Karnataka High Court
Chandan S/O Rajesh vs Alla Bakash S/O Amanulla on 28 November, 2022
Author: H.T. Narendra Prasad
Bench: H.T. Narendra Prasad
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MFA No. 7810 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
MISCELLANEOUS FIRST APPEAL NO. 7810 OF 2012 (MV-)
BETWEEN:
CHANDAN S/O RAJESH
AGE: 4 YEARS
REP. BY HIS FATHER NATURAL
GUARDIAN RAJESH H C
S/O CHENNAPPA H
AGE: 38 YEARS
R/O INDUVALLI VILLAGE
SHIGGA POST,SORAB TALUK
C/O BASAVARAJAPPA
II STAGE, VINOBANAGAR
DISTRICT SHIVAMOGGA.
Digitally
signed by C ...APPELLANT
MALATHI
(BY SMT. MANJULA R KAMADOLLI.,ADVOCATE)
Location:
High Court AND:
of Karnataka
1. ALLA BAKASH
S/O AMANULLA
AGE: 26 YEARS
R/O BOMMANAKATTE
G.BLOCK, SHIVAMOGGA
2. THE UNITED INDIA INSURANCE CO. LTD
A A CIRCLE, B H ROAD
SHIVAMOGGA.
...RESPONDENTS
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MFA No. 7810 of 2012
(BY SRI. P B RAJU FOR R2.,ADVOCATE:
NOTICE TO R1 IS DISPENSED WITH
V/O DATED: 03.06.2015)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:21.3.2012
PASSED IN MVC NO.261/2011 ON THE FILE OF THE PRESIDING
OFFICER, FAST TRACK COURT-II, SHIMOGA, DISMISSING THE
CLAIM PETITION FOR COMPENSATION.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal under Section 173(1) of Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act') has been filed by the claimant being aggrieved by the judgment dated 21.03.2012 passed by the Presiding Officer, Fast Track Court-II, Shimoga in MVC No.261/2011.
2. Facts giving rise to the filing of the appeal briefly stated are that on 10.09.2010 at about 12.00 noon, the claimant along with his parents were proceeding on LLR road near Ravi Poly Clinic (between Ravi poly clinic and Shubham hotel), Shivamogga. While he was so going, -3- MFA No. 7810 of 2012 at that time, respondent No.1 being owner-cum-driver of the Auto Rickshaw bearing Registration No.KA-14/A-5975 drove the same in a rash and negligent manner with high speed came from behind and hit the claimant from backside. As a result of the aforesaid accident, the claimant sustained grievous injuries and was hospitalized.
3. The claimant filed a petition under Section 166 of the Act seeking compensation. It was pleaded that he spent huge amount towards medical expenses, conveyance, etc. It was further pleaded that the accident occurred purely on account of the rash and negligent driving of the offending vehicle by its driver.
4. On service of notice, the respondent No.2 appeared through counsel and filed written statement in which the averments made in the petition were denied. It was pleaded that the petition itself is false and frivolous in the eye of law. It was further pleaded that the accident was due to the rash and negligent driving of the vehicle by -4- MFA No. 7810 of 2012 the claimant himself. The driver of the offending vehicle did not have valid driving licence as on the date of the accident. The liability is subject to terms and conditions of the policy. The age, avocation and income of the claimant and the medical expenses are denied. It was further pleaded that the quantum of compensation claimed by the claimant is exorbitant. Hence, he sought for dismissal of the petition.
The respondent No.1 did not appear before the Tribunal inspite of service of notice and was placed ex- parte.
5. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The father of the claimant was examined as PW-1 and got exhibited documents namely Ex.P1 to Ex.P10. On behalf of the respondents, no witness was examined but got exhibited a document namely Ex.R1. The Claims Tribunal, by the impugned judgment, inter -5- MFA No. 7810 of 2012 alia, dismissed the claim petition on the ground that the claimant has failed to adduce convincing evidence regarding the place of occurrence and involvement of vehicle in the accident. Being aggrieved, the present appeal has been filed.
6. The learned counsel for the claimant has raised the following contentions:
Firstly, the claimant has suffered injuries in the road traffic accident occurred on 10.09.2010 due to rash and negligent driving of the driver of the Auto Rickshaw bearing Registration No.KA-14/A-5975. Due to accident, the claimant has suffered grievous injuries. Immediately after the accident, he has been shifted to Nanjappa Hospital, Shivamogga. As per advise of the doctor, the claimant has been shifted to KMC Hospital, Manipal. Since the claimant was a minor and he has suffered injuries in the road traffic accident, the parents of the claimant were not in a position to lodge the complaint immediately since -6- MFA No. 7810 of 2012 they were taking care of their minor son in the hospital. Therefore, there was a delay in lodging the complaint.
