- 1 - HC-KAR CNR: KAHC010116302024 NC: 2026:KHC:37038 MFA No. 1165 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF JULY, 2026 BEFORE THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR MISCELLANEOUS FIRST APPEAL No. 1165 OF 2024 (MV-D) BETWEEN: 1. SMT. NARAYANAMMA W/O RANGANATHA ALIAS SRIRANGANATH NOW AGED ABOUT 46 YEARS. 2. SI RANGANATH ALIAS SRIRANGANATH S/O LATE NARAYANAPPA NOW AGED ABOUT 53 YEARS. BOTH ARE RESIDING AT NALLUR VILLAGE HANUMANAHALLI POST MALUBAGAL TALUK KOLAR DISTRICT. …APPELLANTS (BY SRI GOPAL KRISHNA N, ADVOCATE) AND: 1. SRI MALLE GURUVAIAH S/O MALLE GANGAIAH NOW AGED ABOUT 52 YEARS RESIDING AT No.28/2/490 SATHYANARAYANAPURAM Digitally signed by LAKSHMINARAYANA MURTHY RAJASHRI Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR CNR: KAHC010116302024 NC: 2026:KHC:37038 MFA No. 1165 of 2024 NAWAB PET, NELLORE ANDHRA PRADESH – 524 002. 2. CHOLAMANDALAM M S GENERAL INSURANC CO. LTD., UNIT No. 4, 9TH FLOOR (LEVEL- 6) GOLDEN HEIGHTS COMPLEX 59TH ‘C’ CROSS, INDUSTRIAL SUBURB 4TH ‘M’ BLOCK, RAJAJI NAGAR BENGALURU – 560 010. REP: BY ITS MANAGER …RESPONDENTS (BY SRI B PRADEEP, ADVOCATE FOR R2 V/O DTD. 24.04.2024, NOTICE TO R1 IS DISPENSED WITH) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:03.11.2023 PASSED IN MVC No.5914/2021 ON THE FILE OF THE IX ADDITIONAL SMALL CAUSES JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT-7, BENGALURU (SCCH-7), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. THIS APPEAL, COMING ON FOR ORDERS THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR ORAL JUDGMENT This appeal is filed by claimants challenging the Judgment and Award dated 03.11.2023 passed in MVC No.5914/2021 by IX Additional Small Causes Judge and - 3 - HC-KAR CNR: KAHC010116302024 NC: 2026:KHC:37038 MFA No. 1165 of 2024 Member MACT-7, Bengaluru (SCCH-7) to the extent of contributory negligence imposed on the deceased i.e., 40%. 2. Even though the appeal is listed today for admission, it is taken up for disposal with the consent of learned counsel for appellants and learned counsel for respondent No.2 -insurer. 3. Appellants -claimants made claim petition praying to award compensation for the death of Balaraju S., in a road traffic accident occurred on 17.10.2021 at about 08.00 p.m. contending that the accident occurred due to the rash and negligent parking of the lorry bearing registration No.AP-26/TF-3119 in the middle of the road without any indicators of parking lights or any signal by its driver. The Tribunal after recording evidence, appreciating evidence on record has awarded total compensation of Rs.23,78,000/-. The Tribunal has held contributory negligence of the accident on the part of the deceased to - 4 - HC-KAR CNR: KAHC010116302024 NC: 2026:KHC:37038 MFA No. 1165 of 2024 the extent of 40% and directed respondent No.2 –insurer to deposit 60% of the award amount with interest. The claimants have challenged the said of finding of the Tribunal in the present appeal. 4. Heard learned counsels for appellants – claimants and learned counsel for respondent No.2 – insurer. 5. Learned counsel for appellants-claimants would contend that the driver of the insured lorry has parked lorry in the middle of the road at a distance of 50 meters from toll plaza. The accident occurred at night hours i.e., 08.00 p.m. and there were no any indicators of parking lights or any signals for the said parking. Therefore, the entire negligence is on the part of the driver of the insured lorry. He places reliance on the decision of the Hon’ble Apex Court in the case of Sushma Vs Nithin Ganapati Rangole and Ors1. 1 In 2024 INSC 706 - 5 - HC-KAR CNR: KAHC010116302024 NC: 2026:KHC:37038 MFA No. 1165 of 2024 6. Learned counsel for respondent No.2 would contend that the Tribunal has rightly assessed the contributory negligence on the part of the deceased in riding his motorcycle and dashing against the parked lorry to the extent of 40%. The Tribunal has rightly awarded only 60% of the compensation assessed. With this, he prayed to dismiss the appeal. 7. Having heard learned counsels, this court has perused impugned judgment, award and trial Court records. 