Karnataka High Court
Kariyappa vs Smt Sumitra on 17 November, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
-1-
NC: 2023:KHC:41244
MFA No. 506 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
MISCELLANEOUS FIRST APPEAL NO.506 OF 2015 (MV-D)
BETWEEN:
1. KARIYAPPA,
S/O NINGEGOWDA,
SINCE DEAD BY HIS LRS,
1(A). M. K. RAJANNA,
S/O LATE KARIYAPPA,
AGED ABOUT 64 YEARS,
1(B). M. K. SHANKARAPPA,
S/O LATE KARIYAPPA,
AGED ABOUT 62 YEARS,
M. K. SURESH,
S/O LATE KARIYAPPA,
EXPIRED ON 13.11.2013
1(C). KANTHARAJU,
Digitally S/O LATE KARIYAPPA,
signed by AGED ABOUT 58 YEARS,
SOWMYA D
1(D). M. K. KRISHNAPPA,
Location:
High Court S/O LATE KARIYAPPA,
of Karnataka AGED ABOUT 52 YEARS,
ALL R/O MARUTHINAGARA,
SUNNADAHALLI POST,
BHADRAVATHI TALUK - 577 245.
1(E). M. K. RAMESHA,
S/O LATE KARIYAPPA,
AGED ABOUT 52 YEARS,
-2-
NC: 2023:KHC:41244
MFA No. 506 of 2015
R/O NO. 17, 2ND MAIN,
2ND CROSS, SHIVANAGARA,
RAJAJINAGAR, BANGALORE - 560 010.
1(F). M. K. GUNDEGOWDA,
S/O LATE KARIYAPPA,
AGED ABOUT 51 YEARS,
1(G). M. K. RAVI,
S/O LATE KARIYAPPA,
AGED ABOUT 48 YEARS,
1(H). M. K. SANTHOSHA,
S/O LATE KARIYAPPA,
AGED ABOUT 46 YEARS,
ALL ARE R/O MARUTHINAGAR,
SUNNDAHALLI POST,
BHADRAVATHI TALUK
SHIVAMOOGGA DISTRICT - 577 245.
...APPELLANTS
(BY SRI. B. PRAMOD, ADVOCATE)
AND:
1. SMT. SUMITRA,
W/O LATE CHANDRU,
AGED ABOUT 29 YEARS,
2. CHETHAN,
S/O LATE CHANDRU,
AGED ABOUT 12 YEARS,
BOTH ARE R/O 2ND CROSS,
DOOR NO. 71, RIGHT SIDE,
NMC, BHADRAVATHI - 577 301.
3. THE NEW INDIA ASSURANCE CO.,
PREMA COMPLEX,
BHADRAVATHI COMPLEX,
SHIVAMOGGA DISTRICT - 577 301.
-3-
NC: 2023:KHC:41244
MFA No. 506 of 2015
4. SMT. SAROJAMMA,
W/O LATE RAJAGOPALA NAIDU,
MAJOR, R/O M.C. HALLI VILLAGE,
TARIKERE TALUK - 577 228.
5. GANGADHARA,
S/O PONNYASWAMY,
OCC: DRIVER, AGE 45 YEARS,
R/O BARANDURU VILLAGE,
BHADRAVATHI TALUK,
SHIMOGA DISTRICT - 577 301.
...RESPONDENTS
(BY SRI. P.B. RAJU, ADVOCATE FOR R3;
SRI. H.R. SREEDHARA, ADVOCATE FOR R4 AND R5;
VIDE ORDER DATED 10.02.2021 SERVICE OF NOTICE TO
R1 AND R2 IS HELD SUFFICIENT)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 27.9.2014 PASSED IN MVC
NO.68/2004 ON THE FILE OF THE C/c. PRINCIPAL SENIOR
CIVIL JUDGE, JMFC, ADDITIONAL MACT-11, BHADRAVATHI,
AWARDING A COMPENSATION OF RS.6,25,000/- WITH
INTERST @ 6% P.A FROM THE DATE OF PETITION TILL ITS
COMPLETE PAYMENT.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed under Section 173(1) of Motor Vehicles Act,1988 (for short 'M.V. Act') by the LRs of respondent No.2 challenging the judgment and award passed by the Principal Senior Civil Judge and JMFC and -4- NC: 2023:KHC:41244 MFA No. 506 of 2015 Additional MACT-11, Bhadravathi in MVC No.68/2004, dated 27.09.2014.
