Karnataka High Court

Sri Mallikarjuna vs Sri Ashwathanarayana on 3 July, 2024

Author: K.Natarajan

Bench: K.Natarajan

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                                                        NC: 2024:KHC:25131
                                                     MFA No. 3503 of 2022




                   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 3RD DAY OF JULY, 2024

                                          BEFORE
                          THE HON'BLE MR JUSTICE K.NATARAJAN
                   MISCELLANEOUS FIRST APPEAL NO. 3503 OF 2022 (MV)
                   BETWEEN:

                        SRI MALLIKARJUNA
                        S/O VENKATARAYAPPA,
                        AGED ABOUT 25 YEARS,
                        R/O PEDDANAGARALA VILLAGE,
                        POLONYAKANAPALLI POST,
                        BAGEPALLI TALUK,
                        CHIKKABALLAPURA DISTRICT.


                                                              ...APPELLANT
                   (BY SRI. CHANDRASHEKAR B A.,ADVOCATE)


                   AND:
Digitally signed
by BHARATHI
S                  1.   SRI. ASHWATHANARAYANA
Location: HIGH
COURT OF                S/O LATE ERAPPA,
KARNATAKA               AGED ABOUT 49 YEARS,
                        R/AT AAMURU THIMMANAHALLI VILLAGE,
                        BASHETTIHALLI POST,
                        SIDLAGHATTA TALUK
                        CHIKKABALLAPURA DISTRICT.

                   2.   SMT.VENKATALAKSHMAMMA
                        W/O ASHWATHNARAYANA
                        AGED ABOUT 42 YEARS,
                        R/AT AAMURU THIMMANAHALLI VILLAGE,
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                                        NC: 2024:KHC:25131
                                   MFA No. 3503 of 2022




     BASHETTIHALLI POST,
     SIDLAGHATTA TALUK
     CHIKKABALLAPURA DISTRICT.

3.   SRI. ASHWATHAPPA
     S/O ERAPPA
     AGE MAJOR
     R/AT AAMURU THIMMANAHALLI VILLAGE,
     BASHETTIHALLI POST,
     SIDLAGHATTA TALUK,
     CHIKKABALLAPURA DISTRICT.

4.   ICICI LAMBARD INSURANCE CO LTD.,
     414, VEER SAVARKER MARG
     NEAR SIDDHI VINAYAKA TEMPLE,
     PRABHADEVI, MUMBAI-400 025.
     BY ITS MANAGER.

                                          ...RESPONDENTS

(V/O DATED:05.04.2023;
SMT. ARCHANA K.M. AMICUS CURIAE, ADVOCATE FOR R1 &
R2, R3 SERVED, BUT UNREPRESENTED
SRI. A.N. KRISHNA SWAMY, ADVOCATE FOR R4)


     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 13.12.2021
PASSED IN MVC NO.41/2018 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JMFC, AND MOTOR ACCIDENT CLAIMS
TRIBUNAL, SIDLAGHATTA, AWARDING COMPENSATION OF
RS.12,99,600/- WITH INTEREST AT 6 PERCENT P.A. FROM THE
DATE OF PETITION TILL RECOVERY.

     THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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                                           NC: 2024:KHC:25131
                                        MFA No. 3503 of 2022




                         JUDGMENT

This appeal is filed by respondent No.1, who is alleged to

be the owner of offending motor cycle challenging the liability

fastened on him in MVC No.41/2018 by the Motor Accident

Claims Tribunal, Sidlaghatta (hereinafter referred to as the

'Tribunal'), by judgment and award dated 13.12.2021.

2. Heard the arguments of the learned counsel for the

appellant, learned Amicus Curiae for respondent Nos.1 and

2/claimants-petitioners and learned counsel for respondent

No.4 - insurance company. Respondent No.3 is served and

unrepresented.

3. The appellant is respondent No.1, respondent Nos.1 and

2 are the claimants/petitioners and respondent Nos.3 and 4 are

respondent Nos.2 and 3 before the Tribunal. For the sake of

convenience, the parties herein are referred as per their rank

before the Tribunal.

4. The case of the petitioners is that they have filed a claim

petition under Section 166 of the Motor Vehicles Act, 1988

(hereinafter referred to as the 'Act') claiming compensation of

`15,00,000/- for the death of their son, who died in the road

NC: 2024:KHC:25131

traffic accident that occurred on 15.1.2016 at about 7.30 p.m.,

at Ammagaranahalli gate, near parallel road of the Govindappa

Land, Bashettihalli Hobli, Shidlaghatta Taluk, Chickballapur

District. It is contended by the petitioners in their petition that

their son, deceased Harisha was riding the motor cycle, when

he was reaching near the accident spot a motor cycle said to

be ridden by respondent No.1 came from the opposite direction

and in order to avoid a pot whole both the vehicles dashed

against each other. Due to the impact, the son of the

petitioners died at the spot and it is stated that the accident

had occurred due to the contributory negligence of the

petitioners' son and respondent No.1. Hence, they claimed

compensation on various grounds.

5. The notice was ordered to be issued to the respondents.

Respondent No.1 - appellant herein appeared through his

counsel and filed statement of objections stating that he is

neither the owner nor the rider of the motor cycle bearing

No.KA-05-EJ-1296 and he is not liable to pay any

compensation. Hence, he prayed for dismissal of the claim

petition.

NC: 2024:KHC:25131

6. Respondent No.2, who is the owner of the motor cycle on

which the deceased was riding, appeared through a counsel,

but not filed any objections statement.

7. Respondent No.3 - insurance company filed its statement

of objections by denying all the averments made in the claim

petition as false and in usual manner prayed for dismissal of

the claim petition.