8. The accident occurred at 08.00 p.m. on 17.10.2021. As per sketch –Ex.P4 of the spot of the accident, the distance between accident and the toll plaza is 50 meters. In the said sketch, the lorry parked is shown as parked in the middle of the road. The police after investigation have filed charge sheet against the driver of the lorry for offences punishable under Sections 279 and 304A of IPC and Section 177 of Motor Vehicles Act. The - 6 - HC-KAR CNR: KAHC010116302024 NC: 2026:KHC:37038 MFA No. 1165 of 2024 insurer has examined the first informant who is eye witnesses to the accident as R.W.1. R.W.1 has not supported the insurer and he has been treated as hostile and has been cross examined. R.W.1 in his cross examination by claimants counsel has stated that the lorry was parked in the middle of the road and there were no indicators or parking lights at that time and one motorcycle rider who came from Mulabagilu side has dashed against the parked lorry. Considering the said evidence, it is clear that the insured lorry was parked on the road without any indicators for having parked the lorry on the road. The Hon'ble Apex Court has considered similar case in the case of Sushma (supra) wherein it is observed as under: 27. A highway or a road is a public place as defined in Section 2(34) of the Act “2(34) “public place” means a road, street, way or other place, whether a thoroughfare or not, to which the public have a right of access, and includes any place or - 7 - HC-KAR CNR: KAHC010116302024 NC: 2026:KHC:37038 MFA No. 1165 of 2024 stand at which passengers are picked up or set down by a stage carriage;” 28. XXX 29. XXX 30. XXX 31. XXX 32. XXX 33. XXX 34. XXXX 35. The Courts below erred in concluding that it is a case of contributory negligence, because in order to establish contributory negligence, some act or omission which materially contributed to the accident or damage should be attributed to the person against whom it is alleged. 36. In the case of Pramodkumar Rasikbhai Jhaveri v. Karmasey Kunvargi Tak in (2002) 6 SCC 455, this Court while referring to a decision of the High Court of Australia in Astley v. Austrust Ltd in (1999) 73 ALJR 403, went on to hold that: - - 8 - HC-KAR CNR: KAHC010116302024 NC: 2026:KHC:37038 MFA No. 1165 of 2024 “… where, by his negligence, if one party places another in a situation of danger which compels that other to act quickly in order to extricate himself, it does not amount to contributory negligence, if that other acts in a way which, with the benefit of hindsight is shown not to have been the best way out of the difficulty.” 37. In the very same judgment, this Court also referred to and approved the view taken in Swadling v. Cooper in 1931 AC 1, as below: - “Mere failure to avoid the collision by taking some extra ordinary precaution, does not in itself constitute negligence.” (emphasis supplied) 38. A three Judge Bench of this Court in the case of Archit Saini and Another v. Oriental Insurance Company Limited and Others in (2018) 3 SCC 365, had the occasion to consider an identical fact scenario, and after analysing the evidence available on record, it was held:- “8. After having perused the evidence of PW7, Site Map (Ext.P-45) and the detailed analysis undertaken by the Tribunal, we - 9 - HC-KAR CNR: KAHC010116302024 NC: 2026:KHC:37038 MFA No. 1165 of 2024 have no hesitation in taking the view that the approach of the High Court in reversing the conclusion arrived at by the Tribunal on issue No.1 has been very casual, if not cryptic and perverse. Indeed, the appeal before the High Court is required to be decided on fact and law. That, however, would not permit the High Court to casually overturn the finding of fact recorded by the Tribunal. As is evident from the analysis done by the Tribunal, it is a well-considered opinion and a plausible view. The High Court has not adverted to any specific reason as to why the view taken by the Tribunal was incorrect or not supported by the evidence on record. It is well settled that the nature of proof required in cases concerning accident claims is qualitatively different from the one in criminal cases, which must be beyond any reasonable doubts. The Tribunal applied the correct test in the analysis of the evidence before it. Notably, the High Court has not doubted the evidence of PW7 as being unreliable nor has it discarded his version that the driver of the Maruti Car could not spot the parked Gas Tanker due to the flashlights of the oncoming traffic from the - 10 - HC-KAR CNR: KAHC010116302024 NC: 2026:KHC:37038 MFA No. 1165 of 2024 front side. Further, the Tribunal also adverted to the legal presumption against the driver of the Gas Tanker of having parked his vehicle in a negligent manner in the middle of the road. The Site Plan (Ext. P- 45) reinforces the version of PW7 that the Truck (Gas Tanker) was parked in the middle of the road but the High Court opined to the contrary without assigning any reason whatsoever. In our view, the Site Plan (Ext. P-45) filed along with the chargesheet does not support the finding recorded by the High Court that the Gas Tanker was not parked in the middle of the road. Notably, the High Court has also not doubted the claimant’s plea that the Gas Tanker/offending vehicle was parked without any indicator or parking lights. The fact that PW7 who was standing on the opposite side of the road at a distance of about 70 feet, could see the Gas Tanker