Karnataka High Court
Smt. Sharada And Ors vs Sri. Mallesh & Anr on 19 August, 2020
Author: Krishna S.Dixit
Bench: Krishna S.Dixit
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 19TH DAY OF AUGUST, 2020
PRESENT
THE HON'BLE MR.JUSTICE KRISHNA S.DIXIT
AND
THE HON'BLE MR.JUSTICE P.KRISHNA BHAT
MFA No.201823/2018 (MV)
Between:
1. Smt. Sharada W/o Iragond Biradar
Aged about: 49 years, Occ: Household work
2. Smt. Laxmi W/o Ashok Biradar
Aged about 24 years, Occ: Household work
3. Sri Mahesh S/o Ashok Biradar
Aged about 6 years, Occ: Student
4. Sri Iragonda S/o Ashok Biradar
Aged about 4 years, Occ: Student
Appellants 3 and 4 are minor
Represented by their mother appellant No.2
All are R/o Dhashyal
Tq. & Dist. Vijaypur-586101
... Appellants
(By Sri S.S. Mamadapur, Advocate)
2
And:
1. Sri Mallesh S/o Vithal Sank
Age: Major, Occ: Agriculture
R/o Dhashyal, Tq. & Dist. Vijaypur-586101
2. The Branch Manager
United India Insurance Co. Ltd.,
Sangam Building, PB No.60,
S.S. Front Road, Vijaypur-586101
... Respondents
(By Sri Manvendra Reddy, Advocate for R2;
R1 served)
This Miscellaneous First Appeal is filed under Section
173(1) of M.V. Act, praying to set aside the judgment and
award dated 09.08.2018 passed by the learned Member,
MACT-IV and III Additional District Judge, Vijaypur in MVC
No.182/2017 and consequently allow the said petition.
This appeal coming on for admission this day,
Krishna S. Dixit J., delivered the following:-
JUDGMENT
This appeal by the claimants seeks to lay a challenge to the Judgment & Award dated 09.08.2018 entered by the MACT, Vijayapura whereby their claim in MVC No.182/2017 has been negatived; after service of notice, the second respondent - insurer having entered 3 appearance through its Sr. Panel Counsel, resists the appeal making submission in justification of the dismissal of the claim.
2. Brief facts:
(a) It is the case of the claimants that in a vehicular accident that happened on 20.03.2016 on Kotyal-
Dashyal road near Tikota, because of rash & negligent driving of the tractor bearing Reg.No.KA-49/T-7605 one Mr. Ashok Biradar having sustained fatal injuries, succumbed thereto; mother, widow and children of the deceased preferred a claim in MVC No.182/2017 which was stoutly resisted by the insurer by filing the Objection Statement.
(b) To prove the claim, the mother of the deceased Smt. Sharada got herself examined as PW-1 and got marked as many as fifteen documents which comprised of police papers, P.M. Report & Record of Rights of the land; one Mr. Sangappa an eyewitness, was examined 4 as PW-2. From the side of insurer though nobody was examined as a witness, a copy of Insurance Policy was got marked as Ex.R-1; the MACT after considering the pleadings of the parties and after weighing the evidentiary material on record has rejected the claim. Therefore, the claimants are knocking at the doors of this Court.
3. Having heard the learned counsel for the parties and having perused the Trial Court Records, this Court grants the reprieve as under and for the following reasons:
(a) The contention of the learned counsel for the claimants that the dismissal of claim petition was not warranted has a lot of force; the accident occurred on 20.03.2016 and the FIR was lodged by a relative a day after i.e. 21.03.2016; the Crime Detail Form which was marked as Ex.P-4 specifically mentions this date and also the Registration number of the offending tractor of 5 Sonali Company make; merely because the complainant allegedly had stated "a four wheeler caused the accident" one cannot readily jump to a conclusion that it was not a tractor that he was referring to; this is the first lacuna in the judgment.
(b) The contention of learned Sr. Panel Counsel for the respondent-insurer that a witness of the claimant side mentioned 23.03.2016 in his affidavit evidence as the date of accident when it allegedly took place on 20.03.2016, the claim itself is false appears to be too farfetched an argument; this Court cannot lose site of long lapse of time between the happening of the accident and the recording of evidence before the MACT; human memory being ordinarily short, a prudent man cannot be expected to remember the chronology of events with mathematical accuracy; therefore, much milk cannot be derived from the wrong date mentioned in the affidavit evidence; ideal it would have been, had 6 the claimant side got it explained in re-examination, is true;
(c) The vehement contention of insurer that the involvement of offending tractor is absolutely false is structured on the hospital records arguably not mentioning the essential facts and that the insured himself allegedly being the person who identified the dead body of the victim did not file the FIR nor informed of the accident to the Insurance Company; the hospital records which we have perused do have something to say in the matter; it is a settled legal position that criminal law can be set in motion by anyone and not necessarily by the registered owner of the offending vehicle; why the said owner did not file the FIR is a matter for consideration at the hands of MACT; we take this issue thus far and leave it there, with liberty to the parties to agitate the same before the MACT. 7
(d) There is also force in the contention of learned counsel for the claimants that the MACT is not justified in doubting their version as to the very happening of the accident merely because the rider of the motor vehicle in question had not preferred any claim presumably because he was not injured; the accidents being what they are, it is difficult to guess as to why a pillion rider having sustained fatal injuries, the rider himself remained uninjured; treatment of such a contention requires a host of factors which the MACT can address, after hearing both the sides.
(e) The contention of the learned panel counsel for the insurer that the IMV Reports do not support the case of the claimants, at this stage cannot be accepted; suffice it to say these reports mention about the damage done to the front guard of the offending tractor and to the bike in question; however, what worth this evidentiary 8 matter has is for the MACT to adjudge keeping in view the evidentiary material;
4. Looking to the totality of the picture emerging from the pleadings of the parties and the evidentiary material placed on record, this Court is of a considered opinion that the matter needs a fresh consideration at the hands of the MACT with the participation of all the stakeholders and in a time bound manner.
In the above circumstances, this appeal succeeds in part; the impugned judgment & award having been set at naught, the matter is remitted back to the MACT for consideration afresh with the participation of all the stakeholders preferably within an outer limit of nine months; all the contentions of the parties are kept open; parties are at liberty to lead additional evidence, too. 9
It hardly needs to be stated that the observations made hereinabove being confined to remanding of the matter, the same shall not in any way influence the proceedings to be undertaken by the MACT afresh. No costs.
Sd/-
JUDGE Sd/-
JUDGE swk