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IN THE HIGH COURT OF KARNATAKA

KALABURAGI BENCH

DATED THIS THE 15^TH DAY OF NOVEMBER, 2021

BEFORE

THE HON’BLE MR.JUSTICE M.G.S.KAMAL

MFA No.200023/2016 (MV)

BETWEEN:

SHRIRAM GENERAL INSURANCE CO. LTD.,

THROUGH DIVISIONAL MANAGER

DR. BUILDING, OPP: FOREST OFFICE

COURT ROAD, KALABURAGI.

... APPELLANT

(BY SRI. SUBHASH MALLAPUR, ADVOCATE)

AND:

01.

DASARATH S/O SHANKER RAO ANKALKAR

AGE: 43 YEARS OCC: COOLIE

02.

AMBUBAI W/O DASARATH ANKALKAR

AGE: 38 YEARS OCC: COOLIE

BOTH R/O: SEDAM,

NOW AT H.NO.11/32,

UPPARGALLI, STATION ROAD,

KALABURAGI-585 102.

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03.

SURYAKANTH S/O SRIPATH RAO KALWAD

R/O: H.K. TRANSPORT

MARKET ROAD, YADGIR-585 202.

... RESPONDENTS

(BY SRI. NAGRAJ PATIL, ADVOCATE FOR

SRI.PRASHANTH S. KUMMAN, ADVOCATE FOR R1&R2

R3 SERVED)

THIS MISCELLANEOUS FIRST APPEAL IS FILED

UNDER SECTION 173 (1) OF THE MOTOR VEHICLES ACT,

PRAYING

TO

ALLOW

THE

ABOVE

APPEAL

AND

CONSEQUENTLY

BE

PLEASED

TO

SET

ASIDE

THE

JUDGMENT AND AWARD DATED 20.07.2015 PASSED BY III

ADDITIONAL

SENIOR

CIVIL

JUDGE

AND

MACT,

KALABURAGI IN MVC.NO.636/2013 INSOFAR IT RELATES

TO FASTENING OF LIABILITY ON THE APPELLANT.

THIS APPEAL COMING ON FOR ADMISSION THIS

DAY, THE COURT DELIVERED THE FOLLOWING:-

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JUDGMENT

This Miscellaneous First Appeal is filed by the

Insurance Company against the judgment and award

dated 20.07.2015 passed in MVC.No.636/2013 on the file

of III Additional Senior Civil Judge and MACT, Kalaburagi

(henceforth referred as 'Tribunal').

02.

Brief facts leading upto filing of the present

appeal are that on 05.02.2013 the deceased - Rahul and

his cousin sister were going towards Sedam Town for

attending coaching classes on Kenetic Honda motor cycle,

when they came in front of JMFC Court, Sedam road, they

were going slowly and cautiously, at that time a Lorry

bearing

Reg.No.KA-31-4332

(henceforth

referred

as

'offending vehicle') came from backside in a rash and

negligent manner and dashed against the scooter of the

deceased - Rahul. The deceased - Rahul fell down from the

scooter and wheel of the offending vehicle ran-over his

head, thereby he died on the spot. In this regard a case in

Cr.No.31/2013 was registered before the Sedam Police

Station.

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03.

Thereupon, the parents of the deceased -

Rahul had filed a claim petition under Section 166 of the

Motor Vehicles Act, 1988 claiming compensation of

Rs.10,25,000/- on the premise that the deceased - Rahul

was 12 years boy and studying in VI standard being a

brilliant boy, died in the accident on account of rash and

negligent driving of the offending vehicle by its driver. That

the accident in question had occurred on account of

negligence on the part of the driver of the offending

vehicle which was insured with respondent No.1. Hence,

the respondent No.1 - insurance company of the offending

vehicle and respondent No.2 - owner of the offending

vehicle are jointly and severally liable to pay the

compensation.

04.

Despite service of notice, the respondent No.2

remained absent and placed ex-parte. The respondent

No.1 - insurance company appeared through its advocate

and filed statement of objections contending that the

deceased being minor had not reached the age for

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qualifying himself to obtain a license to ride the scooter on

the public road. Therefore, the riding of the said scooter

ridden by the deceased - Rahul itself amounts to an act of

rash and negligent riding. The accident was due to collision

between the rider of a scooter and driver of a offending

lorry. The claimants deliberately evaded to make insurer of

the scooter as a party. That owner and insurer of the

scooter are necessary party and therefore claim petition

was bad for none-joinder of necessary party. That the very

fact that a minor riding a scooter has resulted in violation

of provisions of M.V. Act and Rules framed thereunder. No

liability can be fastened on the insurance company