CHANNAPPA CHANNAVEERAPPA KATTI MALLAPPA MALAKAJAPPA NIDAGUNDI Vs. LAXMAN BHIMAPPA BAJENTRI YELI BUDEPPA BANKAPUR

JUDGEMENT

(1.) M .F.A. Nos. 227 and 363 of 1975 under s. 110D of the Motor Vehicle Act, 1939, (to be referred to as 'the Act'), have risen from the common order and separate awards dated February 28, 1975, of the Motor Vehicle Accidents Claims Tribunal (to be referred to as 'the Tribunal'), Bijapur, made in Misc. Cases Nos. 38 and 28 of 1973 - claim cases filed under s. 110A of the Act.

(2.) THE material facts and circumstance leading up to these appeals lie in a narrow compass and they may be summarised thus : A goods vehicle bearing registration No. MYR 3739 was being used by its owner, a public carrier, for carriage of goods from Bijapur to Talikot. On March 3, 1973, when the said vehicle was carrying goods from Bijapur to Talikot, it met with an accident at 6 p.m. near a place called Hitnalli as the driver of the vehicle failed in his attempt to successfully negotiate the vehicle in a sharp curve on the road. As a result of the accident, six persons in the vehicle including one Somappa Mallappa Nidagundi of Talikot, the owner of certain goods, who had hired the vehicle for carrying the goods and Balappa Bajentri, the cleaner of the vehicle, sustained fatal injuries and died of those injuries. Laxman Bhimappa Bajentri (to be referred to as 'Laxman') field Claim Case No. 38 of 1973 claiming compensation in a sum of Rs. 40,000 for the death of Balappa Bajentri (cleaner) an Mallappa Malkajappa Nidagundi (to be referred to as 'Mallappa') filed Claim Case No. 28 of 1973 claiming compensation in a sum of Rs. 4,24,000 of the death of Somappa Mallappa Nidagundi (owner of the goods). The claims for compensation were made against (1) Yeli Budeppa Bankapur, the owner of the vehicle, (2) Channappa Channaveerappa Katti, agent of the owner, who was in -charge of the management of the vehicle, (3) Bhimappa Balappa Bajentri, driver of the vehicle, and (4) Madras Motor and General Insurance Co. Ltd., later merged with United India Fire and General Insurance Co. Ltd., the insurer of the vehicle. In the claim applications made before the Tribunal at Bijapur by Laxman and Mallappa, it was alleged that the driver of the vehicle was guilty of rash and negligent conduct in driving the vehicle and the accident was the result of such rash and negligent conduct of the driver rise to an actionable wrong. The owner of the vehicle and the agent of the owner of the vehicle, in the common objection -statement filed in the cases, besides denying the allegations of rash and negligent conduct of the driver in driving the vehicle, specifically pleaded that since the agent was in -charge of the management of the vehicle on behalf of the owner, the agent cannot become liable for payment of the compensation. The driver of the vehicle, in the objection -statement filed by him, denied the allegations of the rash and negligent conduct in driving the vehicle made against him. In the objection -statement filed by the insurer in Claim Case No. 38 of 1973, though it admitted that the risk for the cleaner was covered by the insurance policy issued in respect of the vehicle, it pleaded its non -liability to the claim for compensation made against it on the ground that the ownership of the vehicle on the date of the accident was not with the policyholder. Again, in the objection -statement filed by the insurer in Claim Case No. 28 of 1973, it pleaded is non -liability to the claim made against it for compensation on two grounds, namely, (i) that the ownership of the vehicle was not with the policyholder on the date of the accident, and (ii) that the claim for compensation did not relate to the death of a person whose risk was required to be insured against compulsorily under the Act. Thus, from the objection -statements of the insurer, it can be seen that the non -liability pleaded by the insurer on the ground of ownership of the vehicle not being with the policyholder on the date of the accident was common to both cases, and the non -liability for the claim for compensation made in respect of the death of the owner of the goods on the ground that the risk of such a person was not covered by the insurance policy issued in respect of the vehicle, inasmuch as such risk was not required to be insured against compulsorily under the Act, was confined to Claim Case No. 28 of 1973.

(3.) THE appellant, in M.F.A. No. 227 of 1975, Channappa Channaveerappa Katti, is the agent while the appellant, in M.F.A. 363 of 1975, Mallappa Malkajappa Nidagundi, is the claimant in Case No. 28 of 1973. In these appeals, the other parties in the claim cases are impleaded as respondents. The findings of the Tribunal that the driver's rash and negligent conduct was responsible for the occurrence of the accident and that the accident cased the death of the owner of the goods and the cleaner are not challenged before us. So also the findings of the Tribunal that the claimant in Misc. Case No. 28 of 1973 is entitled to a sum of Rs. 24,000 as compensation and that the claimant in Misc. Case No. 38 of 1973 is entitled to a sum of Rs. 12,000 as compensation are not challenged before us. But the other findings of the Tribunal by which the owner of the vehicle and the insurer are relieved of the liability to pay the amounts of compensation fixed by it, are challenged before us by the appellants rather very seriously on the ground that those findings are based upon a non -consideration of the material evidence on record and the relevant provisions of the Act and r. 161 of the Mysore Motor Vehicles Rules, 1963 (to be referred to as 'the Rules').