Karnataka High Court

Siddamma And Ors vs Mohd. Abdul Razak And Anr on 31 May, 2024

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                                                             MFA No.200655 of 2018
                                                         C/W MFA No.200261 of 2017



                                 IN THE HIGH COURT OF KARNATAKA,

                                        KALABURAGI BENCH

                               DATED THIS THE 31ST DAY OF MAY, 2024

                                             PRESENT

                             THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
                                                  AND
                               THE HON'BLE MR. JUSTICE RAJESH RAI K

                           MISCL. FIRST APPEAL NO.200655 OF 2018 (MV-D)
                                                  C/W
                           MISCL. FIRST APPEAL NO.200261 OF 2017 (MV-D)

                      IN M.F.A NO.200655 OF 2018

                      BETWEEN:

                      1.   SIDDAMMA
                           W/O LATE JAGADEVAPPA,
                           AGE: 49 YEARS,
                           OCC: HOUSEHOLD,

Digitally signed by   2.   LAXMI
BASALINGAPPA               D/O LATE JAGADEVAPPA,
SHIVARAJ
DHUTTARGAON                AGE: 28 YEARS,
Location: High
Court Of Karnataka         OCC: STUDENT AND HOUSEHOLD,

                      3.   PRAVEENKUMAR
                           S/O LATE JAGADEVAPPA
                           AGE: 26 YEARS,
                           OCC: STUDENT,

                      4.   SHASHIDHAR
                           S/O LATE JAGADEVAPPA
                           AGE: 23 YEARS,
                           OCC: STUDENT,
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                                       MFA No.200655 of 2018
                                   C/W MFA No.200261 of 2017



     ALL ARE R/O:H.NO.9-675,
     VADDARGALLI, LALHANUMAN TEMPLE,
     SHAHABAZAR,
     KALABURAGI - 585 102.
                                                  ...APPELLANTS

(BY SRI BAPUGOUDA SIDDAPPA, ADVOCATE)

AND:

1.   MOHD. ABDUL RAZAK
     S/O MOHD. ABDUL JABBAR,
     AGE: MAJOR,
     OCC: OWNER OF THE TANKER
     NO.KA-38/4628,
     R/O: H.NO.2-3-35,
     LATTEFPUR, KASIWADI,
     BIDAR - 585 401.

2.   THE ORIENTAL INSURANCE COMPANY LIMITED,
     DIVISIONAL OFFICE,
     OPP: MINI VIDHAN SOUDHA,
     KALABURAGI - 585 102.
     REPRESENTED BY ITS
     DIVISIONAL MANAGER.
                                        ...RESPONDENTS

(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE FOR R2;
    NOTICE TO R1 IS SERVED)

       THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT, PRAYING TO CALL FOR THE RECORDS,
TO MODIFY THE JUDGMENT AND AWARD DATED 09.11.2016
PASSED    IN   M.V.C.   NO.136/2012    ON   THE   FILE   OF   III
ADDITIONAL SENIOR CIVIL JUDGE AND MOTOR ACCIDENT
CLAIMS TRIBUNAL AT KALABURAGI AT KALABURAGI. AND
ALLOW THIS APPEAL BY ENHANCING THE COMPENSATION
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                                       MFA No.200655 of 2018
                                   C/W MFA No.200261 of 2017



AMOUNT BY RS.22,72,000/- ONLY AS CLAIMED BY THE
APPELLANTS BEFORE THIS HON'BLE COURT AND ETC.


