Karnataka High Court
Smt.Shobha W/O Vishwanath Gavimath vs Akthar Pasha W/O Yakub Ali And Anr on 15 November, 2022
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 15TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
MFA NO.200244 OF 2015 (MV-I)
C/W
MFA NO.200174/2015, MFA NO.200175/2015,
MFA NO.200210/2015, MFA NO.200211/2015,
MFA NO.200212/2015, MFA NO.200213/2015,
MFA NO.200242/2015, MFA NO.200243/2015,
MFA NO.200245/2015, MFA NO.200246/2015,
MFA NO.200247/2015, MFA NO.200248/2015,
and MFA 200249/2015
IN MFA NO.200244/2015
BETWEEN:
Sri Panchaksharayya, S/o Sharanayya,
Age :34 years, Occ : Medical Practitioner, now nil
R/o Bheemalkhed Village,
Tq: Humnabad , Dist: Bidar.
... Appellant
(By Sri S.S.Sajjanshetty, Advocate)
AND:
1. Akthar Pasha W/o. Yakub Ali,
Age :Major, Occ: Owner of Lorry
R/o H.No.7-32-93,
Mominpura, Gulbarga,
Tq & Dist - Gulbarga.
2. The United India Insurance Company Limited
Osmanabad through its Divisional Manager,
Dr.Jawli Complex, Super Market, Gulbarga,
Tq & Dist : Gulbarga - 585 103.
... Respondents
(By Smt.Anuradha M Desai, Advocate for R-2;
2
Notice to R-1 is dispensed with)
This Miscellaneous First Appeal is filed under
Section 173(1) of the MV Act, praying to set aside the
judgment and award dated 04.09.2014 passed in MVC
No.760/2011 on the file of the Prl.Sr.Civil Judge and CJM
at Gulbarga and further be please to modify the award
making respondent No.2 is liable with suitable
enhancement payable in accordance with law in the facts
and circumstances of the case along with interest @ 9%
per annum from the date of petition till deposit.
In MFA NO.200174/2015
BETWEEN:
Sri Dilip @ Siddappa @ Dilip Kumar
S/o Sharanappa, Age : 37 years,
Occ : Agriculture now nil
R/o : Bheemalkhed Village,
Taluk - Humnabad, District - Bidar .
... Appellant
(By Sri S.S.Sajjanshetty, Advocate)
AND:
1. Akthar Pasha W/o. Yakub Ali,
Age :Major, Occ : Owner of Lorry
R/o H.No.7-32-93,
Mominpura Gulbarga,
Taluk & District - Gulbarga - 585 103.
2. The United India Insurance
Company Limited,
Osmanabad through its Divisional Manager,
Dr.Jawli Complex, Super Market, Gulbarga,
Tq & Dist Gulbarga - 585 103.
... Respondents
(By Smt.Anuradha M Desai, Advocate for R-2;
Notice to R-1 is dispensed with)
This Miscellaneous First Appeal is filed under
Section 173(1) of the MV Act, praying to set aside the the
3
judgment and award dated 04.09.2014 passed in MVC
No.312/2012 on the file of the Prl.Sr.Civil Judge and CJM
at Gulbarga, and further be please to modify the award
making respondent No.2 is liable with suitable
enhancement payable in accordance with law in the facts
and circumstances of the case along with interest @ 9%
per annum from the date of petition till deposit.
IN MFA NO. 200175/2015
BETWEEN:
Sri Kashinath @ Kashayya,
S/o Sangayya Gavimath,
Age : 60 years, Occ : Labour now nil,
R/o : Bheemalkhed Village
Taluk - Humnabad, District - Bidar
... Appellant
(By Sri S.S.Sajjanshetty, Advocate)
AND:
1. Akthar Pasha W/o. Yakub Ali,
Age : Major, Occ : Owner of Lorry
R/o H.No.7-32-93,
Mominpura, Gulbarga,
Tq & Dist - Gulbarga - 585 103.
2. The United India Insurance Company Limited,
Osmanabad through its Divisional Manager,
Dr.Jawli Complex, Super Market, Gulbarga,
Tq & Dist Gulbarga - 585 103.
... Respondents
(By Smt.Anuradha M Desai, Advocate for R-2;
Notice to R-1 is dispensed with)
This Miscellaneous First Appeal is filed under
Section 173(1) of the MV Act, praying to set aside the
judgment and award dated 04.09.2014 passed in
MVC No.84/2012 on the file of the Prl.Sr.Civil Judge and
CJM at Gulbarga, C/C in the court of 1st Addl.Senior Civil
Judge & MACT at Gulbarga, and further be please to
modify the award making respondent No.2 is liable with
4
suitable enhancement payable in accordance with law in
the facts and circumstances of the case along with interest
@ 9% per annum from the date of petition till deposit.
