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Karnataka High Court · body

2010 DIGILAW 585 (KAR)

J. M. Ramachandra v. S. Ravikumar

2010-04-23

K.GOVINDARAJULU

body2010
Judgment : Claimant in MVC No.429 of 1999 has preferred this appeal challenging the dismissal of the claim application. s 2. Parties will be referred according to their status referred to in the Court below. 3. Perused the records. Case of the claimant was that on 15-2-1999 appellant along with his friends were walking on the road and were to go to Kabbalamma Utsava on Sathanur, Channapatna Road, while they were near the Vaddaradoddi Village, the lorry was driven by its driver in a very high speed and has dashed against the appellant. For pain, suffering and agony appellant seeks for a compensation of Rs.2,00,000/-. 4. Respondents 1 and 2 have filed objections. Contend that as on the date of the accident, the R.C. owner is Krishnappa, for vehicle bearing No. KA 05-8498. The present owner of the Maxicab bearing No.KA-05-8498 is not added. Application is bad in law. It is also contended that, on 4-1-1997 respondent has sold the vehicle to one Krishnappa under the sale agreement for Rs.3,75,000/-. There is a hypothecation of vehicle to Canara Bank, Bidadi. Krishnappa has agreed to pay the loan. Krishnappa cleared loan on 23-6-1998. So, the transfer note Form 29 is intimated to the concerned. As the vehicle is delivered on 4-1-1997, respondent is not liable to pay the said sum. 5. After framing of the issues P.W.1 is examined and got marked the documents as Exs.P.1 to P.8. Accordingly, defence Krishnappa is necessary party. 6. In the light of the above, the point that arise for consideration is as under: “Whether the reasoning of the learned Trial Judge in dismissing the claim application, without recording the finding in regard to sale of vehicle pleaded by respondent 1 is proper?” 7. Answering Point No.2 raised by the Court below, learned Trial Judge states that in respect of a positive defence being taken, petitioner has not added Krishnappa who has purchased the vehicle in question. This part of the reasoning is based upon pleading. Unless the pleading is substantiated with evidence, the finding cannot be given. So, the approach of the learned Trial Judge in giving the finding without recording evidence of the respondents in considering the opinion of the Court is bad in law. 8. This part of the reasoning is based upon pleading. Unless the pleading is substantiated with evidence, the finding cannot be given. So, the approach of the learned Trial Judge in giving the finding without recording evidence of the respondents in considering the opinion of the Court is bad in law. 8. Secondly, the Court could have exercised power under Order 1, Rule 10 of the Civil Procedure Code, 1908 and got impleaded the owner Krishnappa who is said to have purchased the vehicle. Having not done so, Court holds that the approach of the Court below in dismissing the application is not apt. So, the following order is passed: ORDER (i) Appeal is allowed. (ii) Order of the Trial Court in MVC No.429 of 1999 is set aside. (iii) Learned Trial Judge to decide the case afresh in accordance with law.