Sri Purushotham v. Athma N

NC:(2026:KHC:17634( MFA(No.(2209(of(2013( C/W(MFA(No.(11509(of(2012( , ,,HC-KAR( ( ( (

IN(THE(HIGH(COURT(OF(KARNATAKA(AT(BENGALURU(

THDATED(THIS(THE(27 (DAY(OF(MARCH,(2026(

BEFORE( THE(HON'BLE(MR.(JUSTICE(C.M.(POONACHA( MISCELLANEOUS(FIRST(APPEAL(NO.(2209(OF(2013((MV)( C/W( MISCELLANEOUS(FIRST(APPEAL(NO.(11509(OF(2012((MV-I)( ( IN(MFA(No.(2209/2013(

( BETWEEN:(( (

SRI,PURUSHOTHAM, AGED,ABOUT,56,YEARS, S/O,SRINIVASAYYA,

R/O,MANDARA,,ULLASNAGAR, KAVOOR,,, MANGALORE,D.K.-575015,

…APPELLANT, , Digitally (BY,SRI.,PUNDIKAI,ISHWARA,BHAT,,ADVOCATE), signedtiby ,NIRMALA AND:(DEVI (Location:

1., ATHMA,N,HIGH GREEN,HILL,APARTMENTS,,,COURT0OF BLOCK-1A,KAPIKAD,,BEJAI,,,KARNATAKA 1ST,CROSS, MANGALORE-575004,,D.K., ,

2., THE,BRANCH,MANAGER, BAJAJ,ALLIANZ,GENERAL, INSURANCE,COMPANY,LTD, 107,,1ST,FLOOR, CRYSTAL,ARCADE,,, NC:(2026:KHC:17634( MFA(No.(2209(of(2013( C/W(MFA(No.(11509(of(2012( , ,,HC-KAR( ( ( BALMATTA,ROAD,,, MANGALORE-575001, , …RESPONDENTS, (BY,SMT.,H,R,RENUKA,,ADVOCATE,FOR,R2, ,NOTICE,TO,R1,IS,DISPENSED,WITH,V/O,DTD,27.3.2026), , , THIS,MFA,IS,FILED,U/S,173(1),OF,MV,ACT,AGAINST,THE, JUDGMENT,AND,AWARD,DATED,10.09.2012,,PASSED,IN,MVC, NO.564/2007,ON,THE,FILE,OF,THE,III,ADDITIONAL,DISTRICT, JUDGE,,MEMBER,,MACT,,D.K.,,MANGALORE,,PARTLY,ALLOWING, THE, CLAIM, PETITION, FOR, COMPENSATION, AND, SEEKING, ENHANCEMENT,OF,COMPENSATION., , IN(MFA(NO.(11509/2012( , BETWEEN:( , BAJAJ,ALLIANZ,GENERAL,INSURANCE, CO.,LTD.,NO.107,,1ST,FLOOR,,, CRYSTAL,ARCADE,,, BALMATTA,ROAD,,, MANGALORE-575,001.,, REP.,BY,ITS,REGIONAL,OFFICE,, NO.,107,,MISSION,ROAD,,, BANGALORE,, REP.,BY,ITS,ASST,VICE,PRESIDENT,(CLAIMS), ...APPELLANT, (BY,SMT.,H,R,RENUKA,,ADVOCATE), , AND:( ,

1., PURUSHOTHAM, S/O,SRINIVASAYYA,,, AGED,ABOUT,55,YEARS,,, R/O,MANDARA,,ULLASNAGAR,,, KAVOOR,,, MANGALORE,,D.K-575,015, ,

2., ATHMA,N,, ADULT,,, NC:(2026:KHC:17634( MFA(No.(2209(of(2013( C/W(MFA(No.(11509(of(2012( , ,,HC-KAR( ( ( GREEN,HILL,APARTMENTS,, BLOCK-1A,,KAPIKAD,BEJAI,,, I,CROSS,,MANGALORE,,, D.K-575,001., ...RESPONDENTS, (BY,SRI.,PUNDIKAISHWARA,BHAT,,ADVOCATE,FOR,R1, ,NOTICE,TO,R2,IS,HELD,SUFFICIENT,V/O,DTD,1.10.2015), , ,,,,,,,THIS,MFA,IS,FILED,U/S,173(1),OF,MV,ACT,AGAINST,THE, JUDGMENT,AND,AWARD,DATED,10.09.2012,,PASSED,IN,MVC, NO.564/2007,ON,THE,FILE,OF,THE,III,ADDITIONAL,DISTRICT, JUDGE,, MEMBER,, MACT,, D.K.,, MANGALORE,, AWARDING, A, COMPENSATION,OF,Rs.1,72,000/-,WITH,INTEREST,@,6%,P.A., FROM,THE,DATE,OF,PETITION,TILL,REALIZATION.,, , THESE,APPEALS,,COMING,ON, FOR, ORDERS,, THIS, DAY,, JUDGMENT,WAS,DELIVERED,THEREIN,AS,UNDER:, , CORAM:, HON'BLE,MR.,JUSTICE,C.M.,POONACHA, , ORAL(JUDGMENT( (

¶1MFA, No.11509/2012, is, filed, by, the, insurer., , MFA, No.2209/2013, is, filed, by, the, claimant., Both, the, appeals, are, filed, impugning, the, judgment, and, award, dated, 10.09.2012, passed, in, MVC, No.564/2007, by, the, III, Additional, District, 1Judge,,Member,,MACT,,D.K.,,Mangalore .,,, ,

¶2The, insurer, impugns, the, finding, of, the, Tribunal, on, the, ground, of, involvement, of, the, insured, vehicle., , The, claimant,

hereinafter referred to as the 'Tribunal'

assails the findings of the Tribunal regarding negligence as also seeks for enhancement of the quantum of compensation.

