Karnataka High Court
M S R Prasad S/O Narayanamurthy vs Ningamma W/O Late T Mallappa on 11 April, 2017
Author: S.N.Satyanarayana
Bench: S.N.Satyanarayana
IN THE HIGH COURT OF KARNA TAKA
DHARWAD BENCH
DATED TH IS THE 11 T H DAY OF APRIL 2017
BEFORE
THE HON'BLE MR. JUS TICE S.N. SA TYANARAYANA
M.F.A.NO .22149/2011 (MV)
BETWEEN:
M S R PRASAD S/O NARAYANAMURTHY
AGE: 40 YEARS , MANAGING PARTNER,
LAKSHMI POULTRY FARM, UPANAYAKANAHALLI,
HAGARI BOMMANAHALLI TALUK,
DIST: BELLARY.
... APPELLANT.
(BY SRI HARSH DESAI, ADVOCA TE.)
AND:
1. NINGAMMA W/O LA TE T MALLAPPA
AGE: 40 YEARS , R/O : MADUR ROAD,
HAGARIBOMMANAHALLI,
TQ: HAGARIBOMMANAHALLI, DIS T: BELLARY .
2. HANUMANTHAPPA S/O LA TE T MALLAPPA
AGE: 22 YEARS , R/O : MADUR ROAD,
HAGARIBOMMANAHALLI,
TQ: HAGARIBOMMANAHALLI, DIS T: BELLARY .
3. KUMARI SUNITHA D/O LA TE T MALLAPPA
AGE: 21 YEARS , R/O : MADUR ROAD,
HAGARIBOMMANAHALLI,
TQ: HAGARIBOMMANAHALLI, DIS T: BELLARY .
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4. KUMARI SHILPA D/O LATE T MALLAPPA
AGE: 22 YEARS , R/O : MADUR ROAD,
HAGARIBOMMANAHALLI,
TQ: HAGARIBOMMANAHALLI, DIS T: BELLARY .
5. PRABHAKARA S/O LA TE T MALLAPPA
AGE: 18 YEARS , R/O : MADUR ROAD,
HAGARIBOMMANAHALLI,
TQ: HAGARIBOMMANAHALLI, DIS T: BELLARY .
6. M PRAKASH S/O M MANGAYYA
R/O: HOSA VADDINAKATTI
VILLAGE, NEAR CHOMUR, TQ: SANDUR,
DIST: BELLARY.
7. HULEPPA
R/O: DASAMAPURA VILLAGE,
HAGARIBOMMANAHALLI TALUK,
DIST: BELLARY.
8. UNITED INDIA ASSURANCE CO.LTD.,
BELLARY , BY ITS BRANCH MANAGER.
... RESPONDENTS
(BY SRI T HANUMAREDDY, ADVOCATE, FOR R.1, R.2,
R.4 AND R.5;
SRI M .G.GADGOLI, ADVOCA TE, FOR R.8;
R.3 AND R.7 - NO TICE S ERVED;
R.6 - NO TICE DISPENSED WITH .)
THIS MISCELLANEOUS F IRS T APPEAL IS FILED
UNDER SECTION 173(1) OF MV ACT, 1988, PRAYING TO
SET ASIDE THE JUDGMENT AND AWARD DATED
31.01.2011, PASSED IN MVC NO.797/2009, ON TH E
FILE OF THE ADDL. SENIOR CIVIL JUDGE AND
MEMBER, MACT-VII, HOSPET, ETC.,.
THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
The 2 n d respondent in MVC No.797/2009, on the file of Addl. Senior Civil Judge and MACT-VII, Hospete, has come up in this appeal impugning the judgment dated 31.1.2011 so far as it pertains to saddling liability on him to pay compensation for the death of Mallappa in a road traffic accident.
2. The brief facts leading to this appeal are that on 2.1.2008 deceased Mallappa was travelling in the tractor bearing registration No.KA-35/T- 2209 sitting on its mudguard. It is stated that the said tractor was attached with a trailer bearing registration No.KA-35/T-484.
3. The records would indicate that both the tractor and trailer were owned by different persons and insured with different insurance companies. The appellant herein is the owner of 4 trailer only. After the death of Mallappa in the accident dated 2.1.2008, claim petition is filed by his legal heirs seeking compensation against the owner of the tractor as well as owner of the trailer and also driver of the tractor. While doing so, they have arraigned the insurer of the tractor and also the trailer which is separately insured.
4. In this background the matter went into trial. Accident is established. The presence of deceased Mallappa on the mudguard of the tractor is also established. The record would also indicate that the accident dated 2.1.2008 has taken place due to rash and negligent driving of the tractor resulting in Mallappa falling down from the top of the mudguard where he was sitting and coming under the wheels of the tractor. Subsequently he died due to injuries suffered in the said accident.
5. However in the entire complaint and pleadings or all other documents which are 5 produced would not indicate involvement of trailer either in causing the accident or the death of Mallappa. No doubt the trailer was attached to the tractor at relevant point of time and that also was carrying several persons in it but none of them are injured. In this background it is surprising as to why owner of trailer was arraigned as a party in the claim proceedings filed by the legal heirs of deceased Mallappa which does not stand to reason.
6. In any event, in the present set of facts, the person who is responsible to answer the claim of deceased Mallappa's legal representatives is none other than the driver and owner of the tractor which caused the accident. If they can establish that they have right to get indemnify as against all the claim arising out of the death of Mallappa, then the insurer of the tractor will have to substantiate whether it is liable or otherwise. 6 But by any stretch of imagination it cannot be accepted that either the owner or insurer of trailer has got anything to do with this accident and as to why they should be called to compensate for the death of Mallappa.
7. In that view of the matter, this Court find that the judgment dated 31.1.2011 in MVC No.797/2009, on the file of Addl. Senior Civil Judge and MACT-VII, Hospete, is erroneous in fastening the liability to pay the compensation on the owner of trailer also.
8. Accordingly by allowing this appeal, the finding in the said judgment which would fasten the liability on the appellant as owner of the trailer is hereby set aside and it is made clear that it is only owner of the tractor who is responsible to pay the compensation in the facts and circumstances.
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9. In view of the appeal being allowed, the amount in deposit, if any, made by the appellant herein, is ordered to be released in his favour.
Sd/-
JUDGE Mrk/-