Karnataka High Court
Subhash S/O Bhimashi Walikar vs Muniraju J. Ors on 21 March, 2016
Author: S.Sujatha
Bench: S.Sujatha
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 10TH DAY OF MARCH 2016
BEFORE
THE HON'BLE MRS. JUSTICE S.SUJATHA
MFA NO.31777 OF 2010 (MV)
C/W
MFA NOS.30148/2013, 31778/2010, 31598/2010,
30147/2013, 30149/2013 & W.P.NOS.100229/2013 &
100236/2013* (GM-AC)
MFA NO.31777 OF 2010
BETWEEN:
SUBHASH
S/O BHIMASHI WALIKAR
AGE: 29 YEARS, OCC DRIVER,
R/O MANAGULI BASI
AMBEDKAR COLONY,
BIJAPUR-586101
...APPELLANT
(BY SRI BAPUGOUDA SIDDAPPA, ADVOCATE)
AND:
1. MUNIRAJU J.
AGE: 50 YEARS, OCC BUSINESS
R/O PROP. JANATHA TRAVELS AGENCIES,
# 1/2 SRINIVAS NILAYA
COX TOWN GOVER ROAD CROSS
BANGALORE-05
(R/O 401/2, F-1 SWASTIK MANAODI
ARCADE, S.C.ROAD, OPP SHESHADRIPURAM
POLICE STATION, BANGALORE - 20
AS MENTIONED IN MVC NO. 616/2007)
* Corrected vide court order dated 21/03/2016
2
2. THE MANAGER,
THE ORIENTAL INSURANCE COMPANY LIMITED
401/2, F-1 SWASTIK MANAODI ARCADE
S.C.ROAD, OPP SHESHADRIPURAM
POLICE STATION, BANGALORE-20
3. BASAVARAJ
S/O MALLIKARJUN SUDI
AGE: 40 YEARS, OCC: BUSINESS
R/O BEHIND GACHINA MAHAL
J. M. ROAD, BIJAPUR-586101
4. THE MANAGER
NATIONAL INSURANCE COMPANY LTD.,
1ST FLOOR, MELLIGERI COMPLEX
KALADAGI ROAD, BAGALKOT-1
...RESPONDENTS
(BY SRI P.S.PATIL, ADVOCATE FOR R1;
SRI J.AUGUSTIN, ADVOCATE FOR R2;
SMT. SANGEETHA BHADRASHETTY, ADVOCATE
FOR R4; R3 SERVED & UNREPRESENTED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S. 173 (1) OF
MV ACT, AGAINST THE JUDGMENT AND AWARD DATED 28.06.2010
PASSED IN MVC NO. 1046/2006 ON THE FILE OF THE MOTOR
ACCIDENTS CLAIMS TRIBUNAL NO.3, AT BIJAPUR, PARTLY ALLOWING
THE CLAIM PETITION AND SEEKING FOR ENHANCEMENT OF
COMPENSATION.
****
MFA NO.30148 OF 2013
BETWEEN:
MUNIRAJU J.
