IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE S.R.KRISHNA KUMAR M.F.A.NO.2156 OF 2017(MV-D) BETWEEN S.VIJAYAKUMAR S/O SIDDAPPA AGED ABOUT 27 YEARS RIDER OF MOTOR CYCLE BEARING NO.KA-02/EM-8127 R/O KOGUNDE VILLAGE CHITRADURGA TALUK – 577 501.
(BY SRI.R.SHASHIDHARA, ADVOCATE) AND 1. SHANTHAPPA S/O DANDEYAPPA AGED 50 YEARS COOLIE WORK.
2. ROOPA D/O SHANTHAPPA AGED ABOUT 27 YEARS.
3. DEEPA D/O SHANTHAPPA AGED ABOUT 31 YEARS.
4. KARIBASAPPA S/O SHANTHAPPA AGED ABOUT 13 YEARS, MINOR.
…APPELLANT 5. PRIYANKA D/O SHANTHAPPA AGED ABOUT 20 YEARS.
6. ANUKUMAR S/O SHANTHAPPA AGED ABOUT 16 YEARS, MINOR.
THE RESPONDENTS NO. 4 AND 6 ARE MINORS REPRESENTED BY THEIR NATURAL GUARDIAN FATHER 1ST RESPONDENT, ALL ARE R/O KOGUNDE VILLAGE, BHARAMASAGARA HOBLI CHITRADURGA TALUK AND DISTRICT- 577 501.
7. CHANNABASAPPA S/O MALLAPPAM MAJOR, BUSINESS OWNER OF MOTOR CYCLE BEARING NO. KA-02/EM-8217, R/O HOSADURGA VILLAGE, BILICHODU HOBLI, JAGALUR TALUK DAVANAGERE DISTRICT – 577 528.
…RESPONDENTS (BY SRI. B.C. VENKATESH, ADVOCATE FOR R-1 R-6, R-7 – SERVED, R-4 TO R-6 ARE MINORS REPRESENTED BY THEIR NATURAL GUARDIAN R-1) THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAISNT THE JUDGMENT AND AWARD DATED: 07.10.2015 PASSED IN MVC NO. 125/2014 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, & CJM, MACT-III, CHITRADURGA, AWARDING COMPENSATION OF Rs.7,80,200/- WITH INTEREST @ 7.5% P.A. FROM THE DATE OF PETITION TILL DEPOSIT AND ETC.
THIS APPEAL COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal preferred by the rider of the motor-cycle bearing No.KA-02/EM-8217 is directed against the impugned judgment and award dated 07.10.2015 passed in MVC No.125/2014 by the Principal Senior Civil Judge, CJM and MACT-III, Chitradurga, allowing the claim petition filed by Respondents 1 to 6 thereby directing the appellant to pay compensation in respect of death of Smt.Parvathamma in a fatal road accident that occurred on 18.05.2011.
2. Though the matter is listed for admission, with the consent of learned counsel for the parties, the matter is taken up for final disposal.
3. The brief facts giving rise to the above appeal are as hereunder:
Respondents 1 to 6 filed the claim petition before the Tribunal for compensation towards the death of Smt.Parvathamma inter alia contending that they are the husband and children of the said Parvathamma who died on account of injuries sustained by her in the road accident that took place on 18.05.2011. The accident was on account of rash and negligent driving of Respondent No.1 who was rider of the motor-cycle. It was also contended that the Respondent No.2 was the owner of the said motor-cycle and consequently, both the driver and owner- Respondents 1 and 2 before the Tribunal were jointly and severally liable to pay compensation to the claimant.
4. Respondent No.1 (appellant herein) filed statement of objections disputing the various allegations made against him and sought for dismissal of the claim petition. Respondent No.2 (Channabasappa) also filed his statement of objections inter alia denying the allegations. He also contended that he was not the owner of the aforesaid motor-cycle bearing No.KA-02/EM-8217 and consequently, he was liable to pay compensation.
5. The Court below formulated the following four points for consideration:
“(i) Whether the petitioners prove that Smt. Parvathamma, W/o Shanthappa, has died due to the accidental injuries, in the road traffic accident occurred on 18.05.2011 at about 12.30 pm near Sangappa’s land Kugunde Village, Chitradurga taluk, due to rash and negligent manner of riding of motor cycle bearing Reg.No.KA-02-EA-8217 by its rider?
(ii) Whether the 2nd respondent proves that he was not the owner of the motor cycle at the time of accident as contended in para no.6 of objections?
(iii) Whether the petitioner is entitled for compensation? If so, at what quantum and from whom?
(iv) What order or award?”
6. Issue No.2 framed by the Tribunal related to whether the said Channabasappa, Respondent No.2 before the Tribunal proved that he was not the owner of the motor-cycle in question. In this regard, the Tribunal came to the conclusion that neither the claimants nor driver placed any material to establish that Respondent No.2 was the registered owner of the motor-cycle in question. The Tribunal after having quantified the compensation payable as Rs.7,80,200/- with interest at 7.5% p.a., allowed the claim petition in part directing only rider (appellant herein) to pay compensation. Aggrieved by the impugned judgment and award, the driver-appellant is before this Court.
7. Learned counsel for the appellant submits that in the light of the specific contention put forth by the claimants in their claim petition that the Respondent No.2 was the owner of the offending vehicle, it was incumbent upon the claimants to prove the same. It was also contended that the Tribunal has come to the wrong conclusion that the burden was on the appellant herein to prove that Respondent No.7 was the owner of the offending vehicle without appreciating that it was incumbent upon the claimants to prove the same. It was also contended that the Tribunal has come to the wrong conclusion that the burden was on the appellant herein to prove that Respondent No.2 was the owner of the offending vehicle without appreciating that the burden was heavily upon the claimants to prove the said fact. It was further contended that having regard to the material on record, the Tribunal committed an error in fastening the liability to pay compensation on the appellant who was only a driver of the vehicle.
8. Per contra, learned counsel for Respondents 1 to 5 would support the impugned judgment and award.
9. A perusal of the impugned judgment and award would indicate that the Tribunal has misdirected itself in coming to the conclusion that the appellant had not proved that Respondent No.7 was the owner of the offending vehicle, the burden rested heavily upon the claimants to produce material to establish that the Respondent No.7 was the owner. In the event the owner was discovered by some one else, it was open for the claimants to implead the said person as a party to the proceedings. Under these circumstances, I am of the opinion that the matter deserves to be remitted back to the trial Court for fresh disposal.
10. In view of the aforesaid discussion, I pass the following order:
i) The appeal is hereby allowed.
ii) The impugned judgment and award dated 07.10.2015 passed in MVC No.125/2014 by the Principal Senior Civil Judge, CJM and MACT-III, Chitradurga is set aside.
iii) The matter is remitted back to the Tribunal to afford opportunity of all the parties to produce evidence with regard to ownership of vehicle bearing No.KA-02-EM-8217. In the event Respondent No.7 is not found to be owner of the vehicle and it transpires that the owner of the vehicle as per the RTO records is found to be somebody else, liberty is reserved to the claimant to implead the said person/persons as parties to the proceedings.
With the aforesaid observations, this appeal is disposed of.
Parties shall appear before the Tribunal on 10.01.2020 without further notice from the Court.
The amount in deposit to be refunded to the appellant.
Sd/- JUDGE bnv