IN MFA NO. 200210/2015
BETWEEN:
Smt.Shobha W/o. Vishwanath Gavimath,
Age : 35 years, Occ : Agriculture now nil,
R/o Bheemalkhed Village,
Taluk - Humnabad, District - Bidar.
... Appellant
(By Sri S.S.Sajjanshetty, Advocate)
AND:
1. Akthar Pasha W/o. Yakub Ali,
Age :Major, Occ : Owner of Lorry
R/o H.No.7-32-93, Mominpura,
Gulbarga, Tq & Dist - Gulbarga - 585 103.
2. The United India Insurance Company Limited,
Osmanabad through its Divisional Manager,
Dr.Jawli Complex, Super Market, Gulbarga,
Tq & Dist Gulbarga - 585 103.
... Respondents
(By Smt.Anuradha M Desai, Advocate for R-2;
Notice to R-1 is dispensed with)
This Miscellaneous First Appeal is filed under
Section 173(1) of the MV Act, praying to set aside the
judgment and award dated 04.09.2014 passed in
MVC No.85/2012 on the file of the Prl.Sr.Civil Judge and
CJM at Gulbarga, C/C in the court of 1st Addl.Senior Civil
Judge & MACT at Gulbarga, and further be please to
modify the award making respondent No.2 is liable with
suitable enhancement payable in accordance with law in
the facts and circumstances of the case along with interest
@ 9% per annum from the date of petition till deposit.
5
MFA NO.200211/2015,
BETWEEN:
Sri Sangappa S/o Veerabhadrappa Savalgi,
Age : 45 years, Occ; Agriculture,
R/o Bheemalkhed Village,
Taluk - Humnabad, District - Bidar.
... Appellant
(By Sri S.S.Sajjanshetty, Advocate)
AND:
1. Akthar Pasha W/o. Yakub Ali,
Age : Major, Occ : Owner of Lorry
R/o H.No.7-32-93, Mominpura,
Gulbarga, Tq & Dist - Gulbarga - 585 103.
2. The United India Insurance Company Limited,
Osmanabad through its Divisional Manager,
Dr.Jawli Complex, Super Market Gulbarga,
Tq & Dist Gulbarga - 585 103.
... Respondents
(By Smt.Anuradha M Desai, Advocate for R-2;
Notice to R-1 is dispensed with)
This Miscellaneous First Appeal is filed under
Section 173(1) of the MV Act, praying to set aside the
judgment and award dated 04.09.2014 passed in
MVC No.313/2012 on the file of the Prl.Sr.Civil Judge and
CJM at Gulbarga, C/C in the court of 1st Addl.Senior Civil
Judge & MACT at Gulbarga, and further be please to
modify the award making respondent No.2 is liable with
suitable enhancement payable in accordance with law in
the facts and circumstances of the case along with interest
@ 9% per annum from the date of petition till deposit.
6
IN MFA NO.200212/2015
BETWEEN:
Sri Sharanappa S/o Siddappa Harsoor,
Age : 50 years, Occ : Agriculture now nil,
R/o Bheemalkhed Village,
Taluk - Humnabad, District - Bidar.
... Appellant
(By Sri S.S.Sajjanshetty, Advocate)
AND:
1. Akthar Pasha W/o. Yakub Ali,
Age :Major, Occ; Owner of Lorry,
R/o H.No.7-32-93,
Mominpura, Gulbarga,
Taluk & District - Gulbarga - 585 103.
2. The United India Insurance Company Limited,
Osmanabad through its Divisional Manager,
Dr.Jawli Complex, Super Market, Gulbarga,
Tq & Dist Gulbarga - 585 103.
... Respondents
(By Smt.Anuradha M Desai, Advocate for R-2;
Notice to R-1 is dispensed with)
This Miscellaneous First Appeal is filed under
Section 173(1) of the MV Act, praying to set aside the
judgment and award dated 04.09.2014 passed in
MVC No.311/2012 on the file of the Prl.Sr.Civil Judge and
CJM at Gulbarga, and further be please to modify the
award making respondent No.2 is liable with suitable
enhancement payable in accordance with law in the facts
and circumstances of the case along with interest @ 9%
per annum from the date of petition till deposit.
