SMT. BHARATI v. NINGAYYA

ITS DIVISIONAL OFFICE, SRINVIAS TALKIES COMPLEX, MARKET ROAD, DHARWAD-580001. …RESPONDENTS (BY SRI ROHIT S. PATIL, ADVOCATE FOR RESPONDENT NO.1) (BY SRI S.S. KOLIWAD, ADVOCATE FOR RESPONDENT NO.2) THIS MISCELLANEOUS FIRST APPEAL FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, AGAINST THE JUDGMENT AND AWARD DATED 21.01.2019 PASSED IN MVC NO.820/2014 ON THE FILE OF THE IV ADDITIONAL SENIOR CIVIL JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, DHARWAD. IN MFA NO.101491 OF 2019 BETWEEN: SRI NINGAYYA S/O. CHANBASAYYA KALYANMATH, AGE:ABOUT 55 YEARS, OCC:BUSINESS, R/O ANJANEYA NAGAR, KELGERI, TQ DIST: DHARWAD. …APPELLANT (BY SRI ROHIT S. PATIL, ADVOCATE) - 3 - NC: 2023:KHC-D:9152-DB MFA No.102790 of 2019 C/W MFA No.101491 of 2019 AND:

1. SMT. BHARATI W/O LATE LOKAPPA MADAR, AGE: 28 YEARS, OCC: HOUSEHOLD R/O: C/O.DYAMAVVA D HULKOPPA, 2ND CROSS, NEAR DURGA DEVI TEMPLE, DHARWAD.

2. KUMAR DYAMANNA S/O. LATE LOKAPPA MADAR, AGE:12 YEARS, OCC:STUDENT, R/O: C/O. DYAMAVVA D. HULKOPPA, 2ND CROSS, NEAR DURGA DEVI TEMPLE, DHARWAD.

3. KUMAR DARSHAN S/O. LATE LOKAPPA MADAR, AGE:10 YEARS, OCC: STUDENT, R/O: C/O. DYAMAVVA D. HULKOPPA, 2ND CROSS, NEAR DURGA DEVI TEMPLE, DHARWAD.

4. KUMAR DEVENDRA S/O. LATE LOKAPPA MADAR, AGE:10 YEARS, OCC:STUDENT, R/O: C/O.DYAMAVVA D HULKOPPA, 2ND CROSS, NEAR DURGA DEVI TEMPLE, DHARWAD.

5. UNITED INDIA INSURANCE CO. LTD., BY ITS DIVISIONAL OFFICE, SRINIVAS TALKIES COMPLEX, MARKET ROAD, DHARWAD 580001, POLICY NO:2407013113P105792945 VALID FROM 02-01-2014 TO 01-01-2015. …RESPONDENTS (BY SRI ANJANEYA M., ADVOCATE FOR R1 TO 4; BY SRI S.S. KOLIWAD, ADVOCATE FOR RESPONDENT NO. 5) THIS MISCELLANEOUS FIRST APPEAL FILED UNDER SECTION 173 PF MOTOR VEHICLES ACT, 1988, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD PASSED BY TRIAL COURT IN M.V.C. NO. 820/2014 DATED 21/01/2019 ON THE - 4 - NC: 2023:KHC-D:9152-DB MFA No.102790 of 2019 C/W MFA No.101491 of 2019 FILE OF IVTH ADDITIONAL SENIOR CIVIL JUDGE AND ADDITIONAL MACT., DHARWAD. THESE APPEALS, COMING ON FOR FINAL HEARING, THIS DAY, BASAVARAJA, J., DELIVERED THE FOLLOWING: J U D G M E N T Both cases arising out of judgment and award dated 21st January, 2019 passed in MVC No.820 of 2014 on the file of the IV Additional Senior Civil Judge and Additional Motor Accident Claims Tribunal, Dharwad (hereinafter referred to as "the Tribunal" for brevity).

2. Miscellaneous First Appeal No.102790 of 2019 is preferred by the Tribunal seeking enhancement of compensation; and Miscellaneous First Appeal No.101491 of 2019 is preferred by the Owner of the offending vehicle questioning the fastening of liability.

