Karnataka High Court
The Claims Department vs Mallamma And Ors on 8 November, 2024
-1-
NC: 2024:KHC-K:8234
MFA No. 200616 of 2020
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 8TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
MISCL. FIRST APPEAL NO.200616 OF 2020 (MV-D)
BETWEEN:
THE CLAIMS DEPARTMENT,
CHOLAMANDALAM M.S. GIC. LTD.,
135/5, 2ND FLOOR, 15TH CROSS,
J. P. NAGAR, 3RD PHASE, BANGALORE.
(THROUGH AUTHORISED SIGNATORY)
...APPELLANT
(BY SRI SUBHASH MALLAPUR, ADVOCATE)
AND:
1. MALLAMMA W/O MALLIKARJUN,
Digitally signed by AGE: 43 YEARS, OCC: HOUSEHOLD,
RENUKA
Location: HIGH
COURT OF 2. PRASHANT S/O MALLIKARJUN,
KARNATAKA
AGE: 21 YEARS, OCC: STUDENT,
3. AYYAMMA D/O MALLIKARJUN,
AGE: 17 YEARS OCC: STUDENT,
4. ARCHANA D/O MALLIKARJUN,
AGE: 13 YEARS OCC: STUDENT,
R3 AND R4 ARE BEING MINORS
U/G R-1, ALL R/O JOLADADAGI
VILLAGE, TQ: SHAHAPUR,
DIST: YADGIR-585102.
-2-
NC: 2024:KHC-K:8234
MFA No. 200616 of 2020
5. ZAHEER AHMED S/O ABDUL RAHEMAN
AGE: 53 YEARS, OCC: BUSINESS AND
OWNER OF LORRY NO.KA-39/6658,
R/O H.NO.4/475, QURESHI MOHALLA,
ALAND, TQ: ALAND,
DIST: KALABURAGI-585102.
6. SHRIRAM GENERAL INSURANCE CO. LTD.,
NO.5-4, 3RD FLOOR, S. V. ARCHANDIE,
BELEKAHALLI MAIN ROAD, OFF: B.G.ROAD,
IIM POST ,BANGALORE-02.
7. BASANAGOUDA S/O TIMMANNA,
AGE: 26 YEARS,
OCC: OWNER OF MAHINDRA JEEP NO.
KA-36/A-7651. R/O H.NO.119,
JEERABANDI VILLAGE, TQ:DEVADURGA,
DIST: RAICHUR-584101.
...RESPONDENTS
(BY SRI ANANTH S. JAHAGIRDAR, ADVOCATE FOR R1 TO R4;
SRI SUDARSHAN M., ADVOCATE FOR R6;
R5 AND R7 ARE SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT, PRAYING TO, ALLOW THE ABOVE
APPEAL BY SETTING ASIDE THE JUDGMENT AND AWARD
DATED 21.10.2019 IN MVC NO.288/2015 PASSED BY THE
SENIOR CIVIL JUDGE AND CJM AND MACT-II, YADGIR.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
-3-
NC: 2024:KHC-K:8234
MFA No. 200616 of 2020
CORAM: HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
ORAL JUDGMENT
(PER: HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM)
The captioned appeal is by the Cholamandalam M.S.
General Insurance Company Limited assailing the liability
fastened on the insurance company on the premises that the
driver of the offending Bolero was solely responsible for the
accident.
2. Heard the learned counsel appearing for the
appellant, learned counsel appearing for respondent No.6 and
learned counsel appearing for respondent Nos.1 to 4/claimants.
3. The short point that needs consideration at the
hands of this Court is, as to whether the Tribunal was justified
in fastening the liability on the appellant/insurance company
contrary to the records?
4. On perusal of the records it is clearly evident that
the driver of the offending Bolero in which the deceased was
traveling collided with the parked lorry insured with
respondent No.6/insurance company.
NC: 2024:KHC-K:8234
5. The claimants having lost one Mallikarjun have filed
a claim petition arraying both the joint tort feasors. The owner
of the Bolero and the owner of the lorry are parties to the claim
petition.
6. The Tribunal while answering the liability referring
to charge sheet, was of the view that the driver of the
offending Bolero was more negligent and therefore entire
liability is fastened on the Mahindra Bolero Max Jeep bearing
No.KA-36/A-7651.
