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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
M.F.A.NO.10653/2012 (MV)
C/W
M.F.A.NO.11298/2012 (MV)
M.F.A.NO.8003/2012 (MV)
M.F.A.NO.8004/2012 (MV)
M.F.A.NO.8005/2012 (MV)
M.F.A.NO.10653/2012
BETWEEN:
RAMESH BILLAVA
AGED ABOUT 23 YEARS
S/O THIMMAPPA POOJARY
R/O BASANA HITHLU,
THEGGARSE VILLAGE
KUNDAPURA TALUK
& APPELLANT
(BY SRI. NAZEEFA M MULLA, ADVOCATE FOR
SRI. PAVANA CHANDRA SHETTY H, ADVOCATE)
AND:
1.
GANESH PRASAD
AGED ABOUT 37 YEARS
S/O HARI NARAYANA RAO
R/O KANCHANA AUTO MOBILES
NITTUR, UDUPI TALUK
2.
BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.,
REP: BY DIVISIONAL OFFICE: UDUPI
REP: BY ITS DIVISIONAL MANAGER
2
3.
RAJESH KARANTH (MAJOR)
P.W.D. CONTRACTOR
R/O ANANTHA NILAYA
UPPINAKUDRU
KUNDAPURA TALUK,
UDUPI DISTRICT
4.
THE NEW INDIA INSURANCE CO. LTD.,
BRANCH OFFICE: KUNDAPURA
REP. BY ITS BRANCH MANAGER
...RESPONDENTS
(BY SMT. H.R.RENUKA, ADVOCATE FOR R2;
SMT. Y.ARUNA, ADVOCATE FOR R4;
NOTICE TO R1 AND R3 ARE D/W)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED
29.03.2012 PASSED BY THE FAST TRACK & MACT AT
KUNDPURA,
IN
MVC
NO.710/2009 TO
THE
EXTENT
OF
DISALLOWED CLAIM AND ALLOW THIS APPEAL BY ENHANCING
THE COMPENSATION, IN THE INTEREST OF JUSTICE.
M.F.A.NO.11298/2012
BETWEEN:
1.
NIRMALA
AGED ABOUT 27 YEARS
W/O LATE PRABHAKAR K THOLAR
2.
KARUNAKARA K THOLAR
AGED ABOUT 37 YEARS
S/O LATE KRISHNA MARAKALA
3.
SUDHAKAR K THOLAR
AGED ABOUT 35 YEARS
S/O LATE KRISHNA MARAKALA
ALL ARE RESIDING AT BRAHMAVARA PETE
BRAHMAVARA, UDUPI TALUK 3 576 101
& APPELLANTS
(BY SMT. NAZEEFA M MULLA, ADVOCATE FOR
SRI. PAVANA CHANDRA SHETTY H, ADVOCATE )
3
AND:
1.
GANESH PRASAD
AGED ABOUT 37 YEARS
S/O HARI NARAYANA RAO
R/O KANCHANA AUTO MOBILES
NITTUR, UDUPI TALUK
2.
BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.,
REP BY DIVISIONAL OFFICE: UDUPI
REP BY ITS DIVISIONAL MANAGER
3.
RAJESH KARANTH (MAJOR)
P.W.D. CONTRACTOR
R/O ANANTHA NILAYA
UPPINAKUDRU
KUNDAPURA TALUK,
UDUPI DISTRICT
4.
THE NEW INDIA INSURANCE CO LTD
BRANCH OFFICE: KUNDAPURA
REP BY ITS BRANCH MANAGER
...RESPONDENTS
(BY SMT. H.R.RENUKA, ADVOCATE FOR R2;
SMT. Y.ARUNA, ADVOCATE FOR R4;
R1 IS SERVED;
V/O/DTD 26.06.2014, NOTICE TO R3 IS D/W)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
PRAYING THAT THIS HON9BLE COURT MAY BE PLEASED TO SET
ASIDE THE JUDGMENT AND AWARD DATED 29.03.2012 PASSED
BY THE COURT OF FAST TRACK & MACT AT KUNDAPURA IN MVC
NO.711/2009 TO THE EXTENT OF DISALLOWED CLAIM AND
ALLOW THIS APPEAL BY ENHANCING THE COMPENSATION, IN
THE INTEREST OF JUSTICE.
M.F.A.NO.8003/2012
BETWEEN:
BAJAJ ALLAINZ GENERAL INSURANCE
COMPANY LTD.
DIVISIONAL OFFICE, UDUPI
4
BY ITS BRANCH MANAGER
REPRESENTED BY
BAJAJ ALLIANZ GENERAL INSURANCE
COMPANY LTD.,
NO.107, T.B.TOWERS,
MISSION ROAD, BANGALORE 3 560 027
BY ITS ASST VICE PRESIDENT (CLAIMS)
& APPELLANT
(BY SMT. H R RENUKA, ADVOCATE)
AND:
1.
RAMESH BILLAVA
S/O THIMMAPPA POOJARY
AGED ABOUT 23 YEARS
R/O BASANA HITHLU
THEGGARSE VILLAGE
KUNDAPURA TALUK 3 576 101
2.
GANESH PRASAD
S/O HARINARAYANA RAO
AGED ABOUT 37 YEARS
R/O KANCHANA AUTOMOBILES
NITTUR, UDUPI TALUK 3 576 101
3.
RAJESH KARANTH
ADULT
PWD CONTRACTOR
R/O ANANTHA NILAYA
UPPINAKUDRU
KUNDAPURA TALUK
UDUPI DISTRICT 3 576 201
4.
NEW INDIA ASSURANCE CO. LTD.