3. For the sake of convenience, the parties in these appeals are referred to with their status and rank before the Tribunal.

4. The brief facts of the case are as follows: On July 12, 2014, Lokappa, along with a pillion rider, was cycling to Dharwad. At approximately 12:15 pm, when they - 5 - NC: 2023:KHC-D:9152-DB MFA No.102790 of 2019 C/W MFA No.101491 of 2019 reached near Balaji Shamiyana on Kelageri Road, a Tata Tempo with Registration No.KA-25/D-4090 approached Dasanakoppa Circle towards Kelageri. The driver of the Tata Tempo was operating the vehicle at a high speed, in a reckless and negligent manner, and attempted to overtake another unknown vehicle. In doing so, the Tata Tempo collided with Lokappa's bicycle, resulting in a severe accident. As a consequence, Lokappa, along with his pillion rider, fell and sustained grievous injuries. Tragically, Lokappa succumbed to his injuries on 13th August, 2014. Furthermore, details regarding the deceased's income and the loss of dependency are provided, and compensation is being sought.

5. In pursuance of service of notice respondents, both respondents appeared before the Tribunal through their respective counsel and filed their written statement. The substance of the written statement of respondent No.1 is that, he is the owner of the offending vehicle and respondent No.2 is the insurer. If the Tribunal comes to the conclusion that the petitioners are entitled for compensation, then respondent No.2-Insurer is liable to pay the compensation to the petitioner. Further, all other - 6 - NC: 2023:KHC-D:9152-DB MFA No.102790 of 2019 C/W MFA No.101491 of 2019 averments made in the claim petition are denied and sought for dismissal of the claim petition.

6. The substance of the written statement of respondent No.2, the Insurance Company, is as follows: The driver of the offending vehicle did not possess a valid and effective driving license at the time of the accident in question. The police have filed a charge sheet against the driver of the offending vehicle for the commission of offenses punishable under Sections 3 read with 181 and 5 of the Motor Vehicles Act, 1988. It is also argued that, according to the final report, the driver of the offending vehicle was not qualified to hold or obtain such a driving license. The death of the deceased, Lokappa B. Madar, was not related to the injuries sustained in the accident on 12th July, 2014, and the deceased never experienced any accident. The petitioners are not the legal heirs of the deceased, Lokappa, and furthermore, they have denied the allegations made in the claim petition and are seeking its dismissal.

7. Based on the pleadings, the Tribunal has framed the following issues for its consideration: - 7 - NC: 2023:KHC-D:9152-DB MFA No.102790 of 2019 C/W MFA No.101491 of 2019 “1. Whether the petitioners prove that on

12.07.2014 at about 12.15 pm when the husband of the petitioner No.1 and father of petitioner No.2 to 4 by name Lokappa Madar was proceeding on Bicycle near Balaji Shamiyana, Kelageri Road, Dharwad, the driver of the Tempo No.KA-25/D/4090 came driving in high speed rash and negligent manner and dashed the said Lokappa Madar and he succumbed to the injuries sustained in the said accident?

2. Whether the respondent No.2 proves that the driver of Tempo No.KA-25/D-4090 was not holding valid and effective driving licence at the time of accident?

3. Whether the petitioners are entitled for compensation? If so, what is the qnautum of compensation and from whom?

4. What order or award? Additional Issue: - 8 - NC: 2023:KHC-D:9152-DB MFA No.102790 of 2019 C/W MFA No.101491 of 2019 “Whether the respondent No.1 proves that the accident occurred due to the negligence on the part of the deceased?”

8. In order to prove their case, petitioner No.1 was examined as PW1 and got marked fourteen documents as Exhibits P1 to P14.. Respondents got examined as RWs1 to 4 and got marked twelve documents as Exhibits R1 to R12. Upon hearing arguments on both sides, the Tribunal answered the issues as follows: Issue No.1: In the affirmative; Issue No.2: In the affirmative; Addl. Issue: In the negative; Issue No.3: Partly in the affirmative; Issue No.4: As per final order.

