The Commandant vs Smt. Shakuntala And Ors
2021 Latest Caselaw 3575 Kant

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          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH
     DATED THIS THE 08TH DAY OF NOVEMBER-2021
                         PRESENT
         THE HON'BLE MR.JUSTICE R. DEVDAS
                            AND
 THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR

 MISCELLANEOUS FIRST APPEAL No.201450/2017 (MV)

BETWEEN:

1.     The Commandant, Indian Air Force
       Air Force Station, Bidar-585401.

2.     Ramnath Misra S/o Ramsiddhi Mirshra,
       Age: 55 years, Occ: MTO Officer,
       Air Force Station, Bidar.
                                              ... Appellants
(By Sri Sudhirsingh R.Vijapur, ASGI)

AND:
1.     Smt. Shakuntala W/o Late Kanth Prasad,
       Age: 40 years, Occ: Household,
       All Resident of Gowliwada Bidar-585401.
2.     Shilpa Kumari D/o Late Kanth Prasad,
       Age about 30 years, Occ: Student,
       Resident of Gowliwada, Bidar-585401.
3.     Praveen Kumar S/o Late Kanth Prasad,
       Dead by his LR's
       R1, 2, 4, 5 & 6 are already on record.
4.     Sudha Rani D/o Late Kanth Prasad,
       Age about 28 years, Occ: Student,
       Resident of Gowliwada, Bidar-585401.
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5.   Priyanka D/o Late Kanth Prasad,
     Age about 25 years, Occ: Student,
     Resident of Gowliwada, Bidar-585401.
6.   Satish S/o Late Kanth Prasad,
     Age: 20 years, Occ:
     Resident of Gowliwada, Bidar-585401.
                                     ..... Respondents
(By Sri.Sharanabasappa K.Babshetty, Advocate for R1,
R2 and R6;
By Sri. Sandeep Vijayakumar, Advocate for R4 & R5;
R1, R2, R4 to R6 are LRs of deceased R3 v/o dated
03.09.2019)

      This MFA is filed under Section 173(1) of the
Motor Vehicles Act, praying to call for the records and
set aside the judgment and award dated 06.12.2016
passed by the court of Principal District Judge and Prl.
MACT at Bidar in MVC No.109/2007 and pass such
other order or orders as this Hon'ble Court deems fit
under the facts and circumstances of the case including
the cost in the interest of justice and equity.

     This appeal coming on for hearing this day,
Rajendra Badamikar J., delivered the following:

                     JUDGMENT

This is an appeal filed by the appellants/ original

respondent against the judgment and award dated

06.12.2016 passed by the court of Principal District

Judge and Prl. MACT at Bidar, awarding compensation

of Rs.15,44,200/- to claimants/respondents herein with

interest at the rate of 6% per annum.

2. It is the case of the claimants that on

08.01.2007 the deceased Kantha Prasad was proceeding

on a bicycle on the left side of the road at about 6.00

p.m. near Classic Dhaba, Shivanagar Bidar and at that

time, the vehicle Swaraj Mazda bearing Registration

No.OOD/13436-Y belonging to the Indian Air Force

Bidar, came from behind and dashed against the

deceased. As a result, he fell down and sustained

injuries. Immediately, he was shifted to Government

Hospital Bidar, and later on shifted to Osmaniya

Hospital Hyderabad, wherein he succumbed to the

injuries. The claimant being the wife and children have

filed a claim petition under Section 166 of M.V.Act.

3. The petition was opposed by the respondents

on various grounds including liability and involvement

of vehicle in the accident.

4. The tribunal after appreciating the evidence,

awarded the compensation by allowing the petition

partly. Initially the matter has come up before this

court in MFA No.31726/2010 and this court by the

order dated 16.07.2015 has remanded the matter by

setting aside the award passed by the tribunal with a

specific direction that the claimants shall examine the

eyewitness. Initially, the tribunal has awarded

Rs.14,79,000/- with interest at the rate of 6% and after

remand the claimants have examined PW3 as an eye

witness who was subjected to cross examination. Then

the tribunal after re-appreciating the evidence has

awarded the compensation of Rs.15,44,200/- with

interest at the rate of 6%.

5. The appellants have challenged the award

mainly on the ground that liability could not be fastened

on the appellant. The main contention of the appellants

is that the deceased was under intoxication having

consumed alcohol and he fell on his own and suffered

injuries. They would dispute the liability and

involvement of their vehicle on account of actionable

negligence on the part of the driver of the offending

vehicle.

6. We have heard both the learned counsels in

this regard and perused the records of the tribunal.

7. The evidence of PW3 was recorded

subsequently after remand, wherein PW3 Md.Gouse

Pasha claims to be an eyewitness and he has

specifically deposed regarding rash and negligent act on

the part of the driver of the offending vehicle. Though

PW3 was cross examined at length, nothing has been

elicited so as to impeach his evidence except formal

denial. Hence, considering these aspects, the tribunal in

para 26 of its judgment has appreciated the oral and

documentary evidence afresh by passing the impugned

judgment and award.

8. The learned counsel for appellants would

contend that as he has produced certain documents

with I.A and therefore matter may be remanded to the

Tribunal. The learned counsel for the appellants would

also submit that documents are sought to be produced

along with an application to show that deceased was

under intoxicated state of mind. This aspect has been

considered by the tribunal in para 26 of the judgment

and elaborately discussed this aspect. Apart from that,

no cross-examination was made regarding the quantity

of alcohol and its impact when opportunity was afforded

to the appellants. They did not avail the opportunity to

summon the doctor and cross-examine him in detail.

Much water has already flown and hence question of

remand again does not arise to hold denova trial. Under

these circumstances, the evidence on record, clearly

establish the involvement of offending vehicle in the

accident as well as actionable negligence on the part of

driver of offending vehicle. The tribunal has appreciated

the evidence on record after remand and has rightly

fastened the liability on the appellants. We do not find

any just grounds to interfere with the order of the

tribunal and tribunal has awarded just compensation

which does not call for any interference. Hence, the

appeal is devoid of any merit and needs to be dismissed.

Accordingly, the appeal is dismissed.

The amount in deposit shall be transferred to the

tribunal.

The pending I.A.No.1/2021 also stands disposed

of.

Sd/-

JUDGE

Sd/-

JUDGE SMP/BL