IN MFA NO.200213/2015
BETWEEN:
Smt.Channabasamma W/o. Sharanappa Harsoor,
Age : 45 years, Occ : Agriculture now nil,
7
R/o Bheemalkhed Village,
Taluk - Humnabad, Dist Bidar.
... Appellant
(By Sri S.S.Sajjanshetty, Advocate)
AND:
1. Akthar Pasha W/o. Yakub Ali,
Age :Major, Occ : Owner of Lorry,
R/o H.No.7-32-93, Mominpura,
Gulbarga, Tq & Dist - Gulbarga.
2. The United India Insurance Company Limited,
Osmanabad through its Divisional Manager,
Dr.Jawli Complex, Super Market, Gulbarga,
Tq & Dist Gulbarga.
... Respondents
(By Smt.Anuradha M Desai, Advocate for R-2;
Notice to R-1 is dispensed)
This Miscellaneous First Appeal is filed under
Section 173(1) of the MV Act, praying to set aside the
judgment and award dated 04.09.2014 passed in
MVC No.314/2012 on the file of the Prl.Sr.Civil Judge and
CJM at Gulbarga, and further be please to modify the
award making respondent No.2 is liable with suitable
enhancement payable in accordance with law in the facts
and circumstances of the case along with interest @ 9%
per annum from the date of petition till deposit.
IN MFA NO.200242/2015
BETWEEN:
Smt.Basamma W/o. Rachappa Nirna,
Age : 34 years, Occ : Coolie now nil,
R/o. Bheemalkhed Village,
Taluk - Humanabad, District - Bidar
... Appellant
(By Sri S.S.Sajjanshetty, Advocate)
8
AND:
1. Akthar Pasha W/o. Yakub Ali,
Age :Major, Occ : Owner of Lorry,
R/o H.No.7-32-93, Mominpura,
Gulbarga, Tq & Dist - Gulbarga.
2. The United India Insurance Company Limited,
Osmanabad through its Divisional Manager,
Dr.Jawli Complex, Super Market,
Gulbarga, Tq & Dist Gulbarga.
... Respondents
(By Smt.Anuradha M Desai, Advocate for R-2;
Notice to R-1 is dispensed)
This Miscellaneous First Appeal is filed under
Section 173(1) of the MV Act, praying to set aside the
judgment and award dt. 04.09.2014 passed in
MVC No.762/2011 on the file of the Prl.Sr.Civil Judge and
CJM at Gulbarga, and further be please to modify the
award making respondent No.2 is liable with suitable
enhancement payable in accordance with law in the facts
and circumstances of the case along with interest @ 9%
per annum from the date of petition till deposit.
IN MFA NO.200243/2015
BETWEEN:
Smt.Bhaghyawanthi W/o. Prabhurao Harsoor,
Age : 39 years, Occ : Agriculture -coolie now nil,
R/o Bheemalkhed Village,
Taluk - Humanabad, District - Bidar.
... Appellant
(By Sri S.S.Sajjanshetty, Advocate)
AND:
1. Akthar Pasha W/o. Yakub Ali,
Age :Major, Occ : Owner of Lorry,
R/o H.No.7-32-93, Mominpura,
Gulbarga, Tq & Dist - Gulbarga.
9
2. The United India Insurance Company Limited,
Osmanabad through its Divisional Manager,
Dr.Jawli Complex, Super Market, Gulbarga,
Tq & Dist Gulbarga - 585 101.
... Respondents
(By Smt.Anuradha M Desai, Advocate for R-2;
Notice to R-1 is dispensed)
This Miscellaneous First Appeal is filed under
Section 173(1) of the MV Act, praying to set-aside
judgment and award dated 04.09.2014 passed in
MVC No.761/2011 on the file of the Prl.Sr.Civil Judge and
CJM at Gulbarga, and further be please to modify the
award making respondent No.2 is liable with suitable
enhancement payable in accordance with law in the facts
and circumstances of the case along with interest @ 9%
per annum from the date of petition till deposit.
IN MFA NO.200245/2015
BETWEEN:
Smt.Nagamma W/o. Basavaraj Kadwadi,
Age : 39 years, Occ : Coolie now nil,
R/o Bheemalkhand Village,
Taluk -Humanabad, Dist - Bidar.
... Appellant
(By Sri S.S.Sajjanshetty, Advocate)
AND:
1. Akthar Pasha, W/o. Yakub Ali,
Age :Major, Occ : Owner of Lorry,
R/o H.No.7-32-93, Mominpura,
Gulbarga, Tq & Dist - Gulbarga.
