- 1 - HC-KAR NC: 2025:KHC-D:10869 MFA No. 23422 of 2013 IN THE HIGH COURT OF KARNATAKA, AT DHARWAD DATED THIS THE 28TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE ASHOK S. KINAGI MISCELLANEOUS FIRST APPEAL NO. 23422 OF 2013 (MV-D) BETWEEN: 1. THE MANAGER, ICICI LOMBARD GENERAL INSURANCE CO. LTD, HUBLI, NOW R/BY ITS LEGAL MANAGER, ICICI LOMBARD GENERAL INSURANCE CO. LTD., BELLAD BUILDING, 2ND FLOOR, GOKUL ROAD, HUBLI …APPELLANT (BY SRI. S.K. KAYAKAMATH, ADV) AND: 1. SRI. SHIVAPUTRAPPA BASAPPA SHADLIGERI SINCE DECEASED BY HIS LRS., ALREADY ON RECORD AS R2 TO R5. 2. SMT. SHANTAMMA W/O SHIVAPUTRAPPA SHADLIGERI, AGE: 53 YEARS, OCC: HOUSEHOLD WORK, R/O: HALAKERI, TQ: RON, DIST: GADAG. 3. MANJULA D/O SHIVAPUTRAPPA SHADLIGERI AGE: 29 YEARS, OCC: NIL, R/O: HALAKERI, TQ: RON, DIST: GADAG. 4. SRI. PRAKASH S/O BASAPPA SHADLIGERI AGE: MAJOR, OCC: NIL, R/O: NAVANAGAR, HUBLI. 5. SMT. GANGAMMA W/O KRISHNAGOUDA PATIL AGE: MAJOR, R/O: C/O: KRISHNAGOUDA, VENKANAGOUDA PATIL, GADAG. 6. SAYYADBASHA @ BASHA S/O ALLABAX MULLA AGE: 31 YEARS, OCC: BUSINESS, (OWNER OF LORRY BEARING NO. KA-25/B-4128) R/O: NEAR MASJID, PINJAR GALLI, HUBLI. MOHANKUMAR B SHELAR Digitally signed by MOHANKUMAR B SHELAR Date: 2025.09.02 11:02:55 +0530 - 2 - HC-KAR NC: 2025:KHC-D:10869 MFA No. 23422 of 2013 7. SRI. RAVINDRAGOUDA ANDYANAGOUDA KALAGINAGOUDARU AGE: 46 YEARS, R/O: AT KAVALUR, TQ: KOPPAL DIST: KOPPAL, NEAR MUNDERAGI JT HIGH SCHOOL BEHIND ACHALKAR BUILDING. …RESPONDENTS (BY SRI. B.S. SANGATI, ADV FOR R2 TO R5, SRI. M.R. MULLA, ADV FOR R6, NOTICE TO R7 IS SERVED) THIS MFA IS FILED U/SEC.173(1) OF MV ACT, 1988, AGAINST THE JUDGMENT AND AWARD DTD:27-04-2013 PASSED IN MVC NO.466/2008 ON THE FILE OF III ADDL. CIVIL JUDGE (SR.DN) AND MEMBER, MACT, DHARWAD, AWARDING THE COMPENSATION OF RS.10,71,000/- WITH INTEREST AT THE RATE OF 6% P.A., FROM THE DATE OF PETITION TILL THE REALISATION. THIS APPEAL, COMING ON FOR FINAL 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) 1. This Miscellaneous First Appeal No.23422/2013 is filed by the Insurance Company challenging the Judgment and award dated 27.04.2013 passed in MVC No.466/2008 by the learned III Addl. Civil Judge (Sr.Dn.) and MACT, Dharwad (for short ‘the Tribunal’). - 3 - HC-KAR NC: 2025:KHC-D:10869 MFA No. 23422 of 2013 2. The brief facts leading rise to the filing of this appeal are as follows: On 28.10.2006, one Udaykumar was standing at Sutagatti cross on P.B.Road to cross the said road. At that time, a lorry bearing registration No.KA-25/B-4126, came in a rash and negligent manner, dashed to the said Udaykumar. As a result, he fell down, sustained grievous injuries and succumbed to the injuries. The petitioners, being the parents of the deceased Udaykumar, filed a claim petition under Section 166 of the M.V.Act, claiming compensation on account of death of Uday Kumar in the road traffic accident. 3. The owner of the lorry filed a statement of objections contending that the deceased, while crossing the road, was himself responsible for the accident. It was further contended that the driver of the offending vehicle possessed a valid driving licence and the insurance policy - 4 - HC-KAR NC: 2025:KHC-D:10869 MFA No. 23422 of 2013 was in force. Hence, the owner is not liable to pay the compensation as claimed by the petitioners. 4. The Insurance Company filed its statement of objections denying the averments made in the claim petition. It was contended that the offending vehicle was not insured with the Insurance Company as on the date of the accident and therefore, the Insurance Company is not liable to pay the compensation amount as claimed by the petitioners. Accordingly, prays to dismiss the claim petition against the Insurance Company. 5. The Tribunal, on the basis of the pleadings of the parties, framed the relevant issues. 6. The petitioners, to substantiate their case, petitioner No.2 was examined as PW-1. Two other witnesses were examined as PW-2 and PW-3. The petitioners also produced twelve documents, which were marked as Ex.P1 to P12. In rebuttal, the respondent No.1 was examined as RW-1, an official of the Insurance Company was examined - 5 - HC-KAR NC: 2025:KHC-D:10869 MFA No. 23422 of 2013 as RW-2, and produced six documents and were marked as Ex.R1 to R6. 