Karnataka High Court
Sri. Basavaraj vs V. Chethan on 3 November, 2020
Equivalent citations: AIRONLINE 2020 KAR 2687
Bench: Alok Aradhe, H T Narendra Prasad
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF NOVEMBER 2020
PRESENT
THE HON'BLE MR.JUSTICE ALOK ARADHE
AND
THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD
MFA NO.2054 OF 2019 [MVC]
BETWEEN:
SRI. BASAVARAJ,
S/O. LATE PATTE GOWDA,
AGED ABOUT 39 YEARS,
COOLIE AND AGRICULTURIST,
SIRGAPURA, MALALURU POST,
CHIKKAMAGALURU TALUK-577 101.
.... APPELLANT
(BY SRI.MANJUNATH PRASAD H.N., ADVOCATE)
AND
1. V. CHETHAN,
S/O. D.R.VIRUPASHA,
AGED ABOUT 32 YEARS,
NO.101, NALLUR,
CHIKKAMAGALURU TALUK-577 101.
2. SHIVAJOGAIAH KERIMATH,
S/O. LATE SHIVAMOORTHAIAH,
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AGED ABOUT 51 YEARS,
RASHMI NILAYA,
DEEPA NURSING HOME ROAD,
LAKSHMISHA NAGAR,
CHIKKAMAGALURU-577 101.
3. BAJAJ ALLIANZ GENERAL INSURANCE
COMPANY LIMITED,
BRANCH OFFICE 324/1,
CHAMARAJA MOHALLA,
MYSORE-570 024.
...RESPONDENTS
(BY SRI.GIRISH B.BALADARE., ADVOCATE FOR
R1 & R2;
SRI. H.N. KESHAVA PRASHANTH, ADVOCATE FOR R3)
THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD DATED
08.02.2019 PASSED IN MVC NO.5/2017 ON THE FILE
OF THE I ADDITIONAL SENIOR CIVIL JUDGE,
CHIKKAMAGALURU, DISMISSING THE CLAIM
PETITION FOR COMPENSATION.
THIS MFA COMING ON FOR ADMISSION, THIS
DAY, H.T. NARENDRA PRASAD J., DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act', for short) has been filed by the claimant being 3 aggrieved by the judgment dated 8.2.2019 passed by the Motor Accident Claims Tribunal.
2. Facts giving rise to the filing of the appeal briefly stated are that on 1.10.2016 when the claimant and his two friends were doing coolie work in the house of Vedananda Murthy at about 5.00 p.m. the driver of the Earth Mover JCB bearing Reg.No.KA- 18-N-9703 drove the same in a rash and negligent manner and without taking proper care and caution, turned the JCB front and back and in that process the backside cradle of JCB hit the claimant. 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 on the ground that he was doing coolie work, mason work and agricultural work and was earning Rs.30,000/- p.m. It was pleaded that he also 4 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.3 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 has admitted the issuance of policy in respect of the JCB. The respondent No.1 driver was not having valid and effective driving licence as on the date of accident. It was further pleaded that the accident was due to the rash and negligent act of the claimant himself. Hence, he sought for dismissal of the petition.
5. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter 5 recorded the evidence. The claimant himself was examined as PW-1 and two other witnesses as PWs-2 and 3 and got exhibited documents namely Ex.P1 to Ex.P13. On behalf of the respondents, three witnesses were examined as RWs-1 to 3 and got exhibited documents namely Ex.R1 to Ex.R10. The Claims Tribunal, by the impugned judgment, inter alia, held that the claimant failed to prove that he sustained grievous injuries due to rash and negligent driving of the JCB Earth Mover by its driver and accordingly dismissed the claim petition. Being aggrieved, this appeal has been filed.
6. The learned counsel for the claimant has contended that when the claimant and his two friends were doing coolie work in the house of Vedananda Murthy at about 5.00 p.m., the driver of the Earth Mover JCB bearing Reg.No.KA-18-N-9703 drove the same in a rash and negligent manner and without 6 taking proper care and caution, turned the JCB front and back and in that process, the backside cradle of the JCB hit the claimant, as a result of the aforesaid accident, the claimant sustained grievous injuries and was hospitalized. Therefore, he filed a claim petition under Section 166 of the Act and the same is maintainable. He further contended that he has examined himself as PW-1 and examined complainant Dharmegowda as PW-2 and Dr.B.S.Venkatesh as PW- 3 to prove that the accident occurred due to rash and negligent driving of the JCB vehicle by it driver. The Tribunal failed to consider the evidence of parties and has erred in dismissing the claim petition. Secondly, as per the provisions of Section 167 of Motor Vehicles Act, 1988, the claimant is at liberty to file the claim petition either under Motor Vehicles Act or Workmen's Compensation Act. Hence, he sought for allowing the appeal.
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7. On the other hand, the learned counsel for the Insurance Company has contended that the claimant has failed to prove that he sustained the injuries due to rash and negligent driving of the JCB vehicle by its driver. He has suffered injury when he was working as coolie while demolishing the old building and leveling the site belonging to Vedananda Murthy. There is no material to prove that the claimant suffered injury due to the involvement of the vehicle. Therefore, the Tribunal has rightly dismissed the claim petition. Hence, he sought for dismissal of the appeal.
8. We have considered the submissions made by the learned counsel for the parties and have perused the records.
9. The specific case of the claimant is that on 1.10.2016 when the claimant and his two friends were 8 doing coolie work in the house of Vedananda Murthy at about 5.00 p.m., the driver of the Earth Mover JCB bearing Reg.No.KA-18-N-9703 drove the same in a rash and negligent manner and turned the JCB front and back and in that process, the backside of the cradle hit the claimant and as a result of the aforesaid accident, the claimant sustained grievous injuries and was hospitalized. Immediately, after the accident, the police registered FIR and after investigation charge sheet has been filed against the driver of the JCB vehicle. PW-1 has specifically stated that he has suffered injury due to the negligent driving of the JCB vehicle by its driver. The Tribunal has failed to consider the documentary evidence and evidence of the claimant.
10. Section 167 of the Motor Vehicles Act reads as under:
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"167. Option regarding claims for compensation in certain cases - Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of, or bodily injury to, any person gives rise to a claim for compensation under this Act and also under the Workmen's Compensation Act, 1923, the person entitled to compensation may without prejudice to the provisions of Chapter X claim such compensation under either of those Act but not under both."
The Tribunal has failed to consider the aforesaid provision of law. Under the circumstances, the appeal deserves to be allowed and remanded to the Tribunal for fresh consideration.
11. Accordingly, the appeal is allowed. The judgment and award of the Tribunal is set aside. The matter is remanded to the Tribunal for fresh consideration. The Tribunal is directed to dispose of 10 the matter in accordance with law within six months from the date of this order after giving opportunities to the parties.
All the contentions of the parties are kept open.
Sd/-
JUDGE Sd/-
JUDGE DM/-