2. The United India Insurance Company Limited,
Osmanabad through its Divisional Manager,
Dr.Jawli Complex, Super Market, Gulbarga,
Tq & Dist Gulbarga - 585 101.
... Respondents
(By Smt.Anuradha M Desai, Advocate for R-2;
10
Notice to R-1 is dispensed)
This Miscellaneous First Appeal is filed under
Section 173(1) of the MV Act, praying to set-aside the
judgment and award dtd.04.09.2014 passed in
MVC No.763/2011 on the file of the Prl.Sr.Civil Judge and
CJM at Gulbarga, and further be please to modify the
award making respondent No.2 is liable with suitable
enhancement payable in accordance with law in the facts
and circumstances of the case along with interest @ 9%
per annum from the date of petition till deposit.
IN MFA NO.200246/2015
BETWEEN:
Sri Shivashankar W/o. Bakkappa Police Patil,
Age : 43 years, Occ :Agriculture,
R/o. Bheemalkhand Village,
Taluk - Humanabad, District - Bidar.
... Appellant
(By Sri S.S.Sajjanshetty, Advocate)
AND:
1. Akthar Pasha W/o. Yakub Ali,
Age :Major, Occ : Owner of Lorry,
R/o H.No.7-32-93, Mominpura,
Gulbarga, Tq & Dist - Gulbarga.
2. The United India Insurance Company Limited,
Osmanabad through its Divisional Manager,
Dr.Jawli Complex, Super Market, Gulbarga,
Tq & Dist Gulbarga - 585 101.
... Respondents
(By Smt.Anuradha M Desai, Advocate for R-2;
Notice to R-1 is dispensed)
This Miscellaneous First Appeal is filed under
Section 173(1) of the MV Act, praying to set aside the
judgment and award dated 04.09.2014 passed in
MVC No.83/2012 on the file of the Prl.Sr. Civil Judge and
CJM at Gulbarga and further be please to modify the
11
award making respondent No.2 is liable with suitable
enhancement payable in accordance with law in the facts
and circumstances of the case along with interest @ 9%
per annum from the date of petition till deposit.
IN MFA NO.200247/2015
BETWEEN:
Smt.Shobharani w/o. Basawaraj,
Age :32 years, Occ :Tutorials now nil
R/o.Bheemalkhed Village,
Tq-Humanabad, Dist - Bidar.
... Appellant
(By Sri S.S.Sajjanshetty, Advocate)
AND:
1. Akthar Pasha W/o. Yakub Ali,
Age :Major, Occ; Owner of Lorry,
R/o H.No.7-32-93, Mominpura,
Gulbarga, Tq & Dist - Gulbarga.
2. The United India Insurance Company Limited,
Osmanabad through its Divisional Manager,
Dr.Jawli Complex, Super Market,
Gulbarga, Tq & Dist Gulbarga - 585 101.
... Respondents
(By Smt.Anuradha M Desai, Advocate for R-2;
Notice to R-1 is dispensed)
This Miscellaneous First Appeal is filed under
Section 173(1) of the MV Act, praying to set side the
judgment and award dated 04.09.2014 passed in
MVC No.315/2012 on the file of the Prl.Sr.Civil Judge and
CJM at Gulbarga, and further be please to modify the
award making respondent No.2 is liable with suitable
enhancement payable in accordance with law in the facts
and circumstances of the case along with interest @ 9%
per annum from the date of petition till deposit.
12
IN MFA NO.200248/2015
BETWEEN:
Smt.Ratnamma w/o. Revannappa Halidhodi,
Age : 49 years, Occ; Coolie now nil,
R/o :Bheemalkhed Village,
Tq- Humanabad, Dist- Bidar.
... Appellant
(By Sri S.S.Sajjanshetty, Advocate)
AND:
1. Akthar Pasha W/o. Yakub Ali,
Age :Major, Occ : Owner of Lorry,
R/o H.No.7-32-93, Mominpura,
Gulbarga, Tq & Dist - Gulbarga.
2. The United India Insurance Company Limited,
Osmanabad through its Divisional Manager,
Dr.Jawli Complex, Super Market, Gulbarga,
Tq & Dist Gulbarga - 585 101.
