Karnataka High Court

Sri Suhas S vs Smt C Girijamma on 21 October, 2024

Author: Hanchate Sanjeevkumar

Bench: Hanchate Sanjeevkumar

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                                                            NC: 2024:KHC:42159
                                                          MFA No. 8457 of 2015




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                           DATED THIS THE 21ST DAY OF OCTOBER, 2024

                                             BEFORE

                        THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR

                   MISCELLANEOUS FIRST APPEAL NO. 8457 OF 2015 (MV-D)



                   BETWEEN:

                   SRI. SUHAS S
                   S/O SADASHIVAIAH M S,
                   AGED ABOUT 21 YEARS,
                   R/AT NO.7, MUNIYANAPALYA,
                   MATHALLI, DASANAPURA HOBLI,
                   BANGALORE NORTH,
                   BANGALORE - 562 123
                                                                  ...APPELLANT
                   (BY SRI. H. PAVAN CHANDRA SHETTY, ADVOCATE)

                   AND:

                   1.    SMT. C. GIRIJAMMA
Digitally signed
by RAMYA D               W/O NAGARAJAPPA,
Location: High
Court of
                         AGED ABOUT 37 YEARS,
Karnataka

                   2.    KUM. SHRUTHI
                         D/O NAGARAJAPPA,
                         AGED ABOUT 18 YEARS,

                   3.    KUM VISHNUPRIYA
                         D/O NAGARAJAPPA,
                         AGED ABOUT 15 YEARS,
                         ALL THE RESPONDENTS NO. 1 TO 3
                         ARE RESIDING AT
                         GIDDABOMMANAHALLI,
                         ROLLA POST & MANDAL,
                         MADAKASIRA TALUK,
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                                      NC: 2024:KHC:42159
                                    MFA No. 8457 of 2015




     ANATHPUR DISTRICT,
     ANDHRA PRADESH - 472 206.

     PRESENTLY RESIDING AT
     NO.362, 9TH MAIN,
     JAYANAGARA HOUSE BUILDING,
     CO-OPERATIVE SOCIETY LAYOUT,
     THURAHALLI,
     UTTHARAHALLI HOBLI,
     BANGALORE.

4.   THE MANAGER
     HDFC ERGO GENERAL INSURANCE CO LTD.,
     NO.301 & 305, EMBASSY CLASSIC,
     MALAYA CITY, BANGALORE - 560 001,
     (INSURER OF THE VEHICLE BEARING
       REG NO.KA-02-AC-0072)
                                       ...RESPONDENTS

(BY SMT. GEETHA RAJ ADVOCATE FOR R2;
    SMT. K.N. SRINIVASA ADVOCATE FOR R5;,
    V/O DATED 17.11.2023 NOTICE TO R1, R3 AND R4
    HELD SUFFICIENT)

      THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 12.08.2015 PASSED IN MVC
NO. 3657/2013 ON THE FILE OF THE 22ND ADDITIONAL SMALL
CAUSES JUDGE, MEMBER, MACT, BENGALURU, AWARDING THE
COMPENSATION OF RS. 8,30,200/- WITH INTEREST AT 6%
P.A. FROM THE DATE OF PETITION TILL THE DEPOSIT.

     THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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                                          NC: 2024:KHC:42159
                                       MFA No. 8457 of 2015




CORAM:    HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR


                    ORAL JUDGMENT

This appeal is filed by the owner of the Pulsar Motor

Cycle bearing Registration No.KA-04-HN-0693 questioning

the liability fastened on the appellant herein to pay the

compensation.

2. Brief facts of the case are:

That on 18.01.2013 at about 8.15 a.m. the deceased

was proceeding as a pedestrian on the Industrial Suburb

Road, near Apparel Garments, Yeshawanthpura,

Bengaluru, at that time, the rider of the Motor Cycle

bearing Registration No.KA-04-HN-0693 came with high

speed in a rash and negligent manner and dashed to

the pedestrian (Sri Nagarajappa). As a result he

sustained grievous injuries all over the body and died due

to the accidental injuries on the way to the Hospital.

NC: 2024:KHC:42159

3. Upon the claim petition filed by the petitioners under

Section 166 of the Motor Vehicles Act, the Tribunal has

awarded compensation to the claimants in a sum of

Rs.8,30,200/- along with interest at 6% p.a. saddling

liability on the appellant herein/owner of the Pulsar Motor

Cycle bearing Reg.No.KA-04-HN-0693, and thereby

exonerated the Insurance Company to pay compensation

on the ground that the owner of the Motor Cycle has not

produced even the Learner's Licence (for short 'the LL').

