Karnataka High Court
Smt. K S Kempamma vs Sri R Ashok on 13 August, 2014
Bench: N.K.Patil, B.Sreenivase Gowda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 13TH DAY OF AUGUST 2014
PRESENT:
THE HON'BLE MR.JUSTICE N.K.PATIL
AND
THE HON'BLE MR.JUSTICE B.SREENIVASE GOWDA
MISCELLANEOUS FIRST APPEAL No.6319/2011(MV)
c/w
MISCELLANEOUS FIRST APPEAL No.6321/2011(MV)
MISCELLANEOUS FIRST APPEAL No.6320/2011(MV)
IN MFA No.6319/2011
BETWEEN:
1. Smt.K.S.Kempamma,
W/o late K.N.Kumar,
Aged about 38 years.
2. Master Chetan,
S/o late K.N.Kumar,
Aged about 16 years.
3. Master Jwalanth,
S/o late K.N.Kumar,
Aged about 11 years.
4. Smt.C.C.Padma,
W/o late K.N.Kumar,
Aged about 34 years.
5. Master K.Kiran Kumar,
S/o late K.N.Kumar,
Aged about 13 years.
6. Smt. Gowramma,
W/o late Nanjappa,
Aged about 68 years.
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Minor appellants 2 and 3
Represented by 1st appellant as
Next friend being their mother and
5th minor appellant is represented by
4th appellant as next friend being his mother.
All are residing at Kodiyala village,
Gubbi Taluk, Tumkur District-572 101.
Appellants
(By Sri N.Gopalkrishna, Adv.)
AND:
1. Sri R. Ashok,
S/o Rasappa,
Major in age,
Residing at No.57,
J.Hanumanthanagar,
Arikere village, 2nd Cross,
IIM-Post, Bannerghatta Road,
Bangalore-560 076.
2. M/s Oriental Insurance Company Ltd.,
Divisional Office-X, No.213-217,
Nagaprabha Chambers,
3rd Main, 4th Cross,
Chamarajpet, Bangalore-560 018,
Rep. by its Manager.
3. Sri K.N.Nataraj,
S/o Nanjappa,
Residing at Kodiyala village,
Chelur Hobli, Gubbi Taluk,
Tumkur District-572 101.
4. National Insurance Company Ltd.,
No.86/80, Muddappa Complex,
1st floor, Vivekananda Road,
Tumkur-572 101,
Rep. by its Manager.
Respondents.
(R-1 and R-3 served; By Sri M.Sowri Raju, Adv. for R-2; Sri
A.N.Krishnaswamy, Adv. for R-4)
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THIS MFA IS FILED U/S 173(1) OF M.V. ACT AGAINST
THE JUDGMENT AND AWARD DATED 27.12.2010 PASSED
IN MVC No.5592/2008 ON THE FILE OF THE II
ADDITIONAL JUDGE, MACT, COURT OF SMALL CAUSES,
BENGALURU, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
IN MFA No.6321/2011
BETWEEN:
1. Sri K.G.Siddaiah,
S/o late Gadiyappa,
Aged about 55 years.
2. Smt.Sharadamma,
W/o K.G.Siddaiah,
Aged about 47 years.
Both are residing at
Kodiyala village,
Gubbi Taluk, Tumkur District.
Appellants
(By Sri N.Gopalkrishna, Adv.)
AND:
1. Sri R. Ashok,
S/o Rasappa,
Major in age,
Residing at No.57,
J.Hanumanthanagar,
Arikere village, 2nd Cross,
IIM-Post, Bannerghatta Road,
Bangalore-560 076.
2. M/s Oriental Insurance Company Ltd.,
Divisional Office-X, No.213-217,
Nagaprabha Chambers,
3rd Main, 4th Cross,
Chamarajpet, Bangalore-560 018,
Rep. by its Manager.
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3. Sri K.N.Nataraj,
S/o Nanjappa,
Residing at Kodiyala village,
Chelur Hobli, Gubbi Taluk,
Tumkur District-572 101.
4. National Insurance Company Ltd.,
No.86/80, Muddappa Complex,
1st floor, Vivekananda Road,
Tumkur-572 101,
Rep. by its Manager.
Respondents.
(R-1 and R-3 served; By Sri M.Sowri Raju, Adv. for R-2; Smt.
Manjula N. Tejaswi, Adv. for R-4)
THIS MFA IS FILED U/S 173(1) OF M.V. ACT AGAINST
THE JUDGMENT AND AWARD DATED 27.12.2010 PASSED
IN MVC No.5594/2008 ON THE FILE OF THE II
ADDITIONAL JUDGE, MACT, COURT OF SMALL CAUSES,
BENGALURU, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
IN MFA No.6320/2011
BETWEEN:
1. Sri K.G.Karegowda,
S/o late Gadegowda,
Aged about 55 years.
2. Smt.Suvarnamma,
W/o K.G.Karegowda,
Aged about 45 years.
Both are residing at
Kodiyala village,
Gubbi Taluk, Tumkur District.
Appellants
(By Sri N.Gopalkrishna, Adv.)
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AND:
1. Sri R. Ashok,
S/o Rasappa,
Major in age,
Residing at No.57,
J.Hanumanthanagar,
Arikere village, 2nd Cross,
IIM-Post, Bannerghatta Road,
Bangalore-560 076.
2. M/s Oriental Insurance Company Ltd.,
Divisional Office-X, No.213-217,
Nagaprabha Chambers,
3rd Main, 4th Cross,
Chamarajpet,
Bangalore-560 018,
Rep. by its Manager.