AGED ABOUT 54 YEARS, OCC. BUSINESS,
PROP. OF JANATHA TRAVEL AGENCIES
R/O NO.1/2, "SRINIVASA NILAYA",
COX TOWN GOVER ROAD,
BANGALORE - 560 005
...APPELLANT
(BY M/S. SHIVAYOGIMATH ASSOCIATES)
3
AND:
1. VITHAL S/O THUKARAM RATHOD
AGED ABOUT 53 YEARS, OCC. COOLIE
2. SMT. SITABAI W/O VITHAL RATHOD
AGED ABOUT 48 YEARS,
OCC. HH WORK AND COOLIE
3. SMT. PARAWWA W/O RAMESH RATHOD
AGED ABOUT 28 YEARS, OCC. HH WORK,
4. KUMAR ROHIT S/O RAMESH RATHOD
AGED ABOUT 13 YEARS, OCC. NIL
5. KUAMR SUDHIR S/O RAMESH RATHOD
AGED ABOUT 5 YEARS, OCC. NIL,
ALL R/O HUBANUR TANDA, DIST. BIJAPUR
6. THE MANAGER,
THE ORIENTAL INSRUANCE CO.LTD.,
NO.401/2, F-1 SWATIK MANNADI ARCADE,
S.C. ROAD, OPP: SESHADRIPURAM
POLICE STATION, BANGALORE - 560 020
7. BASAVARAJ S/O MALLIKARJUN SUDI
AGED ABOUT 39 YEARS,OCC. BUSINESS
R/O BEHIND GRACHINA MAHAL
J.M. ROAD, BIJAPUR
8. THE MANAGER
NATIONAL INSURANCE CO.LTD.,
1ST FLOOR, MELLIGERI COMPLEX,
KALADAGI ROAD, BAGALKOT
...RESPONDENTS
(BY SRI J.AUGUSTIN, ADVOCATE FOR R6;
SMT. SANGEETHA BHADRASHETTY, ADVOCATE FOR R8;
R1 TO R3 ARE SERVED, R4 AND R5 MINORS;
R7 SERVED BUT UNREPRESENTED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S. 173 (1) OF
MV ACT, AGAINST THE JUDGMENT AND AWARD DATED 28.06.2010
4
PASSED IN MVC NO. 773/2006 ON THE FILE OF THE MOTOR
ACCIDENTS CLAIMS TRIBUNAL NO.3, BIJAPUR AT BIJAPUR, PARTLY
ALLOWING THE CLAIM PETITION AND AWARDING COMPENSATION OF
RS. 4,98,000/- WITH INTEREST AT 6% P.A.
****
MFA NO.31778 OF 2010
BETWEEN:
1. RAMESH S/O MONAPPA HONNALLI
AGE: 47 YEARS, OCC: SDA IN KBJNL JBC
DIVISION NO.3, GOLAGERI
NOW R/O KANAKADAS BADAVANE
BIJAPUR-586101
...APPELLANT
(BY SRI BAPUGOUDA SIDDAPPA, ADVOCATE)
AND:
1. MUNIRAJU J.
AGE: 50 YEARS, OCC: BUSINESS
R/O PROP. JANATHA TRAVELS AGENCIES
# 1/2 SRINIVAS NILAY,
COX TOWN GOVER ROAD CROSS
BANGALORE-05
(R/O 401/2, F-1 SWASTIK MANAODI ARCADE
S.C.ROAD OPP: SHESHADRIPURAM
POLICE STATION
BANGALORE -20. AS MENTIONED
IN MVC NO. 616/2007)
2. THE MANAGER,
THE ORIENTAL INSURANCE COMPANY LIMITED
401/2, F-1 SWASTIK MANAODI ARCADE
S.C.ROAD, OPP: SHESHADRIPURAM
POLICE STATION, BANGALORE-20
3. BASAVARAJ S/O MALLIKARJUN SUDI
AGE: 40 YEARS, OCC: BUSINESS
R/O BEHIND GACHINA MAHAL
J M ROAD, BIJAPUR-586101
5
4. THE MANAGER,
NATIONAL INSURANCE COMPANY LTD.,
1ST FLOOR MELLIGERI COMPLEX
KALADAGI ROAD, BAGALKOT-1
...RESPONDENTS
(BY M/S. SHIVAYOGIMATH ASSOCIATES FOR R1;
SRI J. AUGUSTIN, ADVOCATE FOR R2;
R3 SERVED AND UNREPRESENTED;
SMT. SANGEETHA BHADRASHETTY, ADVOCATE FOR R4)
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S. 173 (1) OF
MV ACT, AGAINST THE JUDGMENT AND AWARD DATED 28.06.2010
PASSED IN MVC NO. 1045/2006 ON THE FILE OF MACT-III PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION.