... Respondents
(By Smt.Anuradha M Desai, Advocate for R-2;
Notice to R-1 is dispensed)
This Miscellaneous First Appeal is filed under
Section 173(1) of the MV Act, praying to set aside the
judgment and award dated 04.09.2014 passed in
MVC No.764/2011 on the file of the Prl.Sr.Civil Judge and
CJM at Gulbarga, and further be please to modify the
award making respondent No.2 is liable with suitable
enhancement payable in accordance with law in the facts
and circumstances of the case along with interest @ 9%
per annum from the date of petition till deposit.
IN MFA NO.200249/2015
BETWEEN:
Smt.Nagamma W/o. Panchaksharayya,
Age : 29 years, Occ :Coolie now nil,
R/o Bheemalkhed Village,
13
Tq-Humanabad, Dist - Bidar.
... Appellant
(By Sri S.S.Sajjanshetty, Advocate)
AND:
1. Akthar Pasha w/o. Yakub Ali,
Age : Major, Occ; Owner of Lorry,
R/o H.No.7-32-93, Mominpura,
Gulbarga, Tq & Dist - Gulbarga.
2. The United India Insurance Company Limited,
Osmanabad through its Divisional Manager,
Dr.Jawli Complex, Super Market,
Gulbarga, Tq & Dist Gulbarga - 585 101.
... Respondents
(By Smt.Anuradha M Desai, Advocate for R-2;
Notice to R-1 is dispensed)
This Miscellaneous First Appeal is filed under
Section 173(1) of the MV Act, praying to set aside the
judgment and award dated 04.09.2014 passed in
MVC No.765/2011 on the file of the Prl.Sr.Civil Judge and
CJM at Gulbarga, and further be please to modify the
award making respondent No.2 is liable with suitable
enhancement payable in accordance with law in the facts
and circumstances of the case along with interest @ 9%
per annum from the date of petition till deposit.
These Appeals coming on for Hearing this day, the
court delivered the following:
JUDGMENT
The above appeals are preferred by the appellants/claimants challenging the judgment and award passed by the Principal Senior Civil Judge and CJM, Gulbarga/I Addl. Senior Civil Judge and MACT, Gulbarga (for short 'the tribunal') in MVC Nos.760, 761, 762, 763, 14 764, 765 of 2011 and MVC Nos.83, 84, 85, 311, 312, 313, 314 and 315 of 2012 dated 04.09.2014. These appeals are founded on the premise of shifting of liability.
2. Parties to the appeal shall be referred to as per their status before the tribunal.
3. Brief facts of the case is as under:
On 13.02.2005 at about 1.00 p.m. all the claimants and other villagers were proceeding in Tempo bearing Reg.No.KA-38/979 to Humnabad from Bemelkhed village for attending the funeral ceremony and when they were near Hudgi Village on NH-9, driver of lorry bearing Reg.No.KA-39/299, came in the middle of the road in a rash and negligent manner at high speed and dashed against the aforesaid Tempo in which the claimants were travelling, resultantly the driver of the Tempo lost control over the steering and dashed his vehicle to a tree due to the which the claimants sustained grievous injuries and immediately were shifted to Government Hospital at Humnabad and then shifted to Basaveshwar Hospital, Kalaburagi. It is stated that prior to occurrence of 15 accident, the claimants were hale and healthy and were earning `6,000/- per month by doing labour/agricultural work. Due to the occurrence of accident, the claimants expended huge amount towards medical expenses and incidental expenses and have sustained grievous injuries in the accident due to the rash and negligent driving by driver of the lorry.
Due to the said accident and injuries suffered, the claimants are not in position to do their work as they were doing prior to the accident and they are unable to get back to work. Hence, they filed a claim petition before the tribunal seeking compensation.
4. On service of notice, respondent No.1 placed exparte and respondent No.2 filed detailed statement of objections inter alia denied the occurrence of the accident, involvement of the vehicle and the rash and negligent act by the driver of the lorry vehicle, on the other hand, the attributed negligence against the driver of the tempo. On all these grounds and the grounds urged in the claim petition sought for dismissal of claim petitions. 16
5. In order to substantiate the issues and to establish the case, the claimants got examined themselves as PW.1 and the Doctor as PW.2 and got marked documents as Exs.P1 to P.16 in their respective claim petitions, whereas respondents examined the Assistant Manager of Insurance Company as R.W.1 and got marked the Insurance Policies as Ex.R1 and Ex.R2.
6. On the basis of material evidence both oral and documentary, the tribunal awarded the compensation in the respective claim petitions and fastened the liability on the owner of the Tempo bearing Reg.No.KA-39/299 as he has violated the terms and conditions of the policy hence liable to pay the compensation.
