- 1 - HC-KAR NC: 2025:KHC-D:12804 MFA No. 21290 of 2013 IN THE HIGH COURT OF KARNATAKA, AT DHARWAD DATED THIS THE 22ND DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE ASHOK S. KINAGI MISCELLANEOUS FIRST APPEAL NO. 21290 OF 2013 (MV-) BETWEEN: 1. THE DIVISIONAL MANAGER ICICI LOMBARD GENERAL INSURANCE CO. LTD., GOKUL ROAD, HUBLI, DIST: DHARWAD, REP BY ITS LEGAL MANAGER, BELLAD BUILDING, 2ND FLOOR, GOKUL ROAD, HUBLI. …APPELLANT (BY SRI. S K KAYAKAMATH, ADV) AND: 1. SMT. MADHUMATI MANJUNATH KALAL @ HUNDEKAR, AGE: 32 YEARS, OCC: HOUSEHOLD WORK, R/O: MAHANTASHE NAGAR, MURGOD, TQ: SAUNDATTI, DIST. BELAGAVI. 2. KUMARI. PRIYANKA MANJUNATH KALAL @ HUNDEKAR, AGE: 11 YEARS, MINOR, MAHANTASHE NAGAR, MURGOD, TQ: SAUNDATTI, DIST. BELAGAVI. 3. MASTER VIKRAM MANJUNATH KALAL @ HUNDEKAR, AGE: 9 YEARS, MINOR, MAHANTASHE NAGAR, MURGOD, TQ: SAUNDATTI, DIST. BELAGAVI. (SINCE R2 & R3 ARE MINORS, REP BY R1) 4. SRI. SABANNA MAHADEVAPPA KALAL @ HUNDEKAR, AGE: 58 YEARS, OCC: BUSINESS, MAHANTASHE NAGAR, MURGOD, TQ: SAUNDATTI, DIST. BELAGAVI. 5. SMT. SHOBHA W/O SABANNA KALAL @ HUNDEKAR, AGE: 56 YEARS, OCC: HOUSEHOLD WORK, MOHANKUMAR B SHELAR Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC-D:12804 MFA No. 21290 of 2013 R/O: MAHANTASHE NAGAR, MURGOD, TQ: SAUNDATTI, DIST. BELAGAVI. 6. F M SAIT & COMPANY 784, RAVIWAR PETH, BELGAUM (OWNER OF TANKER NO KA-22/4451) …RESPONDENTS (NOTICE TO R1, R4 TO R6 ARE SERVED R2 & R3 ARE MINORS, REP/BY R1) THIS MFA IS FILED U/S 173(1) OF MV ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED:28-01-2013 PASSED IN MVC NO.1854/2007 ON THE FILE OF PRESIDING OFFICER, FAST TRACK COURT-III AND MEMBER, ADDL. MACT, BELGAUM, AWARDING THE COMPENSATION OF RS.14,15,000/- WITH INTEREST AT THE RATE OF 8% P.A., FROM THE DATE OF PETITION TILL ITS REALISATION. THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) This Appeal is filed under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘M.V.Act,’ for short) by the Insurance Company, challenging the judgment and award dated 28.01.2013 passed in MVC No.1854/2007 - 3 - HC-KAR NC: 2025:KHC-D:12804 MFA No. 21290 of 2013 by the learned Presiding Officer, FTC-III, & Additional MACT, Belagavi. 2. Brief facts, leading rise to the filing of this appeal, are as follows: 3. On 26.02.2007, the deceased Manjunath was coming from Yaragatti towards Murgod by riding his motorcycle at a moderate speed on the correct side of the road. When he came near the spot of the accident, the tanker bearing Reg.No.KA-22/4451, came from the opposite direction in a rash and negligent manner at a great speed and dashed to the motorcycle of the petitioner. As a result, the petitioner sustained grievous injuries and succumbed to the injuries. The petitioners, being the legal representatives of the deceased Manjunath, filed a claim petition under Section 166 of the M.V.Act, claiming compensation for the death of the deceased Manjunath in a road traffic accident. Accordingly, prays to allow the claim petition. - 4 - HC-KAR NC: 2025:KHC-D:12804 MFA No. 21290 of 2013 4. The owner of the offending vehicle filed a statement of objection denying the averments made in the claim petition. It is contended that the deceased Manjunath was riding the motorcycle in a rash and negligent manner at excessive speed without following the basic traffic rules, and lost control over the motorcycle and suddenly came across the offending vehicle. It was impossible for the driver of the offending vehicle to stop the offending vehicle at once to avoid the accident. It is contended that the accident occurred due to the rash and negligent riding of the motorcycle by its rider. Hence, he prays to dismiss the claim petition against the owner of the offending vehicle. 5. The Insurance Company filed a statement of objections denying the averments made in the claim petition. It is contended that the driver of the offending vehicle did not possess a valid and effective driving license as of the date of the accident. It is contended that the offending vehicle was not insured with the Insurance Company. Therefore, the Insurance Company is not liable to - 5 - HC-KAR NC: 2025:KHC-D:12804 MFA No. 21290 of 2013 pay the compensation as claimed by the petitioners. Hence, prays to dismiss the claim petition against the Insurance Company. 6. The Tribunal, based on the pleadings of the parties, framed the relevant issues. 7. The petitioners, to substantiate their case, petitioner No.1 was examined herself as P.W.1, and marked 34 documents as Exs.P1 to P.34. Conversely, the officer of the Insurance Company was examined as R.W.1, and marked 1 document as Ex.R1. 