- 1 - NC: 2025:KHC-K:1522 MFA No. 200556 of 2018 C/W MFA No. 200555 of 2018 IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 7TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE C M JOSHI MISCL. FIRST APPEAL NO.200556 OF 2018 (MV-D) C/W MISCL. FIRST APPEAL NO.200555 OF 2018 (MV-D) IN MFA NO.200556/2018: BETWEEN: SHRIRAM GENERAL INSURANCE CO. LTD., E-8, EPIP, RICO, INDUSTRIAL AREA, SITAPUR, JAIPUR RAJASTHAN, THROUGH ITS BELLARY BRANCH, 116-A, 1ST FLOOR, OPP. MAYURA LODGE, NEAR SYNDICATE BANK, BELLARY, (THROUGH AUTHORISED SIGNATORY). …APPELLANT (BY SRI. SUBHASH MALLAPUR, ADVOCATE) AND: 1. SMT. PARWATHAMMA W/O LATE HANUMANTHA, AGE: 46 YEARS, OCC: H. HOLD. 2. SUNIL S/O LATE HANUMANTHA, AGE: 20 YEARS, OCC: STUDENT, 3. BABU S/O LATE HANUMANTHA, AGE: 18 YEARS, OCC: STUDENT, SHIVALEELA DATTATRAYA UDAGI Digitally signed by SHIVALEELA DATTATRAYA UDAGI Location: HIGH COURT OF KARNATAKA Date: 2025.03.19 12:03:18 -0700 - 2 - NC: 2025:KHC-K:1522 MFA No. 200556 of 2018 C/W MFA No. 200555 of 2018 ALL R/O NO.114, WADLOOR VILLAGE, POST: YEGANOOR, TQ. & DIST. RAICHUR-584101. 4. SURESH S/O TAYAPPA, AGE: 26 YEARS, OCC: DRIVER, R/O CHIKKA WADLOOR, POST: YEGANOOR, TQ. & DIST. RAICHUR-584 101. 5. PARASHURAM S/O RAJAPPA SINDHE, AGE: MAJOR, R/O H.NO.89, GURUGUNTHA, TQ. LINGASUGUR, DIST. RAICHUR-584101. 6. SANJEEV REDDY S/O SAVARAPPA, AGE: MAJOR, R/O H.NO.27, NEAR BASAVAWESHWARA TEMPLE, WADLOOR VILLAGE, TQ. & DIST. RAICHUR-584 101. 7. CHOLAMANDALAM M.S. GENERAL INSURANCE CO. LTD., 2ND FLOOR, DARE HOUSE, 2 NSC BOSE ROAD, CHENNAI-600 001, THROUGH BELLARY BRANCH OFFICE, NO.116/17, NIRMALA BUILDING, OPP. COSMO POLITIAN CLUB, DOUBLE ROAD, BELLARY-583 101. …RESPONDENTS (BY SRI. SHARANAGOUDA V. PATIL, ADV. FOR C/R1 AND C/R2; SRI. MANJUNATH MALLAYYA SHETTY, ADV. FOR R7; R3, R4 AND R6 ARE SERVED; V/O DTD. 31.08.2023, NOTICE TO R5 IS DISPENSED WITH) THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, PRAYING TO ALLOW THE ABOVE APPEAL BY SETTING ASIDE THE JUDGMENT AND AWARD DATED 02.12.2017, IN MVC NO.469/2016 PASSED BY THE II ADDL. SENIOR CIVIL JUDGE AND JMFC, RAICHUR. - 3 - NC: 2025:KHC-K:1522 MFA No. 200556 of 2018 C/W MFA No. 200555 of 2018 IN MFA NO.200555/2018: BETWEEN: SHRIRAM GENERAL INSURANCE CO. LTD., E-8, EPIP, RICO, INDUSTRIAL AREA, SITAPUR, JAIPUR RAJASTHAN, THROUGH ITS BELLARY BRANCH, 116-A, 1ST FLOOR, OPP. MAYURA LODGE, NEAR SYNDICATE BANK, BELLARY-583 101, (THROUGH AUTHORISED SIGNATORY). …APPELLANT (BY SRI. SUBHASH MALLAPUR, ADVOCATE) AND: 1. SMT. LAKSHMI W/O LATE THIMAPPA, AGE: 36 YEARS, OCC: HOUSEHOLD, 2. MASTER VEERESH S/O LATE THIMAPPA, AGE: 16 YEARS, OCC: STUDENT, 3. BABY URUKUNDAMMA D/O LATE THIMAPPA, AGE: 14 YEARS, OCC: STUDENT, (R-2 & 3 U/G OF R-1), ALL R/O MAMADODDI VILLAGE, TQ. & DIST. RAICHUR-586 222. 4. SURESH S/O TAYAPPA, AGE: 26 YEARS, OCC: DRIVER, R/O CHIKKA WADLOOR, POST: YEGANOOR, TQ. & DIST. RAICHUR-586 222. 5. PARSHURAM S/O RAJAPPA SINDHE, AGE: MAJOR, R/O H.NO.89, - 4 - NC: 2025:KHC-K:1522 MFA No. 200556 of 2018 C/W MFA No. 200555 of 2018 GURUGUNTHA, TQ. LINGASUGUR, DIST. RAICHUR-586 222. 6. SANJEEV REDDY S/O SAVARAPPA, AGE: MAJOR, R/O H.NO.27, NEAR BASAVESHWARA TEMPLE, WADLOOR VILLAGE, TQ. & DIST. RAICHUR-586 222. 7. CHOLAMANDALAM M.S. GENERAL INSURANCE CO. LTD., 2ND FLOOR, DARE HOUSE, 2 NSC BOSE ROAD, CHENNAI-600 001, THROUGH BELLARY BRANCH OFFICE, NO.116/17, NIRMALA BUILDING, OPP. COSMO POLITIAN CLUB, DOUBLE ROAD, BELLARY-583 101. …RESPONDENTS (BY SRI. SHARANAGOUDA V. PATIL, ADV. FOR C/R1; (R2 AND R3 ARE MINORS U/G OF R1) SRI. MANJUNATH MALLAYYA SHETTY, ADV. FOR R7; R4 AND R6-SERVED; V/O DTD. 21.01.2025, NOTICE TO R5 IS DISPENSED WITH) THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, PRAYING TO ALLOW THE ABOVE APPEAL BY SETTING ASIDE THE JUDGMENT AND AWARD DATED 02.12.2017, IN MVC NO.468/2016 PASSED BY THE II ADDL. SENIOR CIVIL JUDGE AND JMFC, RAICHUR. THESE APPEALS COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 5 - NC: 2025:KHC-K:1522 MFA No. 200556 of 2018 C/W MFA No. 200555 of 2018 CORAM: HON'BLE MR. JUSTICE C M JOSHI ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE C M JOSHI) These two appeals are filed by the Insurance Company in MVC No.468/2016 and MVC No.469/2016 assailing the judgment and award dated 02.12.2017 by the learned II Additional Senior Civil Judge and MACT, Raichur. 