3. Sri K.N.Nataraj,
S/o Nanjappa,
Residing at Kodiyala village,
Chelur Hobli, Gubbi Taluk,
Tumkur District-572 101.
4. National Insurance Company Ltd.,
No.86/80, Muddappa Complex,
1st floor, Vivekananda Road,
Tumkur-572 101,
Rep. by its Manager.
Respondents.
(R-1 and R-3 served; By Sri M.Sowri Raju, Adv. for R-2; Smt.
Deepa.M. for Sri C.M.Poonacha of Lexplexus, Adv. for R-4;)
THIS MFA IS FILED U/S 173(1) OF M.V. ACT AGAINST
THE JUDGMENT AND AWARD DATED 27.12.2010 PASSED
IN MVC No.5593/2008 ON THE FILE OF THE II
ADDITIONAL JUDGE, MACT, COURT OF SMALL CAUSES,
BENGALURU, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
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THESE APPEALS COMING ON FOR ORDERS THIS
DAY, B. SREENIVASE GOWDA, J., DELIVERED THE
FOLLOWING:-
JUDGMENT
All these appeals arising out of a common judgment of the Tribunal, they are heard together and disposed of finally by this common judgment.
2. In the road traffic accident that occurred on 12.06.2008 by involvement of a Tata Sumo and a canter, the driver of Tata Sumo by name K.N.Kumar and two occupants of the said Tata Sumo by name K.S. Kamalesh and K.K. Bhagya, died. Therefore, the legal representatives of K.N.Kumar, deceased driver of Tata Sumo filed claim petition in MVC No.5592/2008 before the MACT, Bangalore, under Section 166 of the Motor Vehicles Act, 1989, seeking compensation from the owners and insurers of both the Tata Sumo and the canter. Parents of deceased Kamalesh and Bhagya filed two separate claim petitions in MVC Nos.5593/2008 and 5594/2009 before the same Tribunal seeking compensation under Section 163-A of the Act from the 7 owners and insurers of the said Tata Sumo and canter. The Tribunal, by the impugned common judgment has held that the accident had occurred due to sole rash and negligent driving of the driver of Tata Sumo and dismissed the claim petitions against respondent Nos.1, 2 and 4 who are the owners of the canter, insurers of the canter and Tata Sumo respectively and awarded compensation of Rs.7,00,000/- in MVC No.5592/2008, Rs.3,54,160/- in MVC No.5593/2008 and Rs.3,74,140/- in MVC No.5594/2008 against respondent No.3 who is the owner of Tata Sumo, on the ground that the vehicle Tata Sumo having insured under Act only Policy, it does not cover the risk of driver and occupants. Aggrieved by the said judgment and award of the Tribunal, all the claimants have preferred these appeals.
3. Sri N.Gopalakrishna, learned Counsel for claimants in all the appeals submits that the Tribunal without properly appreciating the oral and documentary evidence on record, particularly the spot sketch marked 8 as Ex.P.4 according to which the vehicles were proceeding in opposite direction with each other and the accident has occurred in the middle of the road as such the drivers of both the vehicles contributed to the accident equally, has committed an error in holding that the accident has occurred due to sole negligent driving of the driver of Tata Sumo. He further submits that due to over sight, claimants could not examine some important eye witnesses to the accident who have stated before the police that the accident has occurred due to rash and negligent driving of the driver of Tata Sumo and if claimants had examined those important eye witnesses to the accident, the result would have been different than the one. Therefore, he prays this Court to allow the appeals and remand the matter to the Tribunal with a direction to reconsider the matter afresh, after giving opportunity to the claimants to lead additional evidence.
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4. In response to his submission, Sri Sowri Raju, learned Counsel for insurer of the canter and Smt. Manjula N. Tejaswi, learned Counsel appearing for insurer of Tata Sumo submit that, in the event of this Court allowing the appeals and remanding the matter to Tribunal for reconsideration after giving opportunity to the claimants to lead additional evidence, it may be at the cost and risk of the claimants and further, the insurers of both vehicles may be given opportunity to cross examine the claimants on such additional evidence and they may be permitted to lead additional evidence on their behalf as well their submission is placed on record.
5. After hearing the learned Counsel appearing for the parties and perusing the judgment and awards of the Tribunal including its records we are of the view that in the facts and circumstances of the case, it is just and proper to allow all the appeals and set-aside the judgment and awards of the Tribunal and remit the matter to Tribunal for reconsideration after giving 10 opportunity to both the parties to lead additional evidence without expressing any opinion on merits or demerits of the case in one way or the other.
6. Hence, we pass the following:
ORDER Appeals are allowed. The judgment and awards dated 27th December 2010 passed in MVC Nos. 5592, 5593 and 5594/2008 of the Tribunal are set-aside in its entirety and in all respects. The matter is remitted to the Tribunal with a direction to reconsider the claim petitions afresh, after affording opportunity to all the parties to lead additional evidence and giving opportunity to the opposite parties to cross-examine on such additional evidence by keeping open the contentions of the parties.
As the claimants and the insurers of both vehicles are represented in the appeals through their respective counsel, they are directed to appear before the Tribunal on 22.09.2014 at 11.00 a.m. without awaiting further notice from the Tribunal. On the said date or on the 11 next date of hearing the claimants are directed to take steps to issue notice to owners of both the vehicles.
The Tribunal is directed to reconsider the matter afresh and in accordance with law within ten months from 22.09.2014.
No order as to costs.
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