Allowed

Deepa v. Bharamappa

Karnataka HC10 Jun 2022MFA/1893/2020

Case brief

AI extract

What is this about?

The High Court allowed the appeals filed by the insurer and vehicle owner against the MACT's compensation award. The Court remanded the matter to the MACT to reconsider the finding of negligence regarding the offending vehicle's involvement after the parties are afforded an opportunity to adduce additional evidence and documents.

What did the court decide?

The judgment and award passed by the Tribunal are set aside. The matter is remitted to the Tribunal for fresh consideration after parties adduce additional evidence.

Deepa Vs Bharamappa — Motor Accident Claims | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF JUNE 2022

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BEFORE

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THE HON’BLE MR.JUSTICE H.T.NARENDRA PRASAD

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MFA No.7842 OF 2019(MV)

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C/W

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MFA No.1893 OF 2020(MV)

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IN MFA 7842/2019 BETWEEN:

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Sri. Bharamappa, S/o Basappa, Aged about 53 years, R/o. Kengalahalli Village, Honnalli Taluk-577217, Davanagere District. … Appellant

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(By Sri.V.B. Siddaramaiah., Advocate)

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AND:

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Smt. Deepa,

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W/o Siddalingappa @ Siddalingayya, Aged about 25 years.

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Sri. Mahadevayya @ Mahadevappa, S/o Siddalingayya, Aged about 56 years.

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Smt. Soubhagyamma, W/o Mahadevayya @ Mahadevappa, Aged about 41 years.

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Sri. Manjunathayya @ Manjunath, S/o Mahadevayya @ Mahadevappa, Aged about 25 years. R2 to R4 are R/o Hale Bathi Village, Davanagere Taluk & District-577001.

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The IFFCO- TOKIO General Insurance CO. Ltd., Branch Office, 3^rd Main road, P.J. Extension, Davanagere-577001. Represented by its Authorized Manager. ... Respondents

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(By Sri.R.Shashidhar, Advocate for R1 to R4: Sri. O. Mahesh, Advocate for R5)

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This MFA is filed under Section 173(1) of MV Act, against the Judgment and Award dated: 05.08.2019 passed in MVC No.674 on the file of the Prl. Senior Civil Judge & Member, MACT-IV, Davanagere, awarding compensation of Rs.14,47,000/- with interest @ 8% p.a. from the date of petition till realization.

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IN MFA 1893/2020 BETWEEN:

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Deepa,

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W/o Siddalingappa @ Siddalingayya, Aged about 26 years.

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Sri. Mahadevayya @ Mahadevappa, S/o Siddalingayya, Aged about 57 years.

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Soubhagyamma, W/o Mahadevayya @ Mahadevappa, Aged about 42 years.

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Sri. Manjunathayya @ Manjunath, S/o Mahadevayya @ Mahadevappa, Aged about 26 years. All are R/o Hale Bathi Village, Davanagere Taluk & District-577001. … Appellants

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(By Sri.R.Shashidhara., Advocate)

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AND:

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Bharamappa, S/o Basappa, Aged about 54 years, R/o. Kengalahalli Village, Honnalli Taluk-577217, Davanagere District.

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The Manager IFFCO- TOKIO General Insurance CO. Ltd., Branch Office, 3^rd Main road, P.J. Extension, Davanagere-577001. …Respondents

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(By Sri. V.B.Siddaramaiah, Advocate for R1; Sri. O. Mahesh, Advocate for R2)

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This MFA is filed under Section 173(1) of MV Act, against the Judgment and Award dated: 05.08.2019 passed in MVC No.674/2018 on the file of the Principal Senior Civil Judge and Member, MACT-IV Davanagere,

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partly allowing the claim petition for compensation and seeking enhancement of compensation. These MFAs, coming on for hearing, this day, this Court, delivered the following:

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J U D G M E N T

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MFA No.7842/2019 is filed by the owner of the offending vehicle whereas MFA No.1893/2020 is filed by the claimants under Section 173(1) of the Motor Vehicles Act, (for short, ‘the Act’) being aggrieved by the judgment and award dated 05.08.2019 passed by the MACT, Davanagere in MVC No.674/2018. Since the challenge is to the same judgment, both the appeals are clubbed together, heard and common judgment is being passed.

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Facts giving rise to the filing of the appeal briefly stated are that on 29.08.2017 at about 9.30 a.m. the deceased Siddalingappa, after dropping his wife at Nimbegundi village was returning to his village on motorcycle bearing registration No.KA-14/EG-

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When he reached near Kengalahalli village of Honnali Taluk, at that time, a Goods Auto bearing registration No.KA-17/A-1699 which was being driven in a rash and negligent manner, dashed against the motorcycle. As a result of the aforesaid accident, the deceased sustained grievous injuries and succumbed to the injuries on the way to hospital.

