Karnataka High Court
Dadapper S/O Saifudin Torgal vs Ashrafali S/O Bakasheesab Godekar on 25 October, 2024
Author: H.T.Narendra Prasad
Bench: H.T.Narendra Prasad
MFA No.101668/2015
C/w.MFA No.102088/2015
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 25TH DAY OF OCTOBER, 2024
PRESENT
THE HON'BLE MR JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
MISCELLANEOUS FIRST APPEAL NO.101668 OF 2015 (MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO.102088 OF 2015 (MV-I)
IN MFA NO 101668 OF 2015
Digitally BETWEEN
signed by
JAGADISH T R
Location:
High Court of
Karnataka, ASHRAFALI BAKASHEESAB GODEKAR,
Dharwad
Bench AGE 40 YEARS, OCC: BUSINESS,
R/O. NEAR CHOUKIMATH, GAJENDRAGAD,
TQ: RON, DIST: GADAG.
...APPELLANT
(BY SRI. B. V. SOMAPUR, ADVOCATE)
AND
1. DADAPEER S/O. SAIFUDDIN TORGAL,
AGE: 42 YEARS, OCC: NIL,
R/O. KATAGAR ONI, BULDOZER NAGAR,
OLD HUBLI, HUBBALLI.
2. THE ORIENTAL INSURANCE CO.
BY DIVISIONAL MANAGER, II FLOOR,
ENKEY COMPLEX, KESHWAPUR, HUBBALLI.
3. THE DIVISIONAL CONTROLLER,
NEKRTC, KOPPAL DIVISION, KOPPAL.
...RESPONDENTS
(BY SRI. RAGHAVENDRA A. PUROHIT, ADV. FOR
SRI. DINESH M. KULKARNI, ADV. FOR R1;
SMT. PREETI SHASHANK, ADV. FOR R2;
SRI. S. C. BHUTI, ADV. FOR R3)
THIS MFA IS FILED U/S.173(1) OF MV ACT, 1988, PRAYING TO
CALL FOR THE LOWER COURT RECORDS AND SET ASIDE THE
2
MFA No.101668/2015
C/w.MFA No.102088/2015
IMPUGNED AWARD PASSED BY THE LEARNED II ADDL. SENIOR CIVIL
JUDGE AND ADDL. MACT, HUBBALLI IN MVC NO.777/2012 DATED
19.02.2015 VIDE ANNEXURE-A AND B.
IN MFA NO 102088 OF 2015
BETWEEN
DADAPPER S/O. SAIFUDIN TORGAL,
AGE: 41 YEARS, OCC: NIL,
R/O. KATAGAR ONI, BULDOZER NAGAR,
OLD HUBLI, HUBBALLI, DIST: DHARWAD.
...APPELLANT
(BY SRI. RAGHAVENDRA A. PUROHIT, ADV. FOR
SRI. DINESH M. KULKARNI, ADVOCATE)
AND
1. ASHRAFALI S/O. BAKASHEESAB GODEKAR,
AGE: MAJOR, OCC: OWNER OF VEHICLE,
R/O. NEAR CHOUKIMATH,
GAJENDRAGAD, TQ: RON, DIST: GADAG.
2. THE ORIENTAL INSURANCE CO. LTD.,
BY ITS DIVISIONAL MANAGER, 2ND FLOOR,
ENKEY COMPLEX, KESHWAPUR, HUBBALLI,
DIST: DHARWAD.
3. THE DIVISIONAL CONTROLLER,
N.E.K.R.T.C, KOPPAL DIVISION, KOPPAL.
...RESPONDENTS
(BY SRI. S. C. BHUTI, ADV. FOR R1 TO R3;
SMT. PREETI SHASHANK, ADV. FOR R2)
THIS MFA IS FILED U/S 173(1) OF MV ACT 1988, PRAYING TO
MODIFY THE JUDGMENT AND AWARD DATED 19.02.2015 PASSED BY II
ADDL. SENIOR CIVIL JUDGE AND ADDL. MACT, HUBBALLI, IN MVC
NO.777/2012 AND ENHANCE THE COMPENSATION, IN THE INTEREST
OF JUSTICE AND EQUITY.
THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 16.10.2024, COMING ON FOR PRONOUNCEMENT, THIS
DAY, VENKATESH NAIK T J., DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
3
MFA No.101668/2015
C/w.MFA No.102088/2015
CAV JUDGMENT
(PER: THE HON'BLE MR. JUSTICE VENKATESH NAIK T)
These two appeals are filed by the owner of the offending
lorry as well as the claimant challenging the judgment & award
dated 19.02.2015 passed in MVC No.777/2012 by the learned II
Addl. Senior Civil Judge and Addl. MACT, Hubballi1.
2. MFA No.101668/2015 is filed by the owner of the
offending vehicle i.e., Truck bearing registration No.KA-13/9582
challenging the saddling of entire liability to pay compensation on
the ground that, driver of the offending lorry had no valid and
effective driving license as on the date of the accident, whereas,
MFA No.102088/2015 is filed by the claimant seeking
enhancement of compensation.
