Karnataka High Court
Paramershwar Ningappa Baligar vs Kallappa Ningappa Gaddi on 6 September, 2022
Author: H.P.Sandesh
Bench: H.P.Sandesh
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MFA No. 22978 of 2010
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 6TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 22978/2010 (MV-I)
BETWEEN:
PARAMERSHWAR NINGAPPA BALIGAR
AGE: 51 YEARS, OCC: BANGLE SELLER
R/O GANESH GUDI ONI, HEBBALLI
TALUK: DHARWAD
... APPELLANT
(BY SRI. D K JADHAV, ADVOCATE)
AND:
1. SRI KALLAPPA NINGAPPA GADDI
AGE: 48 YEARS, OCC: BUSINESS & POLITICS
R/O NAVALGUND, OPP: SHRIRAM NILAYA
NARGUND ROAD, NAVALGUND
DIST. DHARWAD
DRIVER and OSTENSIBLE OWNER OF CAR BEARING
NO.KA-25/M 2667.
2. SRI YASHODHAR DHANAPAL JAIN,
AGE: MAJOR, OCC: BUSINESS
R/O GUDAGERI, TALUK: KUNDGOL
DIST: DHARWAD.
...RESPONDENTS
(BY SRI S K DESHPANDE, ADVOCATE FOR R1;
SRI LAXMAN T MANTAGANI, ADVOCATE FOR R2)
THIS MFA IS FILED UNDER SECTION 173(1) OF THE M.V.
ACT AGAINST THE JUDGMENT AND AWARD DATED 27.04.2010,
PASSED IN MVC NO.20/2004 BY I ADDITIONAL SENIOR CIVIL
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MFA No. 22978 of 2010
JDUGE AND CJM, DHARWAD SITTING AT NAVALAGUND AND
ETC.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING.
JUDGMENT
Heard learned counsel appearing for the appellant and learned counsel appearing for the respondent No.2 and the counsel for the respondent No.1 is absent.
2. The factual matrix of the case of the claimant before the Tribunal is that on 21.01.2002 at 11.30 a.m., he was plying in his motorcycle along with pillion rider from Hebballi to Hebbal. Near Ram Nilay on Naragund road, the car bearing No.KA25-M-2667 was plying ahead of the claimant and abruptly stopped by its driver and on the right side front door of the car suddenly opened. As a result, the claimant came in contact with the right side door of the car and he himself and the pillion rider fell down and the same was on account of rash and negligent driving and reckless act of the driver of the car. The car was driven by respondent No.1 and the claimant sustained grievous injuries on his left leg, left foot, left lip and other parts of the body. The pillion rider also sustained injuries and he was shifted to KIMs hospital, Hobli as inpatient for a -3- MFA No. 22978 of 2010 month and thereafter he was shifted to the Nursing home of Dr.Ramanagoudar wherein also he was treated as inpatient for a period of three months and the claimant had incurred huge amount towards medical expenses. The left foot of the claimant is completely disabled and he cannot walk independently. Hence, he made the claim.
3. In pursuance of the claim petition, notice was ordered and respondent No.1 was represented through his counsel and respondent No.2 also represented through the counsel. Respondent No.1 contended that he was not the driver of the car at the time of the alleged accident and he was Forest Minister of State from 27.06.2002 to 13.05.2004 and on the date of the accident, he was not present at the spot and he was participated in the session at Vidhana Soudha, Bengalure and he has not driven the vehicle and he was also not having acquaintance with respondent No.2 also and he totally denied the claim petition. Respondent No.2 in is statement contended that respondent No.1 was not driving the vehicle belongs to him and denied the very accident.
4. The claimant in order to substantiate his case before the Tribunal, examined himself as PW1 and also -4- MFA No. 22978 of 2010 examined PW2 and PW3 and got marked the documents at Ex.P1 to P20. On the other hand, respondents have examined themselves as RW1 and RW2 and got marked the documents at Ex.R1 to R4. The Tribunal after considering both the oral and documentary evidence, dismissed the claim petition in answering Issue No.1 as negative and Issue No.2 as affirmative in coming to the conclusion that respondents are not liable to pay any compensation. Hence, the present appeal is filed.
