IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF NOVEMBER, 2019 PRESENT THE HON'BLE MR. JUSTICE S.N. SATYANARAYANA AND THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM MFA NO.6729/2016 (MV-D) BETWEEN:
SRI PRABHAKAR RAO K 56 YEARS, S/O TIRUPAYAA, MAJOR OCC: SERVICE, R/O NO.18/4 DGQA. RESIDENTIAL QTRS GUNTHAVIHAR, J.C.NAGAR BANGALORE-560 006.
(OWNER OF VEHICLE BEARING REG NO.KA.04-HC-83) ...APPELLANT (BY SMT. SUMA KEDILAYA, ADVOCATE FOR SRI PADMANABHA KEDILAYA V., ADVOCATE) AND:
1. TANUJA W/O M.C. ANDANAYYA @ ANDANAPPA AGED ABOUT 35 YEARS HOUSEHOLD WORK R/O T K SHIVABEERAPPA 7/2, 1ST MAIN ROAD BEHIND BINNY MILL GANGANAGAR EXTENSION BANGALORE-560 094.
2. KUMAR ANKITH S/O M.C.ANDANAYYA @ ANDANAPPA AGED ABOUT 19 YEARS 3. KUMARI RUCHITA D/O M.C.ANDANAYYA @ ANDANAPPA AGED ABOUT 15 YEARS (SINCE R3 IS MINOR, SHE IS REPRESENTED BY HER NATURAL GUARDIAN MOTHER R1).
4. THE REGIONAL MANAGER ORIENTAL INSURANCE CO. LTD. THE REGIONAL OFFICE NO.4/45, GEO COMPLEX RESIDENCY ROAD CROSS NEAR ADJ SHANKARANAGA TAXIES BANGALORE-560 004.
5. SRIDHAR RAMAKRISHNA SHARMA S/O VENKAT SUBBAIAH R/AT NO.54, 2ND FLOOR 10TH A MAIN, 4TH CROSS MATHIKERE MAIN ROAD YESHWANTHAPURA BANGALORE-560 022.
...RESPONDENTS (BY SRI A.C.BALARAJ, ADVOCATE FOR R1 TO R3;
SRI S.V. HEGDE MULKHAND, ADVOCATE FOR R4; R5 SERVED AND UNREPRESENTED) THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 14.03.2016 PASSED IN MVC.NO.5376/2011 ON THE FILE OF XXIII ADDITIONAL SMALL CAUSE JUDGE & XXI ACMM, MACT, COURT OF SMALL CAUSES, BENGALURU, AWARDING COMPENSATION OF RS.29,00,773/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL DEPOSIT.
THIS MFA COMING ON FOR ORDERS THIS DAY, SACHIN SHANKAR MAGADUM J., DELIVERED THE FOLLOWING:
JUDGMENT Before considering I.A.Nos.2/16 and 3/16, this matter requires to be heard to consider whether the appeal merit admission. Accordingly, the appeal is taken up for consideration.
2. The owner of the offending bike bearing No.KA-04- HC-83 has filed the present appeal questioning the judgment and award dated 14.3.2016 passed by the Tribunal in MVC No.5376/2011 whereby it has fastened liability on the appellant.
3. Facts leading to the case are as under:
The claimants filed a claim petition contending that on 2.7.2010, one Andanayya, who is the husband of claimant No.1 and father of claimant Nos.2 and 3, was going by walk as a pedestrian near CBI Bus stand. At that time, the rider of the motorcycle bearing No.KA- 04-HC-83 who is none other than the son of the first respondent came in a high speed in a rash and negligent manner and dashed against the said Andanayya. He was immediately shifted to Baptist Hospital, Bengaluru, and thereafter he was shifted to Mallya Hospital, Bengaluru. The said Andanaiah in spite of treatment died on 5.7.2010. Hence, the claimants filed the claim petition claiming compensation of Rs.30,00,000/-.
The present appellant who was arrayed as first respondent contested the proceedings by filing objections. The appellant took a contention in the objections that his son had taken the bike without his permission and knowledge. The appellant further averred that the accident occurred on account of the negligence of the deceased. Respondent No.4-Insurance Company, who was arrayed as second respondent, filed written statement and took a specific contention that the present appellant had entrusted the bike to his minor son, who did not possess a driving licence and in view of fundamental breach of policy conditions, prayed to dismiss the claim petition.
Based on the rival contentions, the Tribunal formulated the following issues:
1. “Do the petitioners prove that M.C.Andanayya @ Andanayya @ Andanappa died in an accident arising out of rashness/negligence of the rider of the motor cycle bearing reg.No.KA-04-HC-83 as alleged in the petition?
2. Whether the petitioners prove that, they are LRs of the deceased M.C.Andanayya @ Andanappa?
3. Whether the petitioners are entitled for compensation? If so, how much and from whom?
4. What order or award?”
Additional Issues:
1. “Whether the respondent proves that rider of the Motor cycle bearing Reg.No.KA-04-HC-83 did not possess valid DL on the date of accident?
2. Whether the respondent no.2 proves that the owner of the Motorcycle bearing Reg.No.KA-04- HC-83 violated the policy conditions?”
The Tribunal, while answering additional issue Nos.1 and 2, came to the conclusion that since the rider of the bike was a minor aged 17 years 9 months as on the date of the accident, there was breach of policy conditions, and as such, the Insurance Company is not liable to indemnify the present appellant. As a result, the Tribunal held that the present appellant/respondent no.1 being the RC holder of the offending bike involved in the accident is liable to pay compensation to the claimants. In this background, the Tribunal was pleased to allow the claim petition against the appellant by awarding a compensation of Rs.29,00,773/- with interest @ 6% per annum from the date of petition.
4. Learned Counsel for the appellant contended that the appellant has placed sufficient material to demonstrate that he had not entrusted the bike to his minor son and there is no negligence on the part of the appellant. He further contended that the vehicle is duly insured with respondent no.4-Insurance Company. Hence, the Tribunal on erroneous findings has fastened the liability on him and it warrants interference by this Court.
5. Perused the records. The above contention raised by the appellant is not tenable. The records clearly indicate that the rider of the bike was a minor and was not holding a driving licence. The appellant has not taken reasonable care and has allowed his minor son to ride the bike which amounts to reckless entrustment of the bike to a minor and the same amounts to fundamental breach of policy conditions. Thus, the Tribunal has rightly fastened the liability on the owner of the vehicle. We do not find any infirmity or illegality with the reasoning arrived by the Tribunal while fastening the liability on the appellant.
6. In the light of the above said discussions, the appeal is devoid of merit and the same is dismissed. In view of the appeal being dismissed, I.A.Nos.2/16 and 3/16 do not survive for consideration and accordingly, they stand dismissed.
Sd/- JUDGE Sd/- JUDGE *alb/-