- 1 - NC: 2025:KHC-D:4502 MFA No. 24313 of 2012 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 10TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE UMESH M ADIGA MISCELLANEOUS FIRST APPEAL NO. 24313 OF 2012 (MV) BETWEEN: ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LTD, SUNDARAM TOWERS, 45 & 46 WHITES ROAD, CHENNAI, PRESENT ADDRESS SUBRAMANYA BUILDING, 2ND FLOOR, NO.1, CLUB HOUSE ROAD, ANNASALAI,CHENNAI-600002, REPRESENTED BY ZONAL MANAGER, INSURER OF THE VEHICLE. …APPELLANT (BY SRI. S. S. JOSHI, ADVOCATE) AND: 1. SMT. ANITA ASHOK KOLEKAR, AGE MAJOR, OCC: BUSINESS, R/O. SAI LEELA, 13TH LANE, JAYSINGPUR-416101, TQ: SHIROL, DIST: KOLHAPUR. 2. SMT. PRIYANKA W/O. ANIL KARANDE, AGE 23 YEARS, OCC: HOUSEWIFE, Digitally signed by VISHAL NINGAPPA PATTIHAL Location: High Court of Karnataka, Dharwad Bench - 2 - NC: 2025:KHC-D:4502 MFA No. 24313 of 2012 NOW R/O. JAMBAGI, TQ: ATHANI. 3. PRATIK S/O. ANIL KARANDE, AGE 02 YEARS, OCC:NIL, NOW R/O. JAMBAGI, TQ: ATHANI. SINCE MINOR REPRESENTED BY HIS M/G MOTHER RESPONDENT NO.2. 4. SMT. SHALAN DATTU KARANDE, AGE 46 YEARS, OCC: HOUSEWIFE, NOW R/O.JAMBAGI, TQ: ATHANI. 5. SRI. DATTU JNANU KARANDE, AGE 49 YEARS, OCC: COOLIE, NOW R/O. JAMBAGI, TQ: ATHANI. …RESPONDENTS (BY SRI. K. H. BAGI, ADV. FOR R2 TO R5; R3 IS MINOR REP. BY R2; NOTICE TO R1 SERVED) THIS MISCELLANEOUS FIRST APPEAL IS FILED U/SEC.173(1) OF MV ACT, 1988, PRAYING TO CALL FOR RECORDS, HEAR PARTIES AND ALLOW THE APPEAL AS PRAYED FOR BY SETTING ASIDE THE JUDGMENT AND AWARD DT. 05.07.2012 PASSED ON THE APPELLANT, BY THE PRESIDING OFFICER FTC-III & ADDL. MACT, BELGAUM, AT: BELGAUM IN MVC NO.1865/2011, WITH COSTS IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - NC: 2025:KHC-D:4502 MFA No. 24313 of 2012 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA) This appeal is by respondent No.2 – insurer against the judgment and award dated 05.07.2012 passed in MVC.No.1865/2011 by Fast Track Court-III and Additional MACT, Belgaum. 2. I refer to the parties as per their ranking before the Tribunal. 3. Brief facts of the case are that: On 01.07.2011 at about 7.25 p.m., the deceased Anil Karande was proceeding towards Kole Village on his motor cycle bearing registration No.MH-10/AH-3732 with moderate speed. At that time, one Tempo bearing No.MH-10/BC-5636 was parked in the dark, on the middle of the road, without any parking light or parking indicator light. Due to impact he sustained severe injuries and succumbed to the injuries. It is contended that the accident had taken place due to negligent parking of the Tempo by its driver. 4. The petitioner No.1 is the wife, petitioner No.2 is the son, petitioner Nos.3 and 4 are the parents of the deceased Anil. - 4 - NC: 2025:KHC-D:4502 MFA No. 24313 of 2012 Respondent No.1 is the owner and respondent No.2 is the insurer of the said vehicle. Both of them are liable to pay the compensation. 5. The appellant– Insurer has denied the contentions of the claim petition. It has contended that accident had taken place due to negligent riding of the motor cycle by its rider. Liability to respondent No.2 is restricted to terms and conditions of the policy of the insurance and holding of effective driving license by the driver of the Tempo. 6. The Tribunal had framed the necessary issues: ISSUES 1. Whether the Petitioners prove that Anil Dattu Karande died due to rash and negligent parking of Tempo bearing No.MH-09/BC-5636 by its driver as alleged in the petition? 2. Whether the petitioners are entitled from compensation, if so to what amount and from whom? 3. What Order and Award?. 7. The claimants to prove their contentions examined PW-1 and 2 and got marked Exs.P1 to P8. The respondents - 5 - NC: 2025:KHC-D:4502 MFA No. 24313 of 2012 have not led oral evidence and got marked Exs.R1 and R2. After hearing both the parties and appreciating the evidence on record, the Tribunal awarded compensation of Rs.10,33,000/- to the claimants and directed respondent Nos.1 and 2 jointly and severally liable to pay the compensation. 