BRANCH OFFICE
KUNDAPURA 3 576 201
BY ITS MANAGER
...RESPONDENTS
(BY SMT. Y.ARUNA, ADVOCATE FOR R4;
R1 TO R3 ARE SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
PRAYING TO ALLOW THIS APPEAL AND SETASIDE THE
5
AND
AWARD
DATED
29.03.2012
NO.710/2009 PASSED BY THE FAST TRACK COURT AND MOTOR
VEHICLES
ACCIDENT
CLAIMS
TRIBUNAL,
KUNDAPURA
CONSEQUENTLY
DISMISS
CLAIM
PETITION
INTEREST OF JUSTICE AND EQUITY.
M.F.A.NO.8004/2012
COMPANY LTD
REPRESENTEE BY
BAJAJ ALLIANZ GENERAL INSURANCE
COMPANY LTD., NO.107, T B TOWERS
KARUNAKAR K THOLAR
S/O KRISHNA MARKALA
S/O LATE KRISHNA MARKALA
R/O BRAMHAVARA PETE
BRAMHAVARA,
UDUPI TALUK 3 576 101
6
NITUR
UDUPI TALUK 3 576 101
5.
6.
NEW INDIA ASSURANCE CO LTD
SRI. H.PAVANA CHANDRA SHETTY, ADV. FOR R1 TO R3;
SMT. Y.ARUNA, ADVOCATE FOR R6;
R4 AND R5 ARE SERVED)
JUDGMENT
AND
AWARD
DATED
29.03.2012
NO.711/2009 PASSED BY THE FAST TRACK COURT AND MOTOR
VEHICLES
ACCIDENT
CLAIMS
TRIBUNAL,
KUNDAPURA
CONSEQUENTLY
DISMISS
CLAIM
PETITION
INTEREST OF JUSTICE AND EQUITY.
M.F.A.NO.8005/2012
DIVISIONAL OFFICE, UDUPI
BY ITS BRANCH MANAGER,
BAJAJ ALLIANZ GENERAL INSURANCE
7
COMPANY LTD., NO.107, T.B.TOWERS,
BY ITS ASST. VICE PRESIDENT (CLAIMS)
RAVINDRA GANIGA
S/O NARAYANA GANIGA G
R/O SHANTHI NIVASA
BYNDOOR,
KUNDAPUR TALUK 3 576 201
(BY SMT. Y ARUNA, ADVOCATE FOR R4;
JUDGMENT
AND
AWARD
DATED
29.03.2012
NO.825/2009 PASSED BY THE FAST TRACK COURT AND MOTOR
VEHICLES
ACCIDENT
CLAIMS
TRIBUNAL,
KUNDAPURA
8
CONSEQUENTLY
DISMISS
CLAIM
PETITION
INTEREST OF JUSTICE AND EQUITY.
THESE MFAs HAVING BEEN HEARD AND RESERVED ON
05.03.2022, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T
Since these appeals are arising out of common judgment,
they are clubbed together and decided by a common judgment.
2.
MFA.No.10653/2012 and MFA.No.8003/2012 are
arising
out
of
MVC.No.710/2009.
Out
of
these
MFA.No.10653/2012 is filed by petitioner seeking enhancement,
whereas
MFA.No.8003/2012
is filed
by respondent
No.2
Insurance Company i.e., Bajaj Allianz General Insurance
Company challenging the fixing entire liability on it.
3.
MFA.No.11298/2012 and MFA.No.8004/2012 are
arising out of MVC.No.711/2009. While MFA.No.11298/2012 is
filed
by
the
petitioners
seeking
enhancement,
MFA.No.8004/2012 is filed by Respondent No.2 Bajaj Allianz
General Insurance Company challenging the fixing of 90%
liability on it.
9
4.
MFA.No.8005/2012 is arising out of judgment and
award in MVC.No.825/2009. It is filed by the claimant seeking
enhancement.
5.
MVC.710/2009 was filed by the claimant Ramesh
Billava for the personal injury sustained by him, whereas
MVC.No.711/2009 was filed by the petitioners being the legal
representatives of deceased Prabhakar Tholar, who died in the
motor vehicle accident.
6.
MVC.No.825/2009 is by the petitioner being the
owner, seeking the damages caused to the vehicle viz., motor
cycle bearing registration No.KA-20-U-3510 in the accident in
question.
7.
FACTS: Brief facts giving rise to the filing of the
petitions are that on 14.05.2009 at about 6.45 p.m. deceased
Prabhahar K. Tholar was proceeding on motor cycle bearing
registration No.KA-20-U-3510 (hereinafter referred to as motor
cycle) with pillion rider Ramesh Billava (who is petitioner in
MVC.No.710/2009) from Tallur side towards Kundapura side.
Near Tallur Bridge on NH-17, Kundapura Taluk, a Santro car
bearing Chasis No.MALAA51HR9M404700 (hereinafter referred to
10
as Santro car), belonging to Ganesh Prasad and being driven by
its driver, in a rash or negligent manner came from Kundapura
side and dashed against the motor cycle. Due to the impact,
deceased Prabhakar Tholar fell on the road. At that time a Tipper
lorry bearing registration No.KA-20-B-255 (hereinafter referred
to as Tipper lorry) belonging to one Rajesh Karanth, being driven
by its driver in a rash or negligent manner came from Tallur side
and ran over the deceased Prabhakar Tholar. In the said
accident, Ramesh Billava and Prabhakar Tholar sustained
grievous injuries. Prabhakar Tholar succumbed to the injuries.
The motor cycle bearing registration No.KA-20-U-3510 was
completely damaged.
7.1
Inspite of prolonged treatment, Ramesh Billava is
not compl
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