- 1 - NC: 2025:KHC-D:6205 MFA No. 100793 of 2019 C/W MFA No. 100794 of 2019 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 8TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE UMESH M ADIGA MISCELLANEOUS FIRST APPEAL NO. 100793 OF 2019 (MV) C/W MISCELLANEOUS FIRST APPEAL NO. 100794 OF 2019 (MV) IN MFA NO. 100793 OF 2019 BETWEEN: BASAPPA MALLAPPA KOTYAL, AGE 45 YEARS, OCC: CONTRACTOR, R/O. BABALESHWAR, TQ: DIST: BIJAPUR. …APPELLANT (BY SRI. S. D. SAGARI, ADVOCATE) AND: 1. GANAPATI S/O. IRAPPA MUDALALGI, AGE 29 YEARS, OCC: MACHANIC, (PRESENT NIL), R/O. RAMPUR VILLAGE, TQ: JAMAKHANDI, DISTRICT: BAGALKOT. 2. SHRI. HANMANTH S/O. SAHADEV TALAWAR, SINCE DEAD BY HIS LRS. 2A. SHOBA W/O. HANMANTH TALAWAR, AGE 31 YEARS, OCC: H.H. WORK, R/O. TALAWAR GALLI, BANAHATTI, TQ: JAMAKHANDI, DISTRICT: BAGALKOT. Digitally signed by VISHAL NINGAPPA PATTIHAL Location: High Court of Karnataka, Dharwad Bench. - 2 - NC: 2025:KHC-D:6205 MFA No. 100793 of 2019 C/W MFA No. 100794 of 2019 2B. SURESH S/O. HANMANTH TALAWAR, AGE 10 YEARS. 2C. VINAYAK S/O. HANMANTH TALAWAR, AGE 07 YEARS. 2D. BHAVANI D/O. HANMANTH TALAWAR, AGE 5 YEARS, R2(B) TO R2(D) ARE MINORS R/BY. NATURAL MOTHER R2(A). 2E. SAHADEV S/O. HANMANTH TALAWAR, AGE 66 YEARS, OCC: AGRICULTURE, R/O. TALAWAR GALLI, BANAHATTI, TQ: JAMAKHANDI, DIST: BAGALKOT. 3. THE BRANCH MANAGER, IFFCO TOKIO GENERAL INSURANCE CO. LTD., NGEF LAYOUT, KASTURI NAGAR, BENGALURU. …RESPONDENTS (BY SRI. HARISH S. MAIGUR, ADV. FOR R1; SRI. PRASHANT S. KADADEVAR, ADV. FOR R2 (A TO E); SRI. SUBHASH J. BADDI ADV. FOR R3) THIS MISCELLANEOUS FIRST APPEAL IS FILED U/SEC.173(1) OF MOTOR VEHICLES ACT, PRAYING TO CALL FOR THE RECORDS IN M.V.C. NO.192/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC AND MEMBER MACT NO.XIII BANAHATTI AND SET ASIDE THE JUDGMENT AND AWARD DATED 09.01.2019 PASSED IN MVC NO.192/2016 BY THE SENIOR CIVIL JUDGE AND JMFC AND MEMBER MACT NO.XIII BANAHATTI, AS AGAINST THIS RESPONDENT BY ALLOWING THE APPEAL AS PRAYED FOR, IN THE ENDS OF JUSTICE AND EQUITY AND ETC. - 3 - NC: 2025:KHC-D:6205 MFA No. 100793 of 2019 C/W MFA No. 100794 of 2019 IN MFA NO. 100794 OF 2019 BETWEEN: BASAPPA MALLAPPA KOTYAL, AGE 45 YEARS, OCC: CONTRACTOR, R/O. BABALESHWAR, TQ: DIST: BIJAPUR. …APPELLANT (BY SRI. S. D. SAGARI, ADVOCATE) AND: 1. SOMALINGA S/O. BASAPPA DODDIMANI, AGE 28 YEARS, OCC: AGRICULTURE & AGRICULTURE COOLIE, (PRESENT NIL), R/O. CHIMMAD VILLAGE, NOW R/AT: SHANTI NAGAR, HOSUR, TQ: JAMAKHANDI, DISTRICT: BAGALKOT. 2. SHRI. HANMANTH S/O. SAHADEV TALAWAR, SINCE DEAD BY HIS LRS. 2A. SHOBA W/O. HANMANTH TALAWAR, AGE 31 YEARS, OCC: H.H. WORK, R/O. TALAWAR GALLI, BANAHATTI, TQ: JAMAKHANDI, DISTRICT: BAGALKOT. 2B. SURESH S/O. HANMANTH TALAWAR, AGE 10 YEARS. 2C. VINAYAK S/O. HANMANTH TALAWAR, AGE 07 YEARS. - 4 - NC: 2025:KHC-D:6205 MFA No. 100793 of 2019 C/W MFA No. 100794 of 2019 2D. BHAVANI D/O. HANMANTH TALAWAR, AGE 5 YEARS, R2(B) TO R2(D) ARE MINORS R/BY. NATURAL MOTHER GUARDIAN R2(A). 2E. SAHADEV S/O. HANMANTH TALAWAR, AGE 66 YEARS, OCC: AGRICULTURE, R/O. TALAWAR GALLI, BANAHATTI, TQ: JAMAKHANDI, DIST: BAGALKOT. 3. THE BRANCH MANAGER, IFFCO TOKIO GENERAL INSURANCE CO. LTD., NGEF LAYOUT, KASTURI NAGAR, BENGALURU. …RESPONDENTS (BY SRI. HARISH S. MAIGUR, ADV. FOR R1; SRI. PRASHANT S. KADADEVAR, ADV. FOR R2 (A TO E); SRI. SUBHASH J. BADDI ADV. FOR R3) THIS MISCELLANEOUS FIRST APPEAL IS FILED U/SEC.173(1) OF MOTOR VEHICLES ACT, PRAYING TO CALL FOR THE RECORDS IN M.V.C. NO.193/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC AND MEMBER MACT NO.XIII BANAHATTI AND SET ASIDE THE JUDGMENT AND AWARD DATED 09.01.2019 PASSED IN MVC NO.193/2016 BY THE SENIOR CIVIL JUDGE AND JMFC AND MEMBER MACT NO.XIII BANAHATTI, AS AGAINST THIS RESPONDENT BY ALLOWING THE APPEAL AS PRAYED FOR, IN THE ENDS OF JUSTICE AND EQUITY AND ETC. THESE APPEALS, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 5 - NC: 2025:KHC-D:6205 MFA No. 100793 of 2019 C/W MFA No. 100794 of 2019 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA) 1. Respondent No.3 in MVC No.192/2016 and MVC No.193/2016 filed these appeals challenging the judgment and award dated 09.01.2019, passed by the learned Senior Civil Judge and JMFC and Member MACT No.XIII Banahatti, fastening of 50% liability to pay the compensation on him, for the alleged act of not taking precautionary measures while re-construction of the bridge on the said State Highway i.e., the place of accident. 