Dismissed

The Manager National Insurance Co.Ltd., v. Mahamad Rizwan Sharif

Karnataka HC25 Sept 2023MFA/4897/2018

Case brief

AI extract

What is this about?

Appealing against a compensation award for a road traffic accident death. The court rejected the appellant's claim of contributory negligence, finding the deceased swerved to avoid a snake but remained within his lane, while the respondent driver failed to maintain the left side of the road.

What did the court decide?

Appeal dismissed; amount in deposit to be transmitted to the concerned Tribunal forthwith.

The Manager National Insurance… — Constitutional and Fundamental Rights | Karnataka HC (2023)

¶1

¶2

NC: 2023:KHC:34876 MFA No. 4897 of 2018

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25^TH DAY OF SEPTEMBER, 2023

¶4

BEFORE

¶5

THE HON'BLE MR JUSTICE C M JOSHI

¶6

MISCELLANEOUS FIRST APPEAL NO. 4897 OF 2018 (MV-D)

¶7

BETWEEN:

¶8

THE MANAGER, NATIONAL INSURANCE CO.LTD., DENTAL COLLEGE ROAD, DAVANAGERE.

¶9

NOW BY ITS, REGIONAL OFFICE, 2ND FLOOR, SHUBHARAM COMPLEX, NO.144, M G ROAD, BANGALORE-560 001. BY ITS AUTHORISED SIGNATORY.

¶10

...APPELLANT

¶11

(By SRI B A RAMAKRISHNA, ADVOCATE)

¶12

AND:

¶13

Digitally signed by T S NAGARATHNA Location: High Court of Karnataka

¶14

1 . MAHAMAD RIZWAN SHARIF, S/O. LATE ISMAIL SAB, AGED ABOUT 87 YEARS, SINCE DEAD BY LRS.

¶15

A) SMT.SHATAJ, D/O. LATE MAHAMAD RIZWAN SHARIFF, AGED ABOUT 56 YEARS, OLD SAIDER ROAD, CHANNAGIRI TOWN, CHANNAGIRI TALUQ, DAVANAGERE DISTRICT. B) SMT. MOHSINA, D/O. LATE MAHAMAD RIZWAN SHARIFF, AGED ABOUT 54 YEARS, NEW SAIDER ROAD, CHANNAGIRI TOWN, CHANNAGIRI TALUQ,

¶16

2 - NC: 2023:KHC:34876 MFA No. 4897 of 2018

¶17

DAVANAGERE DISTRICT.

¶18

C) SMT. MUBEENA, D/O. LATE MAHAMAD RIZWAN SHARIFF, AGED ABOUT 52 YEARS, NAYAK'S ROAD, CHANNAGIRI TOWN, CHANNAGIRI TALUQ, DAVANAGERE DISTRICT.

¶19

D) SMT. NASREEN TAJ, D/O. LATE MAHAMAD RIZWAN SHARIFF, AGED ABOUT 50 YEARS, OLD SAIDER ROAD, CHANNAGIRI TOWN, CHANNAGIRI TALUQ, DAVANAGERE DISTRICT.

¶20

SMT. AMREEN TAJ, W/O. LATE MAHAMAD NASEER, AGED ABOUT 29 YEARS.

¶21

3 . MAHAMAD JAFAR SADIQ, S/O. LATE MAHAMAD NASEER, AGED ABOUT 7 YEARS.

¶22

4 . MAHAMAD SHAFIZ, S/O LATE MAHAMAD NASEER, AGED ABOUT 4 YEARS.

¶23

RESPONDENTS 3 & 4 BEING MINORS ARE REPRESENTED BY THEIR MOTHER AND NATURAL GUARDIAN SMT. AMREEN TAJ, THE 2ND RESPONDENT HEREIN. ALL ARE R/O FATHIMA MASJITH ROAD, NALLUR VILLAGE, CHANNAGIRI TALUK, DAVANAGERE DISTRICT.

¶24

5 . SRI KUMAR S B, S/O. LATE BASAVARAJAPPA K S, AGED ABOUT 50 YEARS, R/O. SOMASHETTY VILLAGE, LINGADAHALLI POST, CHANNAGIRI TALUK,

¶25

3 - NC: 2023:KHC:34876 MFA No. 4897 of 2018

¶26

DAVANAGERE DISTRICT.

