- 1 - HC-KAR NC: 2025:KHC:27985 MFA No. 1038 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE T.M.NADAF MISCELLANEOUS FIRST APPEAL NO.1038 OF 2022 (MV-D) BETWEEN: THE BRANCH MANAGER, NATIONAL INSURANCE CO. LTD KASTURI MANSION, M.G. ROAD, BEHIND KRISHNA TALKIES, ABOVE CORPORATION BANK, TUMKURU – 572 101. NOW REPRESENTED BY ITS ASSISTANT MANAGER G. SHIVAKUMAR, REGIONAL OFFICE, SHUBARAM COMPLEX, M.G. ROAD, BANGALORE – 560 001. …APPELLANT (BY SRI. L SREEKANTA RAO, ADVOCATE) AND: 1. SHIVANNA @ B A SHIVAKUMAR S/O B.R. ANJINEYALU, AGED ABOUT 62 YEARS R/O BELLIBATLU VILLAGE, SHAILAPURA POST, NIDAGAL HOBLI, PAVAGADA TALUK, TUMKUR DISTRICT – 561 202. 2. SURESHBABU R. S/O RAMACHANDRA REDDY, Digitally signed by MADHUSHREE H Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:27985 MFA No. 1038 of 2022 H. ANJINAPPA, AGED ABOUT 39 YEARS SINGENA AGRAHARA HUSKURU POST, ANEKAL TALUK, BENGALURU RURAL DISTRICT – 560 099. …RESPONDENTS (BY SRI. T.M.PRANAV, ADVOCATE FOR SRI. B R VISWANATH., ADVOCATE FOR R1; R2 IS SERVED AND UNREPRESENTED) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO a) SET ASIDE THE JUDGMENT AND AWARD DATED 10.11.2020 PASSED IN MVC NO.372/2018 ON THE FILE OF THE SENIOR CIVIL JUDGE AND ADDITIONAL M.A.C.T., PAVAGADA; b) ALLOW THE APPEAL WITH COSTS; c) AND TO PASS SUCH OTHER ORDERS/RELIEFS DEEMED FIT TO BE GRANTED UNDER THE CIRCUMSTANCES OF THE CASE IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE T.M.NADAF ORAL JUDGMENT This appeal is filed by the Insurance Company calling in question the judgment and award dated 10.11.2020 passed by the Senior Civil Judge and Additional M.A.C.T at Pavagada, only on the ground of liability fastened on the Insurance Company to an extent of 50%, directing the Insurance Company to pay the amount primarily and - 3 - HC-KAR NC: 2025:KHC:27985 MFA No. 1038 of 2022 recover from the owner of the vehicle i.e., the offending Tractor involved in the accident. 2. In an accident that occurred on 02.02.2015, the deceased being rider of the vehicle under the influence of Alcohol dashed against the tractor which was on his side of the road, resulting in injuries and succumbed to the injuries while undergoing treatment. 3. It is further submitted that, as per the FIR, the complainant who was the pillion rider along with the deceased has clearly stated that all the three on the motorcycle have consumed Alcohol on the fateful day and while the deceased riding the bike the accident has occurred. Even the post-mortem report at Ex.P6 clearly shows that there is content of Alcohol found in body of the deceased. This clearly shows that the deceased is cause for the accident. Though the Tribunal has rightly concluded that there was negligence on the part of the deceased however, the Tribunal ought to have fixed the entire negligence on the deceased rider of the motorcycle - 4 - HC-KAR NC: 2025:KHC:27985 MFA No. 1038 of 2022 and exonerated the Insurance Company, even from making the Insurance Company primarily liable to pay and recover. 4. Heard Sri.L.Sreekanta Rao, learned counsel appearing for the appellant - Insurance Company and Sri.T.M.Pranav, learned counsel appearing for Sri.B.R.Vishwanath, learned counsel for claimant. 5. Sri.L.Sreekanta Rao, learned counsel vehemently submitted that, as per Ex.P1 complaint Ex.P6 the Post Mortem Report clearly shows that the deceased rider was under the influence of Alcohol which was the cause for the accident, that to the deceased rider hit the trailer which was moving on its side. In these circumstances, though the Tribunal has rightly come to the conclusion that there is contributory negligence, it erred in fixing the negligence at the rate of 50%. The Tribunal ought to fastened the entire negligence on the part of the deceased. - 5 - HC-KAR NC: 2025:KHC:27985 MFA No. 1038 of 2022 6. To buttress his arguments, the learned counsel relied on the judgment of this Court in RAMESH NARAYAN GAONKAR & OTHERS VS. MANAGING DIRECTOR, BMTC AND ANOTHER1 to contend that, the Insurance Company is not liable to pay compensation and sought to allow the appeal and dismiss the claim petition against the Insurance Company. 