- 1 - NC: 2025:KHC-K:2316-DB MFA No. 201627 of 2021 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE 15TH DAY OF APRIL, 2025 PRESENT THE HON'BLE MR. JUSTICE K NATARAJAN AND THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL MISCL. FIRST APPEAL NO.201627 OF 2021 (MV-D) BETWEEN: THE MANAGER, IFFCO TOKIO GEN. INS. CO. LTD., 2ND FLOOR, RAVIRAJ CHAMBERS, OPP. LATUR DCC BANK, H.O., MAIN ROAD, AT LATUR (MAHARASHTRA), (NOW REPRESENTED BY AUTHORIZED SIGNATORY, KASTURI NAGAR, BENGALURU). …APPELLANT (BY SRI. PREETI PATIL MELKUNDI, ADVOCATE) AND: 1. ASIPHA BANU W/O MOHD. RAFIQ, AGE: 38 YEARS, OCC: HOUSEHOLD. 2. JUNEHARA SADAF D/O MOHD. RAFIQ AGE: 18 YEARS, OCC: STUDENT. 3. SYED JEESHAN S/O MOHD. RAFIQ AGE: 17 YEARS, OCC: STUDENT. 4. SAKVIYA TANVEER S/O MOHD. RAFIQ AGE: 15 YEARS, OCC: STUDENT. Digitally signed by NIJAMUDDIN JAMKHANDI Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-K:2316-DB MFA No. 201627 of 2021 5. SYED FAIZAAN S/O MOHD. RAFIQ AGE: 11 YEARS, OCC: STUDENT. 6. MUMTAZBI W/O SYED JAKER ALI AGE: 62 YEARS, OCC: HOUSEHOLD, ALL R/O MAALGAR COLONY, OPP. TO MASJID E LAHI, TRIPURANTH, BASAVAKALYAN, TQ. BASAVAKALYAN, DIST. BIDAR-585401. 7. M/S VILS RAWAN SURYAWANSHI AGE: MAJOR, OCC: BUSINESS AND OWNER OF MARUTI OMNI NO.MH-04/AP-3859, R/O. BOKANGAON, TQ. AND DIST. LATUR-413512. …RESPONDENTS (BY SRI. SACHIN M. MAHAJAN, ADVOCATE FOR R1 TO R6(ABSENT); NOTICE TO R-7 IS SERVED) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT, PRAYING TO CALL FOR THE RECORDS AND ALLOW THE ABOVE APPEAL BY SETTING ASIDE THE IMPUGNED JUDGMENT AND AWARD DATED 08.12.2020 IN MVC NO.236/2019 PASSED BY THE II ADDL. DIST. AND SESSIONS JUDGE, BIDAR SITTING AT BASAVAKALYAN. - 3 - NC: 2025:KHC-K:2316-DB MFA No. 201627 of 2021 THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE K NATARAJAN AND HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE K NATARAJAN) This appeal is filed by the appellant-Insurance Company challenging the liability fastening on the Insurance Company in MVC No.236/2019 dated 08.12.2020 passed by the II Additional District and Sessions Judge, MACT, Bidar sitting at Basavakalayana, (hereinafter referred as ‘Tribunal’). 2. Heard the learned counsel appearing for the appellant. Learned counsel for the respondents remained absent. 3. For the sake of convenience, the rank of the parties is referred to as per their ranking before the Tribunal. - 4 - NC: 2025:KHC-K:2316-DB MFA No. 201627 of 2021 4. The case of the claimant before the Tribunal is that he has filed a claim petition under Section 166 of Motor Vehicles Act, 1988 for claiming compensation of Rs.40,00,000/- for the death of the deceased- Mohammad Rafiq, who died in a road traffic accident dated 29.10.2018. It is stated that on 29.10.2018, the deceased-Mohammad Rafiq, along with PW-2 were walking on the road and while crossing the road near Venkteshwar Weighbridge at Latur, at that time one Omni Car bearing No.MH-04/AP-3859, driven by its driver in a rash and negligent manner and dashed to the deceased, due to which, he has sustained grievous injuries and he was shifted to Sahyadri Hospital at Latur and he succumbed to the injuries on 30.11.2018. Hence, the claimants have filed a claim petition claiming compensation on various heads. 5. Respondent No.1 appeared and filed statement of objection contending that the accident - 5 - NC: 2025:KHC-K:2316-DB MFA No. 201627 of 2021 occurred due to rash and negligent driving of the driver of the car. The age, income and occupation of the deceased has been denied and contended that the deceased himself abruptly crossed the road, due to which the accident was occurred and he was not liable to pay the compensation. Therefore, the insurer of the vehicle i.e., respondent No.2 is liable to pay the compensation, as prayed for any compensation and prayed for dismissal of the petition. 6. Respondent No.2 also filed statement of objection and vehemently contended that they are not liable to pay the compensation and there was a delay in lodging the complaint. There is no nexus between the accident and the death of the deceased and a false claim has been made. Further, it has denied the age, income and occupation of the deceased. Hence, it prays to dismiss the claim petition. 7. Based upon the pleadings of the parties, the Tribunal framed three issues and proved the case - 6 - NC: 2025:KHC-K:2316-DB MFA No. 201627 of 2021 of the claimant. Three witnesses have been examined as PW-1 to PW-3 on behalf of the claimant. The claimant also got marked the documents as per Exs.P- 1 to P-14. On behalf respondent No.1, no evidence has been laid. On behalf of respondent No.2, one Santosh Wali has been examined as RW-1 and four documents were marked as per Exs.R1 to R4. The Tribunal while answering issues No.1 and 2 in the affirmative, allowed the claim petition in-part and awarded the compensation of Rs.21,89,000/- with 9% interest by fixing the liability on respondent No.2. Being aggrieved by the same, the Insurance Company has filed this appeal before this Court. 8. Learned counsel appearing for the appellant contended that the Tribunal has committed an error in fastening the liability solely on the Insurance Company. Even though the accident has occurred due to the contributory negligence of the deceased himself, who abruptly crossed the road without - 7 - NC: 2025:KHC-K:2316-DB MFA No. 201627 of 2021 following the traffic rules, the said road is a National Highway and the vehicles will ply on the road in a high speed, but the deceased while crossing the road along with PW.2 without observing the vehicles he was walking on the road, has caused the accident and contributed to the negligence. Therefore, there was contributory negligence on behalf of the deceased. The same was not considered by the Tribunal and has awarded compensation of Rs.21,89,000/- with interest at the rate of 9% per annum, which is exorbitant and has to be reduced to the extent of 6% per annum in the event of allowing the appeal. 