Back
2023 Supreme(Online)(KAR) 16728
- 1 -
M.F.A. CROB No. 100093 of 2022
C/W M.F.A. No. 104325 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 29TH DAY OF MAY, 2023
BEFORE
THE HON'BLE MRS. JUSTICE M.G.UMA
M.F.A. CROSS OBJECTION NO. 100093/2022
C/W M.F.A.NO. 104325/2019 (MV-D)
IN M.F.A. CR. OB. NO. 100093/2022
BETWEEN:
1.
SMT. TAYAWWA @ THAYAVVA,
W/O GANGAPPA BADIGER,
AGE: 86 YEARS, OCC. NIL,
RO.63, H. NO.1 -1-69, SANN ONI, KARADIGUDDI
VILLAGE, TQ AND DIST. BELAGAVI.
2.
SMT. SADEVVA W/O BASAPPA BADIGER,
AGE: 49 YEARS, OCC: HOUSEHOLD,
RO.63, H. NO.1 -1-69,
SANN ONI, KARADIGUDDI VILLAGE,
TQ AND DIST. BELAGAVI.
3.
SRI. PRAKASH S/O BASAPPA BADIGER,
AGE: 32 YEARS, OCC: AGRICULTURE,
RO. 63, H. NO.1 -1-69,
SANN ONI, KARADIGUDDI VILLAGE,
TQ AND DIST. BELAGAVI.
4.
SMT.LAXMI W/O MANJUNATH BADIGER,
AGE: 30 YEARS, OCC: HOUSEHOLD,
R/O:180, BADIGER ONI, MUGABASAV VILLAGE,
BAILHONGAL TQ, DIST: BELAGAVI.
5.
SRI RAJU S/O BASAPPA BADIGER,
AGE: 27 YEARS, OCC. NIL,
RO. 63, H. NO.1 -1-69, SANN ONI,
KARADIGUDDI VILLAGE,
TQ AND DIST. BELAGAVI.
…CROSS OBJECTORS
(BY SRI. ANJANEYA M., ADVOCATE)
Digitally
signed by
VINAYAKA
B V
- 2 -
M.F.A. CROB No. 100093 of 2022
C/W M.F.A. No. 104325 of 2019
AND:
1.
SRI MAYUR S/O MANOHAR KARDI,
26 YEARS, OCC:PRIVATE SERVICE,
RO: H. NO.100, GANAPATI GALLI,
KASABA, NANDAGAD - 591 120.
KHANAPUR TALUK, BELAGAVI DISTRICT.
2.
THE DIVISIONAL MANAGER TATA AIG
GENERAL INSURANCE CO. LTD.,
SRI KRISHNA TOWERS, 1ST FLOOR,
RPD CROSS, TILAKWADI,
BELAGAVI - 590006.
…RESPONDENTS
(BY SRI. G.N. RAICHUR, ADVOCATE FOR R2;
NOTICE TO R1 IS SERVED)
THIS M.F.A. CR.OB. IS FILED UNDER ORDER 41 RULE 22
OF CPC., 1908, AGAINST THE JUDGMENT AND AWARD DATED
05.09.2019 PASSED IN MVC NO. 878/2018 ON THE FILE OF
THE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE AND
ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, BELAGAVI
& ETC.
IN M.F.A. NO. 104325/2019
BETWEEN:
THE DIVISIONAL MANAGER,
TATA AIG GENERAL INSURANCE CO. LTD.,
SRI KRISHNA TOWERS, 1ST FLOOR, RPD CROSS,
TILAKWADI, BELAGAVI – 590006 REPRESENTED BY
ITS DULY CONSTITUTED ATTORNEY.
…APPELLANT
(BY SRI. G.N. RAICHUR, ADVOCATE)
AND:
1.
SMT. TAYAWWA @ THAYAVVA,
W/O GANGAPPA BADIGER,
AGE: 83 YEARS, OCC. NIL,
- 3 -
M.F.A. CROB No. 100093 of 2022
C/W M.F.A. No. 104325 of 2019
RO.63, H. NO.1 -1-69,
SANN ONI, KARADIGUDDI VILLAGE,
TQ/DIST: BELAGAVI – 590 023.
2.
SMT. SADEVVA W/O BASAPPA BADIGER,
AGE: 46 YEARS, OCC: HOUSEHOLD,
RO.63, H. NO.1 -1-69,
SANN ONI, KARADIGUDDI VILLAGE,
TQ/DIST: BELAGAVI – 590 023.
3.
SRI. PRAKASH S/O BASAPPA BADIGER,
AGE: 32 YEARS, OCC: AGRICULTURE,
RO. 63, H. NO.1 -1-69,
SANN ONI, KARADIGUDDI VILLAGE,
TQ/DIST: BELAGAVI.
4.
SMT.LAXMI W/O MANJUNATH BADIGER,
AGE: 30 YEARS, OCC: HOUSEHOLD,
R/O:180, BADIGER ONI, MUGABASAV VILLAGE,
BAILHONGAL TQ, DIST: BELAGAVI.
5.