¶3Heard the submissions of the learned counsel for the claimant and the learned counsel for the insurer.

¶4It is the case of the claimant that on 18.09.2005, when he was riding scooter bearing No.CNX-3738, another motor cycle bearing No.KA-19S-5898 (offending motor cycle) came and hit the motor cycle, which was driven by the claimant and caused the accident in question. Claiming compensation for the injuries sustained in the said accident, the claimant filed a claim petition arraying the owner and insurer of the offending motor cycle as respondent Nos.1 and 2 respectively.

¶5The first respondent - owner entered appearance before the Tribunal and admits the accident. The second respondent - insurer admits that the offending vehicle was insured with it, however denies the involvement of the insured vehicle in the accident in question. The Tribunal, has partly allowed the claim petition and awarded a total compensation of `3,44,000/- together with interest at 6% pa. The Tribunal has held that the

claimant was negligent to the extent of 50% in causing the accident in question and the rider of the insured motor cycle was negligent to the extent of 50%. Accordingly, out of the compensation assessed, the Tribunal has awarded 50% of the same in a sum of `1,72,000/-.

¶6It is forthcoming that one Sri Vishwanath was riding as a pillion rider along with the claimant. Pursuant to the complaint given by him, Crime No.207/2005 (Ex.R2) was registered by the police authorities. After investigation, the police have filed a charge sheet (Ex.R5) against the claimant. The claimant has subsequently filed a private complaint, which was numbered as Crime No.46/2006 and subsequently, registered as CC No.1972/2006. The police authorities, after investigation, have filed a 'B' report (Ex.R6) in the said CC No.1972/2006.

¶7The wife of the claimant was examined as PW.1, the pillion rider as PW.2 and three doctors were examined as PWs.3, 4 and 5. Exs.P1 to P140 have been marked in evidence on behalf of the claimant. The representatives of the insurer were examined as RWs.1 and 2. Exs.R1 to R9 have been marked on behalf of the respondent - insurer.

¶8In the complaint (Ex.R2) lodged by PW.2 it is stated that when the claimant was riding his motor cycle (CNX 3738), he hit a cow causing the accident, in which he sustained injuries. In the cross-examination, PW.2 admits to having lodged the complaint (Ex.R2). In the spot mahazar (Ex.P6) there is no mention of the insured vehicle. The sketch (Ex.P7) also does not show the presence of the insured vehicle.

¶9The Tribunal, solely on the ground that the insurer has not proved regarding the final outcome of the 'B' report, has recorded a finding of contributory negligence by holding that the claimant was negligent to the extent of 50% in causing the accident while the rider of the offending motor cycle was negligent to the extent of 50%. There is no basis on which the Tribunal has recorded the finding of negligence of 50% each. On the other hand, although the Tribunal has noticed that PW.2 has admitted to having lodged the complaint (Ex.R2), the consequential effect of the same has not been properly appreciated.

¶10It is clear and forthcoming from the aforementioned that that the pillion rider (PW.2) who was riding along with the claimant, when the accident has occurred, has at an undisputed point of time lodged the complaint (Ex.R2) wherein, he mentioned that when the claimant was riding the scooter, he hit a cow causing the accident. The police authorities have also filed a charge sheet against the claimant. Although the claimant has subsequently filed a private complaint (Crime No.46/2006), the police authorities have filed a 'B' report in the said private complaint (CC No.1972/2006).

¶11As already noticed above, even in the spot mahazar (Ex.P6) there is no reference to the insured vehicle. The testimony of PW.2 is clearly contrary to the complaint lodged by him (Ex.R2).

¶12In view of the aforementioned circumstances, in the absence of material to demonstrate the involvement of the insured vehicle in the accident in question, the Tribunal erred in granting compensation and fastening 50% of the liability to pay the same on the owner and insurer of the insured vehicle.

¶13In the present case, the claim for compensation having been made by the rider of the scooter and material on record indicating that the accident occurred when the claimant hit a cow, the question of awarding compensation in proceedings under Section 166 of the Motor Vehicles Act, 1988 does not arise.

¶14In view of the aforementioned, the following: ORDER i. MFA No.11509/2012 is allowed;

ii. MFA No.2209/2013 is dismissed;

iii. The judgment and award dated judgment and award dated

10.09.2012 passed in MVC No.564/2007 by the III Additional District Judge, Member, MACT, D.K., Mangalore is set aside;

iv. The claim petition in MVC No.564/2007 on the file of III Additional District Judge, Member, MACT, D.K, stands dismissed;

v. The amount deposited by the appellant in MFA No.11509/2012 be refunded to the appellant;

vi. Registry to draw the modified decree accordingly;

vii. The records be transmitted to the Tribunal;

viii. No costs.

SD/- (C.M. POONACHA) JUDGE

ND List No.: 1 Sl No.: 7