7. Before this Court delves further, this Court deems it
fit to cull out the relevant charge sheet material which reads as
under:
" ಾಂಕ: 06-08-2014 ರಂದು 11-45 .ಎ ೆ ಾನ
ಾ ಾಲಯದ ಾ ಯ ೈ ಾದ ಾ ೕಣ !ಾ"ಾ ಹ $ಯ ೈ
ಾದ %ಾಮಸಮುದ ದ ಮುಂಡರ ಮುಖ ರ*ೆ ಯ +ೕ,ೆ ಈ .ೋ0ಾ%ೋಪ"ೆ
ಅಂಕಣ 12 ರ34 ನಮೂ 5ದ ಆ%ೋ ತರು ಆ%ೋ ನಂ-2 ಪ ೇ8ಜ ಇವನು
ತನ< ಾಹನ ,ಾ ನಂ ೆ.ಎ-39/6658 ೇದ$ನು< ಮುಖ ರ*ೆ ಯ +ೕ,ೆ
ಓ>ಾಡುವ ಾಹನಗ@ ೆ Aೊಂದ%ೆ ಾಗುವ ೕBಯ34 C345 ಾಹನ C345ದ ಬ ೆE
ಾವ ಮುನೂFಚ ೆಯನು< ೊಡ.ೆ ಅ ಾಯ ಾ ವಸು ಗಳನು< ಾಹನದ34
ಏ ೊಂಡು ಅ ಾಯ ಾ 5ಗ<Jಗಳನು< ೊಡ.ೆ C345ದು$, ಆ%ೋ ನಂ-1 ೆ
ಇವನು ತನ< Lೕಪ ನಂ- ೆ.ಎ-36-ಎ-7651 ೇದ$ನು< ಅBೕ ೇಗ ಮತು
ಅಲMತನ ಂದ ನ>ೆ5 ೊಂಡು ಬಂದು ರ*ೆ ಯ34 C345ದ ,ಾ ನಂ- ೆ.ಎ-
NC: 2024:KHC-K:8234
39/6658 ೇದ$ ೆ ೇಗ ಾ ಬಂದು ,ಾ ಯ NಂOಾಗ ೆ P ಪP5
,ಾ ಯ34ದ$ ಕQRಣದ %ಾಡಗಳS ಸದ Lೕ ನ ಾ4ಸ Tೊ>ೆದು Lೕ ನ
ಒಳVಾಬದ34 ಕು@ತ ಮೃತ ಮ34 ಾಜು8ನ ಇವC ೆ Vಾ ರಕ ಾಯ ಮತು ತ,ೆ ೆ,
+ೖ, ೈ ೆ, ಕXY ೆ ಮತು ಮುಖ ೆ ಮೂ ೆ, ಕQRಣದ %ಾಡಗಳS ಚುZ[
ರಕ ಾಯ ಂದ ಮ34 ಾಜು8ನ ಸ\ಳದ34]ೕ ಮೃತ ಪ^_ರುAಾ ೆ. ,ಾ ೆ P
ಪP5ದ Lೕ` aಾಲಕC ೆ P bಂದ ಸಣY¥ÀÄಟ_ ಾಯಗಳS ಸಂಭe5ರುತ ೆ. ಈ
ಅಪ%ಾದವನು< *ಾf ನಂ-6 ೇದ$ವರು ಪ ತ M ಾ ೋP *ಾf ನಂ-10
ೇದ$ವ ೆ ನ>ೆದ ಘಟ ೆಯ ಬ ೆE B@5ದು$ *ಾfೕ ನಂ-1,7,8 ಮತು 9 ೇದ$ವರು
ನಂತರ ಬಂದು ೋPದು$ ಅ.ೆ.
ಾರಣ ಸದ ಆ%ೋ ತರ eರುದh ಈ .ೋ0ಾ%ೋಪ"ೆಯ ಅಂಕಣ 12
ರ34 ನಮೂ 5ದ ಆ%ೋ ನಂ-1 ೇದ$ವನ ಕಲಂ 279,337,304(ಎ)ಐ. .5
ಮತು ಆ%ೋ ನಂ-2 ೇದ$ವನು ಕಲಂ: 283 ಐ 5 ಮತು 187,122
ಆj.ಎ .e ಆM ಪ ಾರ ಆ%ೋ ತರು ದಂಡ ಾಹಯ8 ಅಪ%ಾದ
ಾPರುAಾ %ೆ ಅಂAಾ ಾನ ಾ ಾಲಯ ೆ .ೋ0ಾ%ೋಪ"ೆ ಪತ
ಸ34ಸ,ಾ .ೆ."
8. Upon a meticulous reading of the charge sheet, it
becomes unequivocally clear that the offending lorry was
negligently parked in the middle of the road, which directly led
to the accident in question. This case cannot be construed as
one of composite negligence, as the actions of the lorry driver
alone were the proximate cause of the incident. The driver of
the offending lorry acted in blatant disregard for road safety
norms by parking the vehicle in a hazardous manner that
obstructed the flow of traffic. This critical issue has been
NC: 2024:KHC-K:8234
addressed by the Hon'ble Supreme Court in the landmark case
of Archit Saini and Another Vs. Oriental Insurance
Company Limited and Others1, wherein the Apex Court held
that when an accident occurs due to reckless parking of a
vehicle on the road, the entirety of negligence must be
attributed to the driver of the parked vehicle.
9. In the present case, despite the clear evidence on
record, including the charge sheet, the Tribunal erroneously
concluded that the driver of the Mahindra Bolero was solely
responsible for the accident and unjustly attributed the entire
negligence to him. This finding is not only contrary to the
material facts but also constitutes a gross misreading of the
charge sheet. The principles enunciated by the Apex Court in
the Archit Saini's case are directly applicable here,
emphasizing that the driver of the lorry bears full responsibility
for the accident due to the reckless act of parking the vehicle in
the middle of the road.
10. In light of the aforementioned facts and binding
judicial precedent, the finding of the Tribunal holding the driver
(2018) 3 SCC 365
NC: 2024:KHC-K:8234
of the Mahindra Bolero liable is legally unsustainable and
warrants reversal. Accordingly, this Court, applying the legal
principles laid down by the Hon'ble Supreme Court and
considering the evidence on record, finds that the negligence
must be solely attributed to the driver of the offending lorry.
Therefore, this Court passes the following:
ORDER
(i) The appeal is allowed.
(ii) The entire negligence is fastened on the
driver of the lorry and hence respondent
No.5, the owner of the offending lorry and
respondent No.6/insurance company are
jointly and severally liable to pay the
compensation determined by the Tribunal.
(iii) The claim petition against the appellant is
hereby dismissed.
(iv) The amount deposited by the
appellant/insurance company shall be
refunded to the insurance company.
Sd/-
(SACHIN SHANKAR MAGADUM)
JUDGE
RSP
List No.: 1 Sl No.: 9/CT-SW