7. The Tribunal, after assessing the verbal and documentary evidence, allowed the claim petition in part with costs and awarded the compensation of Rs.10,71,000/-, with interest at the rate of 6% per annum and directed the Insurance Company to deposit entire compensation amount. 8. The Insurance Company, being aggrieved by the Judgment and award passed by the Tribunal in MVC No.466/2008, has filed this Miscellaneous First Appeal. 9. Heard the arguments of the learned counsel for the Insurance Company, the petitioners and the owner of the lorry. 10. Learned counsel for the Insurance Company submits that the offending vehicle was not insured with the Insurance Company as on the date of the accident. He submits that the petitioners, in collusion with the owner - 6 - HC-KAR NC: 2025:KHC-D:10869 MFA No. 23422 of 2013 have produced an acknowledgement/cover note issued on 21.03.2006, which discloses that the agent has issued an acknowledgement stating that a premium of Rs.30,285/- was received vide cheque No.722678 drawn on Canara Bank, Hubli, for Insurance cover in respect of the offending vehicle. He contends that the said document was not issued by the Insurance Company, and the Insurance Company has seriously disputed the cover note allegedly issued by the agent. He further submits that though the owner contested the claim petition, but the owner did not produce any record to establish that the cheque mentioned in the cover note was encashed by the Insurance Company. 11. He further submits that this Court, vide order dated 18.06.2024, directed the owner of the offending vehicle to furnish particulars regarding the cheque No.722678 drawn on Canara Bank, Hubli Branch, and whether the premium amount of Rs.30,285/- was credited to the account of the Insurance Company. Despite the direction issued by this Court, the owner has not furnished - 7 - HC-KAR NC: 2025:KHC-D:10869 MFA No. 23422 of 2013 the particulars of said cheque to establish that the cheque was encashed or that the premium was credited to the account of ICICI Lombard General Insurance Company. Therefore, he submits that an adverse inference is to be drawn against the owner of the offending vehicle. It is further submitted that the Tribunal failed to properly consider the said aspect and committed an error in fastening the liability on the Insurance Company. Hence, on these grounds, he prays to allow the appeal and consequently, dismiss the claim petition against the Insurance Company. 12. Per contra, learned counsel for the owner of the offending lorry submits that he has produced the cover note, which discloses that he had paid the premium of Rs.30,285/- through cheque No.722678 drawn on Canara Bank, Hubli Branch. He submits that the vehicle was insured with the Insurance Company as on the date of the accident and therefore, the Tribunal was justified in saddling the liability jointly and severally on the owner and the - 8 - HC-KAR NC: 2025:KHC-D:10869 MFA No. 23422 of 2013 Insurance Company. Hence, on these grounds, he prays to dismiss the appeal against the owner of the lorry. 13. Per contra, learned counsel for the petitioners supported the impugned Judgment and award passed by the Tribunal and contended that the Tribunal has rightly fastened the liability jointly and severally on the owner and the Insurance Company. Hence, he prays for the dismissal of the appeal. 14. Perused the records and considered the submissions made by the learned counsel for the parties. 15. The point that arises for consideration is with regard to the liability. 16. There is no dispute that Udaykumar met with an accident, sustained grievous injuries and succumbed to the injuries. To establish that the accident occurred due to the rash and negligent driving of the driver of the offending vehicle, the petitioners produced the charge sheet marked as Ex.P6, which discloses that the accident was caused due - 9 - HC-KAR NC: 2025:KHC-D:10869 MFA No. 23422 of 2013 to the rash and negligent driving of the driver of the offending lorry. 