Karnataka High Court
Chandrappa And Ors vs Rahul And Anr on 10 February, 2022
Bench: S.R.Krishna Kumar, K S Hemalekha
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 10TH DAY OF FEBRUARY-2022
PRESENT
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
AND
THE HON'BLE MRS. JUSTICE K.S.HEMALEKHA
MFA NO.202415/2018 (MV)
BETWEEN:
1. Chandrappa S/o Sababba Siraganoor,
Age: 57 years, Occ: Private Service,
2. Arunakumar Chandrappa Siraganoor,
Age: 29 years, Occ: Student,
3. Astshila D/o Chandrappa Siraganoor,
Age: 26 years, Occ: Student,
All are R/o. Joshi Nagar, Bhalki, Dist: Bidar
Now R/o. H.No.1-945/106/138, CIB Colony,
M.S.K.Mill Road, Behind Central Bus stand,
Kalaburagi-585 101.
4. Arvind Kumar S/o Chandrappa Siraganoor,
Age: 36 years, Occ: Pvt. Service,
R/o. Bhalki, Now R/o H.No.1-945/106/138,
CIB Colony, M.S.K. Mill road,
Kalaburagi-585 101.
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5. Amith Kumar S/o Chandrappa Siraganoor,
Age: 31 years, Occ: Pvt. Service,
R/o. Bhalki, Now R/o H.No.1-945/106/138,
CIB Colony, M.S.K. Mill Road,
Kalaburagi-585 101.
6. Anand S/o Chandrappa Siraganoor,
Age: 40 years, Occ: Pvt. Service,
R/o. Bhalki, Now R/o. H.No.1-945/106/138,
CIB Colony, M.S.K. Mill road,
Kalaburagi-585 101.
... Appellants
(By Sri. Babu H. Metagudda, Advocate)
AND:
1. Rahul S/o Buddanand,
Age: 51 years, Occ: owner of Bajaj Auto
No.KA-39/9216, N-2862,
R/o. Siddarth Colony, Bhalki,
Dist: Bidar-584 101.
2. The Branch Manager,
Bharati AXA General Insurance Co. Ltd,
Ground floor, STBT Dargah Road,
Santrashwadi, Kalaburagi-585 101.
... Respondents
(Sri. Subhash Mallapur, Advocate for R2;
R1 - served)
This Miscellaneous First Appeal is filed under Section
173 (1) of the Motor Vehicles Act, praying to allow this
appeal and set aside the judgment and award dated
31.10.2018 passed in MVC No.355/2017 by the Prl. Senior
Civil Judge and MACT at Kalaburagi and award the
compensation of Rs.23,00,000/- with 12% interest and
etc.
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This appeal coming on for final hearing this day,
K.S. Hemalekha J., delivered the following:
JUDGMENT
The claimants have preferred this appeal assailing
the judgment and award dated 31.10.2018 passed in
MVC.No.355/2017 by the Principal Senior Civil Judge &
MACT, Kalaburagi (hereinafter referred to as "the Tribunal"
for short), whereby the claim petition was dismissed.
2. The claimants' petition under Section 166 of
the Motor Vehicles Act, 1988 ("the Act" for short) seeking
compensation of Rs.23,00,000/-, on account of death of
one Radhabai, wife of Chandrappa Sirgannur, who was
said to be proceeding in an Auto rickshaw bearing
registration No.KA-39/9216 on 05.04.2015 and at about
8.30 p.m., on Bhalki-Humnabad road near Dhadagi Bridge,
Bhalki Taluk, Bidar District. The driver of the auto-rickshaw
was driving the auto in a rash and negligent manner and
another lorry which came from the opposite direction also
was driven in a rash and negligent manner, whereby the
accident occurred and the deceased succumbed to the
injuries on spot. It is contended that the deceased was
hale and healthy at the time of accident and was earning
Rs.9,000/- per month.
3. In pursuance to the notice issued by the
Tribunal, respondents appeared and filed their objections.
4. Respondent No.1, who is the owner of auto
bearing registration No.KA-39/9216 denied that the
accident occurred due to the rash and negligent driving of
the driver of the auto bearing registration No.KA-39/9216
and the compensation sought by the claimants is
exorbitant and the policy was in force as on the date of the
accident.
5. Inter alia, respondent No.2-insurance company
denied that the accident occurred due to the rash and
negligent driving of the driver of the offending vehicle due
to which the deceased succumbed to the injuries sustained
by him. It is contended that on the date of the accident,
the policy was not in force.