8. The Tribunal, after assessing the verbal and documentary evidence, allowed the claim petition in part with costs vide judgment dated 28.01.2013, and awarded a compensation of Rs.14,15,000/- with interest at 8% p.a. from the date of the petition till its realization, and held that the respondents, i.e., owner and the Insurance Company are jointly and severally liable to pay the compensation to - 6 - HC-KAR NC: 2025:KHC-D:12804 MFA No. 21290 of 2013 the petitioners, and directed the Insurance Company to deposit the compensation amount. 9. The Insurance Company, aggrieved by the fastening of the liability in MVC No.1854/2007, filed this Miscellaneous First Appeal. 10. The notices were issued to the petitioners and the owner. Despite the service of a notice, the owner and the petitioners remained unrepresented before this court. 11. Heard the arguments of the learned counsel for the Insurance Company. 12. Learned counsel for the Insurance Company submits that as of the date of the accident, the offending vehicle was not insured with the Insurance Company. He submits that the Tribunal issued notice to respondent No.1- owner to produce the premium paid receipt and the original insurance policy. Despite the directions issued by the Tribunal, the owner did not produce the premium paid - 7 - HC-KAR NC: 2025:KHC-D:12804 MFA No. 21290 of 2013 receipt and the original insurance policy. The Tribunal should have drawn the adverse inference against the owner of the offending vehicle; however, it drew the adverse inference against the Insurance Company. He also submits that the burden is on the owner of the offending vehicle to prove that the offending vehicle was insured with the Insurance Company. Admittedly, in the instant case, the petitioners have failed to prove that the offending vehicle was insured with the Insurance Company. He also submits that the cover note produced by the petitioners is fake. The said aspect was not considered adequately by the Tribunal, and committed an error in fastening the liability on the Insurance Company. Hence, he prays to allow the appeal. 13. I have perused the records, and considered the submissions made by the learned counsel for the insurance company. 14. The point that would arise for consideration is regarding the liability. - 8 - HC-KAR NC: 2025:KHC-D:12804 MFA No. 21290 of 2013 15. There is no dispute regarding the occurrence of the accident and the death of the deceased Manjunath in a road traffic accident. The petitioners have produced a certified copy of the charge sheet marked as Ex.P6, which discloses that the accident occurred due to the rash and negligent driving of the driver of the offending vehicle. The Tribunal was justified in answering issue No.1 in the partly affirmative. I concur with the finding recorded by the Tribunal on issue No.1. Regarding liability: 16. The learned counsel for the Insurance Company has taken a specific defense in the statement of objections that the offending vehicle was not insured with the Insurance Company. To substantiate its defense, the Insurance Company examined its official as R.W.1, and marked one document as Ex.R1. When the Insurance Company has taken a specific defense in the statement of objections regarding the policy, the burden is on the petitioners and the owner of the offending vehicle to - 9 - HC-KAR NC: 2025:KHC-D:12804 MFA No. 21290 of 2013 establish that the offending vehicle was insured with the Insurance Company. Admittedly, neither the petitioners nor the owner of the offending vehicle has produced the original insurance policy. The petitioners have produced the fake cover note. The Tribunal, placing reliance on the fake cover note, has fastened the liability on the Insurance Company. The Tribunal committed an error in fastening the liability on the Insurance Company, in the absence of the original insurance policy. In the absence of the insurance policy, the Insurance Company is not liable to pay the compensation to the petitioners. Thus, the Insurance Company has proved that the judgment and the award passed by the Tribunal fastening liability on the Insurance Company is illegal, arbitrary, and erroneous. In view of the same, the point regarding liability is answered accordingly. 17. In view of the above discussion, I proceed to pass the following order: - 10 - HC-KAR NC: 2025:KHC-D:12804 MFA No. 21290 of 2013 ORDER (i) The Appeal is allowed. (ii) The impugned judgment and the award dated 28.01.2013 passed in MVC No.1854/2007 by the learned Presiding Officer, FTC-III, & Additional MACT, Belagavi, against the Insurance Company is hereby set aside. (iii) The claim petition against the Insurance Company is dismissed. (iv) The amount in deposit, if any, shall be refunded to the -Insurance Company. (v) The Tribunal records if any, shall be transmitted to the Tribunal concerned, forthwith. Sd/- (ASHOK S. KINAGI) JUDGE MBS CT: BSB/ List No.: 1 Sl No.: 8