17. Insofar as the liability is concerned, the petitioners and the owner of the offending vehicle have contended that the offending vehicle was insured with the Insurance Company and have produced the cover note in support of their contention. The Insurance Company, however, has seriously disputed the issuance of the said cover note. It is contended that on verification of its records, no material was found to demonstrate that the offending vehicle was insured with the Insurance Company. He also submits that the owner did not produce any records to show that the cheque was got encashed by the Insurance Company. 18. The Tribunal, merely relying on the disputed cover note, held that the said vehicle was insured with the Insurance Company as on the date of the accident. Admittedly, as observed above, the said Xerox copy of - 10 - HC-KAR NC: 2025:KHC-D:10869 MFA No. 23422 of 2013 cover note was seriously disputed by the Insurance Company. This Court, on 18.06.2024, passed the following orders: “Perused the order dated 18.06.2024. This Court directed respondent No.6, to furnish particulars as to Cheque bearing No.722678 drawn on Canara Bank, Hubli Branch and to ascertain as to whether the premium of Rs.30,285/- was credited to the account of ICICI Lombard General Insurance Company or not. There is no representation on behalf of respondent No.6. Respondent No.6 is directed to appear before the Court in person and to submit the information as directed by this Court on 18.06.2024. List the matter after three weeks.” 19. On a perusal of the order dated 18.06.2024, this Court had directed the owner-Sayyadbasha @ Basha, to furnish the particulars regarding cheque No.722678 drawn on Canara Bank, Hubli Branch and to clarify whether the premium amount of Rs.30,285/- was credited to the account Insurance Company. Despite the said direction, the owner-Sayyadbasha @ Basha did not furnish the particulars as to the cheque bearing No.722678 drawn on the Canara - 11 - HC-KAR NC: 2025:KHC-D:10869 MFA No. 23422 of 2013 Bank, Hubli Branch and did not ascertain whether the premium amount of Rs.30,285/- was credited to the account of Insurance Company. Hence, an adverse inference has to be drawn against the owner of the offending vehicle, holding that the vehicle was not insured with the Insurance Company as on the date of the accident. 20. Admittedly, the vehicle was not insured with the Insurance Company on the date of the accident. Further, the owner of the vehicle did not examine the agent of the Insurance Company to establish the issuance of the xerox copy of the cover note. It is also an admitted fact that only a xerox copy of the alleged cover note was produced and the same was not marked. The Tribunal, placing reliance on the xerox copy of the cover note, held that the said vehicle was insured with the Insurance Company. The findings recorded by the Tribunal in this regard to the alleged insurance policy, are contrary to the records. Though, the owner has contested the case, did not produce any records to show that the vehicle was insured with the - 12 - HC-KAR NC: 2025:KHC-D:10869 MFA No. 23422 of 2013 Insurance Company. Therefore, the Judgment and award passed of the Tribunal fastening the liability on the Insurance Company is arbitrary and erroneous. Accordingly, the point for consideration on liability is answered. 21. In view of the above discussion, I proceed to pass the following: ORDER (i) The appeal is allowed. (ii) The Judgment and award dated 27.04.2013 passed in MVC No.466/2008 is hereby set-aside insofar as it relates to the liability on the Insurance Company. Consequently, the claim petition filed by the petitioners against the Insurance Company stands dismissed. The owner of the offending vehicle bearing Reg.No.KA-25/B-4126 is - 13 - HC-KAR NC: 2025:KHC-D:10869 MFA No. 23422 of 2013 liable to pay the entire compensation as awarded by the Tribunal. (iii) The owner of the offending vehicle is directed to deposit the entire compensation amount within eight weeks from the date of receipt of certified copy of this Judgment. (iv) The amount in deposit, if any, and the trial Court Records, be transmitted to the Tribunal forthwith. (v) In view of disposal of appeal, the I.A.No.1/2019, does not survive for consideration and stands disposed of accordingly. SD/- (ASHOK S. KINAGI) JUDGE RHR/- CT: BSB List No.: 1 Sl No.: 6