AT CHIKODI, AWARDING THE COMPENSATION OF RS.11,43,056/-
WITH INTEREST AT THE RATE OF 9% P.A. FROM THE DATE OF
PETITION TILL ITS REALIZATION.
THESE APPEALS COMING ON FOR FINAL HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard learned counsel for both parties.
2. These appeals are filed by the insured of
motorcycle and also insurer of truck, questioning the
MFA No. 26020 of 2011
C/W MFA No. 24986 of 2011
liability and contributory negligence to the extent of 50%
each.
3. Factual matrix of the case of the claimants
before the Tribunal is that on 11.01.2004 at about 9.30
p.m. near Kuppanwadi on Chikodi-Nippani road while
deceased Kumar and pillion rider Shantinath were
returning to Chikodi on their motorcycle bearing
Reg.No.KA-23/K-1009 on left side of the road showing
indictor light to ttake a right turn towards the house, a
lorry bearing Reg.No.KA-22/7722 of respondent No.1
came in high speed, rash and negligent manner from
opposite direction with one headlight and dashed to the
motorcycle of the deceased and sped away from the spot
and the victim Kumar fallen down from the motorcycle and
motorcycle bearing Reg.No.KA-23/K-54 also came in high
speed, rash and negligent manner and dashed to the
deceased Kumar and as a result he sustained grievous
head injuries and died due to the said injuries.
MFA No. 26020 of 2011
C/W MFA No. 24986 of 2011
4. The claimants in order to prove their claim,
examined witnesses as P.W.1 and also P.W.2 and got
marked documents as Exs.P.1 to P.12. On the other hand,
respondents have not examined any witnesses, got
marked documents as Exs.R.1 to R.3.
5. The Tribunal after considering both the oral and
documentary evidence on record, while answering issue
No.1 in para Nos.13 to 16 discussed with regard to the
negligence on the part of both the vehicle i.e. driver of
motorcycle as well as driver of lorry and apportioned the
liability to the extent of 50% each.
6. Counsel appearing for the appellant/insured of
motorcycle in MFA No.26020/2011, vehemently contends
that the Tribunal committed an error in fastening liability
to the extent of 50% each and Tribunal has not at all
meticulously perused the spot panchanama at Ex.P.4,
which clearly shows that the appellant was proceeding
towards Chikodi on the left side of the road and it is the
MFA No. 26020 of 2011
C/W MFA No. 24986 of 2011
driver of the lorry, who was proceeding in opposite
direction has come in high speed and dashed to the
motorcycle which is towards extreme side of the road.
Hence, the finding of the Tribunal is erroneous and
contrary to the cogent evidence on record and ought to
have fastened liability on the truck at 80% and hence, it
requires interference.
7. Per contra, learned counsel for appellant-
Insurance Company of truck in MFA No.24986/2011 would
contend that case has been falsely filed against the owner
and insured of the truck and vehicle was not at all involved
in any such accident and the accident is only in between
two wheelers and police have also registered and
investigated the matter and nothing is found in the police
records that the lorry was involved in the accident.
8. Counsel submits that there was no insurance to
the vehicle which was involved in the accident i.e.
motorcycle and hence, false allegation is made in the claim
MFA No. 26020 of 2011
C/W MFA No. 24986 of 2011
petition and in order to prove that the driver of the lorry
was negligent, no material is placed on record.
Respondent Nos.1, 2 and petitioners in collusion with each
other, have played fraud on the Court in getting
compensation.
9. It is also contended rate of interest at 9% p.a.
awarded by the Tribunal is erroneous and without there
being any special circumstances to deviate from the
normal rate of 6% interest being awarded by the Tribunal.
10. Though notices are served on the claimants,
they are unrepresented.
11. In view of the rival contentions of the parties,
the following points would arise for consideration:
i. Whether the Tribunal has erred in
apportioning the negligence at 50% each in
respect of driver of lorry and also rider of
motorcycle and whether it requires
interference?
MFA No. 26020 of 2011
C/W MFA No. 24986 of 2011
ii. Whether the rate of interest awarded by the
Tribunal is exorbitant?
iii. What order?
