Karnataka High Court
Smt. Yashodhamma vs Deviramma on 6 March, 2018
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 06TH DAY OF MARCH, 2018
BEFORE
THE HON'BLE MR. JUSTICE N.K. SUDHINDRARAO
M.F.A NO.7170/2010 C/W M.F.A.NO.6949/2010 (MV)
In M.F.A No.7170/2010
Between:
Smt.Yashodhamma
W/o.K.G.Gopal
Aged about 52 years
Residing at Solugodu Somavara
Konanura Hobli
Arkalgud Taluk. .. Appellant
(By Sri S.Bhaskar Reddy, Adv., for
M/s.Ravi and Ravi, Advocates)
And:
1. Deviramma
W/o.Late Krishnegowda
Aged about 42 years
2. Kumara
S/o.Late Krishnegowda
Aged about 26 years
3. Mohana
S/o.Late Krishnegowda
Aged about 21 years
4. Ningamma
W/o.Doddegowda
2
Aged about 74 years
All are residing at
Solugodu Somavara
Konanura Hobli
Arkalgud Taluk
5. Manager National
Insurance Company
1st Floor, Manjunatha Complex
Bus Stand Road
Hassan
6. H.V.Ningaraju
S/o.H.S.Vasantha
Aged about 30 years
Residing at Maalambi
Shanivarasanthe Hobli
Somavarapete Taluk. ... Respondents
(By Sri H.Jayakara Shetty, Adv., for R1-4
Sri Ashok.N.Patil, Adv., for R-5
Sri.N.M.Puttamadegowda, Adv., for R-6)
This MFA is filed under section 173 (1) of MV Act against
the Judgment and Award dated:16.04.2010 passed in MVC
No.164/2008 (Old No.193/06) on the file of the Presiding
Officer, Fast Track Court, and MACT, Arkalgud, awarding a
compensation of Rs.4,26,000/- with interest @ 6% p.a. from
the date of petition till realization.
In M.F.A.NO.6949/2010
Between:
1. Deviramma
W/o.Late Krishnegowda
Aged about 42 years
2. Kumara
3
S/o.Late Krishnegowda
Aged about 26 years
3. Mohana
S/o.Late Krishnegowda
Aged about 21 years
4. Ningamma
W/o.Doddegowda
Aged about 74 years
All are residing at
Solugodu Somavara
Konanura Hobli
Arkalgud Taluk. ... Appellants
(By Sri.H.Jayakara Shetty, Adv.,)
And:
1. H.V.Ningaraju
S/o.H.S.Vasantha
Aged about 30 years
Residing at Maalambi
Shanivarasanthe Hobli
Somavarapete Taluk
2. Smt.Yashodhamma
W/o.K.G.Gopal
Aged about 52 years
Residing at Solugodu Somavara
Konanura Hobli
Arkalgud Taluk
3. The Manager
National Insurance Co. Ltd
1st Floor, Manjunatha Complex
Bus Stand Road
Hassan. ... Respondents
4
(By Sri.S.Bhaskar Reddy, Adv., for M/s.Ravi &
Ravi, Advocates for R-2, R1- Served
M/s.Lexplexus, Advocate for R-3)
This MFA is filed under section 173 (1) of MV Act against
the Judgment and Award dated:16.04.2010 passed in MVC
No.164/2008 (Old No.193/06) on the file of the Presiding
Officer, Fast Track Court, and MACT, Arkalgud, partly allowing
the claim petition for compensation and seeking enhancement
of compensation.
These appeals coming for hearing on this day the Court
delivered the following:
JUDGMENT
Both these appeals are directed against the judgment and award passed by the learned Member, MACT., Arkalgud ('the Tribunal' for brevity) in M.V.C.No.164/2008 (old No.193/2006). It is in respect of death of one Krishnegowda, son of Doddegowda, wherein he became the victim of the accident. A Tractor and Trailor bearing registration No.KA-13/T-7504-05 driven by sixth respondent - driver in a rash and negligent manner, because of dashing against the victim, he sustained serious injuries and succumbed to them. The claimants being the dependants of Krishnegowda, son of 5 Doddegowda seek compensation by virtue of death of their bread-earner Krishnegowda, son of Doddegowda.
2. On entering appearance, the Insurance Company disputed the claim made by the dependants. The petitioners got examined PWs-1 and 2 and Exs.P1 to P8 were got marked. The Insurance Company examined one Dhasharathi and Ex.R1 was marked.
3. The learned Member, MACT., Arkalgud on adjudication allowed in part the claim petition and the compensation granted by him is as under:
1. Loss of dependency for Rs.3,36,000/-
2. Loss of expectancy Rs. 20,000/-
3. Loss of consortium to Petitioner No.1. Rs. 25,000/-
4. For funeral and obsequies Function in all Rs. 5,000/-
5. Towards loss of love and affection For all the petitioners in all Rs. 40,000/-
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TOTAL Rs.4,26,000/-
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Respondent No.2 therein/Yashodhamma was directed to pay the compensation together with interst @ 6% per annum.
