Bashasab S/O Kalesab Tamboli vs Bangaremma W/O Bhimaraya ...
2021 Latest Caselaw 5259 Kant

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       IN THE HIGH COURT OF KARNATAKA
               KALABURAGI BENCH
    DATED THIS THE 02ND DAY OF DECEMBER, 2021
                     BEFORE
      THE HON'BLE MR.JUSTICE M.G.S.KAMAL
            MFA.No.31697/2013 (MV)
                     C/W
             MFA.NO.200520/2014

IN MFA.No.31697/2013

BETWEEN

1. NEELAMMA W/O PRABHU
   @PARAMANAND TADALAGI
   AGE: 27 YEARS, OCC:HOUSEHOLD WORK

2. POOJA D/O PRABHU
   @ PARAMANAND TADALAGI
   M/G BY APPELLANT NO.1

3. KAVERI D/O PRABHU
    @ PARAMANAND TADALAGI
    M/G BY APPELLANT NO.1

4. VAISHALI D/O PRABHU
    @ PARAMANAND TADALAGI
    M/G BY APPELLANT NO.1

5. MALLIKARJUN S/O PRABHU
   @ PARAMANAND TADALAGI
   M/G BY APPELLANT NO.1,
   ALL ARE R/O NEAR APMC GATE
   BIJAPUR ROAD SINDAGI
                                   ...APPELLANTS

(BY SRI SANGANAGOUDA V BIRADAR, ADVOCATE)
                          2




AND


1. GOPINATH S/O LINGANNA AMARAPUR
   AGE: 37 YEARS: OCC:BUSINESS,
   R/O SIDDESHWAR ENTERPRISES
   I.B.ROAD, DEODURG ROAD,
   TQ. DEODURGA,
   DIST. RAICHUR - 584 101

2. THE BRANCH MANAGER,
    SHRIRAM GEN.INS.CO.LTD.
    S-5 2ND FLOOR, MONARCH CHAMBERS
    INFANTORY ROAD,
    BANGALORE - 560 001

3. BASHASAB KALESAB TAMBOLI
   AGE: MAJOR, OCC: BUSINESS,
   R/O SINDAGI,
   DIST. BIJAPUR - 586 101

4. BANGAREMMA W/O BHIMARAYA TADALAGI
   AGE: 62 YEARS, OCC: NIL,
   R/O APMC GATE. BIJAPUR ROAD,
   SINDAGI - 586 101

                                  ....RESPONDENTS


(BY SMT. SANGEETA BHADRASHETTY, ADVOCATE FOR R2;
SRI BASAVARAJ R. MATH, ADVOCATE FOR R3:
NOTICE TO R1 & R4 ARE DISPENSED WITH
V/O. DATED 29/11/2017)


   MFA FILED U/S 173(1) OF MV ACT; TO SET ASIDE THE
JUDGMENT AND AWARD DT- 7.5.2013 PASSED IN MVC
NO- 853/2011 ON THE FILE OF THE I ADDITIONAL SENIOR
CIVIL JUDGE AND MOTOR ACCIDENT CLAIMS TRIBUNAL
                         3




NO.VI BIJAPUR, PARTLY ALLOWING THE CLAIM PETITION
AND SEEKING ENHANCEMENT OF COMPENSATION.


IN MFA.No.200520/2014
Between:


BASHASAB S/O KALESAB TAMBOLI
AGE 44 YEARS: OCC:BUSINESS
R/O SINDAGI
DIST.BIJAPUR - 586 128

                                      ...APPELLANT

(BY SRI BASAVARAJ R MATH, ADVOCATE)



AND


1 . BANGAREMMA W/O BHIMARAYA TADALAGI
    (DIED DURING PENDENCY OF APPEAL)