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The claimants filed a petition under Section

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166 of the Act seeking compensation for the death of the deceased along with interest.

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On service of summons, the respondent Nos.1 and 2 appeared through counsel and filed separate written statements in which the averments made in the petition were denied. The age, occupation and income of the deceased are denied. It was pleaded that the petition itself is false and frivolous in the eye of law. It was further pleaded that the accident was due to the rash and negligent riding

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of the motorcycle by the deceased himself. It was further pleaded that the since the insurance policy is in force, the respondent No.2 is liable to pay the compensation.

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It was pleaded by respondent No.2 that the driver of the offending vehicle did not possess valid driving licence as on the date of the accident. It was further pleaded that the liability is subject to terms and conditions of the policy. It was further pleaded that the quantum of compensation claimed by the claimants is exorbitant. Hence, they sought for dismissal of the petition.

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On the basis of the pleadings of the parties,

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the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimants, in order to prove their case, examined claimant No.1 as PW-1 and got exhibited documents namely Ex.P1 to Ex.P19.

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On behalf of respondents, three witnesses were

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examined as RW-1 to RW-3 and got exhibited documents namely Ex.R1 to Ex.R5. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the offending vehicle by its driver, as a result of which, the deceased sustained injuries and succumbed to the injuries. The Tribunal further held that the claimants are entitled to a compensation of Rs.14,47,000/- along with interest at the rate of 8% p.a. and since the driver of the offending vehicle was not holding a valid and effective driving licence, directed the owner of the offending vehicle to deposit the compensation amount along with interest. Being aggrieved, these appeals have been filed.

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Sri V.B.Siddaramaiah, the learned counsel for the owner of the offending vehicle has raised the following contentions:

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Firstly, the accident occurred on 29.08.2017 at about 9.30 a.m. Immediately after the accident the deceased has been shifted to the hospital wherein he succumbed to the injuries at about 11.00 p.m. on 29.08.2017. At about 12.00 a.m. the father of the deceased has given a complaint as per Ex.P1 that the accident has occurred due to self-fall. Pursuant to that, the police have registered FIR as per Ex.P2 stating that the accident has occurred due to self-fall and there is no mention of the offending vehicle involved in the accident.

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Secondly, even as per Ex.P5 - PM report, it is mentioned that the death is due to self-fall from motorcycle. Even statement of three witnesses have been recorded to that effect. Therefore, it is very clear that the offending vehicle was not involved in the accident. The Tribunal has erred in holding that

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the driver of the Auto is negligent in causing the accident.

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Thirdly, for the first time, in the statement given by the complainant, i.e., father of the deceased, under Section 161 of Cr.P.C. he has stated as per Ex.P3 that he has received a phone call from Kumar that the driver of the offending vehicle dashed against the motorcycle, due to the impact the rider of the motorcycle, i.e., deceased Siddallingaiah, his son, fell down and suffered injures and succumbed to the injuries. The police have drawn mahazar and sketch on 29.08.2017. Thereafter, on 30.08.2017 the vehicle has been seized from the house of the owner. Even the mahazar witnesses have also not been examined and the complainant and also eyewitness one Kumar are also not examined. Only on the basis of the complaint the police have filed charge sheet against the driver of the offending vehicle holding that the

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driver of the auto is negligent in causing the accident. There is no proper evidence to prove that there is negligence on the part of the driver of the offending vehicle.

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Fourthly, even in respect of criminal case is concerned, the matter is pending before the criminal court. The owner-cum-driver of the offending vehicle has contested the matter before the criminal court. Therefore, he sought for allowing the appeal filed by the owner of the offending vehicle.

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On the other hand, Sri R.Shashidhara, the

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learned counsel appearing for the claimants has raised the following contentions:

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Firstly, the accident has occurred due to the negligence of the driver of the goods auto. Pursuant to the summons issued by the Tribunal the ownercum-driver has appeared before the Tribunal and has filed the written statement. Nowhere he denied that

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his vehicle was not involved in the accident. Even he has been examined as RW-2. In his evidence he has not denied that his vehicle was not involved in the accident. Therefore, the driver of the offending vehicle was negligent in causing the accident.

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Secondly, the father of the deceased who is the complainant is not an eyewitness. On the information received through phone he has given a complaint. Later he came to know that the accident has occurred due to the negligence of the driver of the auto. He has given a statement before the police under Section 161 of Cr.P.C. On that basis the police after thorough investigation have filed the charge sheet against the driver of the offending vehicle. It is very clear from the mazahar and sketch that the driver of the offending vehicle was driving his vehicle on the extreme right side and dashed against the motorcycle,

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due to the impact he fell down and suffered injuries and succumbed to the injuries.

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Thirdly, even when he sought for releasing of the vehicle he has given an indemnity bond as per Ex.P11 wherein he has admitted that his vehicle was involved in the accident. The Tribunal, after considering the evidence of the parties has rightly held that the driver of the offending vehicle is negligent in causing the accident.

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Fourthly, the overall compensation awarded by the Tribunal is on the lower side.

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Fifthly, since the claimants are third parties, even if the driver of the offending vehicle was not having a valid driving licence, in view of the law laid down by the Hon’ble Apex Court in the case of ‘PAPPU AND OTHERS vs. VINOD KUMAR LAMBA AND ANOTHER’ AIR 2018 SC 592 and a Full Bench judgment of this Court in ‘NEW INDIA ASSURANCE

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CO. LTD. BIJAPUR vs. YALLAVVA AND ANOTHER’

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ILR 2020 Kar.2239, the insurance company has to pay the compensation amount with liberty to recover the same from the owner of the offending vehicle, the insured. Hence, he prays for allowing the appeal filed by the claimants.

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Sri O.Mahesh, the learned counsel appearing

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for the Insurance Company has raised the following contentions:

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Firstly, as on the date of the accident the driver of the offending vehicle was not having valid and effective driving licence. Since he has violated the policy condition, Insurance Company is not liable to pay the compensation.

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Secondly, the offending vehicle was not involved in the accident. It is very clear from the complaint as well as FIR. Hence, he sought for dismissal of both the appeals.

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9. Heard the learned counsel for the parties.

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Perused the judgment and award and the original records.

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It is the case of the claimant that on 29.08.2017 at about 9.30 a.m. the deceased Siddalingappa after dropping his wife at Nimbegundi village was returning to his village on motorcycle bearing registration No.KA-14/EG-1577. When he reached near Kengalahalli village of Honnali Taluk, at that time, a Goods Auto bearing registration No.KA-17/A-1699 which was being driven in a rash and negligent manner, dashed against the motorcycle. As a result of the aforesaid accident, the deceased sustained grievous injuries and succumbed to the injuries on the way to hospital.

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To prove their case, claimants have examined the first claimant as PW-1. She has reiterated the averments made in the claim petition.

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She was not an eyewitness to the accident. As per the case of the claimant one Sri Mahadevaiah, who is the father of the deceased has given a complaint as per Ex.P1. He has stated that the deceased fell down from the motorcycle and succumbed to the injuries. Pursuant to that, the police have registered FIR as per Ex.P2. Even in the inquest report – Ex.P5 it has been mentioned that the deceased died due to skid on his motorcycle. Even in the postmortem report Ex.P4 it has been reported that he fell down from the motorcycle. There are three witnesses to the inquest report. They have also stated that the deceased fell down from the motorcycle. For the first time when the police have recorded Section 161 statement, the complainant has mentioned that later he came to know that his son died due to the accident and the driver of the goods auto dashed against the motorcycle. On the basis of the statement police have

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filed the charge sheet. The complainant as well as eyewitnesses have not been examined. Even the police have drawn the mahazar and mahazar witnesses have also not been examined. The Tribunal only on the basis of the sketch, mahazar and charge sheet has come to the conclusion that the driver of the offending vehicle is negligent in causing the accident. It is the bounden duty of the claimants to prove the negligence of the offending vehicle. Therefore, in respect of involvement of the vehicle bearing No.KA-17/A-1699. Since the driver-cumowner of the offending vehicle has not denied in his evidence that his vehicle is not involved in the accident.

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The only dispute is in respect of negligence. It is the bounden duty of the claimant to prove the negligence. Even though there are panch witnesses they have not been examined. Under these

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circumstances, the matters requires to be remitted back to the Tribunal for fresh consideration.

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Accordingly, appeals are allowed. Judgment

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and award passed by the Tribunal is set aside. In respect of involvement of the offending vehicle, i.e., Goods Auto bearing registration No.KA-17/A-1699 is concerned, the finding of the Tribunal is confirmed. The Tribunal is directed to reconsider the matter afresh after affording opportunity to the parties to adduce additional evidence and to produce additional documents.

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All the parties are directed to appear before the Tribunal on 28.07.2022 at 11.00 a.m. without any further notice.

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The Tribunal is directed to dispose of the matter without being influenced by the observations made hereinabove, within six months from the date of appearance of the parties.

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The amount in deposit is ordered to be

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transferred to the Tribunal forthwith.

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JUDGE

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Cm/-

Deepa v. Bharamappa

Case brief

What is this about?

What did the court decide?

Deepa v. Bharamappa

Case brief

What is this about?

What did the court decide?

What the court decided

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