9. In light of the above findings, the Tribunal partially allowed the claim petition filed by the petitioners against respondent No.1 and dismissed the claim petition against respondent No.2. The Tribunal awarded compensation of Rs. 19,41,000/- along with interest at the rate of 8% per annum from the date of deposit to the date of deposit. - 9 - NC: 2023:KHC-D:9152-DB MFA No.102790 of 2019 C/W MFA No.101491 of 2019

10. The owner of the offending vehicle has filed Miscellaneous First Appeal No.101491 of 2019, challenging the imposition of liability on the vehicle owner and the dismissal of the claim petition against the Insurance Company. The claimants have also filed Miscellaneous First Appeal No.102790 of 2019, seeking an enhancement of compensation.

11. The learned counsel representing the appellant- owner of the offending vehicle in Miscellaneous First Appeal No.101491 of 2019 contends that the Tribunal's judgment and award are contrary to the law and the facts of the case. The Tribunal based its decision on the evidence provided by RWs1 and 2, concluding that the driver of the vehicle did not possess a valid and effective driving license at the time of the accident, and that the Insurance Company is not liable to pay compensation. This finding is erroneous and legally unsustainable. The evidence of RW3-Smt.Renuka S.L., Superintendent of RTO Office, Dharwad, suggests that the Tribunal's findings on Issue No.3 and Additional Issue are legally incorrect and not supported by the available record. Furthermore, the appellant-owner of the vehicle has submitted additional documents, including a notarized copy of the - 10 - NC: 2023:KHC-D:9152-DB MFA No.102790 of 2019 C/W MFA No.101491 of 2019 judgment dated 23rd December, 2017, passed in CC No.376 of 2014 by the Principal Senior Civil Judge and CJM and Additional MACT, Dharwad, a certified copy of the deposition of PW5 in the said case, and a notarized copy of the Driving License of the offending vehicle. In light of the production of these additional documents, the appellant requests a remand of the matter to the Tribunal for fresh consideration, allowing both parties an opportunity to present additional evidence. To support these arguments, the learned counsel cites the judgment of the Hon'ble Supreme Court in the case of MUKUND DEWANGAN v. ORIENTAL INSURANCE COMPANY LIMITED, reported in AIR 2017 SC 3668.

12. On the other hand, the learned counsel appearing for the claimants in Miscellaneous First Appeal No.102790 of 2019, submitted that he has no objections to remand the case to the Tribunal for providing opportunity to both sides to adduce their evidence and production of additional documents.

13. Per contra, learned counsel appearing for the Insurance Company supports the impugned judgment and award and submits that the Tribunal, based on the evidence - 11 - NC: 2023:KHC-D:9152-DB MFA No.102790 of 2019 C/W MFA No.101491 of 2019 and material placed before it, has awarded the just and proper compensation and has rightly exonerated the Insurance Company from paying the liability and there is no ground for interference. Accordingly learned counsel sought for dismissal of both the appeals.

14. Having heard the learned counsel appearing for the parties, the following points arise for our consideration in these appeals:

1. Whether the appellant-Owner of the offending vehicle in Miscellaneous First Appeal No.101491 of 2019 has made out a ground to remand the matter to the Tribunal for fresh consideration in view of production of additional documents?

