Karnataka High Court
Sri Mallikarjuna vs Sri Ashwathanarayana on 3 July, 2024
Author: K.Natarajan
Bench: K.Natarajan
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NC: 2024:KHC:25131
MFA No. 3503 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
MISCELLANEOUS FIRST APPEAL NO. 3503 OF 2022 (MV)
BETWEEN:
SRI MALLIKARJUNA
S/O VENKATARAYAPPA,
AGED ABOUT 25 YEARS,
R/O PEDDANAGARALA VILLAGE,
POLONYAKANAPALLI POST,
BAGEPALLI TALUK,
CHIKKABALLAPURA DISTRICT.
...APPELLANT
(BY SRI. CHANDRASHEKAR B A.,ADVOCATE)
AND:
Digitally signed
by BHARATHI
S 1. SRI. ASHWATHANARAYANA
Location: HIGH
COURT OF S/O LATE ERAPPA,
KARNATAKA AGED ABOUT 49 YEARS,
R/AT AAMURU THIMMANAHALLI VILLAGE,
BASHETTIHALLI POST,
SIDLAGHATTA TALUK
CHIKKABALLAPURA DISTRICT.
2. SMT.VENKATALAKSHMAMMA
W/O ASHWATHNARAYANA
AGED ABOUT 42 YEARS,
R/AT AAMURU THIMMANAHALLI VILLAGE,
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NC: 2024:KHC:25131
MFA No. 3503 of 2022
BASHETTIHALLI POST,
SIDLAGHATTA TALUK
CHIKKABALLAPURA DISTRICT.
3. SRI. ASHWATHAPPA
S/O ERAPPA
AGE MAJOR
R/AT AAMURU THIMMANAHALLI VILLAGE,
BASHETTIHALLI POST,
SIDLAGHATTA TALUK,
CHIKKABALLAPURA DISTRICT.
4. ICICI LAMBARD INSURANCE CO LTD.,
414, VEER SAVARKER MARG
NEAR SIDDHI VINAYAKA TEMPLE,
PRABHADEVI, MUMBAI-400 025.
BY ITS MANAGER.
...RESPONDENTS
(V/O DATED:05.04.2023;
SMT. ARCHANA K.M. AMICUS CURIAE, ADVOCATE FOR R1 &
R2, R3 SERVED, BUT UNREPRESENTED
SRI. A.N. KRISHNA SWAMY, ADVOCATE FOR R4)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 13.12.2021
PASSED IN MVC NO.41/2018 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JMFC, AND MOTOR ACCIDENT CLAIMS
TRIBUNAL, SIDLAGHATTA, AWARDING COMPENSATION OF
RS.12,99,600/- WITH INTEREST AT 6 PERCENT P.A. FROM THE
DATE OF PETITION TILL RECOVERY.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC:25131
MFA No. 3503 of 2022
JUDGMENT
This appeal is filed by respondent No.1, who is alleged to be the owner of offending motor cycle challenging the liability fastened on him in MVC No.41/2018 by the Motor Accident Claims Tribunal, Sidlaghatta (hereinafter referred to as the 'Tribunal'), by judgment and award dated 13.12.2021.
2. Heard the arguments of the learned counsel for the appellant, learned Amicus Curiae for respondent Nos.1 and 2/claimants-petitioners and learned counsel for respondent No.4 - insurance company. Respondent No.3 is served and unrepresented.
3. The appellant is respondent No.1, respondent Nos.1 and 2 are the claimants/petitioners and respondent Nos.3 and 4 are respondent Nos.2 and 3 before the Tribunal. For the sake of convenience, the parties herein are referred as per their rank before the Tribunal.
4. The case of the petitioners is that they have filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as the 'Act') claiming compensation of `15,00,000/- for the death of their son, who died in the road -4- NC: 2024:KHC:25131 MFA No. 3503 of 2022 traffic accident that occurred on 15.1.2016 at about 7.30 p.m., at Ammagaranahalli gate, near parallel road of the Govindappa Land, Bashettihalli Hobli, Shidlaghatta Taluk, Chickballapur District. It is contended by the petitioners in their petition that their son, deceased Harisha was riding the motor cycle, when he was reaching near the accident spot a motor cycle said to be ridden by respondent No.1 came from the opposite direction and in order to avoid a pot whole both the vehicles dashed against each other. Due to the impact, the son of the petitioners died at the spot and it is stated that the accident had occurred due to the contributory negligence of the petitioners' son and respondent No.1. Hence, they claimed compensation on various grounds.
5. The notice was ordered to be issued to the respondents. Respondent No.1 - appellant herein appeared through his counsel and filed statement of objections stating that he is neither the owner nor the rider of the motor cycle bearing No.KA-05-EJ-1296 and he is not liable to pay any compensation. Hence, he prayed for dismissal of the claim petition.
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NC: 2024:KHC:25131 MFA No. 3503 of 2022
6. Respondent No.2, who is the owner of the motor cycle on which the deceased was riding, appeared through a counsel, but not filed any objections statement.
7. Respondent No.3 - insurance company filed its statement of objections by denying all the averments made in the claim petition as false and in usual manner prayed for dismissal of the claim petition.
8. Based upon the pleadings of the parties, the Tribunal framed the following issues:
i. Whether the petitioners prove that on 15.1.2016 at about 7.30 p.m. at Dibburahalli road at the time the Respondent No.1 riding is vehicle bearing registration No.KA-05-ET-
1296 in rash and negligent manner dash to the deceased bike bearing registration No.KA-40-W-8431 there by caused the death of deceased Harish?
ii. Whether Respondent No.3 is proof that the Respondent No.1 has violated policy conditions?
iii. Whether the petitioners are entitled for compensation? From whom and at what rate?
iv. What award?
