Karnataka High Court
The Branch Manager vs Sudhir Kumar on 7 June, 2024
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
-1-
NC: 2024:KHC:20095
MFA No. 2649 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
MISCELLANEOUS FIRST APPEAL NO.2649 OF 2018 (MV-I)
BETWEEN:
THE BRANCH MANAGER
NEW INDIA ASSURANCE COMPANY LIMITED,
MALLAPPA COMPLEX, 1ST FLOOR,
B.H.ROAD, SHIMOLGA
NOW REP. BY ITS APPEALS HUB,
DIVISIONAL OFFICE-III,
2ND FLOOR, MAHALAKSHMI CHAMBERS,
M.G.ROAD, BENGALURU-560001
REP. BY ITS DULY CONSTITUTED ATTORNEY.
...APPELLANT
(BY SRI. A. M. VENKATESH, ADVOCATE)
AND:
1. SUDHIR KUMAR
S/O VENKATARAMAN,
AGED ABOUT 27 YEARS,
AGRICULTURIST, R/O HIREBYLU,
Digitally signed by B YADOOR VILLAGE, HOSANAGARA TALUK,
K
MAHENDRAKUMAR SHIVAMOGGA DISTRICT. - 577418
Location: HIGH
COURT OF
KARNATAKA 2. K.S.SUDHEER @ SANTHOSH
S./O SRINIVASA, AGED ABOUT 32 YEARS,
R/O SANKADHAHOLE,
THIRTHAHALLI TALUK - 577432
(DRIVER OF AUTO-RICKSHAW)
3. B M PUTUSHOTHAMA NAYAKA
S/O MANJA NAYAKA,
AGED :MAJOR, R/O BHALEBYLU,
THIRTHAHALLI TALUK -577432
(OWNER OF THE AUTO-RICHSHAW)
-2-
NC: 2024:KHC:20095
MFA No. 2649 of 2018
4. THE ORIENTAL INSURANCE CO LTD
VINAYAKA COMPLEX,
1ST CROSS, GARDEN AREA,
SHIVAMOGGA- 577201
5. MANJUNATHA H K
S/O KRISHNAMURTHY,
AGED ABOUT 80 YEARS,
R/O HIREBYLU,
YADUR POST,
HOSANAGAR TALUK,
SHIVAMOGGA DISTRICT 577418
...RESPONDENTS
(BY SRI. ASHWATH C.M., ADVOCATE FOR R2
SRI. A.N. KRISHNASWAMY, ADVOCATE FOR R4
R1 & R5 ARE SERVED)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 26.10.2017 PASSED IN MVC
NO.02/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE, & JMFC,
MACT-14, THIRTHAHALLI, AWARDING COMPENSATION OF
RS. 4,94,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF
PETITION TILL DEPOSIT.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the insurance company under Section
173(1) of the Motor Vehicles Act, 1988, challenging the award
dated October 26, 2017, issued by the Senior Civil Judge and
Judicial Magistrate First Class and AMACT-14 at Thirthahalli in
MVC No. 2/2013. The appeal contests the decision insofar as it
assigns full liability to the appellant for the payment of the entire
compensation amount to the claimant.
NC: 2024:KHC:20095
2. Respondent No. 1 filed a claim petition under Section
166 of the Indian Motor Vehicles Act, stating that while he was
traveling on a bike from Shivamogga towards his village, the driver
of an auto rickshaw drove in a rash and negligent manner, resulting
in a collision with his motorcycle. Consequently, both the rider and
the pillion rider fell and sustained injuries. The Tribunal awarded a
total compensation amount of Rs.4,94,000/-. During the
proceedings, the appellant (the insurance company) presented a
copy of the award from MVC No. 549/2010, filed by the rider of the
motorcycle, where contributory negligence was attributed to both
the rider of the motorcycle and the driver of the auto rickshaw. In
that case, 50% of the compensation amounting to Rs.72,900/- was
deducted due to the rider's contributory negligence. Therefore, the
insurance company contends that 50% of the compensation in
MVC No. 2/2013 should be borne by the owner and the insurer of
the motorcycle, i.e., respondent Nos. 3 and 4.
3. After hearing the learned counsel for the parties and
reviewing the trial court records, it was observed that Ex.P2, the
award passed by the FTC-II, Shivamogga in MVC No. 549/2010,
indicated that composite negligence was attributed to both the
driver of the auto rickshaw and the rider of the motorcycle (the
claimant in that case). Consequently, 50% of the compensation
amount was deducted due to the rider's negligence. Therefore,
given that composite negligence was established against the rider
of the motorcycle, respondent No. 4, who is the insurer of the
motorcycle, is liable to satisfy 50% of the compensation awarded
by the Tribunal in MVC No. 2/2013.
NC: 2024:KHC:20095
4. Therefore, the impugned award passed by the Tribunal
insofar it relates to fastening the liability to pay the compensation in
its entirety is set aside, and respondent No.5 before the Tribunal
and respondent No.4 herein and the appellant herein are jointly
and severally made liable to pay 50% of the compensation each
awarded by the Tribunal to the claimant.
5. To this extent the impugned award stands modified .
6. Appeal is allowed in part.
Sd/-
JUDGE
ssb
