Karnataka High Court
Tukamma And Ors vs Abdul Moiz & Anr on 17 July, 2019
Author: B.M.Shyam Prasad
Bench: B.M.Shyam Prasad
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 17TH DAY OF JULY 2019
BEFORE
THE HON'BLE MR.JUSTICE B.M.SHYAM PRASAD
MFA CROB NO.200028/2019
C/W
MFA NO.200329/2019 (MV)
IN MFA CROB No.200028/2019:
BETWEEN:
1. Tukamma W/o Late Somshekhar Malge
Aged 36 Years, Occ: Household
2. Vijaylaxmi D/o Late Somshekhar Malge
Aged 20 Years
Occ: Student (1st Year PUC)
3. Vishal S/o Late Somshekhar Malge
Aged 17 Years
Occ: Student (7th Standard)
Minor, U/G of their mother Tukkamma
W/o Late Somshekhar
4. Sharnappa S/o Sidramappa Malge
Aged 63 Years, Occ: Nil
5. Paramma W/o Sharnappa Malge
Aged 60 Years, Occ: Household
2
All Are R/o 198, Pratap Nagar,
Naubad, Bidar, Now at Haroorgeri
Bidar-585401
... Cross-Objectors
(Sri Sandeep Vijaykumar, Advocate)
AND:
1. Abdul Moiz S/o Abdul Hafeez Saith
Aged Major, Occ: Business
R/o H.No.4-1-114, Noorkhan Taleem
Bidar-585401
(Owner of the Vehicle)
2. Mohammed Rajmohammed
S/o Mastan Ali
Aged 39 Years
Occ: Driver of Crane
R/o Halladkeri
Tq. & Dist. Bidar-585401
... Respondents
(By Sri. Ravi B. Patil, Advocate for R1;
Notice to R2 dispensed with V.O.Dtd. 17.07.2019)
This Miscellaneous First Appeal Cross-Objection is
filed under Order XLI Rule 22 of CPC 1908, praying to
modify the judgment and award dated 20.04.2018
passed in MVC No.689/2016 on the file of the Court of
Prl. District & Sessions Judge and Principal MACT,
Bidar and allow the present cross appeal by enhancing
the compensation amount from Rs.11,92,000/- to
Rs.25,92,000/- only as claimed by the appellants before
the Tribunal.
3
IN MFA No.200329/2019:
BETWEEN:
Abdul Moiz S/o Abdul Hafeez Saith
Aged Major, Occ: Business
R/o H.No.4-1-114, Noorkhan Taleem
Bidar-585401
(Owner of JCB Crane Bearing
Reg.No.KA-38-M-2491)
... Appellant
(By Sri Ravi B. Patil, Advocate)
AND:
1. Tukamma W/o Late Somshekhar Malge
Aged about 35 Years
Occ: Household
R/o 198, Pratap Nagar,
Naubad, Bidar, Now at Haroorgeri
Bidar-585401
2. Vijaylaxmi D/o Late Somshekhar Malge
Aged about 19 Years,
Occ: Student
R/o 198, Pratap Nagar,
Naubad, Bidar, Now at Haroorgeri
Bidar-585401
3. Vishal S/o Late Somshekhar Malge
Aged 16 Years, Occ: Student
U/G of their mother Tukkamma
W/o Late Somshekhar
R/o 198, Pratap Nagar,
Naubad, Bidar, Now at Haroorgeri
Bidar-585401
4
4. Sharnappa S/o Sidramappa Malge
Aged about 62 Years
Occ: Nil
R/o 198, Pratap Nagar
Naubad, Bidar, Now at Haroorgeri
Bidar-585401
5. Paramma
W/o Sharnappa Malge
Aged about 60 Years
Occ: Household
R/o 198, Pratap Nagar,
Naubad, Bidar, Now at Haroorgeri
Bidar-585401
6. Mohammed Rajmohammed
S/o Mastan Ali
Aged about 38 Years
Occ: Driver of Crane
R/o Halladkeri
Tq. & Dist. Gbidar-585401
(Driver of offending Crane)
... Respondents
(By Sri Sandeep Vijaykumar, Advocate for
C/R1 & R2 to R5;
Notice to R6 dispensed with V.O.Dtd. 8.7.2019)
This Miscellaneous First Appeal is filed under
Section 173(1) of the Motor Vehicle Act 1988, praying to
set aside the judgment and award dated 20.04.2018
passed by the Court of the Prl. District & Sessions
Judge & Prl. MACT at Bidar consequently allow the
present appeal, etc.
These MFA Cross-objection and MFA coming on
for Orders this day, the Court delivered the following:
5
JUDGMENT
Heard the learned counsel for the cross-objectors and the appellant and perused the records.
02. The appeal in MFA No.200029/2019 is by the Owner of the JCB Crane bearing Registration No.KA-38-M-2491 and the cross-objection is by the dependents of the deceased-Somshekhar viz., his wife, two children and parents. These appeals and cross- objections arise out of the judgment and award dated 20.04.2018 in MVC No.689/2016 on the file of the Prl. District and Sessions Judge and Prl. Motor Accident Claims Tribunal, Bidar.
