Remanded

Devarajappa @ Devarajamurthy v. L K Santhosha

Karnataka HC11 Jan 2023MFA/2855/2015

Case brief

AI extract

What is this about?

Karnataka High Court allowed miscellaneous first appeals filed by an injured claimant and the vehicle owner challenging a compensation award. The court set aside the Tribunal award and remanded the matter for fresh consideration to allow the owner to produce evidence of prior vehicle sale and address service of notice issues.

What did the court decide?

The appeals are allowed; the judgment award of the Tribunal is set aside; the matter is remanded for fresh consideration.

Devarajappa @ Devarajamurthy Vs L K Santhosha — Execution and Attachment | Karnataka HC (2023)

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1 - MFA No. 2855 of 2015 C/W MFA NO. 7626 OF 2015

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 11^TH DAY OF JANUARY, 2023

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BEFORE

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THE HON'BLE MR.JUSTICE HANCHATE SANJEEVKUMAR

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MISCELLANEOUS FIRST APPEAL NO. 2855 OF 2015 (MV) C/W MISCELLANEOUS FIRST APPEAL NO. 7626 OF 2015 (MV)

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IN MFA NO.2855/2015:

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BETWEEN:

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DEVARAJAPPA @ DEVARAJAMURTHY, S/O CHAMUNDAPPA, AGED ABOUT 36 YEARS, R/O JAKKANAHALLI VILLAGE, MANDYA TQ AND DISTRICT-571414.

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…APPELLANT

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(BY SRI. SREENIVASAN M Y., ADVOCATE)

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AND:

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Digitally signed by JAI JYOTHI J Location: HIGH COURT OF KARNATAKA

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L. K. SANTHOSHA S/O KRISHNEGOWDA, AGED ABOUT 37 YEARS, R/O LAKSHMISAGARA VILLAGE, PANDAVAPURA TALUK-571 437.

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CHANDRASHEKARA S/O RAMADASAPPA, MAJOR, R/O NO.65, SIRISI ROAD, CHAMARAJAPETE, BENGALURU - 560 008.

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…RESPONDENTS

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(R1 - Notice held sufficient vide order dated 19.11.2016; BY SRI K T GURUDEV PRASAD, ADVOCATE FOR R-2;

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2 - MFA No. 2855 of 2015 C/W MFA NO. 7626 OF 2015

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THIS MISCELLANEOUS FIRST APPEAL FILED U/S 173(1) OF MV ACT PRAYING TO ALLOW THIS APPEAL AND MODIFY THE JUDGMENT DATED 29.12.2014 PASSED IN MVC NO.38/2011 ON THE FILE OF THE II-ADDITIONAL SENIOR CIVIL JUDGE AND ADDITIONAL MACT, MANDYA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA NO.7626/2015:

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BETWEEN:

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SRI CHANDRASHEKARA S/O LATE P.B.RAMADASAPPA, AGED ABOUT 67 YEARS R/O NO.60/1, RESERVOIR STREET BASAVANAGUDI BENGALURU - 560 004.

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…APPELLANT

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(BY SRI K .T GURUDEV PRASAD., ADVOCATE)

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AND:

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SRI DEVARAJAPPA @ DEVARAJAMURTHY S/O CHAMUNDAPPA AGED ABOUT 36 YEARS, R/O JAKKANAHALLI VILLAGE, MANDYA TQ AND DISTRICT-571414.

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SRI L K SANTHOSHA S/O KRISHNEGOWDA AGED ABOUT 37 YEARS, R/O LAKSHMISAGARA VILLAGE, PANDAVAPURA TALUK-571437.

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…RESPONDENTS

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(R-1 served; R2- notice held sufficient vide order dated 13.08.2019)

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3 - MFA No. 2855 of 2015 C/W MFA NO. 7626 OF 2015

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THIS MISCELLANEOUS FIRST APPEAL FILED U/S 173(1) OF MV ACT PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 29.12.2014 PASSED IN MVC NO.38/2011 ON THE FILE OF THE II-ADDITIONAL SENIOR CIVIL JUDGE AND ADDITIONAL MACT, MANDYA AWARDING A COMPENSATION OF RS.1,32,550/WITH INTEREST AT 7.5% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.

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THESE MISCELLANEOUS FIRST APPEALS COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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M.F.A.No.2855 of 2015 is filed by the claimant under

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Section 173(1) of Motor Vehicles Act, 1988 (hereinafter referred to as 'MV Act' for short), challenging the judgment and award passed in M.V.C.No.38/2011 dated 29.12.2014 by the II Additional Senior Civil Judge & Additional MACT, Mandya, seeking enhancement of compensation.

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M.F.A.No.7626 of 2015 is filed by the owner under Section 173(1) of Motor Vehicles Act, 1988, challenging the judgment and award passed in M.V.C.No.38/2011 dated 29.12.2014 by the II Additional Senior Civil Judge & Additional MACT, Mandya.

