Partly allowed

National Insurance Co. Ltd. v. Basavaraj S/O. Ishvarappa More

Karnataka HC7 Aug 2023MFA/20814/2012

Case brief

AI extract

What is this about?

Appellants challenged the courts finding of 50% contributory negligence. This court held the deceased truck driver was 100% rashly and negligently at fault by overtaking and deviating from his lane. Appeals on apportionment allowed; quantum of compensation dismissed. Bottom line: Deceased driver 100% liable.

What did the court decide?

Judgment and award of lower court set aside. Owner and insurer of truck KA-30/1942 liable for 100% compensation to claimants.

National Insurance Co. Ltd. Vs Basavaraj… — Civil Procedure and Limitation | Karnataka HC (2023)

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NC: 2023:KHC-D:8453 MFA No. 20814 of 2012 C/W MFA No. 20813 of 2012

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 7^TH DAY OF AUGUST, 2023 BEFORE

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THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR

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MISCELLANEOUS FIRST APPEAL NO.20814/2012(MV-I) C/W MISCELLANEOUS FIRST APPEAL NO.20813/2012 IN MFA.NO.20814/2012:

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BETWEEN:

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NATIONAL INSURANCE CO. LTD., BRANCH, H.C.C. SALES BUILDING, P.B. ROAD, HUBLI, RETPED. BY - ADMN. OFFICER R.O. IST FLOOR, SUJATA COMPLEX, P.B.ROAD, HUBLI.

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…APPELLANT

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(BY SRI S. S. JOSHI, ADVOCATE)

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AND:

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Digitally signed by SUJATA SUBHASH PAMMAR

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SRI BASAVARAJ S/O. ISHVARAPPA MORE, AGE: MAJOR, OCC: LORRY DRIVER, GOODS TRUCK BEARING REG.NO.KA-30/1942, R/O: KADANAKOPPA, AT AND POST: KALGHATAGI, DIST: DHARWAD.

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SRI MARUTI S/O. RAJAPPA MORE, AGE: MAJOR, OCC: OWNER OF THE GOODS TRUCK BEARING REG.NO.KA-30/1942, R/O: KADANAKOPPA, AT AND POST: KALGHATAGI, DIST: DHARWAD.

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UNITED INDIA INSURANCE CO. LTD., DIVISIONAL OFFICE, RADHA GOVIND COMPLEX, IST FLOOR, KAIKINI ROAD, KARWAR(U.K.) POLICY NO.240900/31/04/02991-8-12-2004 TO 26-11-2005.

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NC: 2023:KHC-D:8453 MFA No. 20814 of 2012 C/W MFA No. 20813 of 2012

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SRI PRAKASH S/O. SHIDDAPPA NERALAGI, AGE: 32 YEARS, OCC:DRIVER OF GOODS TRUCK BEARING NO: KA-27/6029, R/O: SHUKRAWAR PETH, SAVANOOR, TQ AND DIST: HAVERI.

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SRI AKVARULLAKHAN J. PATHAN, AGE: MAJOR, OCC:DRIVER OF GOODS TRUCK BEG. NO:KA-27/6029, R/O: SAVANOOR, TQ AND DIST: HAVERI.

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SMT. BASAVVA W/O. FAKKIRAPPA BISARALLI, AGE: 56 YEARS, OCC: HOUSEHOLD WORK, R/O: HULLAMBI, TQ: KALAGHATAGI, DIST: DHARWAD.

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SRI IRABASAPPA S/O. FAKKIRAPPA BISARALLI, AGE: 42 YEARS, OCC: AGRICULTURE, R/O: HULLAMBI, TQ: KALAGHATAGI, DIST: DHARWAD.

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SRI SHIVANAND S/O. FAKKIRAPPA BISARALLI, AGE: 40 YEARS, OCC: AGRICULTURE, R/O: HULLAMBI, TQ: KALAGHATAGI, DIST: DHARWAD.

