P.Santhosh Kumar vs Ramesh Shivappa Sontakke
2022 Latest Caselaw 2044 Kant

                                               M.F.A.102330/2015
                                           C/W M.F.A.102328/2015



           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

      DATED THIS THE 9 T H DAY OF FEBRUARY, 2022

                               BEFORE

   THE HON'BLE MR.JUSTICE S.VISHWAJITH SHETTY

               M.F.A.No.102330/2015
           c/w M.F.A.No .102328/2015 (MV)

BETWEEN:

P.Santhosh Kumar
S/o M.Pap anna
Aged about 28 years
R/o 31 s t Cross, 5 t h Main
Nanjamb a Ag rahar
Chamaraj Peth
Beng aluru.                              .. APPELLANT
                                (COMMON IN BOTH APPEALS)
(By Sri.Ravi Heg de, Adv.)

AND

   1. Kumar Ramesh Shivappa Sontakke
      Age: 17 years, Occ: Student
      R/o 10/1078, Vardhaman Chouk
      Raj Rajeshwari Nagar
      Ichalkaranji
      Tq: Hatakanagale, Dist: Kolhapur

   2. Kumar Bhima Shivappa Sontakke
      Age: 15 years, Occ: Student
      R/o 10/1078, Vardhaman Chouk
      Raj Rajeshwari Nagar
      Ichalkaranji
      Tq: Hatakanagale, Dist: Kolhapur

   3. Kumar Raghu Shivappa Sontakke
      Age: 13 years, Occ: Student
                                2               M.F.A.102330/2015
                                           C/W M.F.A.102328/2015



     R/o 10/1078, Vardhaman Chouk
     Raj Rajeshwari Nagar
     Ichalkaranji
     Tq: Hatakanagale, Dist: Kolhapur

     Respondent Nos.1 to 3 being minors
     Represented by M/G uncle Babu
     Ramachandra Kemparoji @ Sonakakke
     Age: Major, Occ: Hamal
     R/o 10/1078, Vardhaman Chouk
     Raj Rajeshwari Nagar
     Ichalkaranji
     Tq: Hatakanagale, Dist: Kolhapur

  4. The Divisional Manager
     The Oriental Insurance Co.Ltd.
     D.O.Madiwale Arcade, Club Road
     Belagavi
     (Insured at DO 10/213-217
     Nagaprabha Chambers
     III Main, IV Cross
     Chamarajpet, Bangalore)         .. RESPONDENTS
                            (COMMON IN BOTH APPEALS)

(By Sri.Vishwanath Badiger, Adv. for C/R-1 to 3;
 Smt.Aruna Deshpande, Adv. for R-4)

                            ****

       THESE MISC.FIRST APPEALS ARE FILED U/S.173 (1) OF MOTOR
VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED
02.05.2015 PASSED IN MVC NO.226/2014 AND 225/2014
RESPECTIVELY ON THE FILE OF THE IX ADDITIONAL DISTRICT AND
SESSIONS JUDGE AND MEMBER, ADDITIONAL MOTOR ACCIDENT
CLAIMS TRIBUNAL, BELAGAVI, AWARDING COMPENSATION OF
`12,09,000/- AND `10,41,000/- RESPECTIVELY ALONG WITH
INTEREST AT THE RATE OF 9% P.A. FROM THE DATE OF PETITION
TILL ITS REALIZATION.

     THESE APPEA LS COMING ON F OR ORDERS, THIS DAY
THE COU RT DELIVERED THE FOLL OWING:
                                  3                  M.F.A.102330/2015
                                                C/W M.F.A.102328/2015



                        J U D G M E N T

These two appeals arise out of the common

judgment and award dated 2 n d May 2015 passed by

the Additional M.A.C.T., Belagavi, in

M.V.C.Nos.226/2014 and 225/2014 and therefore,

both the appeals are heard together and disposed of

by a common judgment.

2. Though these appeals are listed for orders,

with the consent of the learned counsel appearing for

the parties, the appeals are taken up for final

disposal.

3. The parties to these appeals are referred to

by their rankings before the Tribunal for the sake of

convenience.

4. The relevant facts of the case as revealed

from the records are:

The claimants are the children of deceased

Shivappa Sontakke and deceased Kusuma Sontakke,

who had died in a road traffic accident that had taken 4 M.F.A.102330/2015 C/W M.F.A.102328/2015

place on 11.01.2014. It is the case of the claimants

that on 11.01.2014 when their parents were traveling

in a motor cycle bearing registration No.MH-10/X-

3125 from Ichalkaranji towards Vakkund village of

Bailhongal Taluk, the offending Truck bearing

registration No.KA-01/AA-5449, which was driven in

a rash and negligent manner by its driver, dashed

against the motor cycle from its rear side and

thereby caused the accident. In the said accident,

the rider as well as the pillion rider of the motor

cycle, who were the parents of the claimants, had

sustained grievous injuries and they succumbed to

the same at the spot. It is in this background, the

claimants, who were minors at the time of filing the

claim petition, had approached the Tribunal under

Section 166 of the Motor Vehicles Act, 1988 and filed

M.V.C.Nos.225/2014 and 226/2014 claiming

compensation in respect of the death of their father

Shivappa Sontakke and mother Kusuma Sontakke.

