Karnataka High Court
The New India Assurance Co.Ltd vs Satyavati W/O Kamalesh Naik on 16 February, 2024
Author: V.Srishananda
Bench: V.Srishananda
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NC: 2024:KHC-D:3838
MFA No. 101285 of 2014
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 16TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE V.SRISHANANDA
MISCELLANEOUS FIRST APPEAL NO.101285 OF 2014 (MV-D)
BETWEEN:
THE NEW INDIA ASSURANCE CO.LTD.
BY ITS DIVISIONAL MANAGER,
DIVISIONAL OFFICE,
KITTLE COLLEGE, DHARWAD,
HEREIN REPRESENTED BY
NEW INDIA ASSURANCE CO.LTD.,
REGIONAL OFFICE, MOTOR THIRD PARTY HUB
OFFICE, SRINATH COMPLEX, 2ND FLOOR,
NEW COTTON MARKET, HUBLI-580029,
REPRESENTED BY ITS AUTHORISED SIGNATORY.
...APPELLANT
(BY SRI. R.R. MANE, ADVOCATE)
Digitally
signed by
SAMREEN AND:
SAMREEN AYUB
AYUB DESHNUR
DESHNUR Date:
2024.02.23
16:39:49
+0530 1. SMT. SATYAVATI W/O. KAMALESH NAIK,
AGE: 48 YEARS,
OCC: PRIMARY SCHOOL TEACHER,
R/O: BEHIND ARJUN TALKIES,
KAJUBAG, KARWAR.
2. LIKHIT KAMALESH NAIK,
AGE: 21 YEARS, OCC: STUDENT,
R/O: BEHIND ARJUN TALKIES,
KAJUBAG, KARWAR.
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NC: 2024:KHC-D:3838
MFA No. 101285 of 2014
3. SANKETH KAMALESH NAIK,
AGE: 17 YEARS, OCC: STUDENT,
MINOR REPRESENTED BY
HIS NEXT FRIEND MOTHER RESPONDENT NO.1
R/O: BEHIND ARJUN TALKIES,
KAJUBAG, KARWAR.
4. SMT. DEVAKI W/O. RAMAPPA NAIK,
AGE: 79 YEARS, OCC: HOUSEHOLD,
R/O: BEHIND ARJUN TALKIES,
KAJUBAG, KARWAR.
5. M/S. KEERTI ENTERPRISES,
PARTNER-KEERTIKUMAR,
AGE: MAJOR,
REGISTERED OWNER OF TANKER
BEARING NO.KA-22/A-8224,
R/O.368/2, SAIBANNAKAR COMPOUND,
SANGOLLI RAYANNA NAGAR, BELAGAVI.
...RESPONDENTS
(BY SRI. T.M. NADAF, ADVOCATE FOR R1 and R2;
R3 IS MINOR REP. BY R1;
SRI. BAHUBALI N.KANABARGI, ADVOCATE FOR R5;
R4 HELD SUFFICIENT)
THIS M.F.A. IS FILED U/SEC.173(1) OF MV ACT 1988,
AGAINST JUDGMENT AND AWARD DTD:21.01.2014, PASSED IN
MVC.NO.38/2010 ON THE FILE OF THE ADDITIONAL M.A.C.T.,
KUMTA, AWARDING THE COMPENSATION OF RS.6,86,000/-
WITH INTEREST AT THE RATE OF 6% P.A. FROM THE DATE OF
PETITION TILL THE DATE OF REALIZATION.
THIS M.F.A., COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC-D:3838
MFA No. 101285 of 2014
JUDGMENT
Heard Sri.R.R.Mane, learned counsel for the appellant
Sri.T.M.Nadaf, learned counsel for respondent Nos.1 and 2.
2. Insurance company is in appeal challenging the
validity of the judgment and award passed in MVC No.38/2010
dated 21.01.2014 on the file of Additional MACT, Kumta.
3. Brief facts of the case are as under:
A claim petition came to be filed under Section 166 of
Motor Vehicles Act contending that on 25.06.2009 when
Sri.Kamalesh Naik, was proceeding on his motorcycle bearing
No.KA-47/H-2293 on NH-17 from Karwar towards Ankola, near
Alaageri cross of Ankola Taluk at about 10 p.m. a tanker
bearing No.KA-22/A-8224 came in a rash and negligent manner
from the hind side and dashed against the motorcycle whereby,
he fell down and died on the spot. The dead body was shifted
to Taluk Hospital, Ankola and post-mortem was conducted.
4. Dependants of Kamalesh Naik laid a claim for
awarding suitable compensation.
5. Claim petition was resisted by filing detailed written
statement by the Insurance Company questioning the very
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genesis of the accident as is propounded by the claimant and
sought for dismissal of the claim petition.
6. Tribunal raised necessary issues and recorded the
evidence of the claimant and eye witness by name
Sri.Shivanand Ramakrishna Naik and Sri.H.S.Subedulla, who is
the Investigation Officer and officer of the Insurance Company
as D.W.1 and D.W.2 and considering the probative value of
eighteen documentary evidence placed on record on behalf of
the claimants and three documentary evidence on behalf of the
respondent, allowed the claim petition in part by awarding sum
of Rs.6,86,000/- as the compensation.