8. Learned counsel for the appellant Insurer vehemently contended that the manner in which the accident has taken place clearly indicates that rider of the motor cycle was negligent in riding his vehicle. The Tempo was parked at the side of the road and motor cycle had head light. He could have seen the parked vehicle through his head light. Looking to the facts of the accident and the manner in which the accident has taken place, clearly indicates that rider of the accident was riding it in a high speed. Therefore, major portion of the negligence is on the part of the rider of the motor cycle. Just to claim the compensation, claimants have contended that driver of the Tempo negligently parked the vehicle on the road, which is not tenable. The Tribunal did not consider regarding the negligence of rider of motor cycle, on the contrary, it had held that the driver of the Tempo was negligent for causing the accident in question. The said finding is erroneous. Therefore, prayed to apportion - 6 - NC: 2025:KHC-D:4502 MFA No. 24313 of 2012 negligence for causing the accident in question and major portion of the negligence was by rider of the motor cycle. The fact of the accident and manner in which the accident had taken place are not in dispute. With these reasons, prayed to pass suitable orders. 9. According to the case of the prosecution as well as the claimants, the accident had taken place as the said vehicle was parked at the side of the road. Therefore, Section 279 of IPC is not at all applicable to the facts of the case, at the most, it may attract Section 283 of IPC. The Tribunal has not considered these facts and not at all considered contribution of the deceased in committing the accident in question. With these reasons, prayed to dismiss the claim petition. 10. The claimants have produced the copies of the prosecution papers, which are marked as Exs.P1 to P4. The said records reveal that the Tempo was parked during night on the middle of the road, without any indicator light and without keeping stones behind the said vehicle. The driver of the Tempo was not examined to show that he had taken all the precautionary measures to park the vehicle during night time. Except oral evidence of PW-1 and 2, there is no independent - 7 - NC: 2025:KHC-D:4502 MFA No. 24313 of 2012 witness examined by respondent No.2, to show that there was no negligence on the part of the driver of the Tempo. If the vehicle was parked on the middle of the road, without taking precautionary measures, then the vehicle coming from other side may not see the parked vehicle. Under these circumstances, learned trial judge rightly accepted the case of the claimant and held that accident had taken place due to negligence of the driver of the Tempo. The oral and documentary evidence produced by the claimants, supports their contentions. Therefore, the contention of the appellant that accident had taken place due to the contributory negligence of the rider of the motor cycle is not acceptable. 11. The Tribunal considering the contentions of the parties, rightly held issue No.1 against respondent No.2. I do not find any reasons to interfere with the said findings. Looking to the amount of compensation awarded by the Tribunal, it is just and proper and do not call to interference. Claimants have not filed any appeal against the said judgment and award passed by the Tribunal. Therefore, I am not inclined to re-consider the amount of compensation awarded by the Tribunal. - 8 - NC: 2025:KHC-D:4502 MFA No. 24313 of 2012 12. From the aforesaid discussions, I answer question No.1 in the ‘Negative’ and proceed to pass the following: ORDER (i) The appeal is dismissed. (ii) The Judgment and award dated 05.07.2012 passed in MVC.No.1865/2011 by the Fast Track Court-III and Additional MACT, Belgaum is confirmed. (iii) Registry is directed to send back the records to the Tribunal. . (iv) Amount in deposit, if any, shall be transmitted to the Tribunal forthwith. Sd/- (UMESH M ADIGA) JUDGE AG /CT-AN List No.: 1 Sl No.: 6