Karnataka High Court
Misabha W/O Irfan Barundwale vs Shrikant S/O Shivanand Anneppanavar ... on 24 February, 2025
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NC: 2025:KHC-K:1269
MFA No. 201492 of 2023
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 24TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE C M JOSHI
MISC. FIRST APPEAL NO.201492 OF 2023 (MV-D)
BETWEEN:
1. MISABHA W/O IRFAN BARUDWALE,
AGE: 23 YEARS, OCC: HOUSEHOLD,
2. MOHAMMED ARMAAN S/O IRFAN BARUDWALE,
AGE: 8 YEARS, OCC: NIL,
SINCE MINOR R/BY HIS NATURAL GUARDIN,
MOTHER APPELLANT NO. 1,
3. SHAINAZ W/O SHOUKAT BARUDWALE,
AGE: 50 YEARS, OCC: HOUSEHOLD WORK,
4. SHOUKAT S/O BABULAL BARUDWALE,
AGE: 66 YEARS, OCC: NIL,
Digitally signed
by ALL ARE R/O MUNDEWADI COLONY,
LUCYGRACE
SANDAL BAWADI ROAD, VIJAYAPURA.
Location: HIGH
COURT OF
KARNATAKA
...APPELLANTS
(BY SRI. BASAVARAJ R. MATH, ADVOCATE)
AND:
1. SHRIKANT S/O SHIVANAND ANNEPPANAVAR,
AGE: MAJOR, OCC: BUSINESS,
R/O MALLIKARJUN NAGAR,
BEHIND P AND T QUARTERS,
VIJAYAPURA-586103,
(OWNER OF VEHICEL NO.KA-28/C-5848).
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MFA No. 201492 of 2023
2. THE MANAGER,
THE ORIENTAL INSURANCE COMPANY LTD.,
BIDARI COMPLEX, 1ST FLOOR, S.S. FRONT ROAD,
VIJAYAPURA-586 101.
...RESPONDENTS
(BY SRI. MANVENDRA REDDY, ADV. FOR R2;
V/O DTD. 13.02.2024, NOTICE TO R1 IS HELD SUFFICIENT)
THIS MFA IS FILED UNDER SECTION 173 (1) OF THE
MOTOR VEHICLES ACT, PRAYING TO MODIFYING THE
IMPUGNED JUDGMENT AND AWARD DATED 08.09.2022
PASSED BY THE I ADDITIONAL SENIOR CIVIL JUDGE AND
MACT-VI, AT VIJAYAPURA IN MVC NO.970/2020.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE C M JOSHI
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE C M JOSHI)
Heard the learned counsel for the appellants and the
respondent No.2.
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02. Being aggrieved by the judgment and award in
MVC.No.970/2020 dated 08.09.2022, by the I Additional
Senior Civil Judge and MACT VI, at Vijayapura, the
petitioners who are the wife, children and parents of the
deceased - Irfan Barudwale are before this Court.
03. The factual matrix of the case is that on
05.02.2020 at about 11.30 p.m., when the deceased was
riding a motorcycle bearing Reg.No.KA-28-EX-1066 from
Congress office side towards Jal Nagar road, near Bagalkot
road Court cross of Vijayapura, while crossing the high
mask light pole, the foot rest of his motorcycle touched
the pole and he fell down. After getting up and while he
was moving to side, the driver of Maxi Cab vehicle owned
by respondent No.1 and insured by respondent No.2
bearing Reg.No.KA-28-C-5848 came from the RTO office
side towards Kolhar Railway Gate side in a rash and
negligent manner and dashed to the deceased, due to
which the deceased succumbed to the injuries.
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04. After investigation, the police have filed the
charge sheet against the deceased Irfan Barudwale for the
offences punishable under Sections 279 of IPC read with
Sections 3(1) and 181 of Motor Vehicles Act (for short 'MV
Act') for negligent driving and non-possessing of the
driving license. They also filed charge sheet against the
driver of the Maxi Cab vehicle for the offence punishable
under Sections 279 and 304(A) of IPC read with Section
187 of M.V. Act.
05. The petitioners contended that they being the
dependents of the deceased - Irfan Barudwale, are entitled
for compensation and there being no contributory
negligence on part of the deceased, they are entitled for
full compensation.
