Karnataka High Court
Sri. Narasappa vs National Insurance Co. Ltd on 13 November, 2024
Author: N S Sanjay Gowda
Bench: N S Sanjay Gowda
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NC: 2024:KHC:46156
MFA No. 5942 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE N S SANJAY GOWDA
MISCELLANEOUS FIRST APPEAL NO.5942 OF 2018(MV-D)
BETWEEN:
1. SRI. NARASAPPA
AGED ABOUT 66 YEARS
S/O. LATE NARASIMHAPPA
2. SMT. GANGAMMA
AGED ABOUT 59 YEARS
W/O. NARASAPPA
3. SMT. NANJAMMA
AGED ABOUT 36 YEARS
D/O. NARASAPPA
4. SRI. N. RAMAKRISHNAPPA
AGED ABOUT 31 YEARS
S/O. NARASAPPA
5. SRI. N. PRAKASH
Digitally signed AGED ABOUT 29 YEARS
by KIRAN S/O. NARASAPPA
KUMAR R
Location: HIGH ALL ARE R/AT C/O. SHIVAKUMAR
COURT OF
KARNATAKA NO.112, 8TH CROSS, 17TH MAIN
SWATHANTHRAYODHARANGAGARA
NARASIMHASWAMY LAYOUT
LAGGERE, BENGALURU-560 058
PERMANENT RESIDENTS OF
HALE UPPARAHALLI
HOSUR HOBLI, GOWRIBIDANUR
CHICKABALLAPURA DISTRICT-561 208.
...APPELLANTS
(BY SRI NAGARAJA REDDY D., ADVOCATE)
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NC: 2024:KHC:46156
MFA No. 5942 of 2018
AND:
1. NATIONAL INSURANCE CO. LTD.
NO.144, SHUBHARAM COMPLEX
M.G. ROAD, BENGALURU-560 001
REP. BY ITS MANAGER
2. SRI. SURESH BABU
MAJOR
S/O. DASAPPA
KADARANAHALLI
KURUDI POST
GOWRIBIDANUR TALUK
CHICKABALLAPURA DISTRICT-561 208.
3. SRI. K. R. SIDDARAJU
MAJOR
S/O. RAMAPPA
DURUDI VILLAGE AND POST
GOWRIBIDANUR TALUK
CHICKABALLAPURA DISTRICT-561 208.
4. SRI. SIKHANDAR
MAJOR
S/O. NOORULLA
R/O. HOSUR VILLAGE
GOWRIBIDANUR TALUK
CHICKABALLAPURA DISTRICT-561 208.
5. SRI. MUBARAK AHMED
MAJOR
S/O. NAYAZ AHMED
R/O. 5TH BLOCK, NAGAMANGALA
MANDYA DISTRICT-571 432.
...RESPONDENTS
(BY SRI A. N. KRISHNA SWAMY, ADVOCATE FOR R-1;
VIDE ORDER DATED 24.01.2024, NOTICE TO R-2 AND R5
IS HELD SUFFICIENT;
VIDE ORDER DATED 14.12.2023, NOTICE TO R-3 IS
HELD SUFFICIENT;
R-4 IS SERVED AND UNREPRESENTED)
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NC: 2024:KHC:46156
MFA No. 5942 of 2018
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 08.06.2017
PASSED IN MVC NO.3891/2012 ON THE FILE OF THE X
ADDITIONAL JUDGE, COURT OF SMALL CAUSES, BENGALURU,
MACT, [SCCH-16], PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS MFA, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE N S SANJAY GOWDA
ORAL JUDGMENT
1. The claimants are in appeal challenging the
attribution of negligence to the extent of 50% on the
deceased and also seeking enhancement.
2. The occurrence of the accident and the liability of the
insurer to pay the compensation is not in dispute.
3. The Tribunal has come to the conclusion that driver
of the Tata Ace which caused the accident and
against whom a chargesheet had been laid was not
completely negligent and as per the photograph at
Ex.P-11, it could be ascertained that the deceased
was trying to overtake the auto rickshaw and in the
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process, collided with the auto rickshaw, suffered
injuries and succumbed to the same. In my view,
this reasoning of the Tribunal cannot be accepted as
only on the basis of the photograph, one cannot
come to the conclusion as to the manner in which the
accident had occurred.
4. In this case, admittedly, the driver of the Tata Ace
vehicle, who was available, was not examined to
even establish that there was some negligence on
the part of the rider of the motorcycle and since the
motorcycle rider was killed in the accident, obviously
the evidence of the Tata Ace autorickshaw was
crucial to determine negligence. Since the police
have also investigated and found that he had caused
the accident, the Tribunal ought to have inferred that
the accident was as a result of the negligence on the
part of the driver of the auto rickshaw. The Tribunal
has committed an error in placing reliance on the
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acquittal of the driver of the auto rickshaw to also
come to the conclusion that he was negligent.
5. In a criminal case, if the prosecution failed to prove
the guilt of the accused, that would not amount to
recording a finding that there was no negligence on
the part of the driver of the offending vehicle under
the proceedings under the Motor Vehicles Act. The
negligence of a driver is estimated by the MACT on
the principle of preponderance of probabilities and
not on the proof beyond reasonable doubt.
6. As stated above, since the driver of the Tata Ace was
not examined, the attribution of negligence on the
deceased was wholly incorrect and consequently,
that finding is set aside and it is held that the driver
of the Tata Ace was alone responsible for the
accident, as a consequence of which its insurer would
be liable to pay the compensation.
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7. As far as compensation is concerned, it is noted that
the Tribunal has taken the income at Rs.10,000/-
and applied the multiplier of '16', which cannot be
found fault with and I am therefore of the view that
the sums awarded by the Tribunal are just and
proper and do not require any interference.
Consequently, the appeal is allowed only to the
extent of setting aside the finding of the Tribunal that
the deceased had contributed to the extent of 50%
and it is hereby held that the driver of the auto
rickshaw was completely responsible for the
accident.
8. However, the claimant would not be entitled to
interest for the delayed period as per order dated
24.01.2024.
Sd/-
(N S SANJAY GOWDA)
JUDGE
HNM