7. Being aggrieved by the same, Insurance Company
is in appeal.
8. Sri.R.R.Mane, learned counsel for the Insurance
Company reiterating the grounds urged in the appeal
memorandum vehemently contended that the Tribunal has not
properly appreciated the material evidence on record and
wrongly allowed the claim petition and sought for allowing the
appeal.
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9. He further contended that the complaint averments
and the IMV report do not tally with each other insofar as the
theory put forward on behalf of the claimants that the lorry hit
the motorcycle of the deceased from the hand side as there is
no visible damages on to the hand side of the motorcycle where
as the damages noted by the Inspector of the Motor Vehicles is
on to the hand side of the lorry and front side of the motorcycle
whereby, it is the negligence of the rider of the motorcycle in
not properly riding the motorcycle and hitting the lorry from the
hand side resulting in the accident and loss of life and
therefore, sought for allowing the appeal.
10. He also contended that the other material evidence
placed on record would clearly show that lorry was moving in
its right direction and because of the negligence act of the
motorcycle, the accident has occurred and therefore, sought for
allowing the appeal.
11. He also emphasised that the Investigation Officer
by name Sri.H.S.Subedulla is examined by the Insurance
Company by establishing that the charge sheet filed against the
driver of the lorry is incorrect and in his examination, it has
been elicited that there are no visible damages on the hand
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side of the motorcycle and on the front side of the lorry and
therefore, sought for allowing the appeal.
12. Per contra, Sri.T.M. Nadaf, learned counsel for
respondent Nos.1 and 2 supported the impugned judgment.
He drew the attention of this Court to the testimony of the eye
witness. P.W.2 namely Sri.Shivanand Ramakrishna Naik
wherein, the theory as is put forward by the Insurance
company has not even been suggested to P.W.2 and therefore,
the appeal is meritless and sought for dismissal of the appeal.
13. Having heard the parties in detail, this Court
perused the material on record meticulously.
14. On such perusal of the material on record, it is
established that Sri.Kamalesh Naik lost his life in a road traffic
accident that occurred on 25.06.2009 involving a motorcycle
bearing No.KA-47/H-2293 on NH-17 from Karwar towards
Ankola, near Alaageri cross of Ankola Taluk.
15. No doubt in the IMV report marked at Ex.R.3, there
are no visible damages noted by the Inspector of Motor
Vehicles to the hand side of the motorcycle. On the contrary,
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the head light indicator, speedometer are also broken and
damaged.
16. Insofar as the lorry is concerned rare right side of
the bumper has been damaged. The IMV report alone cannot
be the basis for discarding the case of the claimant in toto
especially, where there is an oral evidence placed on record on
behalf of the claimant, who is an eye witness of the incident.
17. P.W.2 has deposed before the Court that he had
acquaintance with the deceased and both of them had parked
their motorcycle near Avarsa and after having a chit chat, they
again started towards their native place. He has specifically
stated that deceased was proceeding on the motorcycle and
few minutes later he also started on his motorcycle on the
same direction.
18. He has also stated that they were proceeding from
Karwar towards Ankola. He further stated that lorry over took
the motorcycle of P.W.2 and thereafter, within a minute the
accident has occurred.
19. He has specifically stated that the motorcycle of the
deceased was moving in a front and the lorry which over took
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the motorcycle of P.W.2 was in between the motorcycle of
P.W.2 and the motorcycle of the deceased at the time of
accident.
20. Therefore, the theory that is put forward by the
Insurance Company that the deceased while trying to overtake
or due to his negligence dashed against the lorry from the hand
side cannot be countenanced in law. When the accident takes
place and the vehicle has fallen down and somebody has lost
the life that too at 10 p.m., it is impossible to say that whether
the accident is on the negligent act of the rider of the
motorcycle especially, who is proceeding on the front side of
the lorry cannot be decided based on the IMV report alone.
21. Therefore, Tribunal has rightly appreciated that it is
because of the negligent act of the driver of the lorry that the
accident has occurred and deceased lost his life on the spot.
22. Moreover, the charge sheet is filed against the
driver of the lorry and the author of Ex.R3 has been examined
before the Court, who has only noted that the damages found
on the motorcycle and the lorry when they were parked in the
precincts of the police Station. Therefore, he is not the
competent person to say who is negligent for the accident.
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23. Therefore, when there is an eye witness available
on record based on the version of the motor vehicles inspector
which is an opinion evidence alone, the case of the claimant
cannot be doubted.
24. Hence, there is no merit in the contentions urged
on behalf of the appellant/Insurance Company.
25. Accordingly, following:
ORDER
i. Appeal is meritless and hereby dismissed.
ii. Amount in deposit is ordered to be transmitted to
Tribunal for disbursement in accordance with law.
iii. No order as to costs.
Sd/-
JUDGE
KAV