06. Though respondent No.2 - Insurance Company
has resisted the petition on various grounds including
taking up the contention that there was a contributory
negligence and the compensation claimed is highly
exorbitant, imaginary and untenable in law, the Tribunal
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held that the deceased had contributed 50% towards
negligence. As such, the remaining 50% of liability was
fastened on respondent No.2 - Insurance Company.
Accordingly, the Tribunal awarded compensation of
Rs.33,15,600/- by deducting 50% of the same, to be paid
by respondent No.2.
07. Learned counsel for the appellants would
contend that there are two accidents which had occurred
in quick succession and when the driver of the Maxi Cab
was coming from north to south, he should have seen that
a motorcycle had met with an accident at the circle and it
being at about 11.30 in the night, he did not slow down,
resulting in dashing against the deceased who was
crossing the road after getting up from fall from his
motorcycle.
08. It is contended that, if the driver of the cruiser
vehicle had taken precautions by slowing down the
vehicle, the accident could have been averted. Therefore,
the conclusion of the Tribunal that there is 50% of
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contribution of negligence by the deceased is erroneous.
Though a contention was raised in the appeal memo that
the compensation is on the lower side, the learned counsel
has fairly submitted that quantum of the compensation is
adequate.
09. Per contra, learned counsel appearing for
respondent No.2 would submit that, if the deceased had
not fallen at the circle, accident would not have happened.
He submits that the two accidents have happened in a
quick succession. Therefore, they should be looked as a
single incident. He submits that the negligence on the part
of the deceased is also a cause for the subsequent
accident. As such, the Tribunal is justified in holding that
there is contributory negligence to the extent of 50%.
10. No other contentions being canvassed by the
parties, it is only the question of contributory negligence
which needs to be ascertained by this Court.
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11. PW-2 is the eye witness to the accident and in
his cross examination, it is elicited that the deceased while
coming from Congress office side towards Jal Nagar (from
west to east), the footrest of the motorcycle touched the
high mask light pole (Katta) at the circle and he fell down.
Then he got up and while going towards east by walk, the
vehicle of respondent No.1 came from the northern side
towards southern side and just after crossing the high
mask light pole (Katta), it dashed against the deceased.
He states that he was at a distance about 2 minutes walk
and there was a time gap of about 5 minutes between the
two accidents which took place.
12. A perusal of the police papers also establish the
sequence of the events stated by PW-2. The spot mahazar
at the Ex.P.3 shows that, the Investigating Officer had
identified two spots of the accident as A1 and A2. After
appreciating the testimony of the PW-2 and the police
papers, it is evident that the deceased was charge sheeted
for the accident which happened at A1 and the driver of
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the Maxi Cab vehicle was charge sheeted for the offence at
the spot shown as A2. The two accidents are separate, but
they are in quick succession. It is evident that the driver of
respondent No.1 who was coming from north to south,
should have slowed down at the circle as it was about
11:30 in the night.
13. The negligence on part of the driver of
respondent No.1 definitely should have been on the higher
side, but at any stretch of imagination it cannot be 50%.
Insofar as the contributory negligence of the deceased
Irfan Barudwale is concerned, obviously if he was diligent
in not causing the accident at the spot A1, he would have
passed the circle and would have avoided the accident.
Despite of that, the deceased was not having a valid
driving license, he did not take precaution while crossing
the high mask light pole (Katta) at the circle. No doubt
there is a slight time gap between two accidents at spot
A1 and spot A2, but that does not absolve the deceased
absolutely from contributing any negligence.
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14. While ascertaining the contributory negligence,
it appears that the vehicle of respondent No.1 being a four
wheeler, he should have exercised more caution while
crossing the circle. Under these circumstances, this Court
holds that the contributory negligence of the deceased is
at 10% and that of the driver of respondent No.1 at 90%.
Hence, the point raised is answered accordingly.
15. Hence, appeal deserves to be allowed in part.
Therefore, the following;
ORDER
I. The appeal is allowed in part.
II. The contributory negligence of the deceased Irfan
Barudwale is held at 10% and that of the driver of
the respondent No.1 is held at 90%.
III. As a consequence, respondent No.2 is directed to
deposit 90% of the compensation amount as
determined by the Tribunal, within a period of four
weeks from the date of this order.
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IV. Rest of the order passed by the Tribunal regarding
apportionment etc., remain unaltered.
Sd/-
(C M JOSHI)
JUDGE
KJJ,MCR
CT: AK