5. The counsel for the appellant would vehemently contend that respondent No.1 was the MLA at the time of the accident and the Tribunal has failed to appreciate both the oral and documentary evidence and the same is resulted in miscarriage of justice. The claimant has relied upon the document of FIR, complaint, statement recorded by the Navalagund police in Cr.No.MAG 71/2002 and final report filed by the Navalagund police and also the medical records. The medical records discloses that on account of the accident, he took the treatment and the reasons assigned by the Tribunal is erroneous. The Tribunal has failed to take note of the material that there was an unfair investigation and on fear of influence, though B-report was filed and the same was challenged and -5- MFA No. 22978 of 2010 thereafter, sworn statement of witnesses were recorded and cognizance was taken and there was a threat to the claimant as well as his witnesses and merely dismissal of the complaint itself is not a ground to comes to a conclusion that there was no any accident. The counsel would submit that respondent No.1 was sitting MLA at the time of the alleged accident and immediately he was shifted to hospital at Navalagund where he took the first aid and thereafter he shifted to KIMS hospital and the KIMS hospital record it is clearly mentioned that he has sustained injuries on account of RTA and he was inpatient from 21.01.2002 to 18.02.2002 and thereafter he was also taken treatment for a period of three to four months. The police also did not receive the complaint since respondent No.1 was sitting MLA hence, the complaint was sent through RPAD and the same placed before the JMFC Court wherein a private complaint was filed against the respondents and the complaint was filed on 16.05.2002 and the matter was referred under Section 156(3) of Cr.P.C. The police after registering the FIR, investigated the matter and filed the B-report and the same was questioned and cognizance was also taken. The Tribunal while considering the claim petition carried away with the dismissal of C.C.No.16/2002 and also carried away with the -6- MFA No. 22978 of 2010 final report at Ex.R2 which was challenged and cognizance was taken against the final report and the same has been considered. Hence, the Trial Court has committed an error in dismissing the claim petition.
6. The Learned counsel appearing for the insurance company would submit that the vehicle was not involved in the accident and at no point of time, respondent No.1 was the driver in respect of the said vehicle and no material is placed before the Tribunal to substantiate that the vehicle was involved in the accident and the Tribunal has not committed an error in dismissing the claim.
7. Having heard the respective counsel appearing for the parties and also on perusal of the material available on record, it is not in dispute with regard to the fact that respondent No.1 was sitting MLA as on the date of the alleged accident. The claimant was examined as PW1 and he reiterates that respondent No.1 was driving the vehicle at the time of the accident and the alleged accident was occurred due to his negligence. In the cross-examination of PW1, he admits that he studied up to 4th standard and admits that he has not given the complaint to the police but he has given the complaint to -7- MFA No. 22978 of 2010 the Court and it is elicited that respondent No.1 was a MLA. It is suggested that on the date of the accident, he participated in the assembly proceedings and the same was denied. However, he admits that in the claim petition, he mentioned that respondent No.1 is the owner of the vehicle.
8. RW1 is also examined before the Tribunal and in his evidence he deposed that he was not there at the time of the accident and not used the vehicle and also not driven the vehicle and got marked the documents Ex.R1 to R4 and he was subjected to the cross-examination and in the cross- examination, he admits that he was a MLA in the year 2002 and also admits that he was a Forest Minister and also in- charge of Dharwad as District in-charge Minister. It is suggested that Court summons was issued to the driver but witness says that only after receipt of the summons, he came to know the same. He also admits that after receiving the summons also he has not given any complaint. It is suggested that police have recorded the statement of witnesses when the crime was registered in 71/2002 and witnesses have given the statement that the respondent No.1 himself went in the said vehicle and he stopped the same in front of his house and an -8- MFA No. 22978 of 2010 accident was taken place. But he claims that he was not in town. It is also suggested that on the very next date, it has appeared in the paper that his car was met with an accident and the witness not denied the same but he says that he was not in town and he was not aware of the same. However, he admits that he has filed the criminal petition for quashing the registration of FIR against him and it also admits that it was dismissed. It is also suggested that in the FIR, the name of the injured is mentioned, the witness says that he has not aware of the same.
