The Agricultural Market Committee, Nellore, vs. The Commissioner of Income -Tax, Guntur,

1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 15TH DAY OF JUNE, 2015

:PRESENT: THE HON’BLE MR. JUSTICE N.K. PATIL

AND

THE HON’BLE MRS. JUSTICE RATHNAKALA

M.F.A.No. 529 of 2010 (MV) Between:

Venugopala Reddy, S/o. Konduru Narayana Reddy, Aged about 43 years, No.120/2C/3, Opp. Agricultural Market, Hindupur, Ananthapur District, Andhra Pradesh.

….Appellant

(By Sri. G. Narasi Reddy, for Sri. M. Erappa Reddy, Advocate)

And:

No.4 & 5 are R/at. Sreevaru Krupa, I Main, 8th A cross, Hanumanthapura Extension, Tumkur.

3 7. Mrs. Varsha Rajesh Jobanputra, Aged about 45 years, W/o. Rajesh Jobanputra, No.4, Athini Apartment, Patel & Pada, Dhanu Road, Dahanu, Thane District, Pin Code-401 602.

….Respondents (By Sri. P.N. Nanjareddy, Advocate for R1 to R3; Sri. B.C. Seetharama Rao, Advocate for R6; Notice to R7 held sufficient v/o. dated 23/03/2015; R4 served and unrepresented; R5 minor rep. by R4; R8 served)

******** This MFA is filed U/s. 173(1) of MV Act against the Judgment and Award dated: 03/10/2009, passed in MVC No.507/2003, on the file of the Presiding Officer, Fast Track Court-IV and Additional Motor Accident Claims Tribunal, Tumkur, awarding a compensation of `22,75,000/- with interest at 6% p.a. from the date of petition till realization from respondents 1 & 2 therein and to modify the same.

This M.F.A. coming on for Admission this day, N.K. PATIL J, delivered the following: :J U D G M E N T: Though this matter is posted today for orders, the same is taken up for consideration with the consent of learned counsel appearing for both the parties.

4 This appeal by the appellant/owner of the Scorpio car is arising out of the judgment and award dated 03/10/2009, passed in MVC No.507/2003, by the Presiding Officer, Fast Track Court-IV and Additional Motor Accident Claims Tribunal, Tumkur, (hereinafter referred to as ‘ Tribunal’ for short). 2. By its judgment and award, the Tribunal has awarded a sum of `22,75,000/- with interest at 6% p.a., from the date of petition till the date of realization as against the claim made by the claimants for a sum of `75,00,000/-, on account of the death of the deceased Sri. D. Srinivasa Reddy, in the road traffic accident, fastening liability on the owner and insurer of Scarpio car and holding that Insurer is liable to pay only `20,000/- and owner is liable to pay the remaining entire compensation amount. 3. The brief facts of the case of the claimants are, that on 27.11.2002 the deceased went to Mumbai with the appellant/owner of the car who is his close relative and best friend to purchase new Scorpio DLX Car. After taking delivery of the said car in Mythri’s car Halla India Pvt., Ltd., Dr.B.A.Road,

5 Lambagh, Mumbai and while they coming back to Hindupur on 28.11.2008 at 2.00 a.m. they came near Engineering College, P.B. Road, Ranebennur, at that time accident took place between new Scorpio car and Goods Tempo bearing Reg.No.MH.04.AG.1339 which was coming from opposite direction due to rash and negligent driving by the drivers of both the vehicle. In the said accident, new Scorpio car became completely damaged and becomes scrap and the deceased who was sitting in front seat of the car sustained grievous injuries and died at the spot. Even the driver of the car died at the spot and owner sustained injuries and the driver of the goods tempo has lodged complaint against driver of the Scorpio car. It is the further case of the claimants that, deceased was aged about 43 years and hale and healthy prior to the accident. Claimant Nos.1 and 4 are wives, Claimant Nos. 2, 3 and 5 are children of the deceased. He was the resident of Tumkur and PWD Class-I Contractor bearing Reg.No.2063 and doing PWD contract work at Tumkur, Bangalore Rural District, Bangalore

6 Urban District and Kolar and his declared income for 2001-2002 is `3,14,902/- and he paid income tax of `67,289/- and on account of his untimely death, appellants have suffered mental shock and agony apart from financial distress. Therefore, they filed a claim petition before the Tribunal under Section 166 of M.V. Act, claiming compensation against the respondents. 4. The said claim petition had come up for consideration before the Tribunal. The Tribunal, after hearing the learned counsel for both the parties and after appreciating the oral and documentary evidence available on file, has allowed the said petition in part and awarded the compensation of `22,75,000/- with interest at 6% p.a., from the date of petition till the date of realization, fastening liability on the owner and insurer of Scarpio car and holding that Insurer is liable to pay only `20,000/- and owner is liable to pay the remaining entire compensation amount. Being aggrieved by the said judgment and award passed by the Tribunal, the appellant/owner of the scorpio car has presented this appeal, for modification.