7. Refuting the submission of the learned counsel for the appellant, Sri.T.M.Pranav, the learned counsel vehemently submitted that, the Tribunal has rightly come to the conclusion that there was contributory negligence on the part of deceased rider of the motor cycle at the rate of 50% only, as per the statements in the FIR, as well as Post Mortem Report. However, there is no record placed by the Insurance Company to state that the deceased was under the influence of Alcohol, beyond the minimum limit as per Section 185 of the Motor Vehicle Act, 1988. He also submits that the Police have not invoked Section 185 of 1 2018 SCC OnLine Kar 3037 - 6 - HC-KAR NC: 2025:KHC:27985 MFA No. 1038 of 2022 the Motor Vehicle Act, 1988 either in the FIR or in the charge sheet. He also submits that as per the judgment relied on by the appellant, wherein this Hon'ble Court having found the material placed on record i.e., the FSL report wherein there is clear mention of quantity of Alcohol found in the blood which is more than the minimum prescribed under Section 185 of the Motor Vehicle Act, 1988. However, in the facts of the case is on hand there is no such material placed by the Insurance Company. In these circumstances, the Tribunal vide the well reasoned impugned judgment and award held Contributory Negligence at the rate of 50% on the deceased rider and 50% on the driver of the Tractor and in the absence of the Driving Licence, rightly directed the Insurance Company primarily to pay and then to recover from the owner of the vehicle which does not call for any interference at the hands of this Court and sought to dismiss the appeal. 8. Having heard both the learned counsel for the parties and perused the entire material on record, the only - 7 - HC-KAR NC: 2025:KHC:27985 MFA No. 1038 of 2022 point that arise for the consideration before this Court is: Whether the Tribunal is justified in fixing 50% of the contributory negligence on the part of the appellant - Insurance Company and directing the Insurance Company to pay and recover from the owner of the vehicle? 9. My answer to the above point for consideration is in ‘affirmative’ for the following reason; It is not in dispute that the deceased was riding the motorcycle, it is also not in dispute from the record that he was under the influence of alcohol. However, there is no record to show whether the deceased was under the influence of Alcohol more than the minimum prescribed under Section 185 of the Motor Vehicle Act, 1988, although the appellant - Insurance Company has led the evidence to contend that the deceased was under the influence of alcohol, so also the driver of the tractor was not holding valid Driving Licence, but the evidence so far as alcohol is concerned falls short in view of the fact that the police have not invoked Section 185 of the MV Act. - 8 - HC-KAR NC: 2025:KHC:27985 MFA No. 1038 of 2022 10. Though as per the PM report, it is stated that there is contents of alcohol found in his body, however, the insurance company has failed to examine the said doctor to substantiate that the alcohol found in the stomach is beyond the minimum level fixed under Section 185 of the Motor Vehicle Act, 1988. 11. The Insurance Company has proved the fact that the driver of the tractor was not holding effective driving licence, however, in view of the law laid down by the Hon'ble Apex Court in the case of Pappu and Ors Vs. Vinod Kumar Lamba in Civil Appeal No.20962/20172. The deceased being the third party, the insurer is primarily liable to pay the compensation and to recover it from the owner of the vehicle. 12. At this stage, the learned counsel appearing for the appellant submits that though the Tribunal as per the law declared by the Hon'ble Apex Court in the case of 2 (2018)3SCC208 - 9 - HC-KAR NC: 2025:KHC:27985 MFA No. 1038 of 2022 Pappu Deo Yadav Vs. Naresh Kumar and Others3 has stated that the Insurance Company is primarily liable to pay the compensation and recover the same however, the said order is not reflected in the order portion. In these circumstances, he asserts that the same be considered. 13. The Tribunal while answering the defence taken by the appellant has properly considered the entire material placed on record, and arrived at a proper conclusion which does not call for any interference. Accordingly, this Court proceeds to pass the following: ORDER i) The appeal is dismissed. ii) The Insurance Company is primarily liable to pay the compensation, with a liberty to recover the same from the owner of the vehicle, executing this order against the owner of the vehicle. 3 (2022)13SCC790 - 10 - HC-KAR NC: 2025:KHC:27985 MFA No. 1038 of 2022 iii) The amount in deposit be transmitted to the concerned Tribunal for disbursement. iv) The Insurance company shall deposit the balance amount along with interest @ 6% per annum from the date of application till realization within 6 months from the date of receipt of copy of this order. v) The apportionment and disbursement shall be as per the order passed by the Tribunal. Sd/- (T.M.NADAF) JUDGE TIN List No.: 1 Sl No.: 12