2. What order or award?

15. Our answer for the above points are as under: Point No.1: in the affirmative; Point No.2: as per final order

16. We have carefully examined impugned judgment and award passed by the Tribunal. The Tribunal has - 12 - NC: 2023:KHC-D:9152-DB MFA No.102790 of 2019 C/W MFA No.101491 of 2019 dismissed the claim petition as against Respondent No.2- Insurance Company. As regards to liability with regard to the owner of the Vehicle is concerned, at paragraph 35 of its judgment, the Tribunal has assigned reasons as follows: ”35. Regarding Liability: As per elaborate discussion made in the Issue No.1 to 3 and Additional Issue No.1, this tribunal has come to the conclusion that on the alleged date of accident, driver of the offending Tempo did not possess valid and effective driving licence. Further the driver of the offending Tempo was charge sheeted for the offence punishable under Section 3, 181 & 5 of Indian Motor Vehicles Act. Further the driver of the offending vehicle did not challenged the said charge sheet. Though the attempt was made by the respondent No.1 to show that on the alleged date of accident, offending vehicle was driver by one Mailarappa Kurgundi and though respondent No.1 has examined said Mailarappa as RW2 as per the detailed discussion made in Issue No.1 to 3 and Additional Issue No.1, it is crystal clear that on the alleged date of accident said vehicle was driven by Hanumantappa Krishnappa Konnur and he did not possess valid and effective driving licence. Further, R.W.1 has admitted in his cross examination that Hanumantappa Krishnappa Konnur did not posses valid and effective driving licence. Under such circumstances, the Tribunal found that Respondent No.2 being the Insurance company is not liable to pay compensation to the petitioners. On the other hand, respondent No.1 handed over his vehicle to such person who was not holding valid driving licence to drive said vehicle. Under such circumstances, respondent No.1 being owner of the said offending vehicle is liable to pay - 13 - NC: 2023:KHC-D:9152-DB MFA No.102790 of 2019 C/W MFA No.101491 of 2019 compensation to the petitioners. Accordingly, I answer Issue No.3 is “Partly in the Affirmative”.”

17. The learned counsel representing the appellant- owner of the offending vehicle has strongly argued that the appellant has submitted several documents, including a notarized copy of the judgment dated 23rd December, 2017, issued in CC No.376 of 2014 by the Principal Senior Civil Judge and CJM, and Additional MACT, Dharwad. They have also presented the deposition dated 26th April, 2016, of PW5 in CC No.376 of 2014 and a copy of the driving license of Hanamanthappa Krishnappa Kottur, the driver of the offending vehicle at the time of the accident. Further the appellant asserts that these crucial documents are indeed necessary for the effective adjudication of the matter in dispute should be remanded to the Tribunal for fresh consideration.

18. Regarding the quantum of compensation, the Tribunal assessed the deceased's income at Rs. 5,000/- per month, which is not in line with the guidelines issued by the Karnataka State Legal Services Authority. According to the guidelines, for accidents occurring in the year 2014, the notional income should be set at Rs. 8,000/- per month. - 14 - NC: 2023:KHC-D:9152-DB MFA No.102790 of 2019 C/W MFA No.101491 of 2019 Additionally, the Tribunal did not award any amount for loss of consortium, funeral expenses, and loss of estate. Therefore, the appellant contends that the compensation amount should also be revised by the Tribunal.

19. In consideration of the above-mentioned Supreme Court judgments, without expressing any opinion on the merits of the case, it is deemed appropriate to remand the matter to the Tribunal for fresh examination. Accordingly, Point No. 1 is answered in the affirmative.

20. For the aforesaid reasons, we pass the following: O R D E R

1. Both the appeals are partly allowed;

2. The judgment and award dated 21st January, 2019 passed in MVC No.820 of 2014 by the IV Additional Senior Civil Judge and Addl. MACT, Dharwad is set aside;

3. The matter is remanded to the Tribunal with a direction to provide opportunity to both the parties adduce additional documentary evidence and to pass fresh award in accordance with law and keeping in mind the judgments of the Hon'ble Supreme Court; - 15 - NC: 2023:KHC-D:9152-DB MFA No.102790 of 2019 C/W MFA No.101491 of 2019

4. In view of remanding the matter to the Tribunal and as the parties are represented by their respective counsel, parties are directed to appear before the Tribunal on 11th September, 2023 without waiting for notice from the Tribunal;

5. Amount if any in deposit, be transmitted to the Tribunal forthwith;

6. Registry to transmit the entire papers along with the copy of this judgment to the Tribunal. Sd/- JUDGE Sd/- JUDGE RH LIST NO.: 1 SL NO.: 53