7 5. We have heard learned counsel appearing for appellant and learned counsel appearing for respondents. 6. The submission of the learned counsel Sri.Narasi Reddy, appearing Sri. M.Erappa Reddy, for appellant/owner of the scorpio car, at the outset is that, due to communication gap and lack of legal implications, the counsel who represented the appellant before the Tribunal has not examined the driver and owner of the Goods vehicle bearing Reg.No.MH.04.AG/1339 which was insured with the 8th respondent and therefore, one more opportunity may be given to him to examine them before the Tribunal to establish that the Insurer of the car and the Insurer of the goods vehicles are liable to indemnify the award amount on the ground that, the car and the goods vehicle were insured and the driver of the goods vehicle is the best person to say about the accident. To substantiate the said submission, he submitted that, he has filed I.A.No.2/2015 for production of additional oral and documents which they could not done before the Tribunal due to communication gap between the counsel

8 who represented the appellant and the said I.A. is allowed by this Court by separate order. Therefore, he fairly submitted that, in view of allowing I.A.No.2/2015 by this Court by a separate order, the impugned judgment and award passed by the Tribunal may be set aside and the matter may be remitted back to the Tribunal for reconsideration afresh. 7. As against this, learned counsel appearing for the respondents inter-alia, sought to substantiate that, the impugned judgment and award passed by the Tribunal is just and reasonable and after due appreciation of the entire material available on file and therefore, it does not call for interference. 8. After hearing the learned counsel for both the parties, after careful perusal of the impugned judgment and award passed by the Tribunal, it emerges that, it is the case of the claimants who are the wives and children of the deceased that, on account of the fatal injuries sustained by the deceased in the accident that occurred on 27.11.2002 on account of rash and negligent driving by the driver of the car and by the driver of the goods vehicle

9 bearing Reg.No.MH.04.AG.1339, belonging to 7th respondent and insured with the 8th respondent, he succumbed to the same and they are entirely depending on him. It is the submission of the learned counsel appearing for the appellant that, the driver and owner of the goods vehicle which belongs to 7th respondent and insured with the 8th respondent have not been examined and if the appellant has been given an opportunity to examine the driver and owner of the said vehicle he will examine them as they are the better persons to say about the accident and to prove that, 7th and 8th respondent are liable to indemnify the award amount as there is contributory negligence on the part of the drivers of the vehicles involved in the accident. We find some substance in the said submission. It is a fact that, the driver and owner of the goods vehicle have not been examined before the Tribunal by either of the parties. 9. Having regard to the facts and circumstances of the case as stated above, in the light of the submission made by learned counsel appearing for the appellant and in view of allowing

10 I.A.No.2/2015 filed by the appellant for additional oral and documentary evidence, we are of the considered view that matter requires reconsideration by the Tribunal afresh. Therefore, without expressing any opinion on the merits and demerits of this case and to safeguard the interest of both the parties, it would be appropriate to direct the Tribunal to reconsider the matter afresh and pass orders in accordance with law. 10. For the foregoing reasons, the appeal filed by the appellant is allowed. The impugned judgment and award dated 03/10/2009, passed in MVC No.507/2003, by the Presiding Officer, Fast Track Court-IV and Additional Motor Accident Claims Tribunal, Tumkur, is hereby set aside and the matter stands remitted back to the Tribunal for reconsideration afresh, with a direction to pass appropriate order, in accordance with law, after affording reasonable opportunity of hearing to the appellant and respondents, personally or through their counsel and dispose of the same, as expeditiously as

11 possible, at any rate, within a period of six months from the date of appearance of the parties before the Tribunal personally or through their counsel. The appellant and respondents are permitted to file necessary applications before the Tribunal to lead additional evidence both oral and documentary, within four weeks from the date of receipt of a copy of this judgment. In the event, if such applications are filed by the parties, within the time stipulated above, the Tribunal is directed to receive the same and proceed further and dispose of the same, in terms of the above directions issued by this Court . The appellant and respondents are directed to appear before the Tribunal either personally or through their counsel on 13th July 2015 at 11.00 a.m to take further dates of hearing.

12 Registry is directed to return the entire original records to the jurisdictional Tribunal, forthwith. The amount deposited by the appellant/owner shall be transmitted to the jurisdictional Tribunal, forthwith. Ordered accordingly.

SD/- JUDGE

SD/-

JUDGE tsn*