7. Being aggrieved by the same, the claimants are before this Court seeking fastening of liability on the insurer of the Tempo bearing Reg.Np.KA-38/0979 in which they were travelling.
8. It is the vehement contention of learned counsel for appellants/claimants that the tribunal has erred in fastening the liability on the owner of the Tempo 17 and has not taken into consideration the material evidence both oral and documentary thereby causing miscarriage of justice to the claimants. On this basis, he seeks to allow the appeals and to set-aside the liability fastened on the owner of the Tempo and fasten the same on the owner and the insurer of lorry i.e., respondent Nos.1 and 2.
9. Per contra, learned counsel for the respondent No.2-Insurance Company vehemently contends that the judgment and award passed by the tribunal is in accordance with material evidence both oral and documentary and same does not call for interference at the hands of this Court. On this basis, he seeks to dismiss the appeals as same does not merit consideration.
10. Having heard the learned counsel for the appellants/claimants and learned counsel for respondents, the points that would arise for consideration before this Court are:
i) Whether the judgment and award
passed by the Tribunal calls for
interference ?
ii) What order ?
18
11. Having perused the entire material evidence both oral and documentary and the impugned judgment and award and having heard the submissions of learned counsel, I am of the opinion that the tribunal has committed an error in fastening liability on the owner of the Tempo bearing Reg.No.KA-38/0979 thereby point Nos.1 and 2 are answered in the affirmative i.e. in favour of the claimants.
12. It is not in dispute that the accident occurred on 13.02.2005 at 1.00 p.m. The involvement of the Tempo in which the claimants were travelling and the lorry and the injuries having been sustained by the claimants are all not disputed. The laying of charge-sheet against the driver of the lorry/tempo is also not in dispute. The police records are produced at Ex.P1 to Ex.P.4 which is not challenged by the driver of the lorry/tempo same will have to be accepted on its face value. It is also not disputed that a case came to be registered in Crime No.44/2005 for the offence punishable under Sections 279, 337, 338 and 304(A) of IPC read with Section 187 of the Motor Vehicles Act.
19
13. The only point for consideration in all these appeals is the question of shifting the liability from the owner of the vehicle namely tempo bearing Reg.No.KA- 38/0979 namely one Mirza Amzad who was fastened with the liability to pay the amount and second one is that the respondent No.2-Insurance Company of the second vehicle involved in the accident namely the lorry bearing Reg.No.KA-39/299.
14. It is the vehement contention of the learned counsel appearing for the appellants in all these cases that the Tribunal has committed illegality and perversity in passing the impugned judgment and award fastening the liability on the person who is not even a party to the proceedings in the claim petition before the Tribunal, as the two parties who are made before the Tribunal are none other than the owner of the lorry and insurer of the lorry bearing Reg.No.KA-39/299.
15. It is the case of the appellants/claimants that the offending vehicle lorry was the cause of accident which dashed against the tempo in which the claimants totally 32 persons who were traveling in the tempo goods 20 carriage vehicle and due to the rash and negligent driving of the lorry, the tempo driver lost control and met with the accident resulting in the injuries sustained by the claimants. The FIR has been filed against the driver of the tempo bearing Reg.No.KA-38/979. Thereafter, after obtaining further statement at Ex.P.3 a charge-sheet has been filed by the jurisdictional police against the driver of the lorry bearing Reg.No.KA-39/299 for the offences punishable under Sections 279, 337 and 338 and 304A of IPC read with Section 187 of the Motor Vehicles Act.
16. The Tribunal has committed an error in fastening the liability against the owner of the tempo- traveller whereas he was not even made as a party to the claim petition. He further contends that the Tribunal has committed illegality in not considering the judgments of the Tribunal in MVC No.366 to 369 of 2007 and MVC Nos.385, 394 and 399 to 401 of 2007, totally nine claim petitions which were disposed of by the Tribunal.