****
MFA NO.31598 OF 2010
BETWEEN:
1. VITHAL S/O TUKARAM RATHOD
AGED ABOUT 54 YEARS, OCC: COOLIE
R/O HUBANUR TANDA, DIST. BIJAPUR
2. SMT.SITABAI W/O VITHAL RATHOD
AGED ABOUT 49 YEARS,
OCC: HOUSEHOLD WORK
& COOLIE, R/O HUBANUR TANDA,
DIST. BIJAPUR
3. SMT. PARAWWA W/O RAMESH RATHOD
AGED ABOUT 29 YEARS, OCC:HOUSEHOLD WORK,
R/O HUBANUR TANDA, DIST: BIJAPUR
4. KUMAR ROHIT S/O RAMESH RATHOD
AGED ABOUT 14 YEARS, OCC:NIL,
R/O HUBANUR TANDA, DIST: BIJAPUR
5. KUMAR SUDHIR S/O RAMESH RATHOD
AGED ABOUT 7 YEARS, OCC:NIL,
R/O HUBANUR TANDA, DIST: BIJAPUR
6
(APPELLANTS 4 & 5 BEING MINORS ARE REPRESENTED BY
THEIR MOTHER AND NATURAL GUARDIAN APPELLANT NO.3)
...APPELLANTS
(BY SRI ASHOK R. KALYANSHETTY, ADVOCATE)
AND:
1. MUNIRAJU
AGE: 50 YEARS, OCC: BUSINESS
R/O: PROP. JANATHA
TRAVELS AGENCIES
# 1/2, SRINIVAS NILAY,
COX TOWN, GOVER ROAD CROSS,
BANGALORE
(R/O 401/2, F-1 SWASTIK MANAODI ARCADE,
S.C. ROAD, OPP: SHESHADRIPURAM POLIC
STATION, BANGALORE - 20
AS MENTIONED IN MVC NO. 616/2007)
2. THE MANAGER,
THE ORIENTAL INSURANCE CO.LTD.,
R/O 401/2, F-1, SWASTIK MANAODI ARCADE
S.C.ROAD,OPP:SHESHADRIPURAM POLICE
STATION, BANGALORE - 20
3. BASAVARAJ S/O MALLIKARJUN SUDI
AGE: 40 YEARS, OCC:BUSINESS,
R/O BEHIND GACHINA MAHAL,
J M ROAD, BIJAPUR -586 101
4. THE MANAGER,
NATIONAL INSURANCE CO.LTD.,
1ST FLOOR, MELLIGERI COMPLEX,
KALADAGI ROAD, BAGALKOT - 1
...RESPONDENTS
(BY SRI J. AUGUSTIN ADVOCATE FOR R2;
SMT RATNA N. SHIVAYOGIMATH ADV. FOR R1;
R3 & R4 SERVED AND UNREPRESENTED;
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S. 173 (1) OF
MV ACT, AGAINST THE JUDGMENT AND AWARD DATED 28.06.2010
PASSED IN MVC NO. 773/2006 ON THE FILE OF THE MOTOR
7
ACCIDENT CLAIMS TRIBUNAL NO. 3 AT BIJAPUR, PARTLY ALLOWING
THE CLAIM PETITION AND SEEKING FOR ENHANCEMENT OF
COMPENSATION.
****
MFA NO.30147 OF 2013
BETWEEN:
1. MUNIRAJU J.
AGED ABOUT 54 YEARS, OCC. BUSINESS,
PROP OF JANATHA TRAVEL AGENCIES
R/O NO. 1/2 "SRINIVASA NILAYA",
COX TOWN, GOVER ROAD,
BANGALORE - 560 005.