2. Since both these appeals arise out of the same accident, both the appeals are taken up together for disposal. 3. The only question that arises in these cases is “whether the Tribunal is justified in fastening the liability of 50% on the respondent No.3?” - 6 - NC: 2025:KHC-D:6205 MFA No. 100793 of 2019 C/W MFA No. 100794 of 2019 4. Learned counsel for the appellant vehemently contends that appellant has been charge sheeted by the concerned police officer for not following the precautionary measure while constructing the said bridge which led to this accident. The said charge sheet was challenged by the appellant, before this Court in Crl.P.No.100436/2019. This Court by its order dated 26.05.2022 allowed the criminal petition and prosecution lodged against respondent No.3 in C.C.No.731/2015 on the file of CJM and JMFC, Banahatti was quashed as against the appellant. Therefore he is not at all liable to pay the compensation as ordered by the Tribunal. This is subsequent event. Hence considering the Judgment passed in Crl.P.No.100436/2019, appellant be absolved from his liability to pay compensation. 5. He further submits that as per the allegation made in the complaint as well as spot mahazar, appellant has taken all the precautionary measures and that is noted by the concerned police officer and while submitted the - 7 - NC: 2025:KHC-D:6205 MFA No. 100793 of 2019 C/W MFA No. 100794 of 2019 charge sheet very same police officers noted that he had not taken precautionary measures, which is inconsistent. 6. Appellant further contends that one of the witness examined by the claimant has stated that precautionary measures were taken and there was signboards regarding repair of the road. These facts were not considered by the Tribunal and the Tribunal has fastened the liability on the appellant to an extent of 50%. In view of the above matter, the said finding of the Tribunal is contrary to law and hence prayed to set aside the same by allowing the appeal. 7. Learned counsel for respondent No.3 insurer vehemently contends that mere quashing of the charge sheet will not affect civil liability of the respondent No.3 and still he is liable to pay compensation as awarded by the Tribunal. He further contends that respondent No.3 has not taken proper precautionary measures to indicate that the road was under repair and it was dug. Therefore to take a deviation no such steps were taken by him. He - 8 - NC: 2025:KHC-D:6205 MFA No. 100793 of 2019 C/W MFA No. 100794 of 2019 was charge sheeted for the said negligence. The Tribunal has considered all these points and rightly held that accident had taken place due to negligence of respondent No.3-contractor also and he is liable to pay 50% of the compensation. 8. Learned counsel for respondent No.2-insurer has relied on the judgment in the case of Mathew Alexandar Vs.Mohammed Shafi and Anr. reported in 2023 LiveLaw (SC) 531 and contends that in the above said judgment it is held by the Hon’ble Apex Court that to decide a matter pending under motor vehicle claim petition, the facts have to be decided based on the preponderance of probability and not on the basis of principles of beyond reasonable doubt. The standard of proof for a civil case as well as criminal case is different. 9. He further relied on the judgment of the Division Bench of this Court in the case of Smt.K.S.Chayadevi and Others vs. Corporation of the City of Bangalore and others reported in ILR 2002 - 9 - NC: 2025:KHC-D:6205 MFA No. 100793 of 2019 C/W MFA No. 100794 of 2019 KAR 901. He contends that the Division Bench of this Court, relying the judgment of the Hon’ble Apex Court in the case of Union of India Vs. United India Insurance Company Limited and Others reported in (1997) 8 SCC 683 wherein it is held that if the accident is taken place due to composite negligence of the diver of the motor vehicle as well as driver or owner of any other vehicle or of any other outside agency, then that would be maintainable before the Tribunal. But in later type of case if it is ultimately found that there is no negligence on the part of the driver of the vehicle or there is so defect in the vehicle, but the accident is only due to