6. On the basis of the pleadings, the Tribunal
framed the following issues:
ISSUES
1. Whether the petitioners prove that, on
05.04.2015 at about 8.30 p.m. on Bhalki-
Humnabad road, near Dadagi bridge Tq.
Bhalki Dist. Bidar, the deceased Radhabai
W/o Chandrappa Siraganoor met with an
accident and died due to the rash and
negligent driving by the driver of the Auto
bearing Reg.No.KA-19/9216?
2. Whether the petitioners prove that they
are entitled for the compensation? If so,
how much and from whom?
3. What order or award?
ADDL. ISSUES
1. Whether the 2nd respondent proves that
the drier of the offending Auto had no valid
and effective driving licence on the date of
accident?
2. Whether the 2nd respondent proves that
the offending Auto had no valid permit
registration and fitness certificate on the
date of accident?
7. The Tribunal, on the basis of the pleadings,
evidence and material on record, held that the claimants
failed to prove that the accident occurred due to the rash
and negligent driving of the auto bearing registration
No.KA-39/9216 and dismissed the claim petition.
Aggrieved by the dismissal of the claim petition, the
claimants are in appeal.
8. Heard learned counsel for the appellants and
learned counsel for respondent No.2-insurance company.
9. Sri Babu H. Metagudda, learned counsel
appearing for the appellants/claimants would contend that
the matter requires reconsideration by the Tribunal on the
ground that the Tribunal fell in error in coming to a
conclusion that there is no sufficient evidence on record to
hold that whether the accident occurred due to composite
and contributory negligence on the part of the driver of the
auto, without considering the specific contention of the
claimants that the accident occurred due to the composite
negligence on the part of the auto driver and on the part of
the driver of the lorry. Thus, the reasoning of the Tribunal
that whether it is composite or contributory negligence is
not evidenced by the material on record is contrary to the
pleadings of the parties.
10. Per contra, learned counsel for respondent
No.2/insurance company would contend that the dismissal
of the claim petition by the Tribunal on the basis of issue
Nos.1 and 2 and additional issue No.2 framed by the
Tribunal is just and proper and does not require any
interference.
11. Having heard learned counsel for the parties
and having considered the rival contentions of the parties,
the registration of criminal case in respect of the accident
is not in dispute. It is the case of the claimants that they
have pleaded composite negligence on the part of the
driver of the auto and the driver of the lorry. Exs.P-1 to
P-6 are the documents produced by the claimants to show
that there was composite negligence on the part of the
driver of the auto bearing registration No.KA-39/9216 and
the driver of the lorry. The Tribunal though framed an
issue that whether the accident occurred due to the rash
and negligent driving of the driver of the auto bearing
registration No.KA-39/9216, while answering this issue,
the Tribunal fell in error in holding that the offending
vehicle i.e., lorry is not traceable as per the police record
and on such an assumption, the Tribunal dismissed the
claim petition.
12. "Composite negligence" refers to the
negligence on the part of two or more persons where a
person is injured as a result of negligence on the part of
two or more wrong doers, it is said that the person was
injured on account of composite negligence of the wrong
doers. In the present case, the accident involved two
vehicles and the third party is not the driver or the owner
of the vehicle involved in the accident and claimed
damages for the loss, injuries. Thus, the compensation
sought by the claimant is in respect of composite
negligence on the part of the drivers of the vehicles. Thus,
the Tribunal fell in error in holding that there is no
sufficient evidence on record to hold whether it is
composite and contributory negligence on the part of the
driver of the auto. In our considered view, the dismissal of
the claim petition on the ground that there is no evidence
to show whether it is composite and contributory
negligence is not sustainable and the matter requires
reconsideration by the Tribunal.
13. Keeping the settled proposition of law in the
case of composite and contributory negligence, the matter
is remanded to the Tribunal for reconsideration keeping
open all the contentions of the parties. The Tribunal to
consider the claim petition afresh on the basis of the
pleadings, evidence and material on record in accordance
with law.
14. In the result, we pass the following:
ORDER
(i) Appeal is allowed.
(ii) The impugned judgment and award dated
31.10.2018 passed in MVC.No.355/2017 is
hereby set aside.
(iii) The matter is remanded to the Tribunal for
fresh consideration in accordance with law.
(iv) The parties are directed to appear before the
Tribunal on 08.03.2022 without expecting any
notice from the Tribunal.
(v) The Tribunal is directed to reconsider the
matter after affording sufficient opportunity to
both the parties to lead their evidence, if any
on behalf of the claimants and on behalf of the
respondents in accordance with law.
(vi) Registry is directed to send back the trial Court
records forthwith.
(vii) No order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
SMP/LG