3. For the sake of convenience, the parties are referred
to as per their rankings before the Tribunal.
4. Brief facts of the claimant's case before the Tribunal
are as under:
On 29.03.2011, at about 11.45 p.m., the claimant was
coming from Kushtagi to Hubballi in NWKRTC bus bearing
'Tribunal' for short
registration No.KA-37/F-284, when the bus was moving on
Gajendragad-Gadag road, near TTD Kalyan Mantap, the driver of
Truck bearing registration No.KA-13/9582 came from opposite
direction in a high speed, rash and negligent manner and dashed
against right side of the bus, near emergency exit window. Due
to which, the claimant sustained grievous injuries on his right
upper arm and sustained multiple injuries on his entire body.
Immediately, he was taken to Community Health Centre,
Gajendragad for first aid treatment and later, he was shifted to
KIMS Hospital, Hubballi, wherein he was an inpatient for more
than thirty days. Prior to the alleged accident, the claimant was
working as Gas Welder at Ilkal and earning a sum of Rs.10,500/-
per month. Due to the grievous injuries sustained in the
accident, he became permanently disabled. Hence, the claimant
filed claim petition under Section 166 of the MV Act, 1988
claiming compensation of Rs.30,51,000/-.
5. After service of notice before the Tribunal,
respondents No.1 to 3 appeared through their respective counsels
and filed separate statement of objections denying the entire
averments of the claim petition. The claimant in support of his
case examined himself as PW1 and examined one doctor as PW2
and got marked the documents as Ex.P1 to P16. The
respondents examined two witnesses as RW1 and RW2 and got
marked 6 documents as Ex.R1 to R6.
6. On appreciation of entire oral and documentary
evidence on record, the Tribunal allowed the claim petition in
part, awarding a sum of Rs.3,53,000/- with interest at 6% per
annum from the date of petition till realization, with a direction to
respondent No.1/owner of the offending vehicle to pay entire
compensation to the claimant. Being aggrieved by the same, the
owner of the offending vehicle has preferred an appeal in MFA
No.101668/2015. The claimant also filed an appeal in MFA
No.102088/2015 seeking enhancement of compensation.
7. Heard the learned counsel for the claimant, owner of
the offending vehicle, respondent-Insurance Company and
respondent-Corporation.
8. Sri. B.V. Somapur, learned counsel appearing for the
appellant/owner of the offending vehicle in support of his appeal
vehemently contends that the Tribunal without appreciating the
material evidence on record has wrongly recorded a finding that
the driver of the offending lorry caused the accident and thereby
fixed the entire liability for payment of compensation on the
owner, which has resulted in miscarriage of justice. The Tribunal
without looking into the evidence on record in a proper
perspective has wrongly held that the driver of the offending
Truck was not holding valid and effective driving license as on the
date of the accident and therefore, fixed the liability on the
owner. The Tribunal also failed to take note of the fact that there
was contributory negligence on the part of the driver of the
KSRTC bus and it ought to have saddled equal liability on the
driver of KSRTC bus also. He further contended that the award of
compensation by the Tribunal is on the higher side and the same
requires to be reduced by awarding just and reasonable
compensation, taking note of the injuries sustained by the
claimant.
9. The appellant/owner of the offending vehicle filed IA
No.1/2022 under Order XLI Rule 27 read with Section 151 of CPC
to permit the appellant/owner of the offending vehicle to produce
additional documents i.e., attested copy of Driving License of one
Nabisab Ramatala, in order to show that the driver of the lorry
was having effective driving license as on the date of the alleged
accident. The said document is very much necessary to
adjudicate the matter and thus, prayed to permit him to produce
the document. The counsel also prayed to allow the appeal and
remand the matter to the Tribunal for fresh consideration.
10. Sri. Raghavendra A. Purohit, learned counsel
appearing for the appellant/claimant in support of his appeal
contends that the Tribunal committed an error in assessing the
income of the claimant at Rs.4,500/- per month, inasmuch as the
claimant was working as Gas Welder and earning a sum of
Rs.10,500/- per month. The Tribunal further committed an error
in assessing the disability of the injured at 40%, which is contrary
to the evidence of doctor (PW2), who assessed the disability of
the injured at 80%. The Tribunal without appreciating the oral
and documentary evidence on record has wrongly fastened the
liability on the owner of offending lorry, only on the ground that,
the driver of the lorry was not having valid and effective driving
license. He further contended that the quantum of compensation
awarded by the Tribunal under each heads is on the lower side
and same requires to be enhanced appropriately, taking note of
nature of injuries sustained by the claimant and also period of
treatment taken by him. Thus, he prays for allowing the appeal.
11. Sri. S.C. Bhuti, learned counsel for
respondent/NWKRTC and Smt. Preeti Shashank, learned counsel
for respondent/Insurer would support the impugned judgment
and award of the Tribunal and submit that the quantum of
compensation awarded by the Tribunal is just and proper, which
does not call for interference at the hands of this Court. Both the
appellants have not made out any ground for interference with
the impugned judgment and award of the Tribunal and thus,
sought for dismissal of the appeals.
