IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF DECEMBER, 2017 BEFORE THE HON’BLE MR. JUSTICE L. NARAYANA SWAMY MISCELLANEOUS FIRST APPEAL NO.3737 OF 2015 (MV) BETWEEN:
PRAKASHA K. B.
S/O. BASAVE GOWDARU, AGED ABOUT 38 YEARS, RESIDENT OF SAGAR, SHIMOGA DISTRICT.
(BY SRI M. V. MAHESWARAPPA, ADV.) ... APPELLANT AND:
1. WAJEEHA PARVEEN W/O. K. SHAMSHUDDIN, AGED ABOUT 46 YEARS.
2. K. SHAMSHUDDIN S/O. KHAZI ABDUL RAUF SAB, AGED ABOUT 48 YEARS, BUSINESS MAN.
3. K. BRUHANUDDIN S/O. K. SHAMSHUDDIN, AGED ABOUT 23 YEARS.
4. K. NAYEEMUDDIN S/O. K. SHAMSHUDDIN, AGED ABOUT 21 YEARS, STUDENT.
RESPONDENT NOS.1 TO 4 ARE RESIDING AT KHAZI MOHALLA, SHIKARIPURA, SHIMOGA DISTRICT.
5. ESHWAR K. T. @ ESWAR NAIK S/O. THIMMAPPA K., AGED ABOUT 35 YEARS, RESIDING AT MURATURU VILLAGE, TALIKOPPA HOBLI, SHIMOGA DISTRICT.
6. SRIRAMA GENERAL INSURANCE COMPANY LTD. OFFICE 10003, E-8 R11CO, INDUSTRIAL AREA, SITA PURA, JAIPUR, RAJASTHAN.
7. SYED MANSOOR S/O. SYED HUSSAIN, AGED ABOUT 33 YEARS, NO.297, 31ST ‘B’ CROSS, TILAKNAGAR, 4TH ‘T’ BLOCK, BENGALURU.
8. SMT. NOOR JAN W/O. LATE SYED HUSSAIN, AGED ABOUT 63 YEARS, RESIDENT OF ANKANAHALLI KOPPALU, PERIYAPATNA TALUK, MYSURU DISTRICT.
9. THE MANAGER UNITED INDIA INSURANCE COMPANY LTD. HUNSUR CLUB COMPLEX, POST OFFICE ROAD, HUNSUR.
... RESPONDENTS (BY SRI KALEEMULLAH SHARIFF, ADV. FOR R-1 TO 4; NOTICE TO R-5 & 7 IS DISPENSED WITH VIDE ORDER DATED 23-9-2015; AND R-6, 8 AND 9 ARE SERVED AND UNREPRESENTED) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED 10-9-2014 PASSED IN M.V.C. NO.212 OF 2012 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT, ADDITIONAL M.A.C.T-III, SHIVAMOGGA, AWARDING A COMPENSATION OF RS.5,05,000/- WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL REALISATION OF THE ENTIRE AMOUNT.
THIS MISCELLANEOUS FIRST APPEAL IS COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
J U D G M E N T The appellant, owner of the bus, has challenged the legality of the judgment and award dated 10-9-2014, passed by the Presiding Officer, Fast Track Court and Additional M.A.C.T - III, Shivamogga, whereby the learned Tribunal has granted a compensation of Rs.5,05,000/- to the claimants – respondent Nos.1 to 4.
2. The brief facts of the case are that on 19-1-2011, at about 11:00 p.m., the bus, bearing Registration No.KA-01 B-4807, left from Shikaripura to Bengaluru. When the said bus reached near Kodli Cross on NH-206, at about 4:30 a.m., on 20-1-2011, the driver of the bus, i.e. respondent No.5, namely Ehswar K.T. @ Eswar Naik, drove the vehicle in rash and negligent manner and dashed against the lorry, bearing Registration No.KA-01 A-5138. Due to the impact, one Mohinuddin sustained grievous injuries all over the body. Immediately, he was shifted to Government Hospital, Tumakuru, and for further treatment, he was shifted to TB & CD Hospital, Bengaluru, and Mohinuddin succumbed to injuries. Since respondent Nos.1 to 4 lost the sole bread earner of the family, they filed a claim petition before the learned Tribunal.
3. The learned counsel for the appellant submits that after hearing both sides, the Tribunal fastened the liability on the appellant, who is the owner of the bus. However, he submits that at the time of the accident, the vehicle was having valid permit, and the insurance policy is also valid one, therefore, the liability should have been fastened on the Insurance Company and not on the owner of the bus. Hence, he prays that an opportunity may be given for production of the vehicle permit and insurance policy before the Tribunal.
4. Since the vehicle permit and insurance policy were never marked as exhibits, nor admitted in evidence, it is just and proper to remand the case back to Tribunal for its decision on the limited issue with regard to liability of the Insurance Company to pay the compensation to the claimants – respondent Nos.1 to 4 or not.
5. Accordingly the appeal is allowed. The award dated 10-9-2014, passed by the Presiding Officer, Fast Track Court and Additional M.A.C.T - III, Shivamogga, is set aside and the case is remanded back to the Tribunal.
6. All the contentions are kept open. The appellant is directed to file necessary application for production of documents. On such production of necessary documents, the Tribunal is directed to decide the said issue within a period of three weeks thereafter.
7. However, it is clarified that if the claim of the appellant, owner of the bus, is allowed and liability is fastened on the Insurance Company, the Insurance Company is liable to pay the amount withdrawn by the claimants - respondent Nos.1 to 4 to the appellant.
Amount in deposit, if any, is to be transmitted to the Tribunal.
Sd/- JUDGE kvk