03. The Owner of the JCB Crane is aggrieved with the award on two grounds viz., the finding as regards the negligence by the driver of the JCB Crane and the multiplier adopted by the Tribunal for the purpose of computation of loss of dependency. The 6 claimants, on the other hand, seeks enhancement in the compensation awarded by the Tribunal.
04. The undisputed facts are that the deceased Somshekhar died in a road accident on 03.09.2016. He died because of the accident involving the JCB Crane owned by the appellant. The deceased was working as a driver of a heavy transport vehicle. The claimants filed the claim petition asserting that the deceased was earning more than Rs.15,000/- per month. The accident was because of the rash and negligent driving by the driver of the JCB Crane and they were entitled for a compensation in a sum of Rs.39,25,000/-. The claimants arrayed the driver and the owner of the JCB Crane as respondents. The appellant and the driver of the JCB Crane were not served in the normal course, and therefore, notice was taken by way of paper publication. The appellant and the driver of the JCB were placed exparte. The Tribunal on the basis of the 7 evidence placed on record concluded that the driver of the JCB Crane was driving fast and he lost control over the vehicle and hit the deceased Somshekhar resulting in fatal injuries.
05. The learned counsel for the appellant - owner of the JCB Crane submits that the appellant was not aware of the proceedings and he has not deliberately kept himself out of the proceedings before the Tribunal. The appellant - owner of the JCB Crane will be able to place necessary additional evidence and also demonstrate from the evidence available on record that the accident could not have been because of the driver of the JCB Crane. In any event, the entire negligence could not have been attributed to the driver of the JCB Crane in which event some negligence will have to be attributed by the deceased - Somshekhar resulting in reduction of the compensation that the claimants would be entitled. Further, the learned 8 counsel for the appellant - owner of JCB Crane submits that the age of the deceased is taken at 35 years based on the post mortem report, because there is no other evidence to rebut the contents of the post mortem report as regards the age. However, Ex.P.5 is the Driving Licence and according to this Driving Licence, the deceased was aged 46 years as on the date of accident. Therefore, appropriate multiplier will be '14' as against '16' taken by the Tribunal.
06. On the other hand the learned counsel for the claimants - cross-objectors submits that the Claimants will be entitled for enhanced compensation in terms of judgment of the Hon'ble Supreme Court in the case of Pranay Sheti, including addition towards future prospects.
07. It is indisputable that the findings by the Tribunal as regards the reasons for the accident and demise of the deceased is because the appellant - owner 9 of JCB Crane did not led any rebuttal evidence. It is also indisputable that the appellant - owner of the JCB Crane and other respondent were not served in the normal course and the notice of the claim petition as against them was taken by way of paper publication. The question whether the accident was brought about because of the rash and negligent driving of the driver of JCB Crane or whether the deceased - Somshekhar was also negligent, would go to the root of the dispute i.e., the quantum of the compensation that appellant - owner of the JCB Crane would be liable to pay. But there is no complete adjudication, as the respondents have not led any rebuttal evidence. The question of compensation will also have to be revisited in the light of the decision of the Hon'ble Supreme Court in Pranaya Sheti's case. The appellant - owner of the JCB Crane, may not be able to avoid the entire liability. But, the appellant - owner of the JCB Crane, if is able to establish his defence, would be able to deflect a part of 10 the obligation. Therefore, the owner of the JCB Crane and the claimants will have to be given another opportunity to establish, and rebut the respective case.
08. The claimants/cross-objectors have lost their bread earner and are deprived of their dependency. The appellant - owner of the JCB Crane has deposited a sum of Rs.6,75,000/- in the this appeal in compliance with the interim order of this Court in the present appeal.
In the light of the material already on record, this Court is of the considered prima-facie view that even on appreciation of evidence that the appellant - owner of the JCB Crane could place, the owner of the JCB Crane will not be able to establish that the entire negligence was by the deceased - Somashekhar. Therefore, the owner of the JCB Crane will be obliged to pay some compensation. The Tribunal, even without addition towards future prospects as per the decision of the 11 Hon'ble Supreme Court in Pranay Shethi's case, has awarded as sum of Rs.11,52,000/-, and a sum of Rs.6,75,000/- is deposited by the JCB Crane.
09. Thus, in the totality of the circumstances of this case, the following order would be in the interest of justice. As such the following :
ORDER A. The cross-objection in MFA.Crob.No. 200028/2019 and the appeal in MFA.No.200329/2019 are allowed in part and the impugned judgment and award dated 20.04.2018 in MVC.No.689/2016 is set-aside and the claimant petition is restored to the board of the Tribunal for fresh consideration.12
B. The appellant - Owner of the JCB Crane and respondents shall appear before the Tribunal without further notice of first hearing on 13.08.2019.
C. The Tribunal shall expeditiously dispose of the petition within an outer limit of six months from 13.08.2019 without being influenced by any observation in the course of this order.
D. The parties shall assist the Tribunal in such expeditious disposal of the petition without seeking unnecessary adjournments.
E. The office shall disburse out of the amount in deposit, a sum of Rs.4,25,000/- to the claimants as apportioned by the Tribunal subject to final decision by the Tribunal on remand by this Court.
13F. The balance amount shall be released to the appellant - Owner of the JCB Crane.
G. No costs.
Sd/-
JUDGE BL/KJJ