- 1 - HC-KAR NC: 2025:KHC:27099 MFA No. 7753 of 2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE C M JOSHI MISCELLANEOUS FIRST APPEAL NO. 7753 OF 2019 (MV-D) BETWEEN: THE LEGAL MANAGER, CHOLAMANDALAM GIC LTD, NO 135/5, 2ND FLOOR, 15TH CROSS, J P NAGAR, 3RD PHASE, BANGALORE – 560078 NOW REP BY ITS LEGAL MANAGER, SR MANAGER – CLAIMS, CHOLAMNDALAM M S GIC LTD, NO.1/2, GOLDEN HEIGHTS, 6TH FLOOR, 59TH C CROSS, 4TH M BLOCK, RAJAJINAGR, BANGALORE – 560010. …APPELLANT (BY SRI.PRADEEP B., ADVOCATE) AND: 1. RATHNAMMA, W/O LATE NARAYANAGOWDA N., AGED ABOUT 51 YEARS Digitally signed by NANDINI R Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:27099 MFA No. 7753 of 2019 2. GOOLIGOWDA, S/O LATE NARAYANAGOWDA N., AGED ABOUT 33 YEARS, BOTH ARE R/O MADEGOWDANAHAHUNDI VILLAGE, KASABA HOBLI, T. NARASIPURA TALUK, MYSORE DISTRICT. 3. VENKATESH, S/O GIRIGOWDA, AGED ABOUT 59 YEARS, R/O MARASHETTAHALLI VILLAGE, VARUNA HOBLI, MYSORE. …RESPONDENTS (BY SRI.SRIDHAR R., ADVOCATE FOR R1 AND R2; R3 - SERVED) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 13.01.2014 PASSED IN MVC NO.65/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC T.NARASIPURA, AWARDING COMPENSATION OF RS.5,63,000/- WITH INTEREST AT 6 PERCENT P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT WITH THE TRIBUNAL. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE C M JOSHI - 3 - HC-KAR NC: 2025:KHC:27099 MFA No. 7753 of 2019 ORAL JUDGMENT Heard learned counsel Sri. Pradeep B., appearing for the appellant and learned counsel Sri. Sridhar R., appearing for respondents on admission. 2. Being aggrieved by the judgment and award passed in MVC No.65/2010 dated 13.01.2014 by Senior Civil Judge & MACT at Tirumakudalu Narasipura, the Insurance Company is before this Court in appeal. 3. The factual matrix of the case that is relevant for the purpose of this appeal is that, on 15.02.2010 at about 02.15 p.m. the deceased N.Narayanagowda along with one Ravi were travelling in the trailer of the Tractor bearing No.KA-09-T-5463 and 5464 along with Eucalyptus timber load on Mysore-Bannur main road. The driver of the said vehicle applied the brake and therefore, it turned turtle and fell down by the road side. The deceased N.Narayanagowda, who was sitting on the timber load on the trailer fell down and sustained grievous injuries and died at the spot. A criminal case was registered by the - 4 - HC-KAR NC: 2025:KHC:27099 MFA No. 7753 of 2019 concerned police and after investigation, a final report was filed indicting the driver of the Tractor for negligent driving. The petitioners who are the wife and son of the deceased - N.Narayanagowda filed the claim petition contending that the deceased was a sole bread earner of the family and was having income of Rs.10,000 per month and as such they are entitled for the compensation from the owner and insurer of the Tractor . 4. On issuance of notice, the respondent Nos.1 and 2 did not appear before the Tribunal and as such they were placed exparte. The Tribunal has proceeded to record the testimony of the PW.1 and PW.2; and Exhibits.P.1 to 11 were marked. After framing appropriate points for consideration, it proceeded to consider the evidence on record and awarded compensation of Rs.5,63,000/- and fastened the liability upon the Insurance Company. - 5 - HC-KAR NC: 2025:KHC:27099 MFA No. 7753 of 2019 5. Being aggrieved by the said judgment, the Insurance Company has approached this Court in this appeal. 6. On being served with the notice, the respondents have appeared through their counsel. 