2. The parties would be referred to as per their rank assigned before the Tribunal for the sake of convenience. 3. The factual matrix of the case relevant for the purpose of these appeals are that, on 05.05.2016 the deceased Thimappa and Hanumantha were traveling in a Bolero Maxi Truck bearing Reg.No.KA-36/A-8055. At about 8.30 p.m. when the driver of the said vehicle had stopped the same on the extreme side of Raichur-Yermaras bypass road i.e., Marched cross, in order to cover the back portion - 6 - NC: 2025:KHC-K:1522 MFA No. 200556 of 2018 C/W MFA No. 200555 of 2018 of the said van with a tarpaulin as it was raining, a lorry bearing Reg.No.KA-36/6963 came from back side of the Bolero Maxi Truck and dashed to it. As a result, the deceased Hanumantha and Thimappa died in the accident. The dependants of the deceased filed claim petitions before the Tribunal. 4. Respondent No.3 – Shriram General Insurance Company, who was the insurer of the lorry, resisted the claim petitions contending that its driver was not having a valid driving licence and that the accident had occurred due to the negligence of the driver of the Bolero Maxi Truck. It was contended that the driver of the Bolero Maxi Truck had parked the said vehicle at the center of the road without any signal and therefore negligence cannot be attributed to the lorry driver. Therefore, it sought absolving its liability to pay the compensation to the dependants of the deceased. 5. The respondent No.5 before the Tribunal was the insurance company of the Bolero Maxi Truck. It - 7 - NC: 2025:KHC-K:1522 MFA No. 200556 of 2018 C/W MFA No. 200555 of 2018 contended that the accident was due to the negligence on the part of the driver of the lorry, since the road was wide enough for it to pass on the other side of the Bolero Maxi Truck which had been parked. When it was raining, it was incumbent upon the lorry driver to exercise caution and therefore there is a clear negligence on the part of lorry driver. 6. On the basis of rival contentions, the Tribunal framed the appropriate issues and evidence was recorded by it. The petitioners examined three witnesses on their behalf and Ex.P.1 to Ex.P.9 were marked. The appellant – Insurance Company examined its official as RW.1 and Ex.R1 to Ex.R9 were marked. After hearing the arguments the Tribunal passed the impugned judgment. 7. Learned counsel appearing for the appellant – Insurance Company contends that the Bolero Maxi Truck had parked the vehicle at the center of the road without any signal during night hours and therefore the driver of the lorry during the rains could not see the vehicle and as - 8 - NC: 2025:KHC-K:1522 MFA No. 200556 of 2018 C/W MFA No. 200555 of 2018 such he remained into the back of the Bolero Maxi Truck. He submits that attributing entire negligence to the driver of the lorry is not proper and correct and some percentage of the negligence should have been attributed to the driver of the Bolero Maxi Truck. On this ground, it is urged that the judgment of the Tribunal be interfered with and the negligence on the part of the Bolero Maxi Truck driver may be ascertained. 