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MFA No. 21 of 2017 C/W
MFA No. 3356 of 2016
MFA No. 1629 of 2017
MFA No. 4784 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO. 21 OF 2017 (MV-D)
C/W
MISCELLANEOUS FIRST APPEAL NO. 3356 OF 2016(MV-D)
MISCELLANEOUS FIRST APPEAL NO. 1629 OF 2017(MV-D)
MISCELLANEOUS FIRST APPEAL NO. 4784 OF 2017(MV-D)
IN MFA NO.21/2017
BETWEEN:
THE BRANCH MANAGER
CHOLAMANDALAM GENERAL
INSURANCE COMPANY LIMITED.,
DARE HOUSE, 2ND FLOOR,
NO.2, N.S.C. BOSE ROAD,
CHENNAI-01, TAMIL NADU STATE.
REPRESENTED BY ITS LOCAL BRANCH:
THE REGIONAL MANAGER,
CHOLAMANDALAM GENERAL INSURANCE
COMPANY LIMITED., REGIONAL OFFICE
UNIT NO.4, GOLDEN HIGHT COMPLEX,
RAJAJINAGAR,BANGALORE CITY.
BY IT S SENIOR MANAGER-CLAIMS
…APPELLANT
(BY SRI. O MAHESH., ADVOCATE)
R
Digitally signed
by PAVITHRA B
Location: High
Court of
Karnataka
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MFA No. 21 of 2017 C/W
MFA No. 3356 of 2016
MFA No. 1629 of 2017
MFA No. 4784 of 2017
AND:
1.
SMT GOWRAMMA
AGE 46 YEARS,
W/O LATE DEVARAJEGOWDA
2.
KUM: DIVYA,
AGED 25 YEAR
D/O LATE DEVARAJEGOWDA
3.
SRI. DILIP KUMAR
AGE 23 YRS
S/O LATE DEVARAJEGOWDA
4.
KUM. BHAVYA
AGE 21 YEAR
D/O LATE DEVARAJEGOWDA
ALL R/A DUMMIKOPPALU,
DODDAMAGGE HOBLI, ARAKALAGUD TALUK,
PRESENTLY R/A FORT, MARIGUDI STREET,
CHANNARAYAPATNA TOWN, 573116.
5.
SRI. AVINASH
MAJOR,
S/O THAMMEGOWDA @
MARITHAMMEGOWDA,
RESIDING AT DUMMI VILLAGE,
MARITHAMMANAHALLI POST,
DODDAMAGGE HOBLI,
ARAKALAGUD TALUK 573102.
…RESPONDENTS
(BY SRI. HALESHA R G, ADVOCATE FOR R1-R4 ., R5-SERVED)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED24.9.2016 PASSED IN MVC
NO.539/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE,
JMFC, CHANNARAYAPATNA, AWARDING A COMPENSATION OF
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MFA No. 21 of 2017 C/W
MFA No. 3356 of 2016
MFA No. 1629 of 2017
MFA No. 4784 of 2017
RS.12,70,000/- WITH INTERST @ 9% P.A FROM THE DATE OF
PETITION TILL THE DATE OF REALIZATION.
IN MFA NO.3356/2016
BETWEEN:
THE GENERAL MANAGER
CHOLAMANDALAM GENERAL INSURANCE
COMPANY LIMITED
DARE HOUSE, 2ND FLOOR
NO.2, N H C N S C BOSE ROAD
CHENNAI-600001.
BY
THE REGIONAL MANAGER
CHOLAMANDALAM GENERAL
INSURANCE COMPANY LIMITED,
REGIONAL OFFICE
GOLDEN HEIGHT COMPLEX
6TH FLOOR, 59TH C CROSS
4TH M MAIN, RAJAJINAGAR
BANGALORE-560010
BY ITS SENIOR MANAGER-CLAIMS
…APPELLANT
(BY
SRI.
O
MAHESH.,
ADVOCATE
(THROUGH
VIDEO
CONFERENCE)
AND:
1.
SIDDALINGAMMA
W/O NANJUNDASWAMY
AGED ABOUT 38 YEARS
2.
NANJUNDASWAMY
S/O NANJAPPA
AGED ABOUT 42 YEARS
BOTH ARE RESIDING AT
MOOLEKALENAHALLI VILLAGE
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MFA No. 21 of 2017 C/W
MFA No. 3356 of 2016
MFA No. 1629 of 2017
MFA No. 4784 of 2017
KASABA HOBLI
HOLENARASIPURA TALUK
HASSAN DISTRICT-573201.
3.
