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2023 Supreme(Online)(Kar) 34422
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF MARCH, 2023 BEFORE THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO. 8790 OF 2011 (MV-D)
BETWEEN:
1. SRI. M.M. MANJUNATHA, S/O. MANJAPPA, AGED ABOUT 36 YEARS, 2. SRI. MANJAPPA, S/O. SYDAPPA, AGED ABOUT 67 YEARS, BOTH R/O MATTIGHATTA VILLAGE, BHADRAVATHI TALUK, SHIMOGA DISTRICT - 577 301. SINCE APPELLANT NO.2 IS DEAD, Digitally signed APPELLANT NO.1 IS HIS L.R, by JAI JYOTHI J AS HE IS THE SON OF APPELLANT AND ACCORDINGLY Location: H IGH THIS NOTE IS MADE COURT OF KARNATAKA SHOWING APPELLANT NO.1 IS L.R.
OF APPELLANT. AMENDED AS PER ORDERS DATED: 4/6/19 ON MEMO.
…APPELLANTS (BY SRI. R. GOPAL, ADVOCATE)
AND:
1. SMT. B.G. LATHA, W/O. LATE P.M. UMESHA, AGED ABOUT 32 YEARS, 2. KAVYA, D/O. LATE P.M. UMESHA, AGED ABOUT 11 YEARS, SINCE MINOR, REPRESENTED BY HER NATURAL GUARDIAN-MOTHER, B.G. LATHA-1ST RESPONDENT. BOTH THE ABOVE RESPONDENT
1 AND 2 ARE R/O HAROBENAVALLI VILLAGE, HOLALUR HOBLI, SHIMOGA TALUK - 577 201.
3. THE NEW INDIA ASSURANCE CO. LTD., III CROSS, ALJUBEDA BUILDING, NEHRU ROAD, SHIVAMOGGA.
REPRESENTED BY ITS MANAGER.
…RESPONDENTS (BY SRI. T. RAJARAM, ADVOCATE FOR R1;
R2 - SERVED;
SRI. A.N. KRISHNA SWAMY, ADVOCATE FOR R3)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 30.06.2011 PASSED IN MVC NO.245/2003 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE, ADDITIONAL MACT, SHIVAMOGGA, AWARDING A COMPENSATION OF Rs.4,84,000/- WITH INTEREST @ 6% P.A.
FROM THE DATE OF PETITION TILL DEPOSIT.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appeal is filed by the owner questioning the liability fixed on the owner.
2. The brief facts of the case are that on
29.04.2003 at about 7.30 p.m., the deceased-Umesh was proceeding on his Hero Honda Motorcycle bearing No.KA- 14-H-2496 towards Harobenavalli, when he reached near Maruthi High School at B.Biranahalli, a tractor-trailer bearing No.KA-14-T-430-431 came from Harobenavalli in a rash and negligent manner and dashed against the deceased-Umesh. Immediately, he was shifted to Nanjappa Hospital and on 05.05.2003 at about 2.30 a.m., he succumbed to the injuries while taking treatment in the said hospital.
3. Heard the arguments on both sides and perused the records.
4. Learned counsel for the appellant/owner submitted that in the present case, the tractor and trailer involved in the accident is KA-14-T-430-431 but the Tribunal has wrongly assigned reasons that the tractor No.CNS.6076-77 had caused accident. Therefore, it is submitted when there are evidences on record that the tractor and trailer No.KA-14-T-430-431 involved in the accident but holding contrary is not correct and unsustainable. Therefore, prays for modification of the judgment and award by holding that the tractor and trailer No.KA-14-T-430-431 was involved. Therefore, prays for modification of the judgment and award to this aspect.
5. On the other hand, learned counsel for respondent No.3-Insurance Company submitted that the Tribunal is correct in holding that the tractor and trailer No.CNS.6076-77 had caused accident. In the complaint also, the tractor number stated as CNS.6076-77 but subsequently, only for the purpose of avoiding liability to be fastened on the owner of the tractor and trailer No.CNS.6076-77, a false vehicle namely tractor and trailer No.KA-14-T-430-431 is deliberately fixed. Further, it is submitted that the appellant is the owner of two tractors namely CNS.6076-77 and another tractor No.KA-14-T- 430-431. The owner has not got insurance coverage in respect of the vehicle No.CNS.6076-77 but has insurance coverage only to the vehicle NO.KA-14-T-430-431. Therefore, when the vehicle tractor No.CNS.6076-77 was met with accident but this tractor was not having insurance policy, therefore, a deliberate attempt was made to fix tractor and trailer No.KA-14-T-430-431 and this is rightly assessed by the Tribunal by holding that the tractor No.CNS.6076-77 had involved in the accident and correctly put liability on the appellant/owner. Hence, it is submitted that there is no need to make interference in the said finding of the Tribunal. Hence, prays to dismiss the appeal.
6. Upon considering the rival submissions made by the respective learned counsel, the points that arise for consideration is as follows:
Whether, under the facts, circumstances and evidences on record, the tractor and trailer No.CNS.6076-77 was involved or KA-14-T-430-
431 was involved?
7. The Tribunal held that the tractor and trailer bearing No.CNS.6076-77 was involved in the accident and this tractor did not have insurance coverage. Therefore, fastened liability on the appellant/owner to pay compensation.
8. It is the case of the claimant as well as the appellant/owner before the Tribunal that the tractor and trailer No.KA-14-T-430-431 was involved in the accident. In this line, both the claimant and the owner have given their oral evidence but the documentary evidences are also to be appreciated. Ex.R1 is the First Information Statement lodged before the police on 30.04.2003 at morning 11.45 a.m., which is given by the elder brother of the deceased stating that the tractor and trailer No.CNS.6076-77 had caused the accident. The accident was caused on 29.04.2003 at evening 7.30 p.m. Consequently, FIR was registered based on the first information statement against the driver of the tractor and trailer No.CNS.6076-77. These are the documents prepared during natural course of event i.e., soon after the accident showing the offending vehicle number as CNS.6076-77. But, subsequ
