Karnataka High Court
National Insurance Co. Ltd vs Ramayya Pujari S/O Ningappa And Ors on 8 January, 2025
-1-
NC: 2025:KHC-K:74
MFA No. 200896 of 2017
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 8TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE C M JOSHI
MISCL. FIRST APPEAL NO.200896 OF 2017 (MV-I)
BETWEEN:
NATIONAL INSURANCE CO. LTD.,
THROUGH ITS BRANCH MANAGER, RAICHUR,
NOW REPRESENTED BY
ITS DIVISIONAL MANAGER,
NATIONAL INSURANCE CO. LTD., GULBARGA.
...APPELLANT
(BY SRI. S.S. ASPALLI, ADVOCATE)
AND:
1. RAMAYYA PUJARI S/O NINGAPPA,
AGE: 40 YEARS, OCC: AGRICULTURE & COOLIE,
R/O GUDLERDODDI, VENGALAPUR,
Digitally signed TQ. DEODURGA, DIST. RAICHUR-584 101.
by LUCYGRACE
Location: HIGH
COURT OF 2. AMBRESH S/O HANUMANTHRAYA,
KARNATAKA
AGE: 35 YEARS,
OCC: DRIVER OF ALFA AUTO,
R/O B. GANEKAL VILLAGE,
TQ. DEODURGA-584 101.
3. HANUMANTHRAYA S/O HANUMAPPA,
AGE: MAJOR, OCC: OWNER OF AUTO
BEARING REGN. NO.KA-36/A-3704,
R/O HOUSE NO.303/2,
B. GANEKAL VILLAGE,
TQ. DEODURGA-584 101.
-2-
NC: 2025:KHC-K:74
MFA No. 200896 of 2017
4. CHOLAMANDALAM MS GEN. INSU. CO. LTD.,
NIRMALA BUILDING,
OPP. COSMO POLITIAN CLUB, BELLARY.
5. SHIVAPPA
S/O RANGAYYA GUDLERDODDI,
AGE: MAJOR,
OCC: OWNER OF MOTOR CYCLE KA-36/Y-6357,
R/O GOOGERADODDI,
TQ. DEODURGA-584 101.
...RESPONDENTS
(BY SRI. PUNITH MARKAL, ADV. FOR R1;
SRI. SHRIDEVI B. ALBA, ADV. FOR R2;
SRI. MANJUNATH MALLAYYA SHETTY, ADV. FOR R4;
R3 - SERVED BUT UN-REPRESENTED;
V/O DTD. 29.07.2024, NOTICE TO R5 IS NOT NECESSARY)
THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT, PRAYING TO SET ASIDE THE
JUDGMENT AND AWARD IN MVC NO.8/2016 (NEW) MVC
NO.540/2012 (OLD) DATED 09.01.2017 PASSED BY THE
SR. CIVIL JUDGE AND MACT, DEODURGA, BY ALLOWING THE
ABOVE APPEAL.
THIS APPEAL COMING ON FOR ADMISSION, 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)
By the consent of both the counsel, the matter is
taken up for final disposal, though it is slated for
admission.
NC: 2025:KHC-K:74
This appeal is directed against the judgment and
award dated 09.01.2017 passed in MVC No.08/2016
(New), MVC No.540/2012 (Old) by the learned Senior Civil
Judge and Member, MACT, Deodurga.
2. By the impugned judgment, the Tribunal has
awarded a sum of Rs.54,720/- as compensation together
with interest at 6% p.a. and directed the owner of the two
wheeler and the insurance company - respondent Nos.4
and 5 therein to deposit the same at the ratio of 25:75.
3. Heard the learned counsel appearing for the
appellant and respond No.4.
4. The short point that arise for consideration is,
weather the fastening of the liability to the extent of 75%
on the appellant, who was respondent No.5 before the
Tribunal and 25% on the owner of the two wheeler, who
was respondent No.4 before the Tribunal is proper and
correct?
