Karnataka High Court
The Divisional Manager vs Smt Gouramma W/O Jaganath Muralimath on 10 August, 2017
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
M.F.A.No.20753/2009
:1:
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 10th DAY OF AUGUST, 2017
BEFORE
THE HON'BLE DR.JUSTICE H.B.PRABHAKARA SASTRY
MFA NO.20753/2009 (MV)
BETWEEN:
THE DIVISIONAL MANAGER,
ORIENTAL INSURANCE CO, LTD.,
S.L.V. TOWERS PARVATHI NAGAR,
BELLARY, NOW REP. BY ITS
ASSISTANT MANAGER,
ORIENTAL INSURANCE CO, LTD.,
REGIONAL OFFICE,
SUMANGALA COMPLEX,
HUBBALLI.
... APPELLANT
(BY SRI. LAXMAN B. MANNODDAR, ADV.)
AND:
1 SMT. GOURAMMA W/O. JAGANATH MURALIMATH,
AGE 24, OCC: HOUSEHOLD WORK,
R/O. FORT AREA, KOPPAL,
TQ. AND DIST. KOPPAL.
2 SMT. ANNAPURNAMMA W/O. JABUNATH MURALIMATH,
AGE 47, OCC: HOUSEHOLD WORK,
R/O. FORT AREA KOPPAL,
TQ AND DIST. KOPPAL.
M.F.A.No.20753/2009
:2:
3 KUMAR ABISHEK S/O. JAGANGAH MURALIMATH,
AGE 4 MINOR REP. BY NATURAL MOTHER
PETITIONER NO.1,
SMT. GOURAMMA W/O. JAGANATH MURLIMATH,
R/O. FORT AREA, KOPPAL,
TQ. AND DIST. KOPPAL.
4 MR. N. SUBRAMANIAN
M/S. SAKTHI VELMURUGAN TANSPORT,
B.S.S.S. BUILDING, IST MAIN ROAD,
CHAMARAJ PETH, BANGALORE - 560018.
... RESPONDENTS
(BY SRI. MRUTYUNJAYA TATA BANGI, ADV. FOR R1 & R2;
R3 MINOR AND REPTD. BY R1;
SERVICE OF NOTICE TO R4 IS HELD SUFFICIENT)
---
THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MV ACT AGAINST THE JUDGMENT AND AWARD DATED
11.08.2008, PASSED IN MVC No.557/2007, ON THE FILE OF
MEMBER ADDL. MACT AND FAST TRACK COURT - I, KOPPAL,
AWARDING A COMPENSATION OF `4,84,700/- WITH
INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL
DEPOSIT.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
The Insurance Company which was 2nd respondent before the Addl. Motor Accident Claims Tribunal and Fast M.F.A.No.20753/2009 :3: Track Court - I, Koppal (henceforth referred to as "the Tribunal", for brevity) has preferred this appeal.
2. In its memorandum of appeal, the appellant has taken only one main contention that the Tribunal below has erred in not considering the contributory negligence on the part of the driver of mini lorry bearing registration No.KA-37/3317.
3. The argument of the learned counsel for the appellant was also on the same point for which he relied upon two reported Judgments of the Co-ordinate Benchs of this Court. In Oriental Insurance Co, Ltd., Vs. Chennappa Shettigar & Ors, reported in IV (2009) ACC 406 (DB). While considering the appeal arisen out of a claim petition filed under section 163A, 126 of M.V.Act, 1988 a Division Bench of this Court was pleased to observe that, apportion of liability fixed by the Tribunal in the ratio 50:50 % on the ground of contributory negligence was justified. In M/s. National Insurance Co, Ltd., Vs. Sri Prem Kumar and others reported in 2017 Kant M.F.A.No.20753/2009 :4: M.A.C. 26 (Kant), a Co-ordinate Bench of this Court while dealing with Sections 163 A & 173(1) under M.V.Act, 1988 was pleased to observe that, in a claim petition filed under Section 163A of M.V.Act,1988, the claimant need not prove the negligence, wrongful act or default on the part of the driver of the offending vehicle. But, it will not preclude the respondent who has taken the plea of negligence on the driver of the vehicle or vehicles or on the claimant and that he was not negligent as on the date of the accident to establish the same. With the said observation, directing the Tribunal below to provide an opportunity to both the parties, if need be, to lead further evidence if any, the matter was remanded.