8. Based upon the pleadings of the parties, the Tribunal

framed the following issues:

i. Whether the petitioners prove that on 15.1.2016 at about 7.30 p.m. at Dibburahalli road at the time the Respondent No.1 riding is vehicle bearing registration No.KA-05-ET-

1296 in rash and negligent manner dash to the deceased bike bearing registration No.KA-40-W-8431 there by caused the death of deceased Harish?

ii. Whether Respondent No.3 is proof that the Respondent No.1 has violated policy conditions?

iii. Whether the petitioners are entitled for compensation? From whom and at what rate?

iv. What award?

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9. In order to prove their case, on behalf of the petitioners,

petitioner No.1 examined himself as PW.1 and got marked

Exs.P1 to Ex.P8 in evidence. On behalf of the respondents,

respondent No.1 neither cross-examined the PW.1 nor led any

evidence. Respondent Nos.2 and 3 also have not examined

any witnesses and produced documents. Hence, the Tribunal,

by the impugned judgment answered issue No.1 in the

affirmative, issue No.2 partly in the affirmative and awarded a

compensation of `12,99,600/- by fastening the liability on

respondent No.1, who is said to be the owner of the offending

vehicle and exonerated respondent Nos.2 and 3 as they are the

owner and insurer of the motor cycle in which the deceased

was riding. Being aggrieved by the said judgment, respondent

No.1 is before this Court.

10. Learned counsel for the appellant/respondent No.1 has

challenged the impugned judgment mainly on two grounds;

firstly, that though respondent No.1 had appeared and filed

statement of objections before the Tribunal by denying that he

is neither the owner nor the rider of the offending vehicle, the

Tribunal has not framed any issue in that regard and that there

is difference in issues framed and issues mentioned in the

NC: 2024:KHC:25131

judgment; secondly, that the petitioners themselves have

pleaded in their claim petition that there is contributory

negligence, but no issue is framed with regard to the same and

there is no proper reason assigned for giving a finding only

against respondent No.1 who is not the owner of the offending

vehicle and also no documents are produced to show that

respondent No.1 was the owner of the offending vehicle.

Therefore, he prayed for setting aside of the judgment and

award and remanding the matter for fresh disposal.

11. Learned Amicus Curiae for respondent Nos.1 and

2/petitioner Nos.1 and 2 objected the appeal and contended

that the advocate for respondent No.1 had not cross-examined

the witness - PW.1 and not led any evidence. Such being the

case, question of remanding the matter does not arise. It is

further contended that the charge sheet had been filed against

respondent No.1. Hence, he prayed for dismissal of the appeal.

12. Learned counsel for respondent No.4 contended that the

Tribunal has exonerated the liability against respondent No.4,

who is the insurer of the vehicle on which the deceased was

riding, therefore there cannot be any liability on the insurer of

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the deceased vehicle. Hence, he prayed for dismissal of the

appeal.

13. Having heard the learned counsel for the parties and

perused the material on record, the question that arises for

consideration is:

1. Whether the Tribunal has committed an error

in not framing of proper issues based upon the

pleadings and the judgment and award passed by it

requires interference?

14. On perusal of the pleadings at para 3 of the petition, it is

noticed that the petitioners have themselves stated in the claim

petition that in order to avoid the huge pot hole, the vehicles

dashed against each other and the deceased, the son of the

petitioners died due to the contributory negligence of both

the petitioners' son and respondent No.1. This aspect is

not properly considered by the Tribunal while framing the

issues. The records reveal that while framing the issues by the

Tribunal, though issue No.3 was framed casting the burden on

the insurance company - respondent No.3, insurer of the motor

cycle on which the deceased was riding, in the impugned

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judgment the said issue is not mentioned and only three issues

are mentioned in para 12 of the judgment. The issue No.1

framed by the Tribunal is also not proper. The Tribunal has not

framed any issue regarding contributory negligence both by the

petitioners' son and respondent No.1. Further, though

respondent No.1 has taken a specific contention that he is

neither the owner nor the rider of the offending motor cycle,

there is no issued framed by the Tribunal in this regard.

Therefore, it is necessary for this Court to remand the matter

back to the Tribunal for fresh disposal after framing necessary

and proper issues as per the pleadings of the parties.

15. That apart, respondent Nos.1 and 3 though have filed

statement of objections, they have not cross-examined PW.1

and they have also not placed any evidence or documents.

Respondent No.1 has also not produced any document to show

that he was not the owner of the offending motor cycle bearing

No.KA-05-EJ-1296. Further, it is noticed that the charge sheet

is filed against respondent No.1, who is the rider of the

offending motor cycle and his mother has given statement

before the police that his son was riding the motor cycle which

belongs to one Ramesh. These aspects of the matter are not

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NC: 2024:KHC:25131

properly considered by the Tribunal. Therefore, I am of the

view that the judgment and award passed by the Tribunal

deserves to be set aside as there is no proper framing of issues

and no findings are given on the aforesaid aspects of the

matter.

16. In the result, the following order is passed:

ORDER

i) The appeal is allowed.

            ii)    The judgment and award of the
            Tribunal is set aside.

            iii)   The matter is remitted back to the
            Tribunal for framing of necessary and
            proper issues.

            iv)    The Tribunal is directed to give
            opportunity    to   the       parties   to   lead
            evidence      and     cross-examine          the
            witness based upon the pleadings and
            produce the documents.

            v)     The Tribunal is directed to dispose
            of the matter within six months from
            the date of receipt of a copy of this
            judgment.
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            vi)   The parties are directed to appear