¶27

6 . SRI CHETHAN KUMAR T K, S/O. KUMARASWAMY, AGED ABOUT 28 YEARS, R/O. SOMASHETTY VILLAGE, LINGADAHALLI POST, CHANNAGIRI TALUK, DAVANAGERE DISTRICT.

¶28

…RESPONDENTS

¶29

(By SRI SIDDANOORU VISHWANATHA, ADVOCATE FOR R2; SRI S.R. SHANTHKUMAR, ADVOCATE FOR LR'S OF DECEASED R1 (1 TO 4);

¶30

R3 & 4 - MINORS ARE REPRESENTED BY R-2;

¶31

R6 - SERVED,

¶32

NOTICE TO R5 IS DISPENSED WIHT V/O DATED 06.02.2020)

¶33

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 24.02.2018 PASSED IN MVC NO.332/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE, MACT, CHANNAGIRI, AWARDING COMPENSATION OF RS.8,58,000/- WITH INTEREST AT 6% P.A. FROM THE DATE OF THE PETITION TILL THE REALIZATION.

¶34

THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:

¶35

JUDGMENT

¶36

This appeal is filed by the Insurance Company against

¶37

the judgment and award dated 24.02.2018 passed in MVC.No.332/2016 by the learned Senior Civil Judge and MACT Channagiri, awarding compensation of Rs.8,58,000/- with interest at 6% p.a. from the date of the petition till the realization on account of the death of deceased Mahammad Naseer in the road traffic accident.

¶38

¶39

NC: 2023:KHC:34876 MFA No. 4897 of 2018

¶40

2. The petitioners are the dependents of the deceased

¶41

Mahammad Naseer. They filed a claim petition before the Tribunal contending that on 26.04.2016 at about 10.15 am., when the deceased Mohammad Naseer was going on his motorcycle bearing Reg.No.KA-15/J-1796 near Billahalli Cross towards Channagiri-Davanagere Road, the respondent No.2 drove the bike bearing Reg.No.KA-17/EL-9738 in a rash and negligent manner and dashed against him, due to which, he sustained grievous injuries and died on the spot. Therefore, they claimed compensation of Rs.1,31,25,000/- contending that the deceased was aged about 32 years and was an agriculturist earning Rs.5,00,000/per annum. It was contended that the petitioners who are father, wife and children of the deceased were depending on the income of the deceased.

¶42

On issuance of notice by the Tribunal, the

¶43

respondents have appeared through their counsel before the Tribunal and contested the petition.

¶44

The Respondent Nos.1 and 2 being the owner and driver of the offending vehicle have appeared through their

¶45

5 - NC: 2023:KHC:34876 MFA No. 4897 of 2018

¶46

counsel and filed objection statement contending that the bike of respondent No.2 was insured with the respondent No.3 and as on the date of the accident, the insurance policy was in force and that the insurance company is liable to indemnify the insured and accordingly prayed for dismissal of the Petition.

¶47

Respondent No.3-Insurance Company has filed objection statement contending that the said accident was not at all due to the negligence of respondent No.1 but it was on account of the negligence of the deceased himself, the said vehicle was not at all involved in the said accident and that the compensation claimed is highly exorbitant and has no nexus to the actual loss suffered by the petitioners and therefore it is not at all liable to indemnify the petitioner on behalf of respondent Nos.1 & 2 and prayed to dismiss the petition.

¶48

On the basis of the above pleadings, the Tribunal framed appropriate issues and petitioner No.2 was examined as PW.1 and Exs.P1 to P9 were marked in evidence. The official of the respondent No.3 was examined as RW.1 and Exs.R1 and 2 were marked in evidence.

¶49

6 - NC: 2023:KHC:34876 MFA No. 4897 of 2018

¶50

The Tribunal after hearing both sides, awarded the compensation of Rs.8,58,000/- with interest at 6% p.a. from the date of petition till realization under different heads as below and directed the Insurance company to deposit the same:

¶51

PARTICULARS	AMOUNT (IN RS.)
Loss of dependency	7,68,000/-
Consortium	30,000/-
Loss of affection	40,000/-
Funeral expenses	20,000/-
TOTAL	8,58,000/-

¶52

Being aggrieved by the said judgment and award,

¶53

the Insurance Company has approached this Court in appeal contending that the Tribunal has not appreciated the evidence in record in proper perspective and the Tribunal erred in not relying on the sketch marked as Ex.R2. It is contended that the accident took place in the middle of the road and it was headon collision and as such, contributory negligence should have been considered by the Tribunal. It was also contended that a chargesheet show that the deceased himself had taken the motorcycle towards the right side in order to avoid a snake which was on the road and therefore, the negligence on the

¶54

¶55

NC: 2023:KHC:34876 MFA No. 4897 of 2018

¶56

part of the deceased was on the higher side. Insurance Company has not disputed the compensation awarded under different heads.