17. The learned counsel further contends that the Tribunal has not taken into consideration the judgment passed by the other Tribunals in the similar facts and 21 circumstances of the case, despite the same having been placed before the Tribunal by virtue of the list of documents dated 03.04.2014 along with which the MFAs preferred by the Insurance Company in MFA No.8220/2007 connected with MFA Nos.8221/2007 and MFA No.8223/2007 challenging the liability fastened as against the Insurance Company and the owner of the lorry. The said MFAs preferred by the Insurance Company challenging its liability fastened against it was rejected by a Coordinate Bench of this Court wherein the contention placed by the learned counsel for the Insurance Company with regard to false implication of vehicle has been rejected by the Coordinate Bench of this Court vide order dated 01.07.2010 in MFA No.8220/2007 and connected matters stated supra. Despite placing all these materials before the Tribunal, it has failed and committed a serious error in not appreciating these material facts and the judgments and has fastened the liability against the person who is not even on record and no opportunity given to the said person even to defend the case. It is basic fundamental right of a person to be atleast given a 22 hearing before an order is passed against him. These basic fundamentals not even followed by the Tribunal while passing the impugned judgment and award. On these grounds, learned counsel seeks to allow these appeals and being satisfied with the quantum awarded by the Tribunal, seeks to shift the liability on the Insurance Company and owner of the lorry rather than against the owner of the tempo traveler who was not a party before the Tribunal.
18. Per contra, learned counsel Smt.Anuradha M.Desai seeks to counter the argument of the learned counsel for the appellants by submitting that the FIR is filed against the driver of the tempo traveller and the Tribunal is right in fastening the liability against the owner of the tempo traveller as the no case is made out against the owner and insurer of the lorry.
19. She further sustains the order of the Tribunal that there being no FIR initially filed Ex.P.3 the further statement of one Shenkarappa is only an after thought the same cannot be taken into consideration as in the complaint and in the FIR there is no mention about the 23 involvement of the lorry bearing Reg.No.KA-39/299 in causing the accident.
20. She also further contends that the tempo traveller which a goods carriage vehicle admittedly and he was carrying about 32 passengers to the goods carriage vehicle which is a violation of the terms and conditions of the policy thereby a goods carriage cannot carry passengers as it is only meant for carrying the goods and thereby it is a violation of the terms and conditions of the policy. Even if that is taken into consideration she will have to primarily admit whether she is the insurer of the goods carriage tempo traveller vehicle or the insurer of the lorry. Be that as it may, on these grounds, she seeks dismissal of the appeals and to affirm the order passed by the Tribunal.
21. Exs.R1 and R2 are the copies of insurance policies furn ished by the coun sel fo r respond ent-In su ranc e Company w hich p ertains to the Tempo Traveler goods vehicle and also th e lorry respectively.
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22. On overall perusal of the en tire material on record s bo th oral and documentary and th e orig inal reco rds placed b efore the Court. Th e invo lvemen t of b oth th e vehicles nam ely Tempo Traveler and Lorry is no t m uch in dispute as th e FIR is initially regis tered in the nam e of driver of Tempo T raveler and thereafter based on further subm ission on one Sh ankarap pa, the c harg e sh eet is f iled against the driver of lo rry. It is also seen that PW .6 who is none other th an driver of T empo Traveler goods vehicle h as deposed before th e Court in other batch o f m atters arising out of th e same accident, wherein he has clearly stated th at wh ile he was d riving th e Tempo Traveler vehicle, at that time, the driver of lorry g ave permission to pass his vehicle, while the Temp o Traveler tried to overta ke the lorry, the d river of lorry suddenly drove th e vehic le in th e midd le of the road in a rash and neglig ent manner. As a result of wh ich the driver of Tempo Trav eler lost control and having swerved the vehicle towards rig ht sid e 25 dashed ag ains t the tree. Du e to wh ich, th e accid ent occurred and inmates of Temp o Traveler, who are passengers met with the ac cid ent and sustained inju ries. He has clearly stated that du e to ras h and neg ligen t driving of the lorry the said accid ent occurred and b y m istake the FIR is filed ag ainst Tempo T raveler. Be th at as it may, th e Co-ord inate bench of this Cou rt in MFA No.8221/2007 along with connected m atters dated 01.07.2010 which w as filed by the Insurance Comp any dealt with this matter with reg ard to law and false imp lication of the vehicle i.e. lorry in the ac cid ent wh ich after considera tion and hearing both the p arties on merits has d ismissed th e app eals preferred by th e Insurance Comp any. Therefo re, the q uestio n of Insu ranc e Compan y once ag ain ch alleng ing or qu estioning the liability and involvement of the vehicle on th e