2 . NEELAMMA W/O PRABHU
    @ PARAMANAND TADALAGI
    AGE: 28 YEARS OCC:HOUSEHOLD WORK

3 . POOJA D/O PRABHU
    @ PARAMANAND TADALAGI
    AGE: 13 YEARS M/G BY RESPONDENT NO.2

4 . KAVERI D/O PRABHU
    @ PARAMANAND TADALAGI
    AGE: 11 YEARS: M/G BY RESPONDENT NO.2

5 . VAISHALI D/O PRABHU
    @ PARAMANAND TADALAGI
    AGE: 08 YEARS; M/G BY RESPONDENT NO.2
                         4




6 . MALLIKARJUN S/O PRABHU
    @ PARAMANAND TADALAGI
    AGE: 06 YEARS
    M/G BY RESPONDENT NO.2
    ALL ARE R/O NEAR APMC GATE
     BIJAPUR ROAD
    SINDAGI-586 128

7 . GOPINATH S/O LINGANNA AMARAPUR
    AGE 38 YEARS: OCC:BUSINESS
    R/O SIDRAMESHWAR ENTERPRISES
    I.B.ROAD DEODURGA TQ. DEODURGA
    DIST. RAICHUR - 584 139

8 . THE BRANCH MANAGER
    SHRIRAM GENERAL INSURANCE
    COMPANY LTD
    S-5 2ND FLOOR MONARCH CHAMBERS
    INFANTORY ROAD
    BANGALORE - 560 001

                                 ....RESPONDENTS


(BY SRI SANGANAGOUDA V BIRADAR, ADVOCATE FOR
R2-R6; SMT. SANGEETA BHADRASHETTY FOR R8;
R7-SERVED)

   MFA FILED U/S. 173(1) OF MV ACT, TO SET ASIDE
THE JUDGMENT AND AWARD DATED- 07.05.2013 PASSED
IN MVC NO- 853/2011 ON THE FILE OF IST ADDITIONAL
SENIOR CIVIL JUDGE AND MOTOR ACCIDENT CLAIMS
TRIBUNAL NO.VI BIJAPUR.


     THESE APPEALS COMING ON FOR ORDERS THIS
DAY, THE COURT DELIVERED THE FOLLOWING:-
                                5




                         JUDGMENT

MFA No.31697/2013 is filed by the claimants

whereas MFA.No.200520/2014 is filed by the owner of the

offending vehicle under Section 173(1) of the Motor

Vehicles Act, 1988 (for short 'M.V.Act') aggrieved by the

judgment and award dated 07/05/2013 passed in MVC

No.853/2011 on the file of Motor Accident Claims Tribunal

No.VI at Bijapur (for short 'Tribunal').

2. Facts leading up to filing of the present appeals

in brief are that, on 21.09.2009, at 3.30 a.m., near

Hadagali village on Bijapur-Sindhagi road, the deceased

was proceeding as a pillion rider on a motorcycle No.KA-

28/S-7237, which was being ridden by one Ashok from

Bijapur towards Sindhagi and rider of the motor cycle had

dashed to the Truck bearing Reg.No.AP/U-2388 which was

parked on the middle of the road, as a result, the deceased

succumbed to the injuries and died on the spot.

3. Thereupon, the claimants being the mother,

wife and children the deceased filed a claim petition under

Section 163(A) of the M.V.Act seeking compensation of

Rs.15,00,000/-.

appeared through their respective counsel and filed

separate written statement.

5. Respondent No.1-owner of the lorry in his

written statement contended that the petition was not

maintainable and also denied the mode and manner of

accident. It is contended that the vehicle was insured with

respondent No.2 and policy was in force as on the date of

accident. The compensation claimed by the claimants could

not be awarded as there was no fault or negligence on the

part of the Truck and that the accident had occurred solely

on account of negligent on the part of the rider of the

motor cycle. That the FIR and charge sheet have been

filed against the rider of the motorcycle. Hence, sought for

dismissal of the claim petition.

6. Respondent No.2-insurance company, in its

written statement denying the mode and manner of

accident contended that the owner of the motor cycle was

a proper and necessary party and that the rider of the

motorcycle was negligent to the extent of 95% in causing

the accident, by the rider of the motorcycle as the accident

had occurred due to negligent riding of the motorcycle by

its rider. Hence, sought for dismissal of the claim petition.