SRI. RAJU S/O BASAPPA BADIGER,
AGE: 27 YEARS, OCC. NIL,
RO. 63, H. NO.1 -1-69, SANN ONI,
KARADIGUDDI VILLAGE,
TQ/DIST: BELAGAVI.
6.
SRI. MAYUR S/O MANOHAR KARADI,
AGE 23 YEARS, OCC: PRIVAT SERVICE,
R/O: H.NO. 100 GANAPATI GALLI,
KASABA NANDAGAD – 591 120.
KHANAPUR TALUK, BELAGAVI DISTRICT.
…RESPONDENTS
(BY SRI. H.R. DESHPANDE, ADVOCATE FOR R1 TO R5;
NOTICE TO R6 IS SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOTR
VEHICLES ACT. AGAINST THE JUDGMENT AND AWARD DATED
05.09.2019 PASSED IN MVC NO. 878/2018 ON THE FILE OF
THE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE &
AMACT & ETC.
THESE M.F.A. AND M.F.A. CROB COMING ON FOR
ADMISSION,
THIS
DAY,
THE
COURT
DELIVERED
THE
FOLLOWING:
- 4 -
M.F.A. CROB No. 100093 of 2022
C/W M.F.A. No. 104325 of 2019
Challenging the judgment and award dated 05.09.2019
passed in M.V.C. No. 878/2018 by the learned IV Addl. District &
Sessions judge and AMACT, Belagavi (hereinafter referred to as
the Tribunal), M.F.A. No. 104325/2019 is preferred by the by the
Insurer denying its liability and also questioning the award,
whereas M.F.A. CROB. No. 100093/2022 is filed by the claimants
seeking for enhancement of compensation.
Parties are be referred to by their ranking before the
Tribunal.
Brief facts of the case as stated in the claim petition is as
under:
The injured Basappa Badiger filed the claim petition before
the Tribunal alleging that on 11.11.2017 while he was walking by
the side of the road, respondent no.1 being the rider of the
motorcycle came in a rash and negligent manner and dashed
against him, as a result he sustained injuries and was shifted to
Vijaya Orthropaedic and trauma centre, Belgaum, wherein he was
treated till 14.11.2017. Thereafter he was shifted to BIMS,
- 5 -
Belagavi, where he was treated as inpatient from 14.11.2017 to
08.12.2017. Once again he was admitted to BIMS Hospital on
28.12.2017 and was discharged on 02.01.2018. Later injured
Basappa Ganiger died on 27.06.2018 and it is contended by his
legal representatives that the death was due to the injuries
sustained by him in the road traffic accident.
The claim of the claimants was disputed by the respondent
No.2-Insurance Company on the ground that cause of accident by
the motorcycle in question owned by respondent No.1 was not
proved. Hence, Insurance Company is not liable to pay
compensation. The death of injured was not due to the injuries
sustained by him in the accident. Therefore, the legal
representatives of the injured are not entitled for compensation.
On the basis of the pleadings of the parties, the following
issues were framed.
ISSUES
1.
Whether the petitioners prove that the deceased petitioner
sustained bodily injuries as described in para-11 of the
petition in a road traffic accident occurred on 11.11.2017 at
about 11.00 A.M., on old PB road-Bazi Market towards
CBS Circle, near Durga Bar and Restaurant, due to rash
- 6 -
and negligent riding of the motorcycle bearing no. KA-
22/EY-7571 by its rider?
2.
Whether the respondent No.2 proves that insurer is not
liable to pay the compensation, as there is violation of
policy condition?
3.
Whether the petitioners are entitled for compensation? If
so, what is the quantum and from whom?
4.
What order or award?
The claimants examined PWs1 to 5; Exs.P.1 to 40 were
marked. Respondent No.1 examined RW1 and marked Exs.R.1
and R2 in support of its defence. The Tribunal after taking into
consideration all these material on record held that the claimants
Nos.1(A-D) being the legal representatives of the deceased are
entitled for compensation of Rs.13,88,220/- with interest at 6% p.a.
It has held that respondents No.1 and 2 are jointly and severally
liable to pay compensation. Respondent No.2 being the insurer
was directed to deposit the compensation amount within one month
from the date of judgment. The claim of claimants Nos.1(C-E) was
dismissed.
Being aggrieved by allowing the petition and granting
compensation directing the respondent No.2 to pay compensation
- 7 -
amount, it has preferred M.F.A. No. 104325/2019. Being not
satisfied with the sufficiency of the compensation awarded by the
Tribunal,
claimants
have
preferred
Cross
Objection
No.
100093/2022 seeking enhancement of compensation.
7.
Learned counsel for the Insurance Company resisting the
claim of the claimant contended that initially FIR came to be
registered against an un-numbered motorcycle. There was delay
of 7 days in filing the first information. Even as per Ex.D.6 the
wound certificate, an un-numbered motorcycle hit the injured.
There is no evidence whatsoever to the effect that the offending
vehicle was registered and was insured with respondent No.2.
under such circumstances as per Sec.39 of the Motor Vehicles Act
t