9. The other witness is RW2 that is respondent No.2 and he also reiterates his evidence in the line of evidence of RW1 and he was also subjected to the cross-examination and in the cross-examination, he admits that on 21.01.2002, the alleged vehicle was in his custody and he was the owner in respect of the said car for a period of three years and he sold the same to the resident of Lakshmeshwara and now the car may be in Lakshmeshwara. He also admits that respondent No.1 was MLA and Minister and only after the receipt of notice, he came to know about the involvement of the vehicle in the accident. He also admits that in order to show that the car was -9- MFA No. 22978 of 2010 in Gudigeri, no document is placed. It is suggested that car was sold to respondent No.1 and the same was denied. However, he admits that he is the registered owner of the vehicle.
10. Having considered the material on record particularly, the evidence of PW1 as well as RW1 and 2, it is not in dispute that as on the date of the accident, RW2 was the owner of the vehicle and though he claims that the vehicle was at Gudigeri, no material is placed but he claims that on 21.01.2002, car was in his custody and the fact that he was a MLA is also not in dispute and he was also a Minister subsequently is also not in dispute and same is also admitted by RW1 and RW2 and apart from that a question was put to him that in the newspaper on the very next day, it has appeared that his car was met with an accident and the same was not denied but only he says that he was not aware of the same and in an ingenious method he gave the reply saying that he is not aware of the same and also the fact that he categorically admitted that when FIR was registered against him consequent upon the matter was referred under Section 156(3) of Cr.P.C by the JMFC Court, investigation was
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MFA No. 22978 of 2010 conducted and statements of witnesses have been recorded and RW1 states that he was not aware of the statements made by the witnesses in the said case but he had challenged the very registration of case against him and the same was dismissed by the High Court and it was observed that the matter has to be decided in the Trial Court itself with regard to involvement of the case.
11. It is also important to note that B-report was filed after referring the matter under Section 156(3) of Cr.P.C and the same was challenged and subsequently, the Court also taken the cognizsance and rejected the B-report. No doubt, ultimately, the said complaint was dismissed. Dismissal of the complaint is not enough to discard the evidence of PW1 and the fact that injury was sustained and he was shifted to the hospital on the very same day to KIMs hospital and KIMS hospital records also discloses giving of history of RTA at the first instance wherein in Ex.P5 it is clearly mentioned that there was RTA at 3.00 p.m. on 21.01.2002 near Navalgund he had sustained the fractures and all these materials have not been considered by the Tribunal while considering the matter on merits instead of that the Tribunal has carried away with the
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MFA No. 22978 of 2010 dismissal of the complaint before the Magistrate and apart from that taken note of the order sheet in C.C.No.16/2002 and the very contention of RW1 that he was not in the place of the accident and he was in Vidhana Soudha and participated in the assembly discussions and no doubt, document is produced before the Court and the same is not substantiated by examining the author of the document at Ex.R3 - copy of the attendance book of Vidhana Soudha members and hence, the Tribunal committed an error in dismissing the complaint stating that the claimant has not proved the accident and the very approach of the Tribunal is erroneous and the fact that he was MLA as well as Minister and also 'B' report was filed and the same was questioned and 'B' report was set aside and the same was also not taken into consideration and whether he was elected or continued is immaterial while considering the claim petition and hence, order impugned is liable to be set aside.
12. In view of the above discussions, I pass the following:
ORDER The appeal is allowed. The impugned order dated 27.04.2010 passed in MVC No.20/2004 on the file of I
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Additional Senior Civil Judge and CJM, Dharwad is set aside and the Tribunal is directed to consider the matter on merits.
The parties are directed to appear before the Tribunal on 12.10.2022 without expecting any notice.
Registry to send the trial court records immediately to the Tribunal.
The Tribunal is directed to dispose of the matter within six months from 12.10.2022. Parties are directed to assist the Tribunal to dispose of the matter within the stipulated period.
Sd/-
JUDGE SN/SH