7. Respondent No.3-owner of the motorcycle, in

his written statement contended that he is a formal party

and the accident had occurred due to negligent act of the

Truck having been parked on the middle of the road

without any indication or lights and the negligence was

solely on the part of the driver of the Truck and as there is

no evidence against the rider of the bike with regard to

negligence. Hence, sought for dismissal of the claim

petition.

8. Based on the pleadings of the parties, the

Tribunal framed issues and recorded evidence. The

claimant No.2 being the wife of the deceased examined

herself as PW.1 and exhibited 5 documents marked as

Exs.P1 to P5. On the other hand, respondent No.1 has

been examined as RW.1 and 2 witnesses have been

examined as RW.2 and RW.3 and exhibited 4 documents

as Exs.R1 to 4.

9. On evaluation of evidence, the Tribunal held

that the death of the deceased was on account of the

accident involving motorcycle and the Truck on

21/09/2021 about 3.30 a.m, and consequently held that

the claimants are entitled for compensation of

Rs.4,22,500/-. However, with regard to liability is

concerned, the Tribunal had fixed the liability on the

appellant/owner of the motorcycle attributing the

negligence on the part of the rider of the motorcycle and

holding there is no negligent on the part of the Lorry.

Aggrieved by the same, the appellant/owner of the

motorcycle is before this Court in MFA.200520/2014

challenging the liability fixed on him and claimants are

before this Court in MFA.No.31697/2013 for enhancement

of compensation.

10. Learned counsel for the appellants/claimants in

MFA.31967/2013 has raised the following contentions.

a) That in the case of petition under Section

163(A) of the Act question of negligence

cannot be gone into.

b) He further submits that the Tribunal ought to

have fixed the liability on the insurer of the

Lorry. He further submits that provision of the

Motor Vehicles Act being social or beneficial

legislation and the claimants cannot be put to

hardship on the premise of negligence on the

part of the rider of the motor cycle or on the

part of the driver of the Truck.

c) He further submits that the claimant being a

third party he is entitled to claim compensation

either from the owner of the motorcycle or

from the insurer of the Truck. Hence, sought

for allowing the appeal.

11. Per contra, learned counsel for the

appellant/owner of the motorcycle in MFA.200520/2014

reiterating the grounds urged in the appeal submits that:

a) the Tribunal erred in fixing the liability of

payment of compensation on the owner of the

motor cycle without there being any evidence

or material on record regarding the negligence.

b) That admittedly the motorcycle ridden by

its rider had dashed from behind at 3.30 a.m.,

on 21/09/2009 resulting in the accident

causing death of the pillion rider. The Tribunal,

without appreciating the material evidence

placed on record had unjustly fixed the liability

on the appellant/owner of the motor cycle. He

relies on the judgment of the Apex Court in the

case of ARJIT SHINY VS. ORIENTAL

INSUANCE COMPANY LIMITED reported in

2018 (3) SCC 365.

12. On the other hand, learned counsel for the

insurance company submits that in view of conclusion

arrived at by the tribunal that the accident had occurred

due to negligence on the part of the rider of the

motorcycle on the basis of the FIR, complaint, charge

sheet having been filed against the rider of the motorcycle,

the Tribunal was justified in coming to the conclusion and

fixing the liability on the owner of the motorcycle same

does not warrant any interference.

13. On consideration of rival submissions of the

learned counsel points arise for consideration are.

"Whether the appellant/owner of motorcycle in MFA.No.200520/2014 has made out a case for interference?

2) Whether the claimants have made out a case for enhancement of compensation?

14. It is not in dispute that the accident had

occurred on 21/09/2009 at 3.00 a.m., involving the

motorcycle belonging to the appellant/owner and the Truck

belonging to the respondent No.1. The Truck was insured

with the respondent No.3. The claim petition was filed

under Section 163(A) of the Act by the claimants who are

appellants in MFA.No.31697/2013. Since the petition is

filed under Section 163(A) of the Act, there is no need for

the claimants to establish the negligence either on the part

of the rider of the motor cycle or on the part of the driver

of the Lorry.