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NC: 2024:KHC:25131 MFA No. 3503 of 2022
9. In order to prove their case, on behalf of the petitioners, petitioner No.1 examined himself as PW.1 and got marked Exs.P1 to Ex.P8 in evidence. On behalf of the respondents, respondent No.1 neither cross-examined the PW.1 nor led any evidence. Respondent Nos.2 and 3 also have not examined any witnesses and produced documents. Hence, the Tribunal, by the impugned judgment answered issue No.1 in the affirmative, issue No.2 partly in the affirmative and awarded a compensation of `12,99,600/- by fastening the liability on respondent No.1, who is said to be the owner of the offending vehicle and exonerated respondent Nos.2 and 3 as they are the owner and insurer of the motor cycle in which the deceased was riding. Being aggrieved by the said judgment, respondent No.1 is before this Court.
10. Learned counsel for the appellant/respondent No.1 has challenged the impugned judgment mainly on two grounds; firstly, that though respondent No.1 had appeared and filed statement of objections before the Tribunal by denying that he is neither the owner nor the rider of the offending vehicle, the Tribunal has not framed any issue in that regard and that there is difference in issues framed and issues mentioned in the -7- NC: 2024:KHC:25131 MFA No. 3503 of 2022 judgment; secondly, that the petitioners themselves have pleaded in their claim petition that there is contributory negligence, but no issue is framed with regard to the same and there is no proper reason assigned for giving a finding only against respondent No.1 who is not the owner of the offending vehicle and also no documents are produced to show that respondent No.1 was the owner of the offending vehicle. Therefore, he prayed for setting aside of the judgment and award and remanding the matter for fresh disposal.
11. Learned Amicus Curiae for respondent Nos.1 and 2/petitioner Nos.1 and 2 objected the appeal and contended that the advocate for respondent No.1 had not cross-examined the witness - PW.1 and not led any evidence. Such being the case, question of remanding the matter does not arise. It is further contended that the charge sheet had been filed against respondent No.1. Hence, he prayed for dismissal of the appeal.
12. Learned counsel for respondent No.4 contended that the Tribunal has exonerated the liability against respondent No.4, who is the insurer of the vehicle on which the deceased was riding, therefore there cannot be any liability on the insurer of -8- NC: 2024:KHC:25131 MFA No. 3503 of 2022 the deceased vehicle. Hence, he prayed for dismissal of the appeal.
13. Having heard the learned counsel for the parties and perused the material on record, the question that arises for consideration is:
1. Whether the Tribunal has committed an error in not framing of proper issues based upon the pleadings and the judgment and award passed by it requires interference?
14. On perusal of the pleadings at para 3 of the petition, it is noticed that the petitioners have themselves stated in the claim petition that in order to avoid the huge pot hole, the vehicles dashed against each other and the deceased, the son of the petitioners died due to the contributory negligence of both the petitioners' son and respondent No.1. This aspect is not properly considered by the Tribunal while framing the issues. The records reveal that while framing the issues by the Tribunal, though issue No.3 was framed casting the burden on the insurance company - respondent No.3, insurer of the motor cycle on which the deceased was riding, in the impugned -9- NC: 2024:KHC:25131 MFA No. 3503 of 2022 judgment the said issue is not mentioned and only three issues are mentioned in para 12 of the judgment. The issue No.1 framed by the Tribunal is also not proper. The Tribunal has not framed any issue regarding contributory negligence both by the petitioners' son and respondent No.1. Further, though respondent No.1 has taken a specific contention that he is neither the owner nor the rider of the offending motor cycle, there is no issued framed by the Tribunal in this regard. Therefore, it is necessary for this Court to remand the matter back to the Tribunal for fresh disposal after framing necessary and proper issues as per the pleadings of the parties.
15. That apart, respondent Nos.1 and 3 though have filed statement of objections, they have not cross-examined PW.1 and they have also not placed any evidence or documents. Respondent No.1 has also not produced any document to show that he was not the owner of the offending motor cycle bearing No.KA-05-EJ-1296. Further, it is noticed that the charge sheet is filed against respondent No.1, who is the rider of the offending motor cycle and his mother has given statement before the police that his son was riding the motor cycle which belongs to one Ramesh. These aspects of the matter are not
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NC: 2024:KHC:25131 MFA No. 3503 of 2022 properly considered by the Tribunal. Therefore, I am of the view that the judgment and award passed by the Tribunal deserves to be set aside as there is no proper framing of issues and no findings are given on the aforesaid aspects of the matter.
16. In the result, the following order is passed:
ORDER
i) The appeal is allowed.
ii) The judgment and award of the
Tribunal is set aside.
iii) The matter is remitted back to the
Tribunal for framing of necessary and
proper issues.
iv) The Tribunal is directed to give
opportunity to the parties to lead
evidence and cross-examine the
witness based upon the pleadings and
produce the documents.
v) The Tribunal is directed to dispose
of the matter within six months from
the date of receipt of a copy of this
judgment.
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NC: 2024:KHC:25131
MFA No. 3503 of 2022
vi) The parties are directed to appear
before the Tribunal without any further notice on 25.7.2024.
The Registry is directed to send the records received by it to the Tribunal forthwith.
The Member Secretary, High Court Legal Services Committee is directed to pay the Honorarium of Rs.5,000/- to Ms. Rashmi M. Rao, learned Amicus Curiae, who has assisted the Court in this matter or to pay the amount fixed by the High Court Legal Services Committee, as per Rules, whichever is more".
Sd/-
JUDGE ND List No.: 1 Sl No.: 47