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SRI VEERABHADRAPPA S/O. SAKKIRAPPA BISARALLI, AGE: 42 YEARS, OCC: AGRICULTURE, R/O: HULLAMBI, TQ: KALAGHATAGI, DIST: DHARWAD.

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SMT. PARVATI W/O. VEERABHADRAPPA KICHADI, AGE: 32 YEARS, OCC: HOUSEHOLD WORK, R/O: HULLAMBI, TQ: KALAGHATAGI, DIST: DHARWAD.

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KUM. NAGARATNAVVA D/O. FAKKIRAPPA BISARALLI, AGE: 28 YEARS, OCC: HOUSEHOLD WORK R/O: HULLAMBI, TQ: KALAGHATAGI, DIST: DHARWAD.

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KUM. GURUSHANTA D/O. FAKKIRAPPA BISARALLI, AGE: 26 YEARS, OCC: HOUSEHOLD WORK, R/O: HULLAMBI, TQ: KALAGHATAGI, DIST: DHARWAD.

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SRI SHIVAKUMAR S/O. FAKKIRAPPA BISARALLI, AGE: 26 YEARS, OCC: AGRICULTURE, R/O: HULLAMBI, TQ: KALAGHATAGI, DIST: DHARWAD.

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…RESPONDENTS (BY SRI S.S.KOLIWAD, ADVOCATE FOR R3; SRI SHRIHARSH A. NEELOPANT, ADVOCATE FOR R6 TO R13; NOTICE TO R1 IS HELD SUFFICIENT; R2, R4 AND R5 ARE SERVED)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, PRAYING TO CALL FOR RECORDS, HEAR PARTIES AND ALLOW THE APPEAL AS PRAYED FOR BY SETTING ASIDE THE JUDGMENT AND AWARD DATED 29.10.2011 PASSED BY THE II ADDITIONAL SENIOR CIVIL JUDGE AND AMACT, DHARWAD SITTING AT KALAGHATAGI IN MVC 187/2005 IN THE INTEREST OF JUSTICE AND EQUITY.

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IN MFA.NO.20813/2012:

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BETWEEN:

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NATIONAL INSURANCE CO. LTD., BRANCH, H.C.C. SALES BUILDING, P.B. ROAD, HUBLI, RETPED. BY - ADMN. OFFICER R.O. IST FLOOR, SUJATA COMPLEX, P.B.ROAD, HUBLI.

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…APPELLANT

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(BY SRI S. S. JOSHI, ADVOCATE)

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AND:

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SRI BASAVARAJ S/O. ISHVARAPPA MORE, AGE: MAJOR, OCC: LORRY DRIVER, GOODS TRUCK BEARING REG.NO.KA-30/1942, R/O: KADANAKOPPA,

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NC: 2023:KHC-D:8453 MFA No. 20814 of 2012 C/W MFA No. 20813 of 2012

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AT AND POST: KALGHATAGI,

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DIST: DHARWAD.

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SRI MARUTI S/O. RAJAPPA MORE, AGE: MAJOR, OCC: OWNER OF THE GOODS TRUCK BEARING REG.NO.KA-30/1942, R/O: KADANAKOPPA, AT AND POST: KALGHATAGI, DIST: DHARWAD.

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UNITED INDIA INSURANCE CO. LTD.,, DIVISIONAL OFFICE, RADHA GOVIND COMPLEX, IST FLOOR, KAIKINI ROAD, KARWAR(U.K.) POLICY NO.240900/31/04/02991-8-12-2004 TO 26-11-2005.

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SRI PRAKASH S/O. SHIDDAPPA NERALAGI, AGE: 32 YEARS, OCC:DRIVER OF GOODS TRUCK BEARING NO:KA-27/6029, R/O: SHUKRAWAR PETH, SAVANOOR, TQ AND DIST: HAVERI.

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SRI AKVARULLAKHAN J. PATHAN, AGE: MAJOR, OCC:DRIVER OF GOODS TRUCK BEG.NO.KA-27/6029, R/O: SAVANOOR, TQ AND DIST: HAVERI.

