IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT M.F.A.No.5197 OF 2010 C/W M.F.A.No.5198 OF 2010 (MV) IN MFA.NO.5197/2010:
Between:
1. Smt. Sharfunnisa, W/o. K.M.Sharfuddin, Aged about 54 years 2. K.M.Sharfuddin S/o. K.K.Mohammed Ibrahim Sab Aged about 59 years 3. Abdul Samad S/o. K.M.Sharfuddin Aged about 19 years 4. Muss S/o. K.M.Sharfuddin Aged about 13 years Represented by his father And natural guardian i.e., K.M.Sharfuddin.
All the Appellants are Residents of 1st Main, 1st Cross, Ahamed Nagar, Davanagere. … Appellants (By Sri. Harish Kumar M.S., Advocate) And:
1. Rahaman, S/o. Khaleel Sab Aged about 44 years Driver of Lorry bearing Reg. No.KA-06-A-256 R/o. Beside Jamiya Shadimahal Sira, Tumkur District.
2. Amanulla S/o. Khan Sab Aged about 36 years R.C.Owner of Lorry bearing Reg. No.KA-06-A-256 R/o. Padivan Mohalla, Near Upkar Beedi Works, Sira Tumkur District.
3. The Divisional Manager, National Insurance Company Ltd., Divisional Office, Chamarajpet, Davanagere Policy issuing Office, National Insurance Company Ltd., 17-03-654/B, Opp: Bus Stand Hindupur, Ananthapur District Andrapradesh State.
4. The Oriental Insurance Company Ltd., Branch Office, Thiluvalli Complex, 1st Floor, P.B.Road, Davanagere.
5. Safura D/o. K.M.Sharfuddin Aged about 18 years, Resident of 1st Main, 1st Cross, Ahamed Nagar, Davanagere. ... Respondents (By V/O/dated 03.12.2014 appeal against R1 stands dismissed; M/s.Lex Pioneers, Advocate for R2; Sri. A.N.Krishna Swamy, Advocate for R3;
R4 is Served; Notice to R5 is dispensed with) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 06.10.2009 passed in MVC No.682/2006 on the file of the II Additional District and Sessions Judge, MACT, Davanagere, dismissing the claim petition for compensation.
IN MFA.NO.5198/2010:
Between:
1. Smt. Sharfunnisa, W/o. K.M.Sharfuddin, Aged about 54 years 2. K.M.Sharfuddin S/o. K.K.Mohammed Ibrahim Sab Aged about 59 years 3. Abdul Samad S/o. K.M.Sharfuddin Aged about 19 years 4. Muss S/o. K.M.Sharfuddin Aged about 13 years Represented by his father And natural guardian i.e., K.M.Sharfuddin.
All the Appellants are Residents of 1st Main, 1st Cross, Ahamed Nagar, Davanagere. … Appellants (By Sri. Harish Kumar M.S., Advocate) And:
1. Rahaman, S/o. Khaleel Sab Aged about 44 years Driver of Lorry bearing Reg. No.KA-06-A-256 R/o. Beside Jamiya Shadimahal Sira, Tumkur District.
2. Amanulla S/o. Khan Sab Aged about 36 years R.C.Owner of Lorry bearing Reg. No.KA-06-A-256 R/o. Padivan Mohalla, Near Upkar Beedi Works, Sira Tumkur District.
3. The Divisional Manager, National Insurance Company Ltd., Divisional Office, Chamarajpet, Davanagere Policy issuing Office, National Insurance Company Ltd., 17-03-654/B, Opp: Bus Stand Hindupur, Ananthapur District Andrapradesh State.
