IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF MARCH, 2018 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO M.F.A.No.3188/2012 C/W M.F.A.No.452/2012(MV) IN MFA No.3188/2012:
BETWEEN:
1.H S PUTTASWAMY GOWDA S/O LATE SOMEGOWDA, AGED ABOUT 69 YRS R/A NO.3053, 8TH A CROSS 14TH A MAIN, RPC LAYOUT (HAMPINAGAR) VIJAYANAGAR II STAGE, BENGALURU-560040 2.SMT PUTTACHANNAMMA W/O H S PUTTASWAMY GOWDA AGED ABOUT 48 YEARS R/A NO.3053, 8TH A CROSS 14TH A MAIN, RPC LAYOUT (HAMPINAGAR) VIJAYANAGAR II STAGE, BENGALURU-560040 ..APPELLANTS (BY SRI S RAJU AND ASSOCIATES, ADVOCATES) AND:
1.THE UNITED INDIA INSURANCE COMPANY LTD., No.109, SSL AREA (NEXT TO DASHARATHARAMA) DR RAJKUMAR ROAD, RAJAJINAGAR V BLOCK BENGALURU-560010 2.SRI JAVARE GOWDA S/O LATE MUDALAGIRIGOWDA AGED ABOUT 67 YEARS R/A NO.346, 6TH CROSS, BCC LAYOUT VIJAYANAGAR, BENGALURU-560040 3.SRI M VENUGOPAL MAJOR R/A NO.394 BEERESHWARA KRUPA B C LAYOUT, VIJAYANAGAR BENGALURU-560040 ..RESPONDENTS (BY SRI K N SRINIVASA, ADVOCATE FOR R-1, SRI.M.BABU, ADVOCATE FOR R-3, NOTICE TO R-2 DISPENSED WITH VIDE COURT ORDER DATED 14.02.2014) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:19.11.2011 PASSED IN MVC NO.8649/2009 ON THE FILE OF XIX ADDITIONAL SMALL CAUSES JUDGE AND MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA NO.452/2012: BETWEEN:
SRI M VENUGOPAL S/O MAHALINGAPPA AGED ABOUT 36 YEARS R/AT NO.394, BEERESHWARA KRUPA B C LAYOUT, VIJAYANAGAR BENGALURU-40 ..APPELLANT (BY SRI M BABU, ADVOCATE) AND:
1.SRI JAVAREGOWDA S/O MOODALAGIRIGOWDA AGED ABOUT 66 YEARS NO.346, 6TH CROSS, B C C LAYOUT VIJAYANAGAR, BENGALURU-40 2.SRI H S PUTTASWAMYGOWDA S/O LATE SONNE GOWDA AGED ABOUT 68 YEARS R/AT NO.3083, 8TH A CROSS, 14TH A MAIN, RPC LAYOUT VIJAYANAGAR II STAGE BENGALURU-40 3.SMT PUTTA CHENNAMMA W/O H.S.PUUTASWAMY GOWDA AGED ABOUT 47 YEARS R/AT NO.3083, 8TH A CROSS, 14TH A MAIN, RPC LAYOUT VIJAYANAGAR II STAGE BENGALURU-40 4.UNITED INDIA INSURANCE CO. LTD., REPRESENTED BY MANAGER NO.109, S S HIGH AREA, NEXT TO DASHRATHRAMA DR RAJKUMAR ROAD RAJAJINAGAR 5TH BLOCK BENGALURU-10 ..RESPONDENTS (BY SRI S KRISHNA KISHORE, ADVOCATE FOR R-4) R-1 TO R-3 -SERVED THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:19.11.2011 PASSED IN MVC NO.8649/2009 ON THE FILE OF THE XIX ADDL.SCJ & MACT, BENGALURU, AWARDING A COMPENSATION OF `4,18,000/- WITH INTEREST @ 8% P.A. FROM THE DATE OF PETITION TILL REALISATION.
THESE MFAs COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT These two appeals are directed against the Judgment and award dated 19.11.2011 passed in MVC No.8649/2009 by the MACT, Bengaluru.
2. MFA No.3188/2012 is filed by claimant challenging the exclusion of insurance company from the liability. MFA No.452/2012 is filed by one M.Venugopal who was the third respondent before the MACT in MVC No.8649/2009 along with application I.A.1/2012 and I.A.1/2017 under Order 41 Rule 27 of C.P.C. The applications are filed seeking permission to produce additional documents.
3. At the outset, learned counsel for appellant in MFA No.452/2012 - Sri M Babu would submit that the award is passed against one M.Venugopal who is not the owner of the vehicle in question. As the matter pertains to a road traffic accident that occurred on 28.03.2009 at about 6.30 P.M. when one Hemanthraj along with relative C.T.Girish were proceeding in a Motorcycle bearing No.KA-02-EE-7485 and Girish drove the vehicle in a rash and negligent manner and lost control because of which both of them fell down and sustained injuries and Hemanthraj succumbed to the injuries on 28.03.2009.
4. The third respondent Venugopal who is the appellant in MFA No.452/2012 contended specifically before the Tribunal that he was not the owner of the vehicle as on the date of the accident and the same is evidenced by records as well. But the Tribunal has not considered genuine ground urged by the third respondent who is appellant herein in MFA No.452/2012.
5. The equation submitted by the learned counsel regarding ownership of the vehicle bearing registration No.KA-02-EE-7485 is that from 28.03.2002 to 05.06.2008 one Venugopal was the owner of the vehicle. However, from 06.06.2008 to 02.05.2009 Girish is the owner. The endorsement is perused.
6. In MFA No.3188/2012 learned counsel for appellant contended that the Tribunal erred in not considering the documents produced by the claimants and accepted the version of respondents not corroborated with any evidence. MFA No.452/2012 is concerned learned counsel for appellant submits that non consideration of the matter regarding ownership of the vehicle by the Tribunal, appellant is made the scapegoat. In the context and circumstances, the appreciation of evidence regarding the ownership of the vehicle is not proper and justifiable and saddling the liability on the person who is not the owner of the vehicle is a threshold defect and same is liable to be set aside. Accordingly done.
Hence, the following:
ORDER 1. Appeals are allowed.
2. The Judgment and award dated:19.11.2011 passed in MVC No.8649/2009 on the file of XIX Additional Small Causes Judge and MACT, Bengaluru is set aside. Matter is remanded back to the Tribunal for fresh disposal in accordance with law.
3. Tribunal is directed to consider the issue regarding ownership of the vehicle and shall consider the documents available on the date of the accident including the additional documents if any and dispose of the matter expeditiously, not later than three months from the date of first appearance.
4. I.A.1/2012 and I.A.1/2017 filed for production of additional documents be transmitted to the Tribunal for disposal. A copy may be retained.
5. In order to avoid wastage of judicial time, parties are hereby directed to appear on 11.06.2018 before the Tribunal without waiting for further notice.
Sd/- JUDGE SBN