4. Relying upon these two decisions, the learned counsel for the appellant vehemently submitted that in the instant case also, the Insurance Company as 2nd respondent in the Tribunal below had taken a specific contention of alleged fault on the part of the driver of the mini lorry, as such, without considering concept of contributory negligence, the Tribunal below has M.F.A.No.20753/2009 :5: committed an error in fixing the entire liability upon the lorry bearing registration No.KA-01/B-3072, which was another offending vehicle in the accident.
5. The learned counsel for the claimant in his arguments submitted that the charge sheet was filed by the police only against the lorry driver. Further the respondents also did not lead any evidence, as such, the appeal does not deserve to be allowed.
6. In the instant case, it is not in dispute that the alleged accident said to have occurred on 24.04.2007 at about 11.00 p.m had involved two motor vehicles, one mini lorry bearing registration No. KA-37/3317 said to have been driven by the deceased Jaganath and another motor vehicle lorry bearing registration No.KA-01/B-3072. It is further alleged that the said lorry had been parked in the middle of the road without any indicator or any sign in a negligent manner. As such, the mini lorry being driven by the deceased dashed to the said parked lorry, which M.F.A.No.20753/2009 :6: resulted in accident and death of Jaganath, driver of the mini lorry. The claimants in the Tribunal below are stated to be the dependants of the said deceased Jaganath.
7. The respondent No.1 - owner of the lorry remained exparte in the Tribunal below. The present appellant which was the 2nd respondent in the Tribunal below has filed its written statement, wherein it has taken a specific plea that the accident has occurred solely due to the rash and negligent driving of the mini lorry by its driver. In spite of taking such contention, the Tribunal below has not framed any specific issue regarding the alleged negligence on the part of the driver of the co- participant vehicle in the accident i.e. mini lorry. The Tribunal below has framed the following issues :
1. Whether the petitioners prove that the deceased Jaganath has died in an accident which occurred on 24.04.2007 at about 11-00 p.m. near Abhay Solvent Factory on N.H-63 Hospet - Koppal road due to driving of lorry bearing No.KA-01/B-3072 by its driver ?M.F.A.No.20753/2009 :7:
2. Whether the petitioners are entitled for compensation ? If so, how much and from whom ?
3. What order ?
8. No doubt in a claim petition filed under Section 163A, the claimant need not prove the alleged negligence on the part of the alleged offending vehicle which is said to have committed a road traffic accident. However, as observed by the Co-ordinate Bench in Sri Prem Kumar's Case (supra) it does not preclude to frame issue and to decide the contributory negligence, if any, by a co- participant vehicle in the accident, that too when any of the respondents in the Tribunal below have taken a specific contention about the alleged negligence on the part of the other vehicle or vehicles said to have been involved in the accident.
9. In the instant case, as observed above, since the respondent-Insurance Company has taken a specific contention in its written statement alleging the negligent M.F.A.No.20753/2009 :8: act on the part of the driver of the mini lorry bearing registration No.KA-37/3317, it was necessary on the part of the Tribunal below to frame a specific issue on the above and to give its finding thereupon. If the Tribunal below had framed a necessary issue on the said point, probably the evidence would have been lead by the parties on the said issue also. Since, no such issue which was necessary, was framed by the Tribunal below, no evidence has come out in the matter on that point.
10. For a just decision of the claim petition framing of an issue on the said point and giving a finding on the said issue is necessary. As such, the Judgment and award under appeal deserves to be set aside and the matter requires to be remanded with a direction to the Tribunal to frame an appropriate issue and to provide an opportunity to both the parties and if need be, to permit them to lead further evidence if any, and to give its finding on the issue so framed and decide the matter afresh. M.F.A.No.20753/2009 :9:
11. Accordingly, I proceed to pass the following order;
ORDER The appeal is allowed, the Judgment and award passed in MVC No.557/2007, dated 11.08.2008, passed by the Addl. MACT & Fast Track Court - I, Koppal, is hereby set aside.
The matter is remitted to the Tribunal with a direction to frame additional issue and recast the existing issue, if necessary, in the light of the observations made above and dispose of the petition afresh at the earliest. It is needless to say, the parties will have opportunity to lead additional evidence if any.
The parties in this appeal shall appear before the Tribunal without anticipating any fresh notice from it on 04.09.2017 at 11.00 a.m. M.F.A.No.20753/2009 : 10 : The amount deposited by the Insurance Company if any, in this matter be refunded to the appellant-Insurance Company.
Office to transmit a copy of this Judgment along with Lower Court Records to the concerned Tribunal forthwith.
Sd/-
JUDGE *Svh/-