4. The Oriental Insurance Company Ltd., Branch Office, Thiluvalli Complex, 1st Floor, P.B.Road, Davanagere.
5. Safura D/o. K.M.Sharfuddin Aged about 18 years, Resident of 1st Main, 1st Cross, Ahamed Nagar, Davanagere. ... Respondents (By R1 is Served;
M/s.Lex Pioneers, Advocates for R2;
Sri. A.N.Krishna Swamy, Advocate for R3; Sri. H.S.Lingaraju, Advocate for R4;
V/o dated 25.07.2013-notice to R5 is held sufficient) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 06.10.2009 passed in MVC No.679/2006 on the file of the II Additional District and Sessions Judge, MACT-II, Davanagere, dismissing the claim petition for compensation.
These appeals coming on for Hearing this day, the Court delivered the following:-
J U D G M E N T The claimants are before this Court calling in question the judgment and award dated 06.10.2009 made by MACT-II, Davangere whereby the claim petition in M.V.C.No.679/2006 and M.V.C.No.682/2006 have been dismissed.
2. The brief facts of the case are:
a. On 02.07.2005, two persons namely Mohammed Yusuf and Mohammed Idris were moving on their motor cycle bearing registration No.KA17/U4577 on NH-4 near Hunsekatte, Sira, the offending lorry bearing Reg.No.KA 06/A/256 driven rashly and negligently, came and dashed to the said vehicle causing fatal injuries to these two persons, who later succumbed to the same.
b. The claim petitions filed by the dependants of deceased having been examined by the MACT came to be dismissed by the impugned judgment and award on the ground that prima facie no evidence was available to prove the accident in question. Aggrieved thereby, the claimants have preferred these appeals.
3. Since both the claim petitions i.e., M.V.C.No. 679/2006 and M.V.C.No. 682/2006 having arisen from the same alleged accident and trial of the claim petitions having been held jointly and a common judgment and award having been passed, these appeals are taken up together for final disposal with the consent of the Bar.
4. The learned counsel for the claimants vehemently contends that the MACT disbelieved the version of PW.2, one Mr. Mohamed Ali on the ground that he had deposed in the criminal proceedings that he was not at the spot and that he came to know of the accident only at a later point of time. The learned counsel submits that ordinarily the stand of the witnesses in criminal case although can be looked into in civil case, caution is necessary while appreciating the said evidence; this aspect having not been adverted to, by the MACT, the impugned judgment and awards are bad in law.
5. The learned counsel appearing for the claimants also submits that it has been a long settled position of law that the claim petitions under Motor Vehicles Act, 1988 are to be adjudged on the rule of preponderance of probability. He contends that this has not been duly kept in mind by the MACT which has approached the matter with rule of strict proof admissible in criminal jurisprudence, and therefore, there is an error of substantial nature, approach itself being juridically effective.
6. The learned panel counsel for the respondent- insurer argues with equal vehemence that the MACT has undertaken the exercise which cannot be faltered; it has disbelieved the version of PW.2 who is admittedly related to the deceased; since in the criminal case, he has specifically admitted that when he came to know of the accident, he was relaxing at home, no fault can be found with the findings recorded by the MACT, especially in the absence of other evidentiary material, to establish the case to the contrary.
7. I have heard the learned counsel for the claimants and the learned counsel for the respondent-insurer. I have perused the appeal papers and the LCR.
8. The contention of the claimants’ side that the MACT has approached the matter with a juridically defective angle appears to be substantiated going by the evidentiary material on record and also the way the same is treated by the MACT. The MACT has given some reason as to why the version of PW.2 cannot be believed. But the version emerging from other evidentiary material has not been duly adverted to in as much if was swayed away by the apparent contradiction of PW.2 in MVC and criminal case. This may not be the correct approach to the matter especially when two deaths have occurred and several dependants are before this Court including the minors. In any circumstances, the matter needs re-adjudication.
9. In the above circumstances, these appeals succeed in part; the impugned judgment and award are set- atnaught; the matter is remanded to the MACT for consideration afresh, after giving an opportunity of hearing to all the stake holders concerned, within a period preferably of six months.
The parties are put to notice through their counsel to appear before the MACT without any further notice on 01.03.2019 and to take further instructions from it’s presiding officer.
No costs.
Sd/- JUDGE RB