Quashed

Ravindra S/O Shivappa Hadali, v. Aminoddin S/O Mastan Mulla

Karnataka HC15 Jul 2013MFA/32107/2011

Case brief

AI extract

What is this about?

Appeal against dismissal of motor accident claim. Tribunal dismissed claim finding car driver negligent, ignoring charge sheet and FIR implicating autorickshaw driver. Court allowed appeal, quashed award, and remitted for fresh disposal.

What did the court decide?

Judgment and award dated 24.6.2011 in MVC No.30/2010 is quashed and matter remitted to Tribunal for fresh disposal.

Ravindra S/O Shivappa Hadali, Vs Aminoddin S/O Mastan… — Medical Negligence | Karnataka HC (2013)

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IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT GULBARGA

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DATED THIS THE 15^TH DAY OF JULY 2013

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BEFORE

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THE HON’BLE MR.JUSTICE S. ABDUL NAZEER MISCELLANEOUS FIRST APPEAL NO.32107/2011 (MV)

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Between:

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Ravindra, S/o Shivappa Hadali, Aged about 57 years, Occ;Advocate, R/o Opp.District Court, Behind Yashin Masjid, Bijapur. …. Appellant.

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(By Sri Shivashankar H. