Smt. Hanumanthamma vs The Branch Manager
2022 Latest Caselaw 12354 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 12TH DAY OF OCTOBER, 2022

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

                 M.F.A.NO.1133/2013 (MV)

BETWEEN:

1.     SMT. HANUMANTHAMMA
       W/O. LATE RAMAPPA
       AGED ABOUT 83 YEARS

2.     SMT. SHAMANTHALAKSHMI P.R.
       W/O. VRUSHABENDRAPPA
       AGED ABOUT 52 YEARS

3.     THANJU
       D/O. VRUSHABENDRAPPA
       AGED ABOUT 34 YEARS

4.     PREMKUMAR
       S/O. VRUSHABENDRAPPA
       AGED ABOUT 34 YEARS

       ALL ARE R/AT RANGASWAMY KRUPA
       OPP: DIC OFFICE, JOGIMATTI ROAD
       CHITRADURGA TOWN-576 101.           ... APPELLANTS

              (BY SRI HARISH H.V., ADVOCATE)
AND:

1.     THE BRANCH MANAGER
       ORIENTAL INSURANCE CO. LTD.,
       THILUVALLI COMPLEX
       1ST FLOOR, P.B. ROAD
       DAVANAGERE-577 002.
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2.    D .SIDDAPPA
      S/O. LINGAPPA
      AGED: MAJOR
      R/AT BIRAVARA VILLAGE
      LAKSHMISAGER POST
      CHITRADURGA TALUK-576 101
      (OWNER OF TRACTOR - TRAILER)

3.    C. ESHWARAPPA
      S/O. CHANDRAPPA
      AGED ABOUT 32 YEARS
      R/AT BIRAVARA VILLAGE
      LAKSHMISAGER POST
      CHITRADURGA TALUK-576 101
      (DRIVER OF TRACTOR - TRAILER)

4.    THE BRANCH MANAGER
      BAJAJ ALLIANCE
      GENERAL INSURANCE CO. LTD.,
      BAGIC, KNV COMPLEX
      4TH CROSS, VIDYANAGAR
      B.M.ROAD, TUMAKURU-572 101.     ... RESPONDENTS

     (BY M/S. V.Y.KUMAR & ASSOCIATES, ADVOCATE FOR R1
                          [ABSENT];
       SRI ASHOK N. NAIK, ADVOCATE FOR R1 [ABSENT];
                     R2 & R3 ARE SERVED;
             SRI H.S.LINGARAJ, ADVOCATE FOR R4)


     THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 23.09.2010
PASSED IN MVC NO.636/2008 ON THE FILE OF THE II
ADDITIONAL SENIOR CIVIL JUDGE, ADDITIONAL MACT,
CHITRADURGA, DISMISSING THE CLAIM PETITION FOR
COMPENSATION.

     THIS M.F.A. COMING ON FOR FINAL HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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                         JUDGMENT

Heard the learned counsel for the appellants and learned

counsel for respondent No.4. Learned counsel for respondent

No.1 is absent.

2. This appeal is filed challenging the judgment and

award dated 23.09.2010 passed in M.V.C.No.636/2008 on the

file of the II Additional Civil Judge and Additional Motor Accident

Claims Tribunal, Chitradurga ('the Tribunal' for short).

3. The parties are referred to as per their original

rankings before the Tribunal to avoid confusion and for the

convenience of the Court.

4. The factual matrix of the case of the claimants before

the Tribunal is that the deceased was proceeding on the

motorcycle and tractor trailer was unmindfully parked on the

road and as a result, the accident was occurred.

5. In order to substantiate the said contention, the

claimants examined one witness as P.W.1 and got marked the

documents as Exs.P1 to P12. On the other hand, the

respondents have examined two witnesses as R.Ws.1 and 2 and

got marked the documents as Exs.R1 to R5.

6. The Tribunal, after considering both oral and

documentary evidence placed on record, dismissed the claim

petition answering issue No.1 as 'negative', in coming to the

conclusion that accident has occurred on account of negligence

on the part of the deceased himself and answered issue No.2

also as 'negative'. Hence, the present appeal is filed before this

Court.

7. The main contention of the learned counsel

appearing for the appellants is that the judgment and award

passed by the Tribunal is erroneous and the accident and death

of the deceased is not in dispute. The respondent No.4 has also

paid the amount of Rs.1,08,772/- to the legal heirs of the

deceased towards the liability under P.A. claim. It is also not in

dispute that two vehicles are involved in the accident and the

tractor trailer was parked on the road. When such being the

case, when the driver of the tractor trailer has not been

examined, the Tribunal failed to take note of the contents of

panchanama which is marked as Ex.P3, wherein it is clear that

tractor was parked on the road and there is no provision to park

the vehicle on the road since, it is a National Highway and the

same has not been considered by the Tribunal, while considering

the material on record.

8. Learned counsel for respondent No.4 would submit

that there was a P.A. claim and P.A. claim amount was satisfied

and there is no claim against them.

9. Having heard the respective counsel and also on

perusal of the material available on record, it is not in dispute

that two vehicles involved in the accident. It is also the case of

the appellants that accident has occurred due to rash and

negligence on the part of the deceased himself and the fact that

tractor- trailer was parked on the road is not in dispute in terms

of panchanama which is marked as Ex.P3. It is also found from

the panchanama that vehicle was under repair and the width of

the road is 30 feet and there was also a mud road to the extent

of 5 feet and tractor was parked on the tar road in terms of

Ex.P3 and the driver of the tractor ought to have parked the

vehicle on the extreme left side of the road and the same has

not been done and when the vehicle was under repair, the driver

ought to have taken the vehicle to some other place but, the

same has not been done and no sign of repair of vehicle was

shown at the spot.

10. When such being the material on record, the Tribunal

ought not to have come to the conclusion that the accident has

occurred purely on account of negligence on the part of the

deceased and the Tribunal ought to have taken note of the

contributory negligence, while considering the matter and the

same has not been done. Hence, it is appropriate to set aside

the judgment of dismissal of the claim petition and direct the

Tribunal to consider the aspect of contributory negligence taking

note of the fact that driver of the tractor-trailer has not been

examined before the Tribunal and reconsider the matter afresh.

11. In view of the discussions made above, I pass the

following:

ORDER

(i) The appeal is allowed.

(ii) The impugned judgment and award of the Tribunal dated 23.09.2010 passed in M.V.C.No.636/2008 is set aside and the matter is remanded to the Tribunal to consider the

same afresh, in view of the observations made above.

(iii) The parties are directed to appear before the Tribunal on 14.11.2022 without expecting any separate notice.

(iv) The Tribunal is directed to dispose of the matter within a period of six months and the respective parties and their counsel are directed to assist the Tribunal for disposal of the case within the stipulated time.

(v) The Registry is directed to transmit the records to the concerned Tribunal, forthwith to enable the parties to appear before the Court on 14.11.2022.

Sd/-

JUDGE

ST