The said claim petitions were partly allowed by the

Tribunal. The Tribunal had held the rider of the 5 M.F.A.102330/2015 C/W M.F.A.102328/2015

motor cycle guilty of contributory negligence and

saddled 25% liability on him and 75% of the

compensation amount was directed to be paid by the

owner of the offending vehicle. The Tribunal had

exonerated the insurer of the offending vehicle on

the ground that the driver of the offending vehicle

did not have a valid and effective driving licence as

on the date of the accident. Being aggrieved by the

said judgment and award, the owner of the offending

vehicle is before this court challenging the same on

the ground of quantum of compensation as well as on

liability.

5. Learned counsel for the appellant/owner of

the offending vehicle submits that the offending

vehicle was driven by one Ramesh at the time of

accident and this is evident from the complaint and

FIR lodged immediately after the accident in

question. He submits that the eye-witnesses to the

accident have also stated that it was said Ramesh,

who was driving the offending vehicle as on the date 6 M.F.A.102330/2015 C/W M.F.A.102328/2015

of accident. However, without there being any basis,

the Police had filed a charge sheet as against the

complainant and the owner of the offending truck,

though there was absolutely no material to implicate

them as accused. He submits that in the criminal

case, the complainant, who was tried as an accused,

has been acquitted and none of the prosecution

witnesses have supported the prosecution nor have

they identified the accused. He submits that even

the Police witnesses, who were examined before the

criminal court, had not identified the accused as the

driver of the offending vehicle. He further submits

that the driver Ramesh, who was driving the

offending vehicle as on the date of accident, had a

valid driving licence and he has produced the same

along with an application before this court as

additional evidence.

6. Per contra, learned counsel appearing for the

insurer of the offending vehicle submits that the

insurer has been exonerated by the Tribunal on the 7 M.F.A.102330/2015 C/W M.F.A.102328/2015

ground that the driver of the offending vehicle, who

was charge-sheeted, did not possess a valid driving

licence as on the date of the accident. She further

submits that for the first time it is submitted before

this court that the offending truck was driven by one

Ramesh as on the date of accident and it is for the

first time, they have produced the driving licence of

said Ramesh before this court. She submits that

though the insurer had repeatedly issued notices to

the owner of the offending vehicle, he had not turned

up and he had not produced the driving licence of the

driver of the offending vehicle and therefore, no error

can be found in the judgment and award passed by

the Tribunal.

7. Learned counsel appearing for the claimants

submits that the accident is of the year 2014 and the

claimants, who have lost their parents in the

accident, have not received any compensation till

date. He submits that it is because of the default of

the owner of the offending truck, who did not appear 8 M.F.A.102330/2015 C/W M.F.A.102328/2015

before the tribunal, the relevant material was not

placed before the Tribunal and for the said reason,

the claimants cannot be put to hardship. He submits

that even if the matter is to be remitted to the

Tribunal, a time frame may be given to the Tribunal

to dispose of the claim petitions.

8. I have carefully considered the rival

arguments addressed on both sides and also perused

the material available on record.

9. The undisputed facts of the case are, on

11.01.2014, the parents of the claimants, who were

traveling in a motor cycle bearing registration

No.MH-10/X-3125, had met with a road traffic

accident involving the offending truck bearing

registration No.KA-01/AA-5449, which had dashed

against the motor cycle from rear side and caused

the accident and in the said accident, the parents of

the claimants had died on the spot. It is also not in

dispute that the offending truck was duly insured 9 M.F.A.102330/2015 C/W M.F.A.102328/2015

with the second respondent/insurer and the said

insurance policy was valid as on the date of accident.

10. The material on record would go to show

that the accident had taken place at about 19:15

hours and immediately thereafterwards at about

21:00 hours, a Police complaint was lodged by one

Bhairegouda, who was said to be the cleaner of the

offending truck. In the complaint itself, which was

lodged immediately after the accident, the

complainant had stated that the offending truck was

driven by its driver Ramesh and because of his rash

and negligent driving, the accident was caused. He

has also stated that immediately after the accident,

the driver stopped the vehicle and fled the scene.

The people, who had gathered in the spot

immediately after the accident, had apprehended the

complainant, who was said to be a cleaner in the

vehicle and thereafterwards he was taken to the

Police Station and before the Police, he has given the

statement to the effect that it was Ramesh, who was 10 M.F.A.102330/2015 C/W M.F.A.102328/2015

driving the vehicle in question. The Police during the

course of investigation have recorded the statement

of the eye-witnesses. None of the witnesses, who

have been examined before the Police, have said that

it was the complainant, who was driving the vehicle

in question and on the other hand, the material on

record would go to show that the charge sheet

witnesses have also stated that it was Ramesh, who

was driving the vehicle as on the date of accident.