g round of fraud and false implicatio n cannot be sustain ed as the same do es not hold w ater an y more as th e same attained fin ality by th e judgment o f co- 26 ordinate bench of this Court. These matters having been brough t to the know ledge of th e tribunal by filing a m emo of lis t of d ocu ments and prod ucing the connected mo to r vehicle numb ers along with judgm ent of the trib unal and jud gment of th is co-ordinate bench of this Co urt, th e tribunal has not both ered to look into the same wh ile p assing this imp ugned judgm ent and aw ard. It is very ap palling to see th at the trib unal has not even both ered to make an y effort to look in to those docum ents though at p aragrap h No.12 of its judgm ent the motor veh icle numb ers ar e men tioned in M FA No.8221/2007 stated supra and connected m atters h aving b een disposed o f by th e Co-ord inate ben ch of this Co urt is not at all wh isp ered in th e imp ugned j udg ment and award passed by the tribunal. Thereb y there is severe injustice and m iscarriag e of justice caused to th e app ellants/claim ants. Further, it is releva nt to men tion h ere that th e tribun al has p assed th e judgm ent and awa rd ag ainst th e owner of T emp o 27 Traveler good s vehicle b earing registration No.K A- 38/979 as again st one Mirza A mzad Baig to b e liab le to p ay comp ensation and to deposit th e amo unt, whereas he is not even a p arty b efor e th e tribunal. This basic legal requ iremen t of law is without no tifyin g a p arty liability cannot be fasten ed at- least he has to be given an opp ortunity of being heard and p rinc iples of natu ral justice dem ands that before any ord er is passed an opportu nity to a p arty requ ired to b e given, the sam e is not done in this case which is also blatant violation of leg al p rinciples of law . The app ellan ts-claim ants are satisfied with th e amo unt of compensat ion award ed by the tribun al. The only p oint th at requires to be adj udicated before this Cou rt is to shift the liab ility from the owner of Tempo Traveler goods vehicle to th e driver of lo rry and the insurer who are parties to the tribunal.
23. I am in ag reement with th e learned counsel for the appellant that the trib unal has 28 committed a g ross error in fastening th e liability ag ainst own er of th e Tempo Traveler, the sam e requ ires to be fasten ed ag ainst the own er and insurer join tly and severally as it is th e d river and owner of the lo rry who are responsib le fo r commission of a cciden t and rash and neg ligen t manner of drivin g and cha rge sheet having been filed against b oth driver of Temp o Traveler as well as d river of lorry.
24. The co-ordin ate ben ch of this Court h as rej ected the claim of Insuranc e Comp an y on th e grou nd urged that th ere was false invo lvement of lorry would g o against th e Insurance Comp any. The arg ument of counsel that the lorry has been falsely imp licated is not sust ainable and no t a good ground to consider the argum ents of learned counsel for Ins urance Comp any. How ever, even if both the vehicles are in volved in the accid ent as per c harg e sheet, the claim ants who are passengers, though they m ay be gratu itous or un- authorized p assengers in the veh icle, they are at 29 lib erty to su e against both or either of the vehicle as both th e vehicles are joint tort-feasors and claimants are en titled to recover th e comp en sation fro m either or both of them .
25. In view of the fact th at Co-o rdinate ben ch of this Court h as passed an order rejecting the claim of Insu rance Comp any with reg ard to false involvem ent of lo rry and this co ntention ag ain canno t b e urged as th e same wou ld not ben efit th e In surance Comp any. Hence, th e imp ugn ed judgment and award p ass ed by th e tribunal requires in terference. This Court would not w ant to delve into the q u antum of comp en sation as the same is said to be satisfactory by the learned cou nsel ap pearing fo r claimants in all th ese case. Hen ce, this Co urt d oes not d elve into the qu antum of compensation on all other heads as the s ame is satisfacto ry to th e counsel for claim ants .
26. For the afo resaid reason s, I p roceed to pass the follow ing;
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ORDER
(a) The ap p eals are allowed in p art.
(b ) The compensation award ed by the trib unal in eac h of the cases are confirm ed with interest as ord ered.
(c) The jud gmen t and aw ard p assed by the tribunal is set aside to the effect that the owner of Temp o Traveler goods vehicle bearing registration No .K A-38/979 being liab le to pay co mpensatio n and to dep osit the amou nt.
(d ) The ow ner of lorry bearing regis tration
No.KA-39/299 and Insuran ce Company
both are jointly and severally liable to p ay comp en sation in view of th e fac t th at the insurance policy b eing in force.
(e) Resp ondent No .2-Insurance Comp any is
directed to deposit t he com pensation
amo unt in favour of claim ants.
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(f) All other terms and co nditions stip ulated
by th e trib unal with regard to d ep osit and investm ent are retain ed, the s ame is no t disturb ed.
(g ) In view of d isposal of main app eals , pending in terloc utory app lications d oes not survive for co nsideration . Accord ingly, it is consigned to rec ords.
Sd/-
JUDGE sn/msr