IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13th DAY OF FEBRUARY 2019 BEFORE:
THE HON’BLE MR.JUSTICE K.SOMASHEKAR MISCELLANEOUS FIRST APPEAL No.1551 OF 2015 (MV) BETWEEN:
Nandhan Kumar, S/o.Y.Venkateshachar, Aged about 10 years, Student, R/o 2nd Cross, Mirza Extension, Hiriyur Town-577599, Minor, rep. by his natural guardian and father, Mr.Y.Venkateshachar. ... Appellant (By Sri.Krishnoji Rao.N, Advocate for Sri.B.Pramod, Advocate) AND:
1. Sri.Vinay Kumar, S/o. Nagendrachari, Aged major, Owner of motorcycle bearing Reg No.KA-50-7537, R/o.N.M.Road, K.R.Pet Town-571 428, Mandya District.
2. The Regional Manager, Shriram General Insurance Co. Ltd., Regional office, RIIC Industrial Area, Sitapura, Jaipur-302 001, Rajasthan State. ... Respondents (By Sri.O.Mahesh, Advocate for R2; R1-served.) This Miscellaneous First Appeal is filed under Section 173(1) of MV Act against the judgment and award dated 19.11.2014 passed in MVC No.64/2014 on the file of the Senior Civil Judge, Additional MACT, Hiriyur, dismissing the claim petition for compensation.
This Miscellaneous First Appeal coming on for Hearing, this day, the Court delivered the following:
JUDGMENT Heard the learned counsel for the appellant and the learned counsel for Respondent No.2.
2. This appeal is directed against the Judgment rendered by the Tribunal in MVC No.64/2014 dated 19.02.2014, dismissing the claim petition filed under Section 166 of the Motor Vehicles Act, 1988.
3. The facts in brief are that on 09.09.2013 at about 1.00 p.m., when the petitioner and his father were watching Ganapathi procession near Bus Stop, Lakkenahalli village, Sira Taluk, the rider of the motor-cycle bearing Reg. No.KA-50/K- 7537 came in a rash and negligent manner and dashed to the minor petitioner, as a result of which, the petitioner sustained injuries all over his body. His father admitted him to Aditya Orthopedic and Trauma Center, Tumakuru and has incurred a sum of Rs.1,00,000/- towards medical expenses. He was an inpatient for a period of 15 days. The Tribunal while answering the issue regarding actionable negligence on the part of the driver of the offending vehicle, has held that the petitioner failed to prove the involvement of the offending vehicle in the accident and dismissed the claim petition with costs.
4. Learned counsel for the appellant has taken me through the evidence of P.W.1 and also documents produced at Exs.P.1 to 34. He submitted that the accident is proved and the petitioner has sustained multiple injuries and fracture of both bones of right leg. The petitioner was admitted to the hospital and was an inpatient for a period of 15 days. The respondents have vaguely denied the case of the appellant and have not carried out any investigation or prove that the vehicle was not involved in the accident. This aspect is not considered by the Tribunal. It is further submitted that the Tribunal has not properly considered the material available on record and dismissed the petition.
5. Learned counsel for Respondent No.2-Insurance Company vehemently contended that P.W.1 has deposed that the claimant was rushed to Sira Hospital and he does not know the number of the offending motor-cycle. He further submitted that the driver of the motor-cycle ran away and P.W.1 did not try to catch him. Therefore, the registration number of the motor-cycle was not noted by the father of the claimant. He has also not disclosed the number of the offending vehicle in the hospital. Therefore, the claimant has not proved the very involvement of the offending vehicle in the accident and complaint is also lodged belatedly. Claimant has not produced sufficient material evidence to show the reasons for delay in lodging the complaint and a false case has been lodged against the driver of the offending vehicle. Therefore, the Tribunal has rightly dismissed the claim petition along with costs and he prays that the appeal filed by the claimant may be dismissed with costs.
6. It is pertinent to note that case has been registered against the driver of the offending motor-cycle and he has been arrayed as accused in C.C.No.463/2013. The counsel for the appellant has produced the copies of the ordersheet maintained in the aforesaid case and chargesheet laid against the 1st respondent. From the material produced before the Court, it is clear that the appellant-claimant has sustained multiple injuries and fracture of both bones of the right leg and has taken treatment as inpatient for 15 days. The claimant was studying in third standard at the time of the accident and he is not able to sit, stand and walk due to the accident. Actionable negligence is there on the part of the offending vehicle. The insurance policy of the offending vehicle was also in force as on the date of the accident. Therefore, it is a fit case to remit the matter back to the Tribunal.
7. Accordingly, I proceed to pass the following order:
The appeal is allowed and the Judgment rendered by the Tribunal in MVC No.64/2014 on the file of the Senior Civil Judge and Addl. MACT, Hiriyur is hereby set aside. The matter is remitted back to the Tribunal for fresh consideration. The Tribunal is hereby directed to dispose of the matter afresh after providing an opportunity to both the parties to adduce additional evidence, if any, without being influenced by the observations in this appeal and not later than six months from the date of receipt of a copy of this Judgment.
The appellant has filed I.A.No.1/2015 for production of additional documents. The appellant is permitted to produce the additional documents before the Tribunal itself. Accordingly, I.A.No.1/2015 is disposed of.
Sd/- JUDGE bnv*