4. Learned counsel for the appellant/owner of the Motor

Cycle submitted that in reply to the notice issued by the

Police under Section 133 of the Motor Vehicles Act, the

appellant has produced the number/particulars of the LL

and as to who was the owner of the Motor Cycle and who

was riding the Motor Cycle. Therefore, submitted that

before the Tribunal, the appellant has produced the

particulars of the LL and that it is sufficient to prove that

the appellant was having LL. Hence, submitted the

Insurance Company is liable to pay the compensation.

NC: 2024:KHC:42159

5. On the other hand, learned counsel for the 4th

respondent/Insurance Company submitted that the

appellant being the owner of the Motor Cycle has not

produced either the Driving Licence (for short 'the DL') or

the Learner's Licence before the Tribunal that is observed

by the Tribunal and hence rightly exonerated the

Insurance Company from paying compensation and

justified the impugned judgment and award passed by the

Tribunal.

6. During the pendency of the appeal, the appellant has

filed interlocutory application under Order XVI Rule 27 of

CPC by producing the document of the particulars of LL of

the appellant. Therefore, prays to hold that appellant was

having valid LL as on the date of the accident. Hence

prays to modify the liability.

7. Along with the application, the document produced is

a copy having obtained from the Transport Authorities

regarding particulars of LL of the appellant/owner. But

admittedly, the appellant has not produced either LL or DL

NC: 2024:KHC:42159

before the Tribunal before the Tribunal to prove that the

appellant was having LL as on the date of accident. This is

observed by the Tribunal in the judgment. Just because

the appellant replied to the notice issued under Section

133 of the Motor Vehicles Act and particulars are given,

that does not amount to proof of document as regards LL.

It is the burden on the appellant to prove that he was

having LL at the time of the accident, but the appellant

has not discharged his burden. In the course of cross-

examination by the Insurance Company, the appellant has

answered that he has not produced either LL or DL.

Therefore, the Insurance Company has disputed that the

appellant was having LL. Thus when the LL was not

produced before the Tribunal and mere particulars of LL

are given, that does not amount to discharge of burden to

prove that he was having LL. But in this appeal, the

appellant has produced application for producing additional

evidence along with a copy of the licence stated to have

been belonging to the appellant issued by the Transport

Authorities, but this is seriously disputed by the learned

NC: 2024:KHC:42159

counsel for the Insurance Company. Therefore, whether

the appellant was having LL or not is to be adjudicated by

receiving evidence during the enquiry/trial. Therefore,

without expressing any opinion on the merits regarding

whether licence was there or not, the matter is required to

be remanded to the Tribunal for fresh consideration on all

the aspects including the issuance of LL to the appellant.

Therefore, the appeal is required to be remanded to the

Tribunal for fresh consideration. Accordingly, the matter is

remanded to the Tribunal at the instance of the

appellant/owner of the Motor Vehicle. Therefore, in case

after remand, if the Tribunal holds that claimants are

entitled for compensation from the Insurance Company,

then the claimants would be entitled to interest from the

appellant from the date of petition till the date of

realization. In case the Tribunal holds the Insurance

Company is liable to pay compensation, then the

Insurance Company will be liable to pay compensation

amount only and the interest accrued thereon shall be

payable by the appellant/owner.

NC: 2024:KHC:42159

8. With these observations the matter is remanded to

the Tribunal for fresh consideration. Hence I proceed to

pass the following :-

ORDER

a. The appeal is allowed;

b. The impugned judgment and award dated 12.08.2015 passed in MVC.No.3657/2013 by the XXII Additional Small Casues Judge & Member, MACT, Bengaluru, is set aside;

c. The matter is remanded to the Tribunal;

d. Parties are directed to appear before the Tribunal on 25.11.2024 without expecting notice from the Court;

e. All the contentions are left open. Both the parties

are at liberty to adduce additional evidence either

oral or documentary or both, if they are so advised.

f. It is submitted that the appellants have deposited

Rs.5,00,000/- before this Court and the claimants

have already withdrawn 50% of the amount.

NC: 2024:KHC:42159

Whatever, amount is withdrawn shall be adjusted at

the time of final disbursement of the compensation

to the claimants along with accrued interest.