...APPELLANT
(BY M/S SHIVAYOGIMATH ASSOCIATES)
AND:
1. ASHWATHNARAYAN @ AJIT
S/O YALAGURESH HANAGANDI
AGEED ABOUT 40 YEARS,
OCC. VEDIC PRIEST,
R/O KEMBHAVI CHAWL ,
NEAR TAJ BAWADI,
BIJAPUR - 586 101
2. THE MANAGER,
THE ORIENTAL INSURANCE CO.LTD.,
NO.401/2 F-1, SWATI MANANDI ARCADE
S.C. ROAD OPP: SESHADRIPURAM
POLICE STATION, BANGALORE - 560 020
3. BASAVARAJ S/O MALLIKARJUNA SUDI
AGED ABOUT 39 YEARS, OCC. BUSINESS,
R/O BEHIND GACHINA MAHAL,
JM ROAD, BIJAPUR - 586 101
4. THE MANAGER
NATIONAL INSURANCE CO.LTD.,
1ST FLOOR MELLIGERI COMPLEX,
KALADAGI ROAD,
8
BAGALKOT - 587 101
...RESPONDENTS
(BY SRI S.S.MAMDAPUR, ADVOCATE FOR R1;
R2 & R3 SERVED AND UNREPRESENTED;
SMT. SANGEETHA BHADRASHETTY, ADVOCATE FOR R4)
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S. 173 (1) OF
MV ACT, AGAINST THE JUDGMENT AND AWARD DATED 28.06.2010
PASSED IN MVC NO. 616/2007 ON THE FILE OF THE MOTOR
ACCIDENT CLAIMS TRIBUNAL NO. 3 BIJAPUR AT BIJAPUR, PARTLY
ALLOWING THE CLAIM PETITION AND AWARDING COMPENSATION OF
RS. 90,000/- WITH INTEREST AT 6% P.A.
****
MFA NO.30149/2013
BETWEEN:
MUNIRAJU J.,
AGED ABOUT 54 YEARS
OCC: BUSINESS
PROP. OFF JANATHA TRAVEL AGENCIES
R/O NO.1/2, "SRINIVASSA NILAYA"
COX TOWN, GOVER ROAD,
BANGALORE - 560005
...APPELLANT
(BY M/S SHIVAYOGIMATH ASSOCIATES)
AND:
1. RAMESH S/O MONAPPA HONNALLI
AGED ABOUT 46 YEARS
OCC: SDA IN KBJNL, JBC,
DIVISION NO.3, GOLAGERI
R/O KANAKADAS BADAVANE
BIJAPUR
2. THE MANAGER
THE ORINETAL INSURANCE COMPANY LTD.,
NO.401/2, F-1, SWATIK MANANDI ARCADE
S.C.ROAD, OPP: SESHADRIPURAM
POLICE STATION, BANGALORE-560020
9
3. BASAVARAJ S/O MALLIKARJUNA SUDI
AGED ABOUT 39 YEARS, OCC: BUSINESS
R/O BEHIND GACHINA MAHAL
J.M.ROAD, BIJAPUR
4. THE MANAGER
NATIONAL INURANCE CO. LTD.,
1ST FLOOR, MELLIGERI COMPLEX
KALADAGI ROAD, BAGALKOT
...RESPONDENTS
(BY SRI BAPUGOUDA SIDDAPPA, ADVOCATE FOR R1;
SRI J. AUGUSTIN, ADVOCATE FOR R2;
SMT. SANGEETA BHADRAHETTY, ADVOCATE FOR R4;
R3 SERVED AND UNREPREENTED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S. 173 (1) OF
MV ACT, AGAINST THE JUDGMENT AND AWARD DATED 28.06.2010
PASSED IN MVC NO.1045/2006 ON THE FILE OF THE MOTOR
ACCIDENTS CLAIMS TRIBUNAL NO.3 BIJAPUR AT BIJAPUR, PARTLY
ALLOWING THE CLAIM PETITION AND AWARDING COMPENSATION OF
RS.2,00,000/- WITH INTEREST AT 6% P.A.