AVINASH
S/O THIMMEGOWDA
MAJOR
R/O DUMMIMARITHAMMANAHALLI POST
DODDAMAGGE HOBLI
ARKALGUDU TALUK
HASSAN DISTRICT-573201
…RESPONDENTS
(BY SRI. GIRISH B BALADARE.,ADVOCATE FOR R1 & R2, R3-
NOTICE HELD SUFFICIENT V/O DT:3/2/21)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED: 02.03.2016 PASSED IN MVC
NO.378/14 ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC,
HOLENARASIPUR,
AWARDING
COMPENSATION
OF
RS.6,65,000/- WITH INTEREST AT 9% P.A. FROM THE DATE OF
PETITION TILL THE DATE OF DEPOSIT.
IN MFA NO.1629/2017
BETWEEN
1.
SMT GOWRAMMA
W/O LATE DEVARAJEGOWDA,
AGED ABOUT 47 YEARS,
2.
KUMARI DIVYA
D/O LATE DEVARAJEGOWDA,
AGED ABOUT 26 YEARS,
3.
SRI. DILIPKUMAR
D/O LATE DEVARAJEGOWDA,
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MFA No. 21 of 2017 C/W
MFA No. 3356 of 2016
MFA No. 1629 of 2017
MFA No. 4784 of 2017
AGED ABOUT 24 YEARS,
4.
KUM BHAVYA
D/O LATE DEVARAJEGOWDA,
AGED ABOUT 22 YEARS,
ALLA ARE R/AT DUMMIKOPPALU
DODDAMAGGE HOBLI,
ARAKALAGUD TALUK
PRESENTLY R/AT FORT, MARIGUDI STREET,
CHANNARAYAPATNA TOWN
…APPELLANTS
(BY SRI. HALESHA R G., ADVOCATE)
AND:
1.
SRI AVINASH
S/O THAMMEGOWDA @
MARITHAMMEGOWDA, MAJOR,
R/AT DUMMI VILLAGE,
MARITHAMMANAHALLI POST,
DODDAMAGGE HOBLI,
ARAKALAGUD TALUK
2.
THE MANAGER
CHOLAMANDALAM GEN., INS., CO., LTD.,
DARE HOUSE, 2ND FLOOR, NO.2
N.S.C.BOSE ROAD,
CHENNAI-01, TAMIL NADU STATE
REPD. BY ITS LOCAL BRANCH,
THE REGIONAL MANAGER,
REGIONAL OFFICE,
CHOLAMANDALAM GENERAL INSURANCE CO.LTD.,
UNIT NO.4, GOLDEN HIGHT COMPLEX,
RAJAJINAGAR,
BANGALORE CITY
…RESPONDENTS
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MFA No. 21 of 2017 C/W
MFA No. 3356 of 2016
MFA No. 1629 of 2017
MFA No. 4784 of 2017
(BY SRI. O MAHESH FOR R2 ., ADVOCATE FOR R2 (THROUGH
VIDEO CONFERENCE)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:24/09/2016 PASSED IN MVC
NO.539/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE &
J.M.F.C., CHANNARAYAPATNA, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
IN MFA NO.4784/2017
BETWEEN:
1.
SIDDALINGAMMA
W/O LATE NANJUNDASWAMY
AGED ABOUT 38 YEARS
2.
NANJUNDASWAMY
S/O LATE NANJAPPA
AGED ABOUT 42 YEARS
THE BOTH APPELLANTS ARE
R/AT MOOLEKALENAHALLI VILLAGE
KASABA HOBLI
HOLENARASIPURA TALUK
HASSAN DISTRICT- 573201.
…APPELLANTS
(BY SRI. GIRISH B BALADARE ., ADVOCATE)
AND:
1.
THE REGIONAL GENERAL MANAGER
CHOLAMANDALAM GENERAL INS. CO.LTD
DARE HOUSE, 2ND FLOOR
NO.2, N H C N S C BOSE ROAD
CHENNAI-600001.
REPRESENTED BY
THE REGIONAL GENERAL MANAGER
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MFA No. 21 of 2017 C/W
MFA No. 3356 of 2016
MFA No. 1629 of 2017
MFA No. 4784 of 2017
CHOLAMANDALAM GENERAL
INSURANCE CO. LTD.
REGIONAL OFFICE
GOLDEN HEIGHT COMPLEX
NO.59TH CROSS
RAJAJINAGAR
BENGALURU-560 010.
2.
AVINASH
S/O THIMMEGOWDA
AGED ABOUT 33 YEARS
R/AT DUMMIMARITHAMMANAHALLI POST
DODDAMAGGE HOBLI
ARAKALGUD TALUK
HASSN DISTRICT-573201.