However, the Police, for the reasons best known to

them, have filed a charge sheet against the

complainant Bhairegouda, the owner of the offending

truck and also his father. The complainant

Bhairegouda, who was subsequently arrayed as

accused by the Police along with other two accused,

was tried before the jurisdictional Magistrate for the

offences alleged against him in the charge sheet in

C.C.No.84/2015 and the learned Magistrate vide his

judgment and order dated 30 t h September 2015 has

acquitted all the three accused in the said case. In 11 M.F.A.102330/2015 C/W M.F.A.102328/2015

paragraphs-9 and 10 of the said judgment, the

learned Magistrate has observed as follows:

"9. PW-1 to 4 have deposed that they have not seen the driver of the truck which caused accident. They have further deposed that they does not know who is the owner of the said truck. They have further deposed that they have not seen who is driving the truck. It is pertinent to note that none of the witnesses witnessed that accused No.1 drove the vehicle at the time of incident. Therefore, though the prosecution has established the accident, it has failed to establish that accused No.1 has caused the accident without having valid licence, drove the vehicle dangerously and by rash and negligent manner.

10. The allegation against accused Nos.2 is that he allowed accused No.1 to use the vehicle without holding driving licence. While discussing in the previous paragraph, I have already observed that prosecution has failed to prove that accused No.1 was the driver of the truck. Hence, this allegation cannot be attributed against the accused No.2. The official witnesses have merely deposed about the occurrence and not about the involvement of accused. There is nothing on record to show that accused have given false information to the Investigating Officer with regard to the accident. Hence, prosecution has failed to establish the guilt of the accused. Accordingly, I answer points Nos.1 to 6 in the negative."

12 M.F.A.102330/2015 C/W M.F.A.102328/2015

11. It is the specific case of the appellant/owner

of the offending vehicle that the offending truck was

driven by one Ramesh at the time of accident and he

held valid and effective driving licence to drive the

truck as on the date of accident. Learned counsel for

the appellant has produced the copy the licence of

said Ramesh before this court along with the

application under Order XLI Rule 27 of CPC. A

perusal of the same would go to show that the said

Ramesh who is said to be the driver of the offending

vehicle at the time of accident was holding a valid

and effective driving licence as on the date of

accident. The Tribunal has saddled the liability to

pay compensation on the owner of the vehicle only on

the ground that he had failed to prove that the driver

of the offending vehicle had a valid and effective

driving licence as on the date of the accident.

12. From the reading of the entire charge sheet

material it is seen that there is absolutely no

material as against the accused, who were charge-

13 M.F.A.102330/2015 C/W M.F.A.102328/2015

sheeted for the alleged offences and on the other

hand, the averments made in the complaint and the

statement of the charge sheet witnesses would go to

show that it was Ramesh, who was driving the vehicle

in question.

13. Under the circumstances, I am of the

considered view that opportunity is required to be

given to the owner of the offending truck before the

Tribunal to prove that the offending truck was driven

by Ramesh at the time of accident and not by

Bhairegouda who was charge sheeted by the Police.

If such an opportunity is denied, the owner of the

offending truck on whom the liability to pay huge

compensation amount is saddled, will be put to

untold hardship and injury. On the other hand, the

comparative hardship would be much less.

14. Learned counsel for the appellant/owner of

the vehicle has also contended that the compensation

awarded to the claimants is on the higher side. Since

the matter is being remanded to the Tribunal for the 14 M.F.A.102330/2015 C/W M.F.A.102328/2015

purpose of providing an opportunity to the owner of

the offending truck to prove that the offending truck

was driven by Ramesh as on the date of accident and

the said driver was holding a valid and effective

driving licence as on the date of accident, I am of the

considered view that it is not necessary for this court

to re-assess the compensation amount awarded to

the claimants and it is suffice if the judgment and

award passed by the Tribunal is set aside in its

entirety and the matter is remitted to the Tribunal to

consider the claim petition afresh within a time frame

after affording opportunities to all the parties to file

additional statement, if any and also to lead

additional evidence in support of their case.

However, having regard to the fact that though the

owner was served before the Tribunal, he had not

participated in the proceedings and therefore, the

Tribunal had placed him exparte and passed the

impugned judgment and award, which is now

challenged by him, I am of the considered view that

an appropriate cost is required to be saddled on him 15 M.F.A.102330/2015 C/W M.F.A.102328/2015

so as to meet the hardship faced by the claimants.

Accordingly, the following order:

The Miscellaneous first appeal is allowed. The

judgment and award dated 2 n d May 2015 passed by

the Additional M.A.C.T., Belagavi, in

M.V.C.Nos.225/2014 and 226/2014, is set aside and

the matter is remitted to the Tribunal with a direction

to dispose of the claim petitions afresh subject to the

observations made hereinabove, as expeditiously as

possible, but not later than a period of six months

from the date of receipt of a certified copy of this

order.

The appellant/owner is directed to pay a cost of

`25,000/- to the claimants before the Tribunal and it

is only on payment of such cost, the Tribunal shall

permit him to participate in the proceedings.

The amount in deposit is directed to be refunded

to the appellant.

16 M.F.A.102330/2015 C/W M.F.A.102328/2015

The Registry is directed to transmit the original

records to the Tribunal forthwith.

In view of disposal of the appeal, the pending

I.As. do not survive for consideration. Hence, they

stand disposed of.

Sd/-

JUDGE

KNM/-