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SMT. BASAVVA W/O. FAKKIRAPPA BISARALLI, AGE: 56 YEARS, OCC: HOUSEHOLD WORK, R/O: HULLAMBI, TQ: KALAGHATAGI, DIST: DHARWAD.

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SRI IRABASAPPA S/O. FAKKIRAPPA BISARALLI, AGE: 42 YEARS, OCC: AGRICULTURE, R/O: HULLAMBI, TQ: KALAGHATAGI, DIST: DHARWAD.

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SRI SHIVANAND S/O. FAKKIRAPPA BISARALLI, AGE: 40 YEARS, OCC: AGRICULTURE, R/O: HULLAMBI, TQ: KALAGHATAGI, DIST: DHARWAD.

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SRI VEERABHADRAPPA S/O. SAKKIRAPPA BISARALLI, AGE: 42 YEARS, OCC: AGRICULTURE, R/O: HULLAMBI, TQ: KALAGHATAGI, DIST: DHARWAD.

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- 5 - NC: 2023:KHC-D:8453 MFA No. 20814 of 2012 C/W MFA No. 20813 of 2012

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SMT. PARVATI W/O. VEERABHADRAPPA KICHADI, AGE: 32 YEARS, OCC: HOUSEHOLD WORK, R/O: HULLAMBI, TQ: KALAGHATAGI, DIST: DHARWAD.

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KUM. NAGARATNAVVA D/O. FAKKIRAPPA BISARALLI, AGE: 28 YEARS, OCC: HOUSEHOLD WORK R/O: HULLAMBI, TQ: KALAGHATAGI, DIST: DHARWAD.

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KUM. GURUSHANTA D/O. FAKKIRAPPA BISARALLI, AGE: 26 YEARS, OCC: HOUSEHOLD WORK, R/O: HULLAMBI, TQ: KALAGHATAGI, DIST: DHARWAD.

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SRI SHIVAKUMAR S/O. FAKKIRAPPA BISARALLI, AGE: 26 YEARS, OCC: AGRICULTURE, R/O: HULLAMBI, TQ: KALAGHATAGI, DIST: DHARWAD.

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…RESPONDENTS

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(BY SRI S.S.KOLIWAD, ADVOCATE FOR R3; R1, R2, R4 TO R13 ARE SERVED)

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THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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NC: 2023:KHC-D:8453 MFA No. 20814 of 2012 C/W MFA No. 20813 of 2012

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JUDGMENT

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These appeals are filed by the National Insurance Company Limited challenging the judgment and award

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dated 29.10.2011 passed in MVC No.187/2005 by the II Addl. Senior Civil Judge and AMACT, Dharwad, who is insurer of truck bearing No.KA-27/6029. The appellantInsurance Company is before this Court challenging the quantum and apportionment of compensation awarded in favour of claimants.

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The fact of occurrence of accident and death of one Fakirappa Bisaralli in the said accident is not in dispute. It is also not in dispute that the claimants are the legal representatives of deceased Fakirappa. The applicability and coverage of the insurance policy is also not in dispute.

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The learned counsel for the appellant National Insurance Company Limited submitted that the deceased while driving truck bearing registration No.KA-30/1942 was in the process of overtaking the car which is going ahead of his truck has dashed the another truck No.KA-

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NC: 2023:KHC-D:8453 MFA No. 20814 of 2012 C/W MFA No. 20813 of 2012

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27/6029 which is coming from opposite direction in it’s way. Therefore, the deceased drove the truck in a rash and negligent manner without verifying whether there was overtaking is possible or not. Therefore, due to the entire rash and negligence on the part of the deceased who was driving truck bearing No.KA-30/1942 by the deceased himself the accident occurred. Further submitted that in the complaint, FIR and charge sheet, the entire allegation is made against the deceased who was driving truck bearing No.KA-30/1942. Therefore, prays for modification of finding given by the Tribunal.

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On the other hand, the learned counsel for the Insurance Company namely United India Insurance Co. Limited who is insurer of the truck bearing No.KA-30/1942 justified the finding given by the Tribunal and prays to dismiss the appeals filed by the National Insurance Company Limited.