…RESPONDENTS
(BY SRI. O MAHESH FOR R1., ADVOCATE FOR R1 (THROUGH
VIDEO CONFERENCE, R2-NOTICE DISPENSED WITH V/O
DATED:15-03-2021)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:02.03.2016 PASSED IN MVC
NO.378/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE, &
JMFC, MACT, HOLENARASIPURA, PARTLY ALLOWING THE
CLAIM
PETITION
FOR
COMPENSATION
AND
SEEKING
ENHANCEMENT OF COMPENSATION.
THESE APPEALS, COMING ON FOR FURTHER HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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MFA No. 21 of 2017 C/W
MFA No. 3356 of 2016
MFA No. 1629 of 2017
MFA No. 4784 of 2017
These appeals are filed under Section-173(1) of the
Motor Vehicles Act 1988 (hereinafter referred to as ‘MV
Act’ for brevity).
MFA No.21/2017 (MVC No.539/2014) is filed by the
appellants-insurance company challenging the judgment
and
award
dated
24.09.2016,
passed
in
M.V.C.No.539/2014, on the file of the Senior Civil Judge,
Channarayapatna, (hereinafter referred to as ‘the Tribunal’
for brevity) questioning the liability as well as quantum of
compensation.
MFA No.3356/2016 (MVC No.378/2014) is filed by
the
appellant-insurance
company,
challenging
the
judgment and award dated 02.03.2016, passed in
M.V.C.No.378/2014, on the file of the Senior Civil Judge,
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MACT, Holenarasipura, questioning the liability fixed as
well as the quantum of compensation.
MFA No.1629/2017 (MVC No.539/2014) is filed by
the appellant-claimant, challenging the judgment and
award dated 24.09.2016, passed in M.V.C.No.539/2014,
on the file of the Senior Civil Judge, Channarayapatna,
(hereinafter referred to as ‘the Tribunal’ for brevity)
seeking enhancement of compensation.
MFA No.4784/2017 (MVC No.378/2014) is filed by
the appellant-claimant, challenging the judgment and
award dated 02.03.2016, passed in M.V.C.No.378/2014,
on the file of the Senior Civil Judge, MACT, Holenarasipura,
seeking enhancement of compensation.
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Brief facts:
On 22.11.2013 at about 6.00 p.m., when the
deceased M.N.Raghu was going in a motor cycle bearing
registration No.KA-13-V-4832 to Temple, on the left side
of the road, in a moderate speed, the driver of a goods
Ape auto bearing registration No.KA-13-B-3520, drove the
same in a rash and negligent manner with high speed and
dashed against the motor cycle of the deceased. As a
result of which, both the rider of the motor cycle as well as
the passenger traveling in the goods auto-rickshaw
sustained severe injuries and died.
4. Hence, a claim petition was filed by the claimants
under Section-166 of the M.V. Act, claiming compensation
for the death of the deceased in the road traffic accident.
The Tribunal on appreciating the materials on
record, allowed MVC No.539/2014 in part, and awarded a
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compensation of Rs.12,70,000/- along with interest at 9%
per annum from the date of petition till the date of
deposit. The Tribunal held respondent – insurance
company liable to pay the compensation.
6.
The Tribunal on appreciating the materials on
record, allowed MVC No.378/2014 in part, and awarded a
compensation of Rs.6,65,000/- along with interest at 9%
per annum from the date of petition till the date of
deposit. The Tribunal held the owner and insurer are
jointly and severally liable to pay the compensation.
ON LIABILITY AS WELL AS RASH AND NEGLIGENT
ASPECT:
7.
The learned counsel for the insurance company
- appellant submitted that the accident was caused on
account of rash and negligent driving of the deceased who
was riding the motor cycle. Further, submitted that the
deceased was occupant of Devarajegowda, who died in the
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accident was traveling in the auto-rickshaw as a gratuitous
passenger. Therefore, the insurance company is not liable
to pay the compensation. Further submitted that as per
the Registration Certificate, Exhibit-R7 extract, the seating
capacity of the auto-rickshaw is one which is only for
driver. Therefore, the deceased who was driving the auto-
rickshaw is a gratuitous passenger. Therefore, the
insurance company is not liable to pay the compensation.
8.
Further, submitted that the auto-rickshaw is a
transport vehicle. But the driver of the auto-rickshaw was
holding Driving License to drive LMV (Non-Transport
Vehicle). Therefore, the insurance company is liable to be
exonerated on the violation of condition of this policy.
Further, submitted that there is no evidence to prove that
the deceased has traveled along with goods. Therefore,
the deceased was gratuitous passenger. Hence, the
insurance company is not liable to pay the compensation.
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9.
On the other