sole negligence of other parties or agencies, then on that finding the claim would go out of Section 110 of the Motor Vehicles Act. He has also relied on the Coordinate Bench decision rendered by in the case of ICICI Lombard Gen. Ins. Co. Ltd., Vs.Neelamma w/o late Chandrashekhar decided by Kalaburgi Bench in MFA No.200123/2015 dated 18.03.2015, wherein it is held that in case of composite negligence of rider of the vehicle as well as contractor or - 10 - NC: 2025:KHC-D:6205 MFA No. 100793 of 2019 C/W MFA No. 100794 of 2019 the person entrusted with the maintenance of road, then such petitions are maintainable under the Motor Vehicles Act. On the basis of the said contention, he submits that this Court has jurisdiction to decide the dispute between the parties. In this case, the Tribunal held that 50% of the negligence was of the rider of the motorcycle and remaining 50% was of the contractor-appellant herein. The said finding is on the basis of materials available on record and it does not call for interference. 10. Learned counsel for the claimant/respondent No.2 contends that in view of the discharge of the appellant from criminal trial and finding of the Coordinate Bench of this Court in the said Criminal Petition No.100436/2019, question of negligence of appellant do not survive, therefore appellant cannot be made responsible for payment of compensation. With these reasons he submits that entire liability shall be fastened on the insurer of the vehicle, to pay compensation and - 11 - NC: 2025:KHC-D:6205 MFA No. 100793 of 2019 C/W MFA No. 100794 of 2019 absolve liability of appellant from payment of compensation. 11. Looking to the contention of the claimants in both the cases, they have contended that accident had taken place due to rash and negligent driving of the motorcycle by its rider. The contention of respondent No.3/insurer that contractor had dug the road to construct bridge but did not take proper precautionary measure therefore he was responsible for the accident and/or he has contributed for the accident in question. The allegations of the claimant are that rider of the bike ignoring advise of one of the pillion riders who was riding the vehicle in rash and negligent manner and in high speed. It is also alleged against respondent No.2 (appellant) that he has dug the road about 20 feet width and 15 feet deep and constructing the bridge without taking any precautionary measure, because of which, incident had taken place. During the course of trial also PW1 in both the cases has stated the same fact. - 12 - NC: 2025:KHC-D:6205 MFA No. 100793 of 2019 C/W MFA No. 100794 of 2019 12. PW1 in his cross-examination has stated that they had seen precautionary board at the spot of construction work and warned the rider of the motorcycle to take deviation. Therefore his earlier evidence that no precautions were taken at the spot is not believable. It is not a fit case to assess/apportion contributory negligence. Either accident had taken place due to negligence of rider of vehicle or contractor. If there were precaution such as sign board deviation etc., as stated by petitioners in both the petitions, inspite of that rider of the motorcycle without looking to them rode his motorcycle on the road which was under repair without using the alternative road, which was formed by contractor and fell down in the ditch, then it leads to an inference that accident was caused due to negligence of rider of motor cycle. Looking to the facts and circumstances of the case and the manner in which accident had taken place, indicates that entire negligence was of the rider of the motorcycle. - 13 - NC: 2025:KHC-D:6205 MFA No. 100793 of 2019 C/W MFA No. 100794 of 2019 13. FIR was lodged by one of the relative of the pillion rider. He has stated in the complaint that there were precautionary sign boards but the rider of the vehicle did not see the same and rode his vehicle on the spot of repair thereby caused the accident. Even in the spot mahazar there is reference about taking care of by the contractor. This mahazar was drawn by the very same circle inspector of police, who submitted the charge sheet. It appears, ignoring the contents of Ex.P1-complaint and spot mahazar, final report was filed alleging that the contractor did not take appropriate precautions while repairing the road. Petition averment, evidence of claimant and enclosures of charge-sheet pointing at rider of motorcycle for causing accident in question. 