parked on the other side of the road does not discredit his version that the Maruti Car coming from the opposite side could not spot the Gas Tanker due to flashlights of the oncoming traffic from the front side. It is not in dispute that the road is a busy road. In the cross-examination, neither has any - 11 - HC-KAR CNR: KAHC010116302024 NC: 2026:KHC:37038 MFA No. 1165 of 2024 attempt been made to discredit the version of PW7 nor has any suggestion been made that no vehicle with flashlights on was coming from the opposite direction of the parked Gas Tanker at the relevant time. 9. Suffice it to observe that the approach of the High Court in reversing the well- considered finding recorded by the Tribunal on the material fact, which was supported by the evidence on record, cannot be countenanced. 10. Accordingly, we have no hesitation in setting aside the said finding of the High Court. As a result, the appellants would be entitled to the enhanced compensation as determined by the High Court in its entirety without any deduction towards contributory negligence. In other words, we restore the finding of the Tribunal rendered on issue No.1 against the respondents and hold that respondent no.1 negligently parked the Gas Tanker/offending vehicle in the middle of the road without any indicator or parking lights.” 39. We are of the view that the aforesaid decision applies to the case at hand on all fours and - 12 - HC-KAR CNR: KAHC010116302024 NC: 2026:KHC:37038 MFA No. 1165 of 2024 thus, the appellant-claimants cannot be denied their rightful compensation on the ground that the driver of the car, namely Saiprasad Karande (deceased), was jointly responsible for the accident with the person in control of the offending truck and hence, their claims should be reduced on the principle of contributory negligence. 40. 40. On a holistic analysis of the material available on record, it is established beyond the pale of doubt that the offending truck was parked in the middle of the road without any parking lights being switched on and without any markers or indicators being placed around the stationary vehicle so as to warn the incoming vehicular traffic. This omission by the person in control of the said truck was in clear violation of law. The accident took place on a highway where the permissible speed limits are fairly high. In such a situation, it would be imprudent to hold that the driver of a vehicle, travelling through the highway in the dead of the night in pitch dark conditions, would be able to make out a stationary vehicle lying in the middle of the road within a reasonable distance so as to apply the brakes and avoid the collision. The situation would be compounded by the headlights of the vehicles coming from the opposite direction and make the - 13 - HC-KAR CNR: KAHC010116302024 NC: 2026:KHC:37038 MFA No. 1165 of 2024 viewing of the stationary vehicle even more difficult. Thus, the conclusion drawn by the Courts below that the driver of the car could have averted the accident by applying the brakes and hence, he was equally negligent and contributed to the accident on the application of principle of last opportunity is ex-facie perverse and cannot be sustained. Hence, it is a fit case warranting exercise of this Court’s powers under Article 136 of the Constitution of India to interfere with the concurrent finding of facts. 9. The Tribunal, considering the aspect that on perusal of the sketch there is a space on two sides of the parked vehicle, the deceased ought to have used that space to avoid accident. The Hon'ble Apex Court has considered the said aspect in para No.34 (supra). Considering the said aspect, there is no negligence on the part of the rider of the motorcycle as held by the Tribunal. Therefore, the claimants are entitled to total compensation assessed by the Tribunal in a sum of Rs.23,78,000/- with interest at the rate of 6% per annum per from the date of petition till realisation. The respondent No.2 –insurer is liable to pay the said compensation with interest. - 14 - HC-KAR CNR: KAHC010116302024 NC: 2026:KHC:37038 MFA No. 1165 of 2024 10. In view of the above, the following ORDER i) The appeal is allowed in part. ii) The assessment of negligence by the Tribunal on the part of the deceased to the extent of 40% is set aside. iii) The claimants are entitled to entire compensation assessed by the Tribunal in the sum of Rs.23,78,000/- with interest at the rate of 6% per annum from the date of petition till realization. iv) Respondent No.2 -insurer shall deposit the entire compensation before the Tribunal within a period of 06 weeks from this day failing which it is liable to pay interest at the rate of 9% per annum from this day till payment. Sd/- (SHIVASHANKAR AMARANNAVAR) JUDGE DSP List No.: 1 Sl No.: 37 Ct.sm