Allowed

Smt Lokamba v. the Divisional Controller

Karnataka HC22 Sept 2023WP/6909/2021

Case brief

AI extract

What is this about?

The High Court allowed a writ petition against the rejection of an amendment application in a motor vehicle claim case. The Court held that the Tribunal erred in rejecting the correction of a vehicle number typo when documentary evidence proved the correct number, ruling the Tribunal did not appreciate the evidence.

What did the court decide?

The writ petition was allowed; the impugned order dated 07.11.2019 was set aside; the application for amendment in the claim petition was allowed.

Smt Lokamba Vs the Divisional Controller — Civil Procedure and Limitation | Karnataka HC (2023)

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1 - NC: 2023:KHC:34402 WP No. 6909 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22^ND DAY OF SEPTEMBER, 2023 BEFORE

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THE HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO.6909 OF 2021 (GM-CPC)

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BETWEEN:

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SMT. LOKAMBA, W/O LATE NAGARAJU, AGED ABOUT 54 YEARS,

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SRI. KARTHIK T.N., S/O LATE NAGARAJU, AGED ABOUT 24 YEARS,

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SMT. KAVYA T.N., D/O LATE NAGARAJU, AGED ABOUT 21 YEARS, R/O HINKAL, MYSORE, PRESENTLY C/O NAGARAJU, BABURAYANAKOPPALU, SRIRANGAPATNA TALUK, MANDYA DISTRICT.

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…PETITIONERS

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[BY SRI. K. M. SANATH KUMARA, ADVOCATE (PH)]

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AND:

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Digitally signed by THE DIVISIONAL CONTROLLER, GURURAJ D KARNATAKA STATE ROAD Location: High TRANSPORT CORPORATION, Court of Karnataka MYSORE DIVISION, MYSURU.

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…RESPONDENT

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[BY SMT. VIJAYALAKSHMI K., ADVOCATE FOR SRI. G. SHANKAR GOUD, ADVOCATE) (PH)]

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THIS W.P. IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER DATED 07.11.2019 PASSED ON I.A.NO.1 FILED IN MVC.NO.1544/2017 PENDING ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND JMFC AND MACT AT SRIRANGAPATNA VIDE ANNEXURE-F AND ETC.

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NC: 2023:KHC:34402 WP No. 6909 of 2021

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN B-GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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This writ petition is filed under Article 227 of the Constitution of India seeking prayer to set-aside the order dated 07.11.2019 passed on I.A.No.I in MVC.No.1544/2017, on the file of the Principal Senior Civil Judge and J.M.F.C and MACT at Srirangapatna (for short 'Tribunal'), whereby the application filed by the petitioners/claimants under Order VI Rule 17 of the CPC was rejected.

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Brief facts giving rise to filing of this writ petition are that the petitioners are the claimants in MVC.No.1544/2017, claim petition is filed alleging that on 20.09.2017, the husband of the petitioner No.1 and father of the petitioners No.2 and 3 died in the road accident due to rash and negligent driving of KSRTC Bus by its driver bearing registration No.KA-10-F-0148. The claim petition is opposed by the respondent - Corporation by contending that the claim is not maintainable and no negligence of its driver etc. During pendency of the proceedings before the Tribunal, the petitioners have filed an application under Order VI Rule 17 of the CPC, seeking for amendment of claim petition by

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NC: 2023:KHC:34402 WP No. 6909 of 2021

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substituting the number of the offending vehicle as KA-10-F0147 instead of KA-10-F-0148. The said application was opposed by the respondent - Corporation by filing objections by contending that the said application is filed belatedly, no reasons have been assigned in the application for seeking amendment. The Tribunal vide impugned order dated 07.11.2019 was pleased to reject the application seeking for amendment. In the aforesaid factual background, the present petition is filed.

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Sri. Sanath Kumara K.M., learned counsel for the petitioners submits that the Tribunal has committed grave error in rejecting the application for seeking amendment of the claim petition. It is submitted that the petitioners were compel to file the application for seeking amendment to correct the number of the offending vehicle from KA-10-F-0148 to KA-10-F-0147. It is submitted that the said mention of the vehicle number as KA-10-F-0148 in the claim petition is a typographical error and the said number was entered based on the particulars of FIR, even the driver of the vehicle has informed the same number to the Police however it is subsequently found to be incorrect. It is submitted that there is no change insofar as the KA-10-F-014 is

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concerned, it is only the last digit of the number instead of 8 it should have 7 and the said application was erroneously rejected by the Tribunal without appreciating the fact that the offending vehicle involved in the road accident was KA-10-F0147. It is also submitted that if the amendment is not allowed great prejudice and injustice would be caused to the claimants who have lost their bread earner of the family.

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It is contended that the MVI report at Ex.P4 clearly depict the vehicle of the respondent - Corporation as KA-10-F0147 was involved in the road accident on 20.09.2017. It is further contended that the Investigation Officer has submitted an application to the jurisdictional Court seeking to incorporate the correct vehicle number in the charge-sheet stating that the said entry of the vehicle number in the FIR was incorrect and the said entry was made based on the information given by the driver of the offending vehicle. It is also contended that the communication dated 25.10.2017 from the respondent - Corporation to the Investigation Officer clearly depict that the vehicle involved in the road accident on 20.09.2017 was No.KA10-F-0147. He submits that the Tribunal ought to have consider these aspects and allowed the application for amendment.

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However it has erroneously rejected the same. He seeks to allow the writ petition.