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The factum of the accident that the deceased was

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driving the truck bearing No.KA-30/1942 was driving truck

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from Anathawadi to Hullambi village near Devikoppa Inspection Bunglow, at that time a car was going ahead of him. In order to overtake the said car, he has taken the truck to the right side of the road, another truck No.KA27/6029 was coming in its way then the deceased Fakkirappa dashed to the truck No.KA-27 6029 and in the said accident injured Fakkirappa died.

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Ex.P1 is FIR and Ex.P2 is complaint in which the entire allegations are made against the driver of truck bearing No.KA-30/1942.

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Ex.P3-spot panchanama which describes the place of

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accident. The counsel for the United India Insurance Company Limited submitted that the accident is due to head on collusion. Therefore, the Tribunal is correct in holding the rash and negligence at 50% each on the driver of the truck. But, just because the accident is head on collusion that cannot always be said that there is a contributory negligence. Contributory negligence can be assessed on the ground that in which directions the

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vehicles are moving, whether vehicles are maintaining there own lane and speed of the vehicle etc. But, in the present case, the driver of the truck number KA-30/1942 was driving the truck by overtaking the car and dashed another truck bearing No.KA-27/6029. The truck No.KA27/6029 was coming on its direction and has not deviated it’s lane but the driver of the truck bearing No.KA-30/1942 has deviated the lane while in the process of overtaking the car and rammed the other truck. Therefore, this shows the rash and negligent driving of the truck bearing No.KA30/1942 by its driver. The driver of the truck bearing No.KA-27/6029 was on his correct lane by maintaining lane discipline. Therefore, upon considering the factum of accident, on the principles of Res Ipsa Loquitur (things speaks itself), it is proved that the driver of the truck bearing No.KA-30/1942 was completely rash and negligent in driving the truck and caused accident. Therefore, the Tribunal has just swayed away the fact that there was head on collusion. Hence, fastened 50% of the rash and negligence on the driver

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10 - NC: 2023:KHC-D:8453 MFA No. 20814 of 2012 C/W MFA No. 20813 of 2012

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of the truck bearing No.KA-27/6029 is not correct. Therefore,

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it is held that the driver of truck bearing No.KA-30/1942 completely rash and negligent in driving truck and caused accident. Therefore, he is responsible for 100% to the accident. Accordingly, finding in this regard given by the Tribunal is modified holding that the driver of the truck bearing No.KA-30/1942 is rash and negligent in driving the truck and caused the accident.

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Upon considering the quantum of compensation awarded by the Tribunal, under the head loss of dependency in respect of the deceased and global compensation of Rs.20,000/- is awarded as damages is found to be correct and justified which needs no interference. Therefore, on quantum appeal filed by the Insurance Company is liable to be dismissed.

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On the apportionment of rash and negligence aspect as discussed above, the appeals filed by appellantInsurance Company are liable to be allowed. Hence, I proceed to pass the following:

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11 - NC: 2023:KHC-D:8453 MFA No. 20814 of 2012 C/W MFA No. 20813 of 2012

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ORDER

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i) MFA No.20814/2012 and MFA

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No.20813/2012 are allowed in part.

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ii) The common judgment and award dated 29.10.2011 passed in MVC No.186/2005 and 187/2005 by the II Addl. Senior Civil Judge and AMACT, Dharwad sitting at Kalaghatagi is hereby set aside.

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iii) The owner and insurer of truck bearing No.KA-30/1942 are jointly and severally liable to

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pay compensation 100% to the claimants.

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iv) Amount in deposit shall be transmitted to

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the Tribunal forthwith.

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v) Costs made easy.

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vi) Draw award accordingly.

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HMB List No.: 2 Sl No.: 20 CT-ASC

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SD/JUDGE

National Insurance Co. Ltd. v. Basavaraj S/O. Ishvarappa More

Case brief

What is this about?

What did the court decide?

National Insurance Co. Ltd. v. Basavaraj S/O. Ishvarappa More

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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Case details

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