12. Having heard the learned counsel for the parties and
on perusal of the appeal papers including the original records, the
points that would arise for our consideration in these appeals are:
a) Whether the Tribunal has rightly justified in saddling
entire liability on the owner of the offending lorry to
pay compensation to the claimant?
b) Whether the claimant is entitled for enhanced
compensation?
c) Whether the appellant/owner of offending lorry made
out ground for remand?
13. So far as negligence is concerned, the Investigating
Officer filed charge sheet against driver of the offending lorry,
wherein at Column No.17 of the charge sheet, it is alleged that
the accident occurred due to rash and negligent driving of the
driver of the lorry. The Tribunal considering the oral evidence of
PW1, Ex.P13-FIR, Ex.P14-complaint and Ex.P15-Spot Mahazar
came to the conclusion that the accident was occurred due to
rash and negligent driving of the driver of the lorry, who dashed
his lorry to KSRTC bus. The Insurance Company/insurer of
offending vehicle has not placed any contrary material before this
Court. Therefore, the finding of the Tribunal with regard to
negligent act of driver of lorry cannot be found fault with. This
observation does not require any interference. Under such
circumstances, it is just and necessary to ascertain whether the
insured or insurer of offending lorry is liable to pay compensation
or not is the question before us.
14. It is not in dispute that the claimant met with road
traffic accident on 29.03.2011 and sustained grievous injuries.
Due to the injuries sustained in the accident, he became
permanently disabled.
15. Now, the appellant/owner of the offending vehicle has
filed IA No.1/2022 under Order XLI Rule 27 of CPC to produce
additional documents viz., Driving License of driver of the
offending vehicle.
16. In the last and in the alternative, the learned counsel
has argued that if at all this Court found the want of requisite
evidence, the proper course is to exercise the power of remand
under the provisions of Order XLI Rule 23-A CPC. The learned
counsel has contended that this Court being the first Court of
Appeal, must give an opportunity to the appellant/owner of the
offending vehicle to adduce proper additional evidence,
considering the fact that the finding of the Tribunal was against
him and entire liability has been saddled upon him, for not
possessing valid and effective driving license of the offending
vehicle.
17. A conjoint reading of Rules 23, 23A and 24 of Order
XLI brings forth the scope as also contours of the powers of
remand that when the available evidence is sufficient to dispose
of the matter, the proper course for an Appellate Court is to
follow the mandate of Rule 24 of Order XLI CPC and to determine
the real questions in controversy between the parties finally.
18. It is only in such cases where the decree/award in
challenge is reversed in appeal and a re-trial is considered
necessary that the Appellate Court shall adopt the course of
remanding the case. In this case, as the appellant/owner of the
offending vehicle has furnished the driving license of the driver,
which was not produced at the time of trial. Under such
circumstances, retrial is considered and necessary because of
production of additional document, and more particularly for the
reason that adequate opportunity of leading substantive evidence
to a party is requisite. Hence, the matter requires to be remanded
to the Tribunal for consideration afresh after giving reasonable
opportunity to both the parties to adduce their respective
evidence in support of their claims.
19. So far as appeal filed by the claimant is concerned,
the Tribunal awarded a sum of Rs.3,53,000/- as compensation to
the injured/claimant. The claimant is before this Court seeking
enhancement of compensation. From the perusal of the
impugned judgment and award, the Tribunal has awarded
compensation on the lower side on all heads. Hence, we are of
the considered view that instead of answering the question
regarding quantum of compensation, which is under challenge by
the claimant, it would be just and appropriate to remand the
matter to the Tribunal including the case of the claimant to be
decided by the Tribunal afresh, reserving liberty to the claimant
to adduce his further/additional evidence, if any, regarding
quantum of compensation before the Tribunal.
20. Hence, we proceed to pass the following:
ORDER
a) Both appeals are allowed in part.
b) The impugned judgment and award of the
Tribunal insofar as negligence is concerned,
is confirmed. So far as the quantum of
compensation and liability to pay the same,
the finding of the Tribunal is hereby set-
aside.
c) The matter is remitted back to the Tribunal
for fresh consideration after giving
reasonable opportunity to both the parties to
adduce their respective additional/further
evidence in support of their claims, as to
liability and quantum of compensation.
d) The parties shall appear before the Tribunal
on or before 19.11.2024 without awaiting
further notice from the Tribunal.
e) The parties shall co-operate in speedy
disposal of the case.
f) The Tribunal shall consider the case of the
parties and dispose off the matter at the
earliest, considering the age of the claim
petition.
g) The amount in deposit be transmitted to the
Tribunal along with TCR forthwith.
h) All the contentions of the parties are kept
open.
Sd/-
(H.T.NARENDRA PRASAD)
JUDGE
Sd/-
(VENKATESH NAIK T)
JUDGE
JTR