¶57

On issuance of notice by this Court, respondent Nos.1 to 4 had appeared through their counsel and the notice to the respondent No.5 was dispensed with. The respondent No.6 did not appear despite service of notice. During pendency of suit, the respondent No.1 died and his LRs are brought on record and on admitting the appeal, Tribunal records have been secured.

¶58

Heard the learned counsel appearing for the appellant-Insurance company and learned counsel appearing for respondents Nos. 1 to 4 and perused the records.

¶59

The moot question that is raised by the learned counsel appearing for the appellant-Insurance Company is who could have avoided the accident. It is the case of the petitioners that the deceased along with the pillion was on the motorcycle and was moving towards Channagiri from Davanagere and the road was 18 feet wide. The offending vehicle belonging to the respondent Nos.1 and 2 was moving

¶60

8 - NC: 2023:KHC:34876 MFA No. 4897 of 2018

¶61

from Channagiri towards Davanagere. The accident had occurred by way of head-on collision. The distance of the spot of the accident from the edge of the road is not decipherable from the sketch produced by the respondent-Insurance Company at Ex.R2. The spot mahazar produced by the petitioner at Ex.P7 also do not clearly mention the distance of the spot of the accident from any of the edge of the road. However, on a perusal of Ex.R2, it is clear that the spot of the accident is slightly on the left side of the center line while coming from Davanagere towards Channagiri. Therefore, it is evident that the spot sketch is not of any help to the Insurance Company to contend that there was negligence on the part of the deceased. On the contrary, the spot sketch at Ex.R2 show that it was the respondent No.2 who had taken motorcycle towards the right. The chargesheet produced at Ex.P4 discloses that the deceased was coming towards Channagiri with one Tanweer Ahmed as a Pillion rider and when he saw a snake on the road, he swerved the bike to the right and the respondent No.2 lost control of his motorcycle bearing No.KA-17/EL-9738 and dashed to the motorcycle of the respondent No.2. Thus, it is evident that the combined reading and perusal of Exs.P4-

¶62

9 - NC: 2023:KHC:34876 MFA No. 4897 of 2018

¶63

Chargesheet and Ex.R2-rough sketch would show that the deceased was on the left side of the road while coming from Davanagere to Channagiri and seeing snake, he came on the right and therefore, the accident happened. Even after swerving the vehicle to the right, he was still on left of the center line of the road. Therefore, it is evident that it was the respondent No.2 who was not on the left side of his lane while going towards Davanagere. Under these circumstances, I do not find any substance in the contention of the learned counsel appearing for the appellant that there was negligence on the part of the deceased.

¶64

It is necessary to note that the vehicles are insured in order to meet out the unforeseen eventualities. In the case on hand, had the snake was not on the road, the accident could not have happened. Evidently, the road had a slight curving. The deceased was on his left side. To avoid the snake, he came towards the center line of the road. Therefore, it is evident that the accident could have been avoided by the respondent No.2, had he kept his vehicle to the left side. Therefore, at no stretch of imagination, it can be said that there is any negligence on

¶65

NC: 2023:KHC:34876 MFA No. 4897 of 2018

¶66

10 -

¶67

the part of the deceased. Under these circumstances, the

¶68

appeal is bereft of any merits and hence, the following:

¶69

ORDER

¶70

The appeal is dismissed.

¶71

The amount which is in deposit shall be transmitted to

¶72

the concerned Tribunal, forthwith.

¶73

Sd/JUDGE

¶74

NR/List No.: 1 Sl No.: 34

The Manager National Insurance Co.Ltd., v. Mahamad Rizwan Sharif

Case brief

What is this about?

What did the court decide?

The Manager National Insurance Co.Ltd., v. Mahamad Rizwan Sharif

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Sri. Mahalingaiah Vs Sri. Nijananda Murthy

United India Insurance Company Limited Vs Shri M Adam

Sri T Vijendra Vs Smt Poornima

The Claim Manager Vs Shivaraju K M

The Manager Vs Manju @ Manjappa

The Karnataka Industrial Areas Development Board Vs Smt Damayanthi N