12. Regarding Point No.1: Having heard the
learned counsel for the parties and on perusal of the
material on record, immediately after the accident
complaint is given against the rider of the motorcycle and
no allegation of involvement of lorry in the accident is
mentioned in the complaint. The police have also
investigated the matter and filed charge sheet against the
rider of the motorcycle and during the course of
investigation also, nothing is found against the driver of
the lorry. The Tribunal while answering issue No.1 in detail
discussed regarding vehicles involved in the accident in
para No.12 and also in para No.13, taken note of the
contention of respondent No.1 and evidence of P.W.1 is
also taken note of in para No.14. It is also observed that
the accident is not on account of any mechanical defect,
but in para No.13 while apportioning negligence to the
MFA No. 26020 of 2011
C/W MFA No. 24986 of 2011
extent of 50% each the Tribunal comes to the conclusion
that both the driver of lorry as well as rider of the
motorcycle have contributed their negligence equally. In
order to comes to such a conclusion, first of all FIR is not
registered against the driver of the lorry and no allegation
is made against him in the FIR and also police have
investigated the matter and filed charge sheet and
nowhere in the charge sheet allegation is made against
the driver of lorry. Apart from that, IMV report which is
placed before the Court and marked as Ex.P.6, only
damages caused to both motorcycle in which the deceased
was proceeding and other offending vehicle which came
and hit the motorcycle are mentioned. In order to prove
the factum of accident that three vehicles are involved in
the accident, no material is placed before the Court.
13. No doubt, P.W.2 is also examined and while
filing the claim petition there is improvement with regard
to involvement of the lorry. It is emerged during the
course of evidence that the rider of the motorcycle, who
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MFA No. 26020 of 2011
C/W MFA No. 24986 of 2011
was riding the motorcycle has caused the accident, which
vehicle was not having insurance and hence, there is force
in the contention of the counsel appearing for respondent-
Insurance Company that even without involvement of the
lorry in the accident, the same has been arrayed as
respondent in the claim petition.
14. In the absence of cogent evidence before the
Court, the Tribunal ought not to have comes to the
conclusion that the driver of the lorry had also caused the
accident and no material is placed before the Court to
show that immediately after the accident any allegation is
made against the driver of the lorry and there is no
material with regard to involvement of lorry in the
accident. IMV report also does not disclose anything about
involvement of lorry. When such being the case, the
Tribunal committed an error in apportioning the
contributory negligence at 50% each and only on
imagination, the Tribunal while answering issue No.1
particularly in para No.16 proceeded to fix the liability on
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MFA No. 26020 of 2011
C/W MFA No. 24986 of 2011
the driver of the lorry, but comes to the conclusion that
records shows that lorry dashed to the motorcycle and the
driver of the lorry sped away from the spot. In order to
comes to such a conclusion also, no material is placed
before the Court. Only an adverse inference is drawn
against the driver of the lorry and hence, it requires
interference of this Court and finding of the Tribunal with
regard to issue No.1 requires to be modified by fastening
liability in entirety on the rider of the motorcycle, who
caused the accident. Hence, point No.1 is answered in
affirmative.
15. Regarding point No.2: Considering the
accident of the year 2004 and the interest rate at
nationalized bank, the interest awarded by the Tribunal is
reduced from 9% to 6%. Hence, point No.2 is answered in
affirmative.
16. Regarding point No.3: In view of the
discussions made above, I pass the following:
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MFA No. 26020 of 2011
C/W MFA No. 24986 of 2011
ORDER
MFA No.26020/2011 filed by owner of motorcycle is
dismissed.
MFA No.24986/2011 filed by Insurance Company of
truck is allowed.
In modification of the impugned judgment and award
passed by the Tribunal, the finding of the Tribunal on issue
No.1 is set aside. Entire liability is fastened on the rider of
the motorcycle.
The rate of interest awarded by the Tribunal is
reduced from 9% to 6% p.a. from the date of petition till
realization.
Appellant in MFA No.26020/2011 is directed to pay
the compensation amount along with interest within six
weeks from the date of this order.
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MFA No. 26020 of 2011
C/W MFA No. 24986 of 2011
In MFA No.26020/2011, amount in deposit, if any, is
ordered to be transferred to the Tribunal forthwith.
In MFA No.24986/2011, amount in deposit, if any, is
ordered to be refunded to the Insurance Company, on
proper identification.
The registry is directed to transmit the trial court
records forthwith.
Sd/-
JUDGE
SH