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Per contra, Smt.Vijaylakshmi K., appearing for Sri. G. Shankar Goud, learned counsel for the respondent - Corporation supports the impugned order of the Tribunal and submits that the Investigation Officer has registered the FIR on 21.09.2017, and FIR is based on the information furnished by the rider of the vehicle i.e., Sri.Ravindra. In the said FIR, it is clearly mentioned that the vehicle involved in the accident was KA-10-F-0148 and the Investigation Officer after completion of investigation has filed the charge-sheet by referring the said number only. It is submitted that, the MVI report and the other documents relied by the petitioners are the subsequent records which cannot be looked into. She submits that the Tribunal has justified in rejecting the application for seeking amendment of the claim petition on the ground that the petitioners have failed to show any ground that how they come to know that the said Bus caused the accident.

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It is further submitted that the petitioners have not

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assigned any reasons whatsoever in the application for seeking amendment and mentioning the incorrect number in the claim

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petition, they have just mentioned that these are typographical error. Such a reason cannot be a ground to allow the application for amendment. It is also submitted that, if the application is allowed, the very nature of the case would change. Hence, she seeks to dismiss the writ petition.

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Heard the learned counsel for the petitioners, learned counsel for the respondent – Corporation and perused the material available on record. It is not in dispute that the petitioners are the legal heirs of the deceased – Nagaraju have filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, before the Tribunal seeking compensation for the death of Sri.Nagaraju in the road accident alleging that the driver of the respondent – Corporation, who was driving the KSRTC Bus bearing registration No.KA-10-F-0148 was negligent and has caused the accident. It is also not in dispute that in the claim petition, the petitioners have mentioned the offending vehicle number as KA-10-F-0148 and subsequently filed an application seeking to change the vehicle number as KA-10-F-0147 by way of amendment on the ground that there was a typographical error in the claim petition and the said number was mentioned due to inadvertence.

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On perusal of the FIR in Crime No.158/2017, which is registered on 21.09.2017, it is evident that one Sri.Ravindra is the informant and he has stated that along with him deceased was traveling in Motorcycle bearing registration No.KA-05-EA-4033 and when the rider i.e., complainant asking the deceased to get down from the vehicle and requested him to stand near the road side so that he would fill the fuel to his Motorcycle, and accordingly the deceased was standing at road side and the respondent – KSRTC Bus bearing registration No.KA-10-F-0148 driven by its driver came in a rash and negligent manner, hit the deceased and caused fatal injuries. It is also not in dispute that the Investigation Officer has filed the charge-sheet against the driver of the offending vehicle by mentioning the vehicle number as KA-10-F-0148. However on close scrutiny of MVI report dated 24.10.2017 issued by the Motor Vehicle Inspector after physical inspection of the vehicle reveals that he has inspected the vehicle on 24.10.2017 at 4:30 p.m., the vehicle registration number is referred as KA10-F-0147. The observation in the MVI report refers that the vehicle inspected was removed from the place of accident and was kept at V.V.Puram Traffic Police, Mysuru, for safe custody. The said report is based on the physical inspection by the Motor

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Vehicle Inspector. The MVI report clearly establish the vehicle involved in the accident was KA-10-F-0147 which is not disputed by the respondent - Corporation.

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On further perusal of the letter dated 25.10.2017, letter written by the Division Traffic Officer of the respondent – Corporation to the Investigation Officer, wherein he has enclosed the documents of the offending vehicle by mentioning the vehicle number as KA-10-F-0147. The application dated 12.04.2019 filed by the Investigation Officer before the Jurisdictional Magistrate, seeking for correction of the typographical error crept in the charge-sheet clearly establishes that the vehicle involved in the accident was KA-10-F-0147 and not KA-10-F-0148. The documents referred supra clearly indicates that the vehicle number referred in the FIR and the charge-sheet was an error, based on some incorrect information initially given by the complainant i.e., Sri.Ravindra. However, other documents on record clearly establish that mentioning of vehicle number in claim petition appears to be bonafide mistake. This Court is of the considered view that, the Tribunal has committed grave error in not considering this documentary evidence available on record and

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proceeded mechanically to reject the application for seeking amendment in the claim petition.

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The Tribunal ought to have taken note of the MVI report, the application of the Investigation Officer filed before the Magistrate and the letter dated 25.10.2017 of the respondent - Corporation which unequivocally makes it clear that the offending vehicle was KA-10-F-0147. Hence, this Court is of the view that the Tribunal has not justified in rejecting the application. The reasons assigned by the Tribunal that, by allowing the amendment would change nature of the petition is required to be rejected as the said finding is contrary to the evidence on record. The petitioners are seeking to correct the offending vehicle number only insofar as last digit i.e., KA-10-F-014 8 it should be KA-10-F-014 7 . In my considered view, the finding recorded by the Tribunal are perverse and contrary to the evidence available on record.

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If the application for amendment of the claim petition is allowed no prejudice or harm would be caused to the respondent – Corporation. The petitioners are required to establish the factum of accident, involvement of the vehicle and

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10 -

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NC: 2023:KHC:34402 WP No. 6909 of 2021

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negligence of the driver and liability of Corporation by producing cogent and expert evidence before the Tribunal.

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For the aforementioned reasons, writ petition is allowed; the impugned order dated 07.11.2019 passed on I.A.No.I in MVC.No.1544/2017 by the Principal Senior Civil Judge and J.M.F.C and MACT at Srirangapatna is set-aside.

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I.A.No.I filed by the petitioners in MVC.No.1544/2017 is allowed.

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No orders as to costs.

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Sd/JUDGE

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GRD

Smt Lokamba v. the Divisional Controller

Case brief

What is this about?

What did the court decide?

Smt Lokamba v. the Divisional Controller

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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