IN M.F.A NO.200261 OF 2017

BETWEEN:

THE ORIENTAL INSURANCE CO. LTD.,
DIVISIONAL OFFICE,
OPP: MINI VIDHANA SOUDHA,
KALABURAGI.
REPRESENTED BY ITS
DIVISIONAL MANAGER.
                                                 ...APPELLANT

(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE)

AND:

1.   SIDDAMMA
     W/O LATE JAGADEVAPPA,
     AGE: 49 YEARS,
     OCC: HOUSEHOLD,

2.   LAXMI
     D/O LATE JAGADEVAPPA,
     AGE: 28 YEARS,
     OCC: STUDENT AND HOUSEHOLD,

3.   PRAVEEN KUMAR
     S/O LATE JAGADEVAPPA
     AGE: 26 YEARS,
     OCC: STUDENT,

4.   SHASHIDHAR
     S/O LATE JAGADEVAPPA
     AGE: 23 YEARS,
     OCC: STUDENT,

     ALL ARE R/O:H.NO.9-675,
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                                       MFA No.200655 of 2018
                                   C/W MFA No.200261 of 2017



     VADDARGALLI,
     LALHANUMAN TEMPLE,
     SHAHABAZAR,
     KALABURAGI - 585 101.

5.   MOHD. ABDUL RAZAK
     S/O MOHD. ABDUL JABBAR,
     AGE: MAJOR,
     OCC: OWNER OF THE TANKER
     NO.KA-38/4628,
     R/O: H.NO.2-3-35,
     LATTEFPUR, KASIWADI,
     BIDAR - 585 501.
                                              ...RESPONDENTS

(BY SRI. BAPUGOUDA SIDDAPPA, ADVOCATE FOR R1 TO R4)

     THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT, 1988, PRAYING TO CALL FOR THE
RECORDS AND ALLOW THE ABOVE APPEAL BY SETTING ASIDE
THE IMPUGNED JUDGMENT AND AWARD DATED 09.11.2016 IN
M.V.C.NO.136/2012 PASSED BY THE III ADDITIONAL SENIOR
CIVIL JUDGE AND M.A.C.T., KALABURAGI, IN THE INTEREST
OF JUSTICE AND EQUITY.

    THESE MFA COMING ON FOR HEARING, THIS DAY,
ASHOK S. KINAGI J., DELIVERED THE FOLLOWING:



                      JUDGMENT

These two appeals are arising out of the judgment

and award passed in MVC No.136/2012 dated 09.11.2016

by the III Additional Senior Civil Judge and MACT,

Kalaburagi.

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2. For the sake of convenience the parties are

referred to as per their ranking before the Tribunal. In

MFA No.200655/2018, appellants are the claimants,

respondents are respondents.

3. The claimants have filed the appeal in

MFA No.200655/2018 for enhancement of compensation

and Insurance Company has filed the appeal in

MFA No.200261/2017, challenging the liability.

4. Brief facts leading rise to filing of these appeals

are as under;

On 08.06.2011, at about 9.15 p.m., the deceased

Jagadevappa by getting passengers at Aurad-B was

proceeding towards Gulbarga by driving NEKRTC Bus

bearing registration No.KA-38/F-711, when he was near to

the village Andoor on Bidar-Humnabad road, at that time

one Tanker bearing Registration No.KA-38/4628 came

from opposite side in a rash and negligent manner and lost

control over the vehicle and dashed to the bus, due to

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which the deceased sustained grievous injuries and

succumbed to the injuries. The claimants being the legal

representatives of the deceased have filed the claim

petition under Section 166 of Motor Vehicles Act.

5. Respondent No.1 filed the written statement

denying the averments made in the claim petition and

prays to dismiss the claim petition.

6. Respondent No.2 filed the written statement

denying the averments made in the claim petition.

Further, it is contended that as per the police records, the

post mortem of the deceased Jagadevappa was conducted

on 26.08.2011 in General Hospital, Gulbarga and the body

was identified by one Police Constable bearing P.C.No.944.

The alleged accident took place on 08.06.2011 and post

mortem was conducted on 26.08.2011. Thus there is an

inordinate delay in conducting post mortem of the

deceased. Hence it is contended that the post mortem

report does not indicate cause of death. Hence, on these

grounds, prays to dismiss the claim petition.