8. Per contra, learned counsel appearing for the petitioners and learned counsel appearing for respondent No.5 – Insurance Company would submit that the lorry was coming out of Marched cross and within a distance of 500 meters, the accident has occurred. It is submitted that the driver of the lorry could not have driven the same negligently when it was raining and within a short distance, there was a bridge. It is submitted that the width of the road is 33 feet and the accident had occurred at a distance of 5 feet from the left edge of the road and - 9 - NC: 2025:KHC-K:1522 MFA No. 200556 of 2018 C/W MFA No. 200555 of 2018 therefore the contentions of the appellant – Insurance Company is not sustainable in law. 9. Among the documents produced by the petitioners in both these petitions, along with MVC No.470/2017 which was tried together, the charge-sheet contains the spot mahazar as well as the sketch. It is only these documents which are of importance in these two appeals. 10. A careful perusal of the evidence made available on record would show that except PW.3, no other eyewitnesses have been examined by either of the parties. PW.3 was one of the injured in the said accident and was an inmate of the Bolero Maxi Truck. The cross-examination of PW.3 by respondent No.3 – Insurance Company would show that the accident had occurred in the darkness. He has denied the suggestion that the Bolero Maxi Truck was parked at the middle of the road. There is nothing in the cross-examination of PW.3 which would indicate that there - 10 - NC: 2025:KHC-K:1522 MFA No. 200556 of 2018 C/W MFA No. 200555 of 2018 was negligence on the part of the driver of the Bolero Maxi Truck. 11. The perusal of the appeal papers, especially the sketch of the spot shows that the road is about 33 feet wide and at a distance of 100 meters from the spot of the accident there is a bridge. The Marchad cross was about 500 meters behind the spot of the accident and it is evident that when the lorry came from behind, the parking of the vehicle was visible to the driver. It is also pertinent to note that the Bolero Maxi Truck was parked about 5 feet from the edge of the tar road. The road had about 28 feet on the right side and was vacant. There is nothing in the cross-examination of PW.3 which would suggest that the road on the right side was blocked for any reasons. Therefore, based on the spot sketch and the testimony of PW.3, it cannot be made out that there was any negligence on the part of the driver of the Bolero Maxi Truck. There is nothing on record which suggests that he had parked the Bolero Maxi Truck without any signal. It is - 11 - NC: 2025:KHC-K:1522 MFA No. 200556 of 2018 C/W MFA No. 200555 of 2018 also evident that the police after investigation have filed the charge-sheet against the lorry driver. 12. Under these circumstances, any contributory negligence on the part of the Bolero Maxi Truck driver has not been brought on record. As such, there is absolutely no material to hold that the parking of the Bolero Maxi Truck was on the middle of the road and that its driver had not exercised care and caution while parking it and covering its body with tarpaulin. 13. It is also pertinent to note that the eyewitness, who is examined as PW.3 has not even been suggested that no signals were put to caution the vehicles coming from either front or back of the Bolero Maxi Truck. 14. Under these circumstances, there is absolutely no merit in the present appeals and therefore, they are liable to be dismissed. Hence, the following : ORDER i) Both the appeals are dismissed. - 12 - NC: 2025:KHC-K:1522 MFA No. 200556 of 2018 C/W MFA No. 200555 of 2018 ii) The amount which is in deposit before this Court be transmitted to the tribunal. In MFA No.200555/2018, learned counsel Sri Manjunath Mallayyashetty is permitted to file Vakalath within two weeks for respondent No.7. Sd/- (C M JOSHI) SN List No.: 1 Sl No.: 61 CT: AK