Karnataka High Court
N Manjunath vs Nagaraju A M on 6 March, 2024
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
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NC: 2024:KHC:9505
MFA No. 4956 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
MISCELLANEOUS FIRST APPEAL NO.4956 OF 2016(MV-I)
BETWEEN:
N.MANJUNATH
S/O NANJUNDAIAH,
AGED ABOUT 36 YEARS,
RESIDING AT ANKANAHALLI,
BANNIKUPPE POST,
KAILANCHA HOBLI,
RAMANAGARA TALUK
AND DISTRICT-562 159.
...APPELLANT
(BY SRI. RAJA.L., ADVOCATE)
AND:
1. NAGARAJU.A.M.
S/O LATE MALLEGOWDA,
Digitally signed by
THEJASKUMAR N AGED ABOUT 39 YEARS,
Location: HIGH RESIDING AT ANIGERE VILLAGE,
COURT OF CHANNAPATNA TALUK-56125,
KARNATAKA
RAMANAGARA DISTRICT.
2. BAJAJ ALLIANCE GENERAL INSURANCE CO. LTD.,
GROUND FLOOR, TBR TOWER,
I CROSS ROAD, NEW MISSION ROAD,
JAIN COLLEGE,
NEAR BENGALURU STOCK EXCHANGE,
BENGALURU-560 027.
...RESPONDENTS
(BY SRI.T.P.VIVEKANANDA., ADVOCATE F0R R1;
SRI. B.PRADEEP., ADVOCATE FOR R2)
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NC: 2024:KHC:9505
MFA No. 4956 of 2016
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988,
AGAINST THE JUDGMENT AND AWARD DATED: 15.04.2015
PASSED IN MVC NO.324/2012 ON THE FILE OF THE SENIOR
CIVIL JUDGE & JMFC, ADDITIONAL MACT, CHANNAPATTANA,
RAMANAGAR DISTRICT.
THIS MISCELLANEOUS FIRST APPEAL IS COMING ON FOR
ADMISSION, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
Sri.Raja.L., learned counsel for the appellant, Sri.T.P.Vivekananda., learned counsel for respondent No.1 and Sri.B.Pradeep., learned counsel for respondent No.2 have appeared in person.
2. Though the appeal is listed today for admission, with the consent of learned counsel for the respective parties, it is heard finally.
3. For the sake of convenience, the parties shall be referred to as per their status and rankings before the Tribunal.
4. It is the case of the claimant that on the 19th day of April 2011 at about 6:45 pm., when he and his friend Murali were going in Bajaj Pulsar bearing Registration No.KA-42-H- -3-
NC: 2024:KHC:9505 MFA No. 4956 of 2016 3424 towards Mathikere Village on B.M.Road from Channapatna near Mathikere, a Honda Shine vehicle bearing Registration No.KA-02-H-7763 came in a rash and negligent manner under the influence of alcohol and hit against their vehicle. Due to the impact, the claimant sustained grievous injuries. He was shifted to Government Hospital, Channapatna. Later he was taken to B.G.S Hospital, Bengaluru for better treatment and took treatment as an in-patient for about one month. Contending that the accident occurred due to rash and negligent riding of the Honda Shine motorbike, the claimant filed claim petition seeking compensation.
In response to the notice, respondents appeared through their counsel and filed objections and denied petition averments. Among other grounds they prayed for dismissal of the petition.
Based on the above pleadings, the Tribunal framed Issues and additional issues, parties led evidence and marked the documents. The Tribunal vide Judgment dated:15.04.2015 partly allowed the petition and the first respondent Owner of the offending vehicle was directed to pay compensation of -4- NC: 2024:KHC:9505 MFA No. 4956 of 2016 Rs.2,28,500/- (Rupees Two Lakh Twenty Eight Thousand Five Hundred only) to the claimant. It is this Judgment that is called into question in this appeal on several grounds as set-out in the memorandum of appeal.
5. Learned counsel for the appellant in presenting his arguments strenuously urged that the Tribunal has totally erred in fixing the liability on the owner and exonerating the Insurance Company solely on the ground that it is a drunk driving case. He argued by saying that there is nothing on record to show that the rider of the motorbike i.e., Honda Shine was drunk at the time of accident. Counsel therefore, submits that the first respondent may be exonerated from the liability and the Insurance company may be held liable to pay the compensation. Counsel therefore, submits that appropriate order may be passed.
By way of reply to this contention, learned counsel for respondents 1 and 2 justified the Judgment and award of the Tribunal. They submit that the appeal is devoid of merits and the same may be dismissed.
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NC: 2024:KHC:9505 MFA No. 4956 of 2016 Heard, the contentions urged on behalf of the respective parties and perused the appeal papers and also the records with utmost care.
6. The point that requires consideration is whether the Tribunal is justified in fixing the liability on the rider/ owner of the offending vehicle on the ground that it is a drunk driving case?
7. The facts are sufficiently stated and do not require reiteration. The issue revolves around drunk driving case. The claimant contended that the rider of Honda Shine motorbike had consumed alcohol while riding the motorbike as on the date of accident. However, the alleged consumption of alcohol by the rider of the Honda Shine motorbike was not established by the aid of breath analyzer. In the absence of the test, it is hard to believe that the rider/ owner of the Honda Shine motorbike had consumed alcohol. This aspect of the matter has been overlooked by the Tribunal. Hence, fixing the liability to pay the compensation on the first respondent is unsustainable in law.
For the reasons the rider/ owner of the offending vehicle is exonerated from the liability to pay compensation. -6-
NC: 2024:KHC:9505 MFA No. 4956 of 2016 Admittedly, the offending vehicle was insured with second respondent Insurance Company. In view of exoneration of liability on the rider/ owner of the offending vehicle, the Insurance Company is directed to satisfy the award of the Tribunal within four weeks from the date of receipt of the certified copy of this Judgment.
8. For the reasons stated above, the Judgment dated:15.04.2015 passed by the Court of Senior Civil Judge & JMFC, MACT, Channapatna in M.V.C.No.324/2012 in so far as fixing the liability on the rider/ owner of the offending vehicle is liable to be set-aside. Accordingly, it is set-aside.
9. Resultantly, the Miscellaneous First Appeal is allowed.
10. Lastly, learned counsel for the appellant submits that pursuant to the interim order dated:22.07.2016, the appellant has deposited a sum of Rs.43,500/- (Rupees Forty Three Thousand Five Hundred only) vide cheque bearing No.018820 dated:23.09.2016. Hence, he submits that the amount in deposit may be refunded to the appellant. -7-
NC: 2024:KHC:9505 MFA No. 4956 of 2016 The oral submission made by learned counsel for the appellant is placed on record.
The registry concerned is directed to transmit/ the amount in deposit in favor of the appellant on proper identification.
Sd/-
JUDGE TKN List No.: 1 Sl No.: 46