15. However, as regards the owner of the

motorcycle and driver of the Lorry is concerned, both being

joint tortfeasors they need to work their remedy by

seeking determination of their inter se liability

independently. In the instant case, the Tribunal without

taking into consideration this aspect of the matter merely

relying upon the Complaint, FIR and Spot Panchanama has

come to the conclusion that the accident had occurred due

to usage of the two wheeler and that there was no

negligence on the part of the Lorry which was parked and

was not used for commission of the accident, therefore

exonerated the insurance company from payment of

compensation, this approach of the Tribunal inappropriate

and incorrect.

Section 122 and 126 of the Motor Vehicles Act, 1988

provides as under:

"122. Leaving vehicle in dangerous position.-No person in charge of a motor vehicle shall cause or allow the vehicle or any trailer to be abandoned or to remain at rest on any public place in such a position or in such a condition or in such circumstances as to cause or likely to cause danger, obstruction or undue inconvenience to other users of the public place or to the passengers.

Corresponding Law.-Section 122 corresponds to section 81 of the Motor Vehicles Act, 1939.

Objects and Reasons.- Clause 122 lays down that no motor vehicle should be left on the public road in a dangerous position or in such a manner so as to cause inconvenience to other road users or abandoned.

126. Stationary Vehicles.-No person driving or in charge of a motor vehicle shall cause

or allow the vehicle to remain stationary in any public place, unless there is in the driver's seat a person duly licensed to drive the vehicle or unless the mechanism has been stopped and a brake or brakes applied or such other measures taken as to ensure that the vehicle cannot accidentally be put in motion in the absence of the driver.

Corresponding Law.-Section 126 corresponds to section 84 of the motor vehicles Act, 1939.

Objects and Reasons.-Clause 126 lays down that no motor vehicle should remain stationary in a public place unless there is a licensed driver in the vehicle of where the engine has stopped running, proper precautionary methods have been taken to ensure that the vehicle will not move accidentally in the absence of the driver".

16. In the instant case, there is no dispute with

regard to Lorry being parked on the road and the

motorcycle hitting the lorry from behind. No material is

placed on record as to whether the lorry was parked by the

side of the road or middle of the road no evidence is made

available on record with regard to reason for the Lorry

having been parked either by the side of the road or

middle of the road. Negligence is a matter of fact. It has

to be proved by leading cogent evidence. It cannot be

inferred from the Complaint and FIR which are not

substantive piece of evidence. The Complaint and FIR can

only be used to corroborate the evidence. In view of the

provision under Sections 122 and 126 of the Act, placing

statutory liability and responsibility on the person in

charge of the motor vehicle not to abandon or remain

stationary in any public place without any justifiable cause

or taking precaution. The Tribunal has not adverted to this

issue and has given reasons at para-12 of the judgment to

the effect that "as per police records, statement of

witnesses, charge sheet, Truck bearing No.AP-13/U-2388

was parked on the side of road and was not parked on the

middle of the road it was not moved in this accident. It

was not used for commission of accident".

17. The accident had taken place at about 3.00

a.m., there is no eyewitnesses to the accident and no

material made available as to who was negligent in

causing the accident. In view of the aforesaid reasoning

and lack of material evidence, the findings of the Tribunal

affixing the liability on the 3rd respondent merely on the

basis of Complaint, FIR and Panchanama cannot be

sustained. Hence, point No.1 raised above is answered

accordingly.

18. As regards the quantum of compensation is

concerned, the petition is one under Section 163(A) of the

MV Act. The compensation payable is restricted as per the

schedule II of the MV Act. The tribunal has awarded

compensation considering the claim petition being one

under Section 163(A) same does not warrant any

interference.