2. The brief factual matrix leading to the case are that the deceased-Chandru was an agricultural labourer and on 20.12.2003 at about 6.30 p.m., he was traveling on mudguard of the tractor and trailer bearing registration No.KA-14/T-2426 and 2428 near Masaralli Cross. At that time, respondent No.1 being the driver of the said tractor and trailer drove the same in a rash and negligent manner. As a result, loaded sugarcane had fallen on Chandru. Hence, the deceased fell on the ground and left side wheel of the trailer passed through him, resulting in his death at the spot.
3. It is asserted that the deceased was earning Rs.150/- per day and appellants-claimants lost the bread earner. Hence, they have filed claim petition under Section 166 of Motor Vehicles Act, 1988 claiming compensation of Rs.5,70,000/- with interest and cost.
-5-
NC: 2023:KHC:41244 MFA No. 506 of 2015
4. The claim petition was contested by respondent No.3 disputing the liability asserting that the deceased was traveling on the mudguard and he being a gratuitous passenger and not a coolie is not entitled for any compensation from the Insurer and sought for dismissal of the claim petition.
5. After hearing the arguments and perusal of the records, the Tribunal after appreciating the oral and documentary evidence, allowed the petition in part by awarding compensation to the tune of Rs.6,25,000/- with the interest at the rate of 6% p.a. by fastening the liability on respondents No.1 and 2, who are the driver and owner of the offending vehicle.
6. Being aggrieved by this liability the legal heirs of the deceased i.e., respondent No.2 are before this Court.
7. Heard the arguments advanced by the learned counsel for the appellants and the learned counsel for respondent No.3 and perused the records. -6-
NC: 2023:KHC:41244 MFA No. 506 of 2015
8. The learned counsel for the appellants- claimants would contend that in another MFA arising out the same accident, wherein an other person has also died the compensation was awarded by the Tribunal by fastening the liability on the Insurance Company and hence, the same principles are required to be applied in this case. In this regard, he has also placed reliance on a document filed along with IA under Order 41 Rule 27.
9. Per contra, the learned counsel for the Insurance Company would dispute the claim on the ground that the averments made by the appellant-claimants in the claim petition itself disclose that the deceased was traveling by sitting on the mudguard, which is clear breach of policy condition and he is not entitled for any compensation in view of the Full Bench decision of this Court reported in ILR 2021 KAR 3377 in the case of Gadhilingappa @ Gadhilinga and Another versus K. Guleppa and Others, Hence, he would seek for dismissal of the appeal as against him.
-7-
NC: 2023:KHC:41244 MFA No. 506 of 2015
10. Having heard the arguments and perusing the records, it is evident that the deceased was traveling by sitting on the mudguard. This specific assertion is found in the claim petition as well as in the evidence including the charge sheet. Hence, the undisputed fact is that the deceased was traveling by sitting on the mudguard. The tractor is not meant for carrying any passengers and in view of these aspects, the claimants cannot be claimed to be a loader or un-loader traveling in the tractor, which is not meant for carrying the passengers. In this regard, the learned counsel for the respondents has placed reliance on a decision reported in ILR 2021 KAR 3377 in the case of Gadhilingappa @ Gadhilinga and Another versus K. Guleppa and Others, wherein the Full Bench of this Court has held that a person traveling on a mudguard of a tractor cannot be treated as authorized passenger and liability of such person is not covered by the Insurance Policy. No doubt, in another claim petition arising out of the same accident, the liability was fastened on the -8- NC: 2023:KHC:41244 MFA No. 506 of 2015 Insurance Company. But, now the law is settled in view of the Full Bench of decision of this Court in Gadhilingappa @ Gadhilinga and Another versus K. Guleppa and Others case referred (Supra) and in view of the same, question of holding the Insurance Company liable to pay compensation does not arise at all.
12. There is no serious dispute regarding the other aspects including the quantum of the compensation and the claimants though served did not appear so as to contest the matter. However, the owner of the offending vehicle has died. The legal heirs are now being prosecuted in this appeal and their liability is restricted to the extent of the share inherited by them through the deceased.
13. In view of these facts and circumstances of the case, no grounds are forthcoming for admitting the appeal and hence, appeal is devoid of merits and does not survive for consideration. Accordingly, I proceed to pass the following:
-9-
NC: 2023:KHC:41244 MFA No. 506 of 2015 ORDER The appeal stands dismissed.
Pending I.A.No.1/2015 and I.A.No.1/2016 stand disposed off.
Sd/-
JUDGE MS* List No.: 1 Sl No.: 15 CT: BHK