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7. The Tribunal on the basis of the pleadings of

the parties framed the issues.

8. The claimants in order to prove their claim

petition, claimant No.1 was examined as PW.1 and got

marked 20 documents as Exs.P1 to P.20. The respondents

have not led either oral or documentary evidence. The

trial Court after recording the evidence, hearing on both

the sides and on the assessment of oral and documentary

evidence, allowed the claim petition in part with cost. It is

ordered that the claimants are entitled for compensation

of Rs.17,28,000/- with interest @ 6% p.a., from the date

of claim petition till the payment and also held that

respondent Nos.1 and 2 are jointly and severally liable to

pay the compensation amount to the claimants and

directed the second respondent to deposit the

compensation amount with accrued interest.

9. The insurance company aggrieved by the

impugned judgment passed by the Tribunal, has filed an

appeal in MFA No.200261/2017 challenging the liability.

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The claimants, aggrieved by the judgment and award

passed by the Tribunal, have preferred an appeal in

MFA No.200655/2018 seeking for enhancement of

compensation.

10. Heard the learned counsel for the petitioners

and also learned counsel for respondent No.2.

11. Learned counsel for the claimants submits that

the deceased was aged about 58 years. The compensation

awarded by the Tribunal is on lower side. He also submits

that liability fastened on respondent Nos.1 and 2 jointly is

just and proper and does not call for interference. Hence,

on these grounds, he prayed to allow the appeal filed by

the claimants and prays to dismiss the appeal filed by

respondent No.2.

12. Per contra, learned counsel for respondent No.2

submits that the respondents have taken a specific

defence in the written statement in regard to the post

mortem conducted after lapse of 02 months 18 days from

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the date of death of the deceased that creates doubt

regarding the alleged accident. She further submits that

the Tribunal has not framed any issue on the said aspect

and further not assigned any reasons on the defence taken

by respondent No.2. Further, she fairly concede that

respondent No.2 has not led any evidence and she submits

that the impugned judgment may be set aside and matter

may be remitted to the Tribunal with a direction to provide

an opportunity to both the parties to lead further evidence.

Hence, on these grounds, she prays to dispose of the

appeal.

13. Perused the records and considered the

submissions of the learned counsel for the parties.

14. The point that arises for our consideration are:

Liability and quantum: It is the case of the

petitioners that deceased met with an accident and

sustained injuries and succumbed to the injuries. In order

to prove that the accident was occurred due to rash and

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negligent driving of the driver of the offending vehicle,

produced the certified copy of the FIR and charge sheet,

they are marked as Exs.P1 to P.3 respectively. The

respondent No.2 has taken specific defence in the written

statement at para 10 of the written statement. Further,

from the perusal of the written statement filed by

respondent No.2, though the petitioners have led the

evidence, the respondents have not led any evidence.

Further, the Tribunal has not considered the defence of the

respondent No.2 as pleaded in para 10 of the written

statement. Thus the matter requires reconsideration by

the Tribunal. In view of the same, We do not want to

express any opinion on the merits. Hence, the matter

requires to be remanded.

15. In view of the above discussion, we proceed to

pass the following:

ORDER

The appeals are allowed.

The impugned judgment is set aside.

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The claim petition in MVC No.136/2012 on the file of III Additional Senior Civil Judge and MACT, Kalaburagi, is restored.

The Tribunal is directed to provide an opportunity to the parties to lead the further evidence, if any. We make it clear that, this Court has not made adjudication on merits in issue.

Parties are directed to appear before MACT, Kalaburagi on 22.07.2024.

The Tribunal is directed to consider all the points and pass appropriate judgment in accordance with law.

The Tribunal is requested to dispose of the claim petition as expeditiously as possible.

However, liberty is reserved to the petitioners to file an application for additional evidence before the Tribunal. In view of the same, learned counsel for the appellants in MFA No.200655/2018 submits that he does not press I.A.No.1/2022.