7. The learned counsel appearing for the appellant - Insurance Company would submit that the Insurance Company had filed a miscellaneous petition under Order IX Rule 13 of Code of Civil Procedure (CPC) seeking to set aside the impugned judgment and permit it to file the written statement in the matter. It is contended that the said miscellaneous petition came to be dismissed by the Tribunal. Learned counsel for the appellant also submits that the defence of the Insurance Company was deceased N.Narayanagowda was a gratuitous passenger on the said Tractor and therefore, the liability of the Insurance Company should have been properly considered by the Tribunal. It is contended that the deceased N.Narayanagowda was travelling on the trailer of the - 6 - HC-KAR NC: 2025:KHC:27099 MFA No. 7753 of 2019 Tractor and therefore, he being not covered under the policy issued by it, the Tribunal could not have fastened the liability upon the appellant herein. Therefore, he seeks indulgence of this Court in this matter. 8. Per contra, learned counsel for the respondents/claimants submits that the Tribunal has appropriately and correctly appreciated the evidence on record and it has awarded the compensation amount and as such there is no merit in this appeal. 9. It is pertinent to note that, the Insurance Company having exhausted its remedy under Order IX Rule 13 of CPC, the reason that as it was placed exparte before the Tribunal and as such an opportunity has to be granted to it, cannot be agitated again in this appeal. It is a settled principle of law that if the appellant urging any of the grounds which are available under Order IX Rule 13 of CPC, it has to be made before the concerned Court or the Tribunal. Such ground is not available in an appeal before the Appellate Court. If such ground taken up in a - 7 - HC-KAR NC: 2025:KHC:27099 MFA No. 7753 of 2019 miscellaneous petition before the trial Court is rejected, the remedy is elsewhere by challenging such order before the appropriate Court. Therefore, the ground that the appellant was placed exparte and therefore, the matter has to be remanded to the Tribunal cannot be agitated before this Court in this appeal. 10. So far as the merit of the case is concerned, it is worth to note that the testimony of the PW.1 and also the FIR at Exhibit.P.1 show that the deceased had approached the complainant-Nagaraju to help him in loading the eucalyptus timber into the Tractor and he was taking the same for the construction of his house. Accordingly, the complainant was accompanying the deceased N.Narayanagowda and after loading the timber, the deceased N.Narayanagowda and Ravi were sitting on the trailer and were coming towards their house; on the way to their house, the accident occurred as stated above and N.Narayanagowda succumbed to the injuries. - 8 - HC-KAR NC: 2025:KHC:27099 MFA No. 7753 of 2019 11. Such evidence as mentioned in the FIR is also spoken by the PW.1 in her affidavit evidence. In the cross examination she has stated that she is not an eyewitness to the accident and therefore, whatever she states is on the basis of the complaint and the FIR. 12. The testimony of the PW.2 - Nagaraju, who happen to be the complainant, show that the deceased N.Narayanagowda and his son Ravi were sitting in the trailer. The complainant - Nagaraju was sitting on the mudguard of the Tractor. It is pertinent to note that, this testimony of the PW.2 and the police papers, which are produced before the Tribunal were properly considered by the Tribunal and it has come to the conclusion that the deceased N.Narayanagowda being the owner of the goods was travelling on the Tractor. Therefore, the appreciation of the available evidence by the Tribunal in holding that the deceased N.Narayanagowda was travelling on the trailer of the Tractor with the goods cannot be disputed. When the deceased N.Narayanagowda was an owner of - 9 - HC-KAR NC: 2025:KHC:27099 MFA No. 7753 of 2019 the goods, the Insurance Company is liable to pay the compensation and therefore, the Tribunal has fastened the liability upon the appellant - Insurance Company. 13. Under these circumstances, the appeal which disputes that the deceased N.Narayanagowda was not the owner of goods or he was a gratuitous passenger cannot be accepted. Hence, the appeal is bereft of any merits and as such the same is dismissed at the stage of admission itself. 14. The amount in deposit is ordered to be transmitted to the Tribunal forthwith. Sd/- (C M JOSHI) JUDGE AMM List No.: 1 Sl No.: 67