4. Said Yashodhamma said to be the owner of the offending vehicle has preferred M.F.A.No.7170/2010 with a prayer to set aside the order passed by the Tribunal wherein the next appeal M.F.A.No.6949/2010 is preferred by the claimants seeking enhancement of compensation.
5. The Tribunal appreciated the evidence placed before it. In its wisdom has fastened the liability on the owner of the offending vehicle. Thus, the moot question is, whether there was wrong in mentioning the victim person, who died because of the accident.
6. Having heard the learned Counsels for appellants in both cases and the learned Counsel for the Insurance Company, the matter assumes further significance insofar as the name of the victim, who died in the accident is said 7 to be Krishnegowda, son of Doddegowda and the claimants are said to be his dependants before the Tribunal in respect of the accident that occurred on 13.1.2006.
7. It appears that the defence of the Insurance Company/respondent No.3 is to the effect that said Krishnegowda being the victim of the accident was traveling in the Trailor attached to the Tractor as an unauthorized passenger. However, learned Counsel for the appellants/claimants would submit that Krishnegowda, son of Doddegowda was a person, who was walking and it was he, who actually was knocked down by the Tractor, thereby said Krishnegowda, son of Doddegowda suffered serious injuries and succumbed to the same. There is no whisper regarding Krishnegowda, son of Karegowda, who was traveling in the Tractor.
8. Learned Counsel for the Insurance Company Sri.Ashok N.Patil would submit that the father's name of 8 Krishnegowda makes it loud and clear that an attempt is made to induct Krishnegowda, son of Doddegowda as a pedestrian and victim to the incident though he was not. Thus, there is no particular issue of identity of Krishnegowda, in the circumstance of one more Krishnegowda. Regard being had to the fact that the name differs insofar as the name of father is concerned.
9. The Tribunal adjudicated the matter taking it granted that Krishnegowda, who is the victim of the accident, was traveling in Tractor and thereby there was a breach of terms of policy and saddled the liability on the owner/appellant in M.F.A.No.7170/2010 and insofar as the claimants are concerned, they preferred M.F.A.No.6949/2010 for enhancement of compensation.
10. In the circumstances, learned Counsel for the Insurance Company Sri.Ashok N.Patil would submit that the defence taken by the Insurance Company is as under: 9
"2. The version of the accident is not admitted. It is in-variance with police records and it is given to the suit convenience of the petitioners. It is not admitted that, the driver of the Vehicle Tractor and Trailer bearing No.KA-13-T-7504-
7505 has driven the vehicle rash and
negligently and caused the accident. It is
learnt that, the deceased was negligently and suddenly came into the middle of the road and caused the accident. As the deceased himself was the author of the accident. Hence this respondent is not liable to pay any compensation to the petitioners.
Further, the Insurance Company sought for amending the written statement subsequently, which was allowed, reads as under:
"Proposed amendment"
The version of the accident is not
admitted. It is in-variance with police records
and it is given to the suit convince of the petitioner. It is not admitted that, the deceased was walking on the left side of the, at that time driver of the Tractor and Trailer bearing No.KA-10
13-T-7504-7505 has driven the vehicle in a rash and negligent manner and dashed against the deceased. It is learnt that, at that time of accident the deceased was an un-authorized passenger in the said Tractor and trailer bearing No. No.KA-13-T-7504-7505. After the accident petitioners are colluded with the insured and Police authority fix up the case for claiming compensation from his respondent insurance company. Hence this respondent is not liable to pay any compensation to the petitioners.
11. In the circumstances, the Tribunal has failed to appreciate the facts and the legal implications that center around the case and hidden inside it and thus, it is incumbent on the part of the learned Member to consider the bone of contentions including the identity, liability or exoneration of the same, whether on the Insurance Company or on the owner. In this direction, the issue is not framed nor there is a discussion nor a finding on the 11 same. Thus, vital point is left over and the matter is adjudicated, which appears to be superficial.
In the result, the judgment and award passed by the Tribunal is liable to be set aside. Accordingly, these appeals are allowed. The judgment and award passed by the learned Member, MACT., Arkalgud, in M.V.C.No.164/2008 (old No.193/2006) is set aside. The matter is remanded to the Tribunal for fresh trial and to dispose of the matter in accordance with law and taking into consideration of various aspects of facts and circumstances regarding the identity of deceased Krishnegowda.
In order to avoid wastage of time, the parties are notified of the hearing date as 4th June 2018 and they shall appear before the Tribunal on 4th June 2018 without waiting for further notice.
Accordingly, both the appeals are disposed of. 12
The statutory amount in deposit in M.F.A.No.7170/2010 be transmitted to the Tribunal.
In the light of disposal of the appeals, the application I.A.No.1/2015 filed in M.F.A.No.6949/2010 is disposed of with liberty to file the same before the Tribunal. Further, I.A.No.1/2015 and Misc.Cvl.8203/2011 filed in M.F.A.No.7170/2010 stand disposed.
Sd/-
JUDGE KNM/-