W.P.NO.100229/2013
& W.P.NO.100236/2013*
BETWEEN:
MUNIRAJU J.,
AGED ABOUT 53 YEARS
OCC: BUSINESS
PROP. OFF JANATHA TRAVEL AGENCIES
R/O NO.1/2, "SRINIVASSA NILAYA"
COX TOWN, GOVER ROAD,
BANGALORE - 560005
...PETITIONER
(BY M/S SHIVAYOGIMATH ASSOCIATES)
* Corrected vide court order dated 21/03/2016
10
AND:
1. SUBASH S/O BHIMASHI WALIKAR
AGED ABOUT 53 YEARS
OCC: DRIVER, R/O MANAGULI BASI
AMBEDKAR COLONY, BIJAPUR-586101
2. THE MANAGER
THE ORINETAL INSURANCE COMPANY LTD.,
NO.401/2, F-1, SWATIK MANANDI ARCADE
S.C.ROAD, OPP: SESHADRIPURAM
POLICE STATION, BANGALORE-560020
3. BASAVARAJ S/O MALLIKARJUNA SUDI
AGED ABOUT 39 YEARS, OCC: BUSINESS
R/O BEHIND GACHINA MAHAL
J.M.ROAD, BIJAPUR-586101
4. THE MANAGER
NATIONAL INURANCE CO. LTD.,
1ST FLOOR, MELLIGERI COMPLEX
KALADAGI ROAD, BAGALKOT-587101
...RESPONDENTS
(BY SRI BAPUGOUDA SIDDAPPA, ADVOCATE FOR R1;
SRI J. AUGUSTIN, ADVOCATE FOR R2;
SMT. SANGEETA BHADRAHETTY, ADVOCATE FOR R4;
R3 SERVED AND UNREPREENTED)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INIDA, PRAYING TO ISSUE A WRIT, OR
ANY OTHER WRIT OR ORDER QUASHING THE IMPUGEND ORDER
DATED 06.12.2012 PASSED BY THE II ADDL. DIST. JUDGE IN CIVIL
MISC.NO.16/2011 AND THE JUDGMENT AND AWARD DATED
28.06.2010 PASSED BY THE MACT NO.3, BIJAPUR IN MVC
NO.1046/2006, IN RESPECT OF FIXING LIABILITY UPON THE
PETITIONER VIDE ANNEXURE-D AND C RESPECTIVELY ETC.
11
THESE APPEALS AND PETITIONS COMING ON FOR DICTATING
JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
Heard the learned counsel appearing for the parties.
2. All these matters arise out of the same accident. Hence, the same are clubbed, heard and disposed of by this common judgment.
3. The claimants are before this Court seeking enhancement of the compensation awarded whereas the owner of the bus (one of the offending vehicle) is in appeal challenging the liability of 50% fastened on it.
4. The learned counsel appearing for the owner would contend that no proper notice was served on him, the Tribunal wrongly placing the owner of the bus exparte, awarded compensation, fixing the liability to the extent of 50%. It is contended that the address shown in the postal cover and the postal acknowledgement of the notice sent from the Tribunal read as follows:
12
"J.Muniraj S/o B.A.Jayaram R/o 401/2, F-1 Swastik Manodi Arcade S.C.Road, Opp: Sheshadripuram Police Station Bangalore - 20"
5. It is contended that in view of the wrong address shown in the postal cover and the postal acknowledgement, no service was made on the owner of the bus. Even the paper publication said to have been taken by the claimants in Kannada daily 'Hosa Diganta' Bangalore Edition is not widely circulated in Bangalore and the owner was not aware of the proceedings pending before the Tribunal against him. The non-appearance of the appellant before the Tribunal was not intentional. The Tribunal passing the judgment and award without providing sufficient opportunity to the appellant/owner to lead evidence is in violation of the principles of natural justice and any order passed without following the principles of natural justice is vitiated. Accordingly, she seeks for remand of the matters to the Tribunal.