14. Respondent No.2 (appellant) was charge- sheeted along with deceased rider of motorcycle for the alleged incident that was pending before jurisdictional JMFC Court. Appellant has challenged the same before this Court in Crl.R.P.No.100439/2019. This Court heard - 14 - NC: 2025:KHC-D:6205 MFA No. 100793 of 2019 C/W MFA No. 100794 of 2019 the said case and observing inconsistencies held in its order dated 26.05.2022 that: “9. On such perusal of the material on record in the complaint itself there is a clear averment made that there were enough cautions, signals found near the place of accident, despite the same rider of the motorcycle has driven the same in the rash and negligent manner resulting in the accident. If sufficient precautionary measures have been taken by the petitioner herein in respect of road repair at the place of accident, the criminal prosecution under the provisions of Section 279 of IPC cannot be proceeded against the petitioner herein as he had been authorized to carry out the road repair work and he had taken sufficient precautionary methods to caution the riders of the vehicles at the place of the accident.” 15. This Court did not accept the allegation made against appellant that due to his negligence accident was occurred. Hence it cannot be held in this case that due to his negligence accident occurred. 16. Materials placed on record show that appellant had taken precautionary measures indicating the driver of the vehicle that the road was under repair and take a deviation to cross the said part of road. It is also not disputed that one of the pillion rider of the motorcycle was - 15 - NC: 2025:KHC-D:6205 MFA No. 100793 of 2019 C/W MFA No. 100794 of 2019 the resident of the very same village and familiar with the road. His brother lodged the complaint to the police station. He could have assisted the rider of the motorcycle and cautioned him to go through the deviation. Therefore looking the manner in which the accident occurred, indicates that due to negligence of the rider of the motorcycle it occurred. Therefore the findings of the Tribunal of fastening 50% of the liability on the contractor- respondent No.3, is erroneous. Undoubtedly the accident taken place due to negligence of rider of motorcycle. 17. Both the parties have understood their respective contentions and led the evidence. No relevant issue was framed regarding alleged inaction of the appellant. But it looses its importance. No such ground is made out in the appeal. Therefore non-framing of issues in respect of negligence of respondent No.3/appellant cannot be a ground for inference in the impugned order. 18. For the aforesaid discussions, it is held that due negligence of the rider of the motorcycle, accident - 16 - NC: 2025:KHC-D:6205 MFA No. 100793 of 2019 C/W MFA No. 100794 of 2019 occurred and hence respondent Nos.1(A) to (E) as well as respondent No.2 are liable to pay entire amount of compensation. It is not in dispute that alleged vehicle was insured with respondent No.2 and policy was in force as on the date of accident therefore respondent No.2 is liable to pay entire amount of compensation. 19. For the aforesaid reasons, this Court pass the following: ORDER i. MFA No.100793/2019 and MFA No.100794/2019 are allowed. ii. The impugned judgment and award 09.01.2019 in MVC No.192/2016 and MVC No.193/2016 passed by the learned Senior Civil Judge and JMFC and Member MACT No.XIII Banahatti in respect of fastening of part of liability on respondent No.2 is set aside. - 17 - NC: 2025:KHC-D:6205 MFA No. 100793 of 2019 C/W MFA No. 100794 of 2019 iii. Respondent Nos.1(A to E) and Respondent No.2 are liable to pay entire amount of compensation. iv. Respondent No.2 being insurer is directed to deposit entire amount of compensation within a period of eight weeks from the date of receipt of copy of this order. v. Remaining portion of the award passed by the Tribunal is not disturbed. vi. Whatever amount deposited by the appellant herein shall be refunded to him on due acknowledgment, in both the appeals. Sd/- (UMESH M ADIGA) JUDGE KGK /CT-AN List No.: 1 Sl No.: 2