NC: 2025:KHC-K:74
5. Learned counsel appearing for the appellant as
well as respondent No.4 admit in unison that it is a case of
composite negligence. The petitioner before the Tribunal
was the pillion rider of a two wheeler ridden by respondent
No.4 - Shivappa, who is shown as Yenkappa in the charge
sheet. The auto rickshaw which collided with the
motorcycle was driven by respondent No.1-Amaresh,
owned by respondent No.2-Hanumantharaya and insured
by respondent No.3-Cholamandalam MS General
Insurance Company Limited. The Tribunal framed the
issues that, as to whether the negligence is on the part of
the auto rickshaw driver or not? There was no issue in
respect of the negligence on the part of the rider of the
motorcycle. The Tribunal answered the said issue in the
affirmative, but even then fastened the liability to the
extent of 75% on the appellant/respondent No.5 before
the Tribunal. Learned counsel for the appellant submits
that such conclusion by the Tribunal is uncalled for and the
judgment is bereft of any reasons for fastening such
liability to the extent of 75% on the appellant and 25% on
NC: 2025:KHC-K:74
its insured. It is pointed out that the Tribunal resorting to
Section 128 of the Motor Vehicles Act which calls for taking
suitable precautionary measures in respect of the pillion
rider, holds that there is contributory negligence on the
part of the rider of the motorcycle to the extent of 75%
and directs such compensation to be paid by the appellant
herein.
6. Per contra, learned counsel appearing for
respondent No.4-Insurance Company would submit that
the Tribunal has concluded that there is major contributory
negligence on the part of the rider of the motorcycle and
therefore no interference is required in the impugned
judgment and award passed by the Tribunal.
7. A careful perusal of the impugned judgment
and award would show that the chargesheet was filed
against the rider of the motorcycle as well as the driver of
the auto rickshaw. The issues framed by the Tribunal show
that the burden of proving the negligence on the part of
the driver of the auto rickshaw was on the petitioner, but
NC: 2025:KHC-K:74
there was no such issue as to whether there is any
contributory negligence or not. However, it is pertinent to
note that when the evidence is let in, the Tribunal has to
make an assessment as to who has contributed negligence
in commission of the accident. The records would show
that it was a head on collision between the auto rickshaw
and the motorcycle. Therefore, the investigating agency
had filed chargesheet against both the drivers and
therefore it seems, the Tribunal was inclined to accept the
chargesheet and fastened the liability on both the
tortfeasors.
8. If that is so, the apportionment of the
negligence on the part of the rider of the motorcycle and
the driver of auto rickshaw cannot be in the ratio of 75:25.
It is evident that the petitioner was a pillion rider and
therefore he had nothing to do with any contribution.
However, respondent Nos.4 and 5 before the Tribunal
have not lead any evidence in the matter, but only the
chargesheet alleges that an offence under Section 128 of
NC: 2025:KHC-K:74
the Motor Vehicles Act was committed by the rider. In fact,
the negligence on the part of the rider in the light of
Section 128 of the M.V. Act was not any issue at all. In
that view of the matter, when the charge sheet was filed
against both the drivers, it was incumbent upon the
Tribunal to fasten the liability either in equal proportions
or taking into consideration the nature of the vehicles.
Therefore, fastening liability to the extent of 75% on
respondent No.5 and 25% on respondent No.4 before it
has no logical conclusion.
9. For the above reasons, the appeal deserves to
be allowed in part by holding that the contribution of the
negligence by the rider of the motorcycle and the driver of
the auto rickshaw is in equal proportions. The case being
of composite negligence, the petitioner is entitled for
compensation in entirety either from the owner and
insurer of the auto rickshaw or the owner and insurer of
the two wheeler. Hence, the following:
NC: 2025:KHC-K:74
ORDER
(i) The appeal is allowed in part.
(ii) The petitioner before the Tribunal is entitled for
compensation as determined by the Tribunal in equal
proportions from the insurer of the two wheeler and the
insurer of the auto rickshaw i.e., respondent Nos.3 and 5
before the Tribunal
(iii) Rest of the order passed by the Tribunal
remains unaltered.
(iv) The amount in deposit before this Court is
ordered to be transmitted to the Tribunal.
Sd/-
(C M JOSHI)
JUDGE
LG
