IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL M.F.A. NO.1961 OF 2011 (MV) BETWEEN:
Siddegowda S/o Madegowda, Aged about 36 years, Lakshmegowdanadoddi Village, C.A. Kere Hobli, Maddur Taluk, Mandya District.
(By Smt. B.L. Asha, Advocate) AND:
1. Lalith Kumar S/o Sukan Raj, Since dead, by LRs, R1(a). Sukan Raj S/o Maul Chand, Major, R1(b). Sumithra W/o Lalith Kumar, Major, R1(c). Jayesh S/o Lalith Kumar, Major All are residents of: Mahaveer Jewellers, Jain Street, (Pete Beedi), Mandya City and District.
2. The Branch Manager, The New India Assurance Co. Ltd., No.12000, 2nd Cross, Ashoka Nagara, …APPELLANT Mandya.
(By Sri. K.N. Srinivasa, Advocate for R-2;
... RESPONDENTS R1(a) to R1(c) – served and unrepresented) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 22.12.2010 passed in MVC No.155/2009 on the file of Civil Judge (Sr. Dn.) & MACT, Maddur, Mandya District, dismissing the claim petition for compensation.
This MFA coming on for Admission, this day, the court delivered the following:
JUDGMENT This appeal has been preferred by the appellant- claimant, being aggrieved by the judgment and award dated 22.12.2009 passed by the Civil Judge (Sr. Dn.), Maddur (hereinafter referred to as “the Tribunal” for brevity) in MVC No.155/2009.
2. Heard. The appeal is admitted and with the consent of learned counsel for both the parties, the matter is taken up for final disposal.
3. The brief facts of the case as per the appellant-petitioner are, on 15.06.2009, the petitioner Siddegowda and his wife had been to Mandya for purchasing house hold articles. At about 1.00 p.m. when they were going towards Petebeedi, at that time a Honda Activa bearing No.KA-11/S4671 came in a rash and negligent manner from behind and dashed against the petitioner. Due to said accident, he fell down and sustained fracture of 2nd meta tarsal bone of right leg. Immediately after the accident, he was shifted to the hospital and was given treatment. It is further contended that the appellant has spent huge amount for treatment and he has sustained disability. Hence, he has claimed compensation on various heads.
4. Respondent No.1 – Insurance Company had contested the said petition by denying the contents of the petition. It is further contended that the driver of the vehicle was not possessing valid and effective driving license and as such, Insurance Company is not liable to pay any compensation and hence, prayed for dismissal of the claim petition.
5. Considering the evidence of the petitioner, the Tribunal has dismissed the petition, observing that the petitioner has not sustained any injuries because of the accident and assailing the said judgment and award, the appellant-claimant has preferred this appeal.
6. The main grounds urged by the learned counsel for the appellant are that the Tribunal was wrong in coming to the conclusion that a false case has been registered only on the ground that in the evidence the appellant has stated that his wife accompanied him, but in the wound certificate, name of one Marigowda, neighbor of the petitioner, is mentioned. On this small issue, the petition came to be dismissed without proper appreciation of the documents produced for having sustained injuries in the said accident. It is further contended that the appellant-claimant has produced Ex.P-1 FIR, which clearly goes to show that the accident has taken place and the complaint has been registered and thereafter, a spot mahazar and final report has also been submitted. This aspect has not been considered and appreciated by the Tribunal. Even the wound certificate which has been produced at Ex.P-5, clearly indicates that the appellant has sustained injuries in road traffic accident. Without proper appreciation of the evidence, the Tribunal has come to a wrong conclusion and has dismissed the petition. On these grounds, learned counsel for the appellant prayed for allowing the petition and also to remand the matter to the Tribunal for fresh disposal in accordance with law.
7. Learned counsel for the respondent – Insurance company, justifying the impugned judgment and award, prays for confirming the same by dismissing the appeal.
8. I have gone through the judgment and award passed by the Tribunal. The Tribunal has framed the following issues for its consideration:
1. Whether the petitioner proves that the accident was solely due to rash and negligent driving of the driver of the offending vehicle and he sustained injuries as alleged?
2. Whether the petitioner is entitled for compensation? If so, what amount and from whom?
3. What order or award?
Thereafter, the Tribunal has answered issue No.1 in the negative and dismissed the petition. As could be seen from the judgment and award, the Tribunal has observed that the petitioner asserted that he and his wife were going near Kaman Circle, Mandya. At that time, a scooter came from behind in rash and negligent manner and dashed against him. Further he has deposed that he does not remember the actual date of the accident. Further, it has also been observed that the accident has taken place on 15.06.2009 at about 1.00 p.m. and he has stated in the complaint that he and his wife were going to Kaman Circle and at that time, accident has taken place and the rider of the motor bike himself has taken him and got him admitted in District Hospital.
9. It is further observed by the Tribunal that when his wife was very much present at the place of accident and she is an eye witness, but in the wound certificate which has been produced at Ex.P-5, it is mentioned that neighbour of petitioner namely Marigowda had accompanied the petitioner to the District Hospital on 15.06.2009 at 1.20 p.m. Only on the basis of said evidence, the Tribunal has come to a conclusion that the petitioner has not met with the accident in question and answered the aforesaid issue in the negative and ultimately, dismissed the petition. The Tribunal has not taken into consideration Ex.P-1 certified copy of the FIR, Ex.P-2 Spot Mahazar and Ex.P- 3 Final report, which were filed in respect of the same crime and even appreciation of the evidence by the Tribunal is also not justifiable and the evidence has to be appreciated with reference to the documents which have been produced. Merely because some glaring mistakes has been committed in the evidence of the appellant-claimant and only highlighting those mistakes, dismissal of the petition appears to be unjustifiable.
10. Keeping in view the above said facts and circumstance, I feel that the impugned order needs to be set aside and remanded back to the Tribunal with a direction to consider all the documents produced by the appellant-claimant and thereafter come to a right conclusion. Under such circumstance, I proceed to pass the following:
ORDER (i) The appeal is allowed.
(ii) The impugned judgment and award dated 22.12.2010 passed by the Civil Judge (Sr. Dn.), Maddur in MVC No.155/2009 is hereby set aside and the matter is remanded back to the Tribunal with a direction to dispose of the matter in accordance with law by giving proper opportunity to both the parties.
(iii) Since the matter is of the year 2009, both the parties are directed to appear before the Tribunal without further notice on 15.11.2017.
BMC SD/- JUDGE