Secondly, in the complaint as well as in the claim petition, they have categorically stated that the accident occurred near LLR road near Ravi Poly Clinic (between Ravi poly clinic and Shubham hotel), Shivamogga. The said Ravi poly clinic is situated in Durgi Gudi, Shivamogga. On the basis of the complaint, the Police have registered a FIR and filed the charge sheet against the driver of the Auto Rickshaw. The Tribunal has not considered FIR, complaint, Spot mahazar produced along with the claim petition.
Thirdly, PW-1, who is the eyewitness has categorically stated that the accident occurred due to rash and negligent driving of the driver of the Auto Rickshaw. To disprove the case of the claimant, the respondents have not examined any witness. The Tribunal without -7- MFA No. 7810 of 2012 considering the same, has dismissed the claim petition. Hence, he sought for allowing the appeal.
7. On the other hand, the learned counsel for the Insurance Company has raised following counter contentions:
Firstly, in the claim petition, the claimant has stated that the accident is occurred between Ravi poly clinic and Shubham hotel, Shivamogga. In the complaint, they have stated that the accident is occurred near Ravi Poly clinic, Durgi Gudi. Therefore, there is inconsistency in their pleadings.
Secondly, even as per Ex.P5 - Wound Certificate, it is mentioned that the road traffic accident took place between two autos. In the claim petition, it is stated that when the claimant was crossing the road, the offending vehicle has hit the claimant. Therefore, there is inconsistency in the pleadings. Pursuant to complaint, the Police have filed the charge sheet against the driver of the -8- MFA No. 7810 of 2012 offending vehicle. But the claimant has not produced charge sheet before the Tribunal. Therefore, the Tribunal has rightly dismissed the claim petition. Hence, he sought for dismissal of the appeal.
8. Heard the learned counsel for the parties and perused the judgment and award of the Tribunal.
9. The case of the claimant is that on 10.09.2010 at about 12.00 noon, the claimant along with his parents were proceeding on LLR road near Ravi Poly Clinic (between Ravi poly clinic and Shubham hotel), Shivamogga. While he was so going, at that time, respondent No.1 being owner-cum-driver of the Auto Rickshaw bearing Registration No.KA-14/A-5975 drove the same in a rash and negligent manner with high speed came from behind and hit the claimant from backside. As a result of the aforesaid accident, the claimant sustained grievous injuries. Immediately after the accident, he has been shifted to Nanjappa Hospital, Shivamogga. Later for -9- MFA No. 7810 of 2012 better treatment, he has been shifted to KMC Hospital, Manipal.
To prove the case, the father of the claimant examined himself as PW-1 and has produced 10 documents. PW-1 has reiterated the statement made in the claim petition. They have produced FIR, complaint, Spot Mahazar, Wound Certificate. Even though there was three days delay in lodging the complaint, the parents of the claimant has categorically stated that the claimant was a minor at the time of the accident, who was aged 3 years, has suffered grievous injuries. Since the doctor has advised them to shift the claimant to KMC Hospital, Manipal, they were accompanying with their son. Therefore, they were not in a position to lodge the complaint immediately. This aspect has not been considered by the Tribunal.
The specific case of the claimant that the accident is occurred between Ravi poly clinic and Shubham hotel, LLR
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MFA No. 7810 of 2012road, Durgigudi, Shivamogga. Even the place of accident mentioned in the complaint as well as in the claim petition is one and the same. The Tribunal has not considered this aspect of the matter.
In respect of Ex.P5 - Wound Certificate is concerned, even though the claimant claims that the offending vehicle was hit the claimant. Due to impact, he sustained injuries. But in the Wound Certificate, it is mentioned that the road traffic accident took place between two autos. The same has been disputed by the claimant that it has been wrongly written by the Hospital authorities. To prove the same, they have not examined any officer from the hospital. The claimant has produced the charge sheet before this Court along with memo.
Under these circumstances, to give one more opportunity, the matter requires to remit back to the Tribunal for fresh consideration.
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MFA No. 7810 of 2012Accordingly, the appeal is allowed in part. The judgment and award passed by the Tribunal is set aside.
The matter is remitted back to the Tribunal with a direction to reconsider the matter afresh after giving an opportunity to both the parties to adduce the evidence and produce an additional records if any.
It is made clear that the Tribunal is to directed to decide the matter in accordance with law without being influenced by the observations made in this order.
The Tribunal is directed to dispose of the appeal as expeditiously as possible, not later than six months from the date of appearance of the parties.
Sd/-
JUDGE HA List No.: 2 Sl No.: 68