It is contended that since the lorry was parked

and was not involved in the accident no negligence can be

attributed and the insurance company cannot be made

liable to pay the compensation, this aspect of the matter

need not be gone into in a petition under Section 163-A of

the M. V. Act as the said provision carves out an exception

and creates a special provision for seeking compensation

notwithstanding any contained in the other parts of the

act. Even as held by the Apex Court in the case of

Khenyei (Supra) and Full Bench judgment of this Court in

the case of Karnataka State Road Transport

Corporation (Supra), which is elaborately extracted at

paragraph No.14 of the judgment of the Division Bench of

this Court in MFA No.4854/2017 and connected matters,

which is extracted hereunder for the immediate perusal:

"14. In the circumstances, we hold that the Tribunal has erred in its approach to the adjudication of the claim petitions filed under Section 163A of the Act. More significantly, the Tribunal has answered issue No.1 in the negative and on that basis it has held that the claim petitions were not maintainable because the owner and insurer of the Maruthi Omni Van were not arrayed as parties in the claim petitions. The said approach of the Tribunal is also erroneous for the reason that in the case of composite negligence or involvement of more than one vehicle, where there are joint tortfeasors and where negligence would have to be apportioned and inter se liability has to be determined, impleadment of joint tortfeasors is not necessary. Even if a sole tortfeasor is impleaded, it is sufficient. Inter se liability of the tort feasors would have to be worked independently. In this regard, it would be useful to refer to paragraph No.22 of the judgment of the Hon'ble Supreme Court in Khenyei's case which is extracted as under. In the said judgment, the Hon'ble Supreme Court has approved the Full Bench judgment in the KSRTC vs. Arun [AIR 2004 Kar. 149].

"22. What emerges from the aforesaid discussion is as follows :

22.1. In the case of composite negligence, plaintiff/claimant is entitled to sue both or any one of the joint tortfeasors and to recover the entire

compensation as liability of joint tortfeasors is joint and several.

22.2. In the case of composite negligence, apportionment of compensation between two tortfeasors vis-à-vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them.

22.3. In case all the joint tortfeasors have been impleaded and evidence is sufficient, it is open to the court/Tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tortfeasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/ extent of their negligence has been determined by the court/Tribunal, in main case one joint tortfeasor can recover the amount from the other in the execution proceedings.

22.4. It would not be appropriate for the court/Tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tortfeasors. In such a case, impleaded joint tortfeasor should be left, in case he so desires, to sue the other joint tortfeasor in independent proceedings after passing of the decree or award."

19. In the instant case, the accident had occurred

involving the lorry and the motorcycle. The lorry was

insured with respondent No.2. The tribunal has exonerated

the respondent No.1 and insurance company from paying

the compensation on the premise of the negligence on the

part of appellant/owner of the motorcycle. In view of the

aforesaid law laid down by the Apex Court the

appellants/claimants are entitled to recover the

compensation from either of the joint tortfeasor namely,

the owner of the lorry or the owner of the motorcycle.

Since, by this order it is held that the determination of

negligence and entitlement is to be made between the

owner of lorry and the owner of the motorcycle and upon

such determination the respondent No.2 would be entitled

to recover the amount from the respondent No.3. It is just

and proper that respondent No.2 insurance company be

directed to pay the compensation amount to the

appellants/claimants at the first instance and recover the

same from the appellant/owner of the motorcycle who is

respondent No.3 before the tribunal, upon determination of

their inter se liability.

20. In the circumstances, it is just and proper that

the matter be remitted to the Tribunal for determination

and assessment of negligence on the part of the owner of

the lorry namely the respondent No.1 and owner of the

motorcycle namely respondent No.3 and thereafter fix the

liability. Hence, the following.

ORDER

1. The appeal in MFA.No.200520/2014 is

allowed. The matter is remitted to the Tribunal

only for the purpose of determination of extent

of negligence on the part of respondent Nos.1

and 3. The Tribunal is hereby directed to

dispose of the matter by providing an

opportunity to both the parties to lead their

additional evidence in support of their case

within six months from the date of receipt of

copy of this judgment.

2. As regards payment of compensation to

the appellants/claimants in

MFA.No.31697/2013 is concerned, the

respondent No.2-insurance company is

directed to pay the compensation to the

claimants at the first instance with liberty to

recover the same if it is found that respondent

No.3 was negligence in causing the accident.

3. The judgment and award dated 07/05/2013

passed in MVC.No.853/2011 is modified to the

above extent.

4. Since the parties are appeared through

their counsel are directed to appear before the

Tribunal on 10/01/2022 without further notice.

Sd/-

JUDGE

Srt/Mkm