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2019 DIGILAW 1410 (KAR)

Parashuram v. Shamanna

2019-06-24

B.A.PATIL, BELLUNKE A.S.

body2019
JUDGMENT : B.A. Patil, J. M.F.A.No.103235/2015 and M.F.A.No.103236/2015 have been filed by the claimants challenging the judgment and award passed by the Prl. Senior Civil Judge & M.A.C.T., Ranebennur, in M.V.C.Nos.54/2015 and 55/2015 dated 03.09.2015. 2. We have heard learned counsel appearing for the parties. 3. The facts leading to the case are that on 06.06.2012, at about 9.30 p.m., when one Chandru Ramappa Pojar son of the claimant in M.V.C.No.54/2013 and the claimant in M.V.C.No.55/2013 namely Parashuram were proceeding on a motorcycle bearing registration No.KA-15/W-8405 from Maknur towards Kumarapatnam, respondent being rider of the another motorcycle bearing registration No.KA-27/V-0961 rode the same rashly and negligently and dashed the motorcycle on which the said Chandru and Parashuram were proceeding. As a result of that, both of them fell down and sustained grievous injuries. Immediately they were shifted to Government Hospital, Harihar and after first aid they were shifted to S.S. Hospital, Davanagere for further treatment. The said Chandru succumbed to the injuries and Parashuram who sustained grievous injuries was treated for having sustained injuries and the mother of deceased Chandru, for having lost her son, filed respective claim petitions. 4. After service of notice, respondents No.1 and 2 appeared and respondent No.2 filed objections by denying the contents of the petition. It is contended by the respondent No.2 that the deceased rider of the motorcycle himself was rash and negligent and due to his negligence, the alleged accident has taken place. It is the specific defence of the second respondent that on the date of alleged accident, rider of the motorcycle had no valid and effective driving licence to ride it and as such there is violation of the conditions of the policy and he attributed the entire fault on deceased. As such, he is not liable to pay any compensation. 5. On the basis of the above pleadings, Tribunal framed as many as four issues. 6. In order to prove the case of the claimants, they themselves got examined as PWs-1 and 2 and got marked Exs.P-1 to P-20. On behalf of respondents, got examined RWs-1 and 2 and got marked Exs.R-1 to R-4. 7. After hearing learned counsel for the parties, Tribunal came to the conclusion that the deceased himself is responsible for the alleged accident and the accident has not occurred due to rash and negligent act on the part of the first respondent. On behalf of respondents, got examined RWs-1 and 2 and got marked Exs.R-1 to R-4. 7. After hearing learned counsel for the parties, Tribunal came to the conclusion that the deceased himself is responsible for the alleged accident and the accident has not occurred due to rash and negligent act on the part of the first respondent. As such both the petitions came to be dismissed. 8. It is the submission of the learned counsel for the appellant/claimants that the Tribunal without properly appreciating the fact that the respondent No.1 was rash and negligent at the time of riding of the motorcycle has wrongly dismissed the petition. It is his further submission that even if the Tribunal has come to the conclusion that the deceased himself was the defaulter and on his fault, alleged accident has taken place, it ought to have awarded taking into account of no fault liability and has wrongly dismissed the petition. It is his further submission that no opportunity has been given insofar as claimant in M.V.C.No.55/2013. He could have impleaded the owner of the motorcycle on which he was proceeding and appropriate order ought to have been passed. It is his further submission that if an opportunity is given and the matter is remitted back, he will file appropriate application before the Tribunal and the Tribunal can consider all the contentions in accordance with law. On these grounds, he prayed to allow the appeal. 9. Per contra, learned counsel appearing on behalf of respondent insurer vehemently argued that already the petition has been filed under Section 166 of the M.V. Act, the same cannot be converted into an application under Section 163-A of M.V. Act and no compensation can be awarded under no fault liability. It is his further submission that the records which have been produced clearly go to show that the alleged accident has taken place due to the fault of the deceased himself. No case has been registered as against the respondent No.1. However, claimant in M.V.C. No.55/2013 had filed a private complaint and 'B' report came to be filed and consequently, the same was challenged. It was also held against the complainant and even against that the criminal petition was filed and the same was also dismissed. No case has been registered as against the respondent No.1. However, claimant in M.V.C. No.55/2013 had filed a private complaint and 'B' report came to be filed and consequently, the same was challenged. It was also held against the complainant and even against that the criminal petition was filed and the same was also dismissed. All these material clearly goes to show that the deceased himself was responsible for the alleged accident and the Tribunal after considering the said facts and circumstances has come to a right conclusion and there are no good grounds to allow the appeal. Alternatively, he submitted that if the matter is remitted back to the trial Court, he may also be given an opportunity to substantiate the case in accordance with law. 10. We have carefully and cautiously gone through the submissions made by the learned counsel for the parties and perused the records. 11. As could be seen from the submissions, though several contentions have been raised, the main contention which has been raised by the learned counsel for the appellant/claimants with regard to affording an opportunity to implead the owner and insurer of the motorcycle is to be considered to meet the ends of justice. Admittedly, claimant in M.V.C.No.55/2013 is an injured pillion rider and if he is permitted to implead the owner of the motorcycle, he can urge his contentions before the Tribunal. Therefore, we feel it appropriate to afford an opportunity to the claimants to implead proper parties and thereafter proceed in accordance with law to meet the ends of justice. Insofar as claimant in M.V.C.No.54/2013 is concerned, it is the law of land that even if the deceased himself is the defaulter in the alleged accident under no fault liability, the claimant is entitled for some compensation, if such application is filed. Tribunal has not got into the said aspect. Under the said facts and circumstances, we feel that there is some force in the arguments advanced by the learned counsel for the appellant/claimants and the matter requires consideration. Under the said facts and circumstances, we feel that if the judgment of the Tribunal is set aside and the matter is remitted back to the Tribunal to consider in accordance with law, it is going to meet the ends of justice. In that light, appeals are allowed and the judgment dated 03.09.2015, passed by the Prl. Under the said facts and circumstances, we feel that if the judgment of the Tribunal is set aside and the matter is remitted back to the Tribunal to consider in accordance with law, it is going to meet the ends of justice. In that light, appeals are allowed and the judgment dated 03.09.2015, passed by the Prl. Senior Civil Judge & M.A.C.T., Ranebennur, in M.V.C.Nos.54/2015 and 55/2015 is set aside and the matter is remitted back to the Tribunal with a direction to dispose of the case as observed above in accordance with law. 12. Both the parties are directed to appear before the Tribunal without further notice on 22.07.2019. Registry is also directed to send back the lower Court records forthwith.