13
6. On the other hand, the learned counsel appearing for the claimants strongly opposing the submissions of the learned counsel appearing for the owner would contend that the Tribunal has provided sufficient opportunity to the owner to defend the matter. Despite the opportunity provided, the owner of the bus has not participated in the proceedings with an intention to avoid the liability or to drag on the proceedings. The appellant/owner had claimed the damages for the vehicle before the Consumer Forum and having suffered an order, approached the State Commission and further having failed before the State Commission, the writ petition was filed before this Court which came to be dismissed. As such, pendency of the proceedings before the Tribunal was not within the knowledge of the appellant/owner is totally unacceptable, the appellant is before this Court to escape the liability. It is also submitted that the appellant had filed Civil Misc.No.9/2011 and connected matters before the Tribunal, to set aside the 14 exparte judgment and award passed against the owner. The Tribunal extensively considering the evidence placed on record by the parties dismissed the said Miscellaneous petitions. Such being the case, the contention of the appellant that the pendency of the proceedings before the Tribunal was not within his knowledge is wholly misconceived. Having lost the legal battle before the various forums and even before this Court in the cross objections filed in these appeal proceedings the appellant/owner is not entitled for any relief sought for.
7. Sri J.Augustin, learned counsel appearing for the respondent No.2 and Smt. Sangeeta Bhadrashetty, learned counsel appearing for the respondent No.4, supporting the arguments advanced by the learned counsel for the claimants would contend that the appeal filed by the owner of the bus is not maintainable and it is only a frivolous litigation to avoid the liability fastened by the Tribunal. Learned counsel would contend that in the proceedings before the Consumer Forum 15 and the writ petition before this Court, it is come on record that the driver of the offending vehicle i.e. bus had no valid and effective driving license at the time of the occurrence of the accident. The damages were claimed on the basis of the fake license, which was turned down by the Consumer Forum and upheld by this Court. In such circumstances, no purpose would be served in remanding the matter back to the Tribunal and it would be a futile exercise involving public time and as such seeks for dismissal of the appeals.
8. Heard the rival submissions of the parties and perused the records.
9. The main ground on which much emphasis is placed by the learned counsel appearing for the appellant/bus owner is on the postal documents i.e. postal acknowledgement which were the basis for the service of notice on the appellant/bus owner. A perusal of this document indicates that the notice was addressed to a wrong address, not to the correct address mentioned in the cause 16 title. Even assuming the service is held sufficient in view of the publication of the Court notice through "Hosa Digantha"
Kannada News Daily, Bangalore Edition, the contention of the appellant/bus owner that it is not widely circulated paper in the Bangalore and the same has not come to the knowledge of the bus owner appears to have some force. In the circumstances, to meet the ends of justice, following the principles of natural justice, it would be appropriate to provide one more opportunity to the appellant/bus owner to defend his case by adducing evidence. I am also conscious that the Tribunal has passed the award in the year 2010 fixing the liability at 50% of the compensation awarded on the owner and till today the owner has not satisfied the award for one or the other reason and no amount is deposited before this Court. In the interest of both the parties, it would be appropriate to remand the matter back to the Tribunal providing an opportunity of adducing evidence to the appellant/bus owner subject to the appellant depositing 50% of the compensation amount awarded, before the 17 jurisdictional Tribunal within a period of two weeks from the date of receipt of certified copy of the order and compensating the claimants with the cost of Rs.5,000/- each towards the litigation expenses.
10. Accordingly, the appeals and writ petitions are disposed of and the order passed by the Tribunal is set aside.
The Tribunal shall dispose of the matter as expeditiously as possible preferably, within a period of six months. The parties are at liberty to adduce the evidence. All the contentions are left open to the parties.
The parties are directed to appear before the jurisdictional Tribunal, Bijapur on 04.04.2016 without further notice. The Tribunal thereafter, shall fix the date of further hearing and shall proceed with the adjudication of the matters.
Sd/-
JUDGE Srt/MSR