Karnataka High Court
Sri Somashekar C @ Somashekar vs United India Assurance Co. Ltd., on 8 June, 2017
Author: B.Manohar
Bench: B.Manohar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF JUNE, 2017
BEFORE
THE HON'BLE MR. JUSTICE B.MANOHAR
MFA NO.1776/2012(MVC)
BETWEEN :
SRI SOMASHEKAR C @ SOMASHEKAR
AGED ABOUT 34 YEARS
S/O CHIKKAVENKATESHAPPA.V
R/AT NO. 21, SITE NO. 54,
VADDARAPALYA
HORAMAVU POST,
BANGALORE - 560 043 ... APPELLANT
(BY SRI K.T. GURUDEVA PRASAD, ADVOCATE)
AND :
1. UNITED INDIA ASSURANCE CO. LTD.,
NO. 25, SHANKARANARAYANA BUILDING
M G ROAD,
BANGALORE - 560 001
2. SRI. SANTOSH KUMAR
S/O LAKSHMAN
NO. 154/2, 2ND FLOOR, 9TH CROSS
G M PALYA, NEW THIPPASANDRA
BANGALORE - 560 075
... RESPONDENTS
(BY SRI JANARDHAN REDDY, ADVOCATE FOR R1
2
RESPONDENT No.2 - NOTICE HELD SUFFICIENT VIDE
ORDER DATED 25.08.2016)
THIS MFA IS FILED UNDER SECTION 173(1) OF
THE MOTOR VEHICLES ACT AGAINST THE JUDGMENT
AND AWARD DATED:10.10.2011 PASSED IN MVC
No.5556/2010 ON THE FILE OF THE COURT OF MACT,
XX ADDITIONAL JUDGE AND XVIII ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BANGALORE, (ACMM-
18), DATED 10.10.2011 DISMISSING THE CLAIM
PETITION FOR COMPENSATION.
THIS MFA COMING ON FOR ADMISSION, THIS
DAY, THE COURT PASSED THE FOLLOWING:
JUDGMENT
The appellant, who is the claimant, is challenging the legality and correctness of the judgment and award dated 10.10.2011 made in MVC No.5556/2010 passed by the Motor Accident Claims Tribunal, Bengaluru (hereinafter referred to as 'the Tribunal') dismissing his claim petition filed by him.
2. The appellant filed the claim petition contending that on 14.07.2010 at about 9:30 a.m. while he was proceeding on his motorcycle bearing registration No.KA-63-R-2828 on the left side of Varthur main road 3 near SKR Kalyana Mantap, driver of the autorickshaw bearing registration No.KA-03-D-3448, came in a rash and negligent manner, dashed against his motorcycle from behind. Due to the impact, the claimant fell down and sustained grievous injuries all over the body. Immediately after the accident, he was shifted to Apollo Clinic, where he was given first-aid treatment. Subsequently, he was shifted to Vijayalakshmi Hospital and Trauma center, wherein he was treated as an inpatient. He has spent huge amount for the treatment. Prior to the accident, he was working as a Teacher and earning Rs.15,000/- per month. Hence, he sought for compensation of Rs.3,00,000/-.
3. In response to the notice issued by the Tribunal, respondents entered appearance and filed their respective written statement. Respondent No.1 - Insurance Company denied the entire averments made in the claim petition and also contended that both the riders of vehicles involved in the accident were not having valid 4 and effective driving licence as on the date of accident. Hence, the Insurance Company is not liable to compensate the claimant.
4. Respondent No.2, the owner of the autorickshaw, in the written statement admitted that he is the owner of the vehicle, however, denied rash and negligent driving on the part of the driver of autorickshaw in causing the accident. On the other hand, it was contended that due to the rash and negligent riding of the motorcycle by the claimant, the motorcycle dashed against the right side mudguard of the autorickshaw, as a result, he fell down and sustained injuries. As on the date of the accident, insurance policy covers the risk of the autorickshaw. Hence, Insurance Company is liable to compensate the claimant. Accordingly, respondent No.2 sought for dismissal of the claim petition as against him.
5. On the basis of the pleadings, the Tribunal framed necessary issues. The claimant got examined 5 himself as PW.1 and examined the Doctor, who treated him as PW.2 and got marked the documents Exs.P1 to P18. On behalf of respondents, none of the witness has been examined nor any document has been marked.
6. The Tribunal after appreciating the oral and documentary evidence on record and only on the basis of the IMV report, held that since the rear right mudguard of the autorickshaw has been damaged and a scratch mark was found on the headlight of the motorcycle, the accident has occurred due to the rash and negligent driving of the motorcycle by the claimant. Hence, the claimant is not entitled for the compensation and dismissed the claim petition. Being aggrieved by the same, the claimant has preferred this appeal.
7. I have heard Sri K.T. Gurudeva Prasad, learned counsel appearing for the appellant and Sri Janardhan Reddy, learned counsel appearing for 6 respondent No.1. Perused the judgment and award as also the lower Court records.
8. The occurrence of accident and injuries sustained by the claimant are not in dispute. The specific case of the claimant is that while he was proceeding on his motorcycle on Varthur main road, the driver of the autorickshaw came in a rash and negligent manner, dashed against his motorcycle from behind. He has led evidence in support of his case. Though he was cross- examined by respondent No.1 - Insurance Company, nothing contrary is elicited. The Police have chargesheeted the driver of the autorickshaw. He has not challenged the chargesheet. The spot mahazar, copy of the complaint and other relevant records clearly disclose that the accident occurred on the left side of the road. The IMV report reveals that right side mudguard of the auto rickshaw has been damaged and headlight portion of the motorcycle has been damaged. Only on the basis of the damage to the vehicles, the Tribunal appears to 7 have made assessment and has come to the conclusion that the accident occurred due to the rash and negligent riding of the motorcycle on the part of the claimant.
9. On the other hand, the Police have chargesheeted the driver of the autorickshaw for the negligent driving of the autorickshaw on the ground that autorickshaw came and dashed against the motorcycle. The damage to the autorickshaw found at the right side mudguard goes to show that while overtaking the motorcycle, autorickshaw has dashed against the motorcycle and that might have caused the accident. Only on the basis of the IMV report, occurrence of the accident cannot be decided. The finding of the Tribunal on issue No.1 is contrary to evidence on record. The case of the appellant is that autorickshaw dashed against the motorcycle from behind. The driver of the autorickshaw was not examined. Hence, order passed by the Tribunal cannot be sustained. The issue has to be reconsidered and the matter is liable to be remanded to the Tribunal 8 with a direction to pass fresh order in accordance with law. It is open to both the parties to lead fresh evidence. Accordingly, I pass the following :
ORDER The appeal is allowed. The judgment and award dated 10.10.2011 made in MVC No.5556/2010 is set aside. The matter is remanded to the Tribunal for fresh consideration and disposal in accordance with law, after affording opportunity to both the parties to lead evidence.
The parties are directed to appear before the Tribunal on 17.07.2017 without any further notice.
Sd/-
JUDGE sma