Sri.Basavalingappa @ Basava vs Mallesh And Ors
2022 Latest Caselaw 2434 Kant

            IN THE HIGH COURT OF KARNATAKA

                     KALABURAGI BENCH

       DATED THIS THE 15TH DAY OF FEBRUARY 2022

                           PRESENT

     THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

                              AND

       THE HON'BLE MR. JUSTICE V. SHRISHANANDA

                 M.F.A. NO.202059/2017 (MV)

BETWEEN:

Sri Basavalingappa @ Basava S/o Nirupadappa,
Age : 23 years, Occ : Agriculture & Coolie,
Milk Vending and Sheep rearing,
R/o Sultanpur village, Tq. Sindhanur,
Dist : Raichur.
                                               ... Appellant

(By Sri Babu H.Metagudda, Advocate)

AND:

1. Mallesh S/o Kenchegouda,
   Age : 40 years, Occ : Driver of Lorry
   No.KA-25/B-7110,
   R/o Hosagudadahalli,
   Tq. & Dist : Bangalore.

2. R.Sarathi S/o Late R.Raju,
   Age : 65 years, Gollar owner of
   lorry No.KA-25/B-7110,
                                 2




   R/o 141, 7th Main, Singasandra,
   G.B.Palya,
   Office Address :
   Sri Sapthagiri Balaji Transport No.1,
   New Taragpet, Bangalore.

3. The Manager,
   Reliance Gen. Insurance Co.Ltd.,
   V.A.Kalaburgi Square, 3rd Floor,
   Deshpandenagar, Hubli.
                                                    ... Respondents

(By Sri Subhash Mallapur, Advocate for R3,
Notice to R1 dispensed with vide order dated 11.03.2020,
R2 served)

      This Miscellaneous First Appeal is filed under
Section 173(1) of the M.V.Act, praying to allow this appeal and
set aside the judgment and award dated 17.08.2017 passed in
M.V.C.No.70/2014 by the Senior Civil Judge and JMFC at
Sindhanur and award the compensation of `16,00,000/- with
12% interest.

     This appeal coming on for Admission this day, V.
Shrishanand J., delivered the following:

                          JUDGMENT

The present appeal is filed by the claimant challenging the

order passed by the learned Senior Civil Judge & JMFC,

Sindhanur in MVC No.70/2014 dated 17.08.2017, whereby the

claim petition came to be dismissed.

2. Brief facts of the case are as under:

A claim petition came to be filed contending that on

09.03.2013 at about 10.45 p.m., the claimant and others were

proceeding in a tractor and trailer unit from Sultanapur Village to

Kyarihal Village, Gangavathi. At that juncture, a lorry bearing

No.KA-25/B-7110 came in a rash and negligent manner and

dashed against the tractor and trailer unit, whereby the persons

who were traveling in the tractor and trailer unit fell down and

sustained grievous injuries. The present claimant has also

sustained grievous injury. As per the wound certificate produced

and marked as Ex.P6 before the Trial Court, the claimant has

sustained injury on the left leg and therefore, there is a

amputation below the knee of the left leg.

3. After completion of the pleadings, the Tribunal

raised following issues:

i. "Whether the petitioners prove that on 09.3.13 at about 10.45 p.m. while traveling in tractor and trailer, bearing registered No.KA-36/TA-9703 and KA-36/T-4450, from Sultanpur village to Kyarihal village, Gangavathi tq., and when the said tractor while passing on Sindhanur-Gangavathi main road near Hosalli Camp, the respondent No.1 being the driver of lorry i.e., offending vehicle driven the said vehicle in a rash and negligent

manner and dashed the said tractor from hind portion and thereby caused grievous injuries the claimant?

ii. Whether the respondent No.3 proves that the vehicle involved in the alleged accident was not validly insured?

iii. Whether the respondent No.3 further proves that the petition is not maintainable for not making the owner and insurer of the tractor and trailer bearing No.KA-36/TA-9703 and KA-36/T-4450?

iv. Whether the petitioner is entitled to the compensation claimed? If so, for what quantum and from whom?

v. What order or award?

4. After considering the material evidence on record,

the Tribunal answered issue No.1 against the owner of the lorry;

issue No.2 was held against the Insurance Company; issue No.3

was held in favour of the claimant; and issue No.4 was held

against the claimant on the ground that the petitioner/appellant

failed to implead the owner, driver and insurer of the tractor and

trailer and dismissed the claim petition.

5. Heard Sri Babu H. Metagudda, learned counsel

appearing for the appellant and Sri. Subhash Mallapur, learned

counsel for respondent No.3 - Insurance Company.

6. It is now settled principles of law that the owner of

the tractor and trailer unit was not a necessary party before the

Tribunal for maintaining the claim against the offending vehicle

i.e., the lorry bearing No.KA-25/B-7110, which has duly insured

as on the date of accident. The said aspect of the matter has not

been properly appreciated by the Tribunal. Further, since there is

no discussion on the quantum of compensation in the impugned

judgment, It is necessary that the matter be remanded for the

purpose of assessing the proper quantum of compensation in

view of the oral and documentary evidence placed on record.

The Insurance Company would also have a right to address its

arguments on the question of quantum of compensation.

Accordingly, a case is made out for re-consideration. Hence, we

pass the following:

ORDER

i. The appeal is allowed.

ii. The impugned judgment passed in MVC No.70/2014 dated 17.08.2017, on the file of the Senior Civil Judge and JMFC, Sindhanur is hereby set aside. The matter is remitted to the Tribunal for further consideration in accordance with law in the light of the observations made in the present appeal.

Having regard to the age of the claim petition, the Tribunal

shall bestow its best attention to dispose of the matter on or

before 31.08.2022. Needless to emphasize that the parties shall

co-operative for the same.

Sd/-

JUDGE

Sd/-

JUDGE

KA