9. Per contra, learned counsel appearing for the respondents have remained absent. 10. Having heard the learned counsel appearing for the appellant and perused the records, the following point would arise for consideration: - 8 - NC: 2025:KHC-K:2316-DB MFA No. 201627 of 2021 1. Whether the Tribunal justified in fixing the liability on the Insurer, which call for interference? 2. Whether the award passed by the Tribunal in respect of the death of the deceased with interest at 9% per annum is required to be reduced? 11. On reading of the records reveal that on 29.10.2018, the deceased-Mohammad Rafiq along with PW-2 was crossing the road after unloading their lorry at Latur. The driver of the Maruthi Car came in a rash and negligent manner at 7.30 p.m., in front of Ajinkya Tara Hotel, Barshi road at Latur and the driver of the car lost control over the vehicle and dashed against the deceased. Due to over speed, this accident has occurred and he sustained grievous injuries and he was shifted to the Sahyadri Hospital, Latur for treatment and thereafter, he died in hospital. In order to prove that the death of the deceased was due to - 9 - NC: 2025:KHC-K:2316-DB MFA No. 201627 of 2021 the accident, the claimants have examined PW-1, who is wife of the deceased. They also examined PW- 2/Prakash chande, who is a co-worker working along with the deceased at the time of accident. He was present at the spot, at the time of the accident and he is an eyewitness to the accident. He has given evidence in support of the claimants’ case during the cross-examination. The respondent No.1, who is the owner of the car trying to elicit that the accident has occurred due to negligence of the deceased himself while he was crossing the road. The same was denied by him and it is stated that there was a zebra cross on the road, but as per this witness, there is no such zebra crossing on the road. However, it is stated that it is a highway and a busy road. 12. In the cross-examination of PW-2, it is suggested that there was negligence on part of the deceased himself, but the same was denied by the PW-2 also. It is also stated that vehicle came and - 10 - NC: 2025:KHC-K:2316-DB MFA No. 201627 of 2021 dashed behind him. In the cross-examination, it is revealed that accident was occurred not only due to the contributory negligence of the deceased himself. Though he suggested because he is the friend of the deceased, he is giving false evidence, the same was denied by the PW-2 also. Except taking the said contention in the-cross examination, there is fault on the part of the deceased himself. But the Insurance Company has not chosen to examine the driver of the Omni car. Though the RW-1 - officer of the Insurance Company given evidence in support of the contention of the Insurance Company, but he is not an eyewitness to the accident. The police also filed a charge sheet against the driver of the Maruthi Car. On over all reading of the documents, it goes to show that the accident in question has occurred due to the rash and negligent driving by the driver of the Maruthi Car. If at all the respondents have taken contention that there was contributory negligence and the driver of the car taken all precaution measures while driving the - 11 - NC: 2025:KHC-K:2316-DB MFA No. 201627 of 2021 vehicle, there is nothing prevented the Insurance Company/respondent No.1 to examine the driver of the car before the Tribunal to show that there is no negligence on the part of the driver of the car and he has taken all care and caution, while driving the vehicle on the road. 13. In view of the above facts and circumstances, we are of the opinion that the accident has occurred purely due to the sole rash and negligent driving of the driver of the Omni car, but not on the part of the deceased himself. Therefore, the Tribunal on considering the evidence on record has rightly held that the accident was occurred due to the rash and negligent driving by the driver of the car and fastening the liability on the Insurance Company to pay the compensation. As regards to the quantum of compensation, there is no appeal filed by the claimants. The Insurance Company also not seriously disputed the quantum of compensation except the - 12 - NC: 2025:KHC-K:2316-DB MFA No. 201627 of 2021 interest part. Considering the same, we are of that opinion that the Tribunal has rightly awarded the compensation and fixed the liability. However, the Tribunal awarded 9% interest on the compensation, which is exorbitant and it has to be reduced at the rate of 6% per annum 14. Hence, we pass the following: ORDER i. The appeal is allowed in-part. ii. The award of compensation and fixing the liability on the Insurance Company is affirmed. However, the interest awarded by the Tribunal is reduced to 6% as against 9% per annum. iii. The amount deposited by the Insurance Company shall be transmitted to the Tribunal along with copy of this judgment. - 13 - NC: 2025:KHC-K:2316-DB MFA No. 201627 of 2021 Registry is directed to return the Trial Court Records to the Tribunal. Sd/- (K NATARAJAN) JUDGE Sd/- (VIJAYKUMAR A. PATIL) JUDGE TMP List No.: 1 Sl No.: 8 CT:SI