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Brief facts of the case are that, on 19.03.2008, the appellant in M.F.A.No.2855/2015 who is the first Respondent

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4 - MFA No. 2855 of 2015 C/W MFA NO. 7626 OF 2015

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in M.F.A.No.7626/2015, namely, Devarajappa @

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Devarajamurthy (hereinafter referred to as the 'appellant') and his brother were going towards Mandya for the personal work in the motorcycle of the appellant bearing No.KA-11/S1547 and the brother of the appellant was riding the said motorcycle on the left side of the Bangalore-Mysore road towards Mandya by observing road rules and regulations and at about 12.30 p.m when they were so proceeding near Indavalu in front of Ganganahalla, one Bajaj Scooter bearing No.KA-01/L-530 being driven by its rider in rash and negligent manner at high speed endangering to human life came from the opposite direction in the wrong side towards Mysore and dashed against the motorcycle, in which the appellant was proceeding as pillion rider and due to the said accident, the appellant fell down and sustained grievous injuries and motorcycle was also damaged and immediately after the accident, the appellant was taken to Mandya District Hospital and thereafter shifted to B.G.S.Apollo Hospital, Mysore, wherein he was admitted as inpatient and

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5 - MFA No. 2855 of 2015 C/W MFA NO. 7626 OF 2015

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on taking x-ray, it is revealed that the head injury with fracture of right mandible right parasympheris left angle and operation was done by inserting plate and wires and due to the said injuries, the appellant has sustained severe pain and agony.

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Heard the arguments on both sides and perused the records.

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Learned counsel for the appellant/owner submitted that before the Tribunal, the appellant was not served with the notice by the Tribunal and the claimants have taken the notice and got it served through paper publication. Therefore, the appellant/owner was not aware of the proceedings. Therefore, he submitted that it is against the principles of natural justice. Further, he submitted that the appellant/owner has sold his vehicle much prior to the date of the accident and if the appellant had been served with the notice, then, he would have appeared before the Tribunal and produced delivery note, etc., of having transferred the

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6 - MFA No. 2855 of 2015 C/W MFA NO. 7626 OF 2015

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vehicle by way of sale to the other person. Therefore, he prays to remand the case to the Tribunal enabling to give opportunity to the owner to file the evidence of transfer of the vehicle to the other person and also to prove that he is not the owner of the vehicle. Further, he submitted that during execution of proceedings only, he came to know that the Tribunal has passed the order. Therefore, for giving an opportunity, learned counsel for the appellant requested to remand the matter to the Tribunal.

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On the other hand, learned counsel for the claimant justified the judgment and award passed by the Tribunal.

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In the present case, the owner stated in the cause-title is shown as ex-parte. The owner stated in the judgment and award has filed I.A.No.2 of 2019 for production of additional documents, which are, delivery note, copy of the letter sent to the RTO and the other documents to show that the vehicle was sold much prior to the accident. Before the Tribunal, the service of notice

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7 - MFA No. 2855 of 2015 C/W MFA NO. 7626 OF 2015

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issued to the owner through paper publication was held sufficient. Therefore, there could not have been any chance or option for the appellant to appear before the Tribunal and produce the evidence. The appellant/owner came to know that the judgment and award passed by the Tribunal only when he received the notice in the execution case. Therefore, the notice effected on the appellant is by not actual service of notice but through paper publication. It is common experience that most of the persons do not verify newspaper whether any Court in the Karnataka has published a notice summoning him and virtually it is not possible to go through the newspaper and to know, notice is issued on him. Therefore, even though a notice issued to the respondent through publication is held sufficient, but in reality through such newspaper publication, it may not be possible to make knowing the respondent such and such case is filed. But when the owner received notice in execution petition, and came to know that such and such proceedings was initiated and order was passed, therefore,

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8 - MFA No. 2855 of 2015 C/W MFA NO. 7626 OF 2015

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considering all these facts and circumstances, the Court deems fit to give one more chance to the owner to contest

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the case and the case is remanded to the Tribunal. Therefore, in order to give opportunity to the appellant to prove that he has already sold the vehicle, hence, the case is required to be remanded to the Tribunal for fresh consideration, in accordance with law. Thus, the judgment

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and award passed by the Tribunal is remanded to the Tribunal for fresh consideration.

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Hence, I proceed to pass the following:

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ORDER

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i. The appeals are allowed .

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ii. The judgment and award passed by the Tribunal in M.V.C.No.38/2011 is hereby set-aside.

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iii. The matter is remanded to the Tribunal for fresh consideration in accordance with law.

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iv. Liberty is reserved to the parties to lead oral or documentary evidence or both, if they are so advised.

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9 - MFA No. 2855 of 2015 C/W MFA NO. 7626 OF 2015

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v. The parties are given liberty to implead parties, if they are so advised.

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vi. The parties are permitted to file their respective written statements.

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vii. All the contentions are left open.

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viii. The amount in deposit * shall be refunded to the appellant/owner in M.F.A.No.7626/2015.

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ix. Parties shall appear before the Tribunal on 24.02.2023, without expecting notice from the Tribunal.

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x. The Tribunal shall decide the case and dispose of the matter within a period of three months from 24.02.2023, in accordance with law.

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Sd/-

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JUDGE

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*Corrected vide court order dated 20.04.2023

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Devarajappa @ Devarajamurthy v. L K Santhosha

Case brief

What is this about?

What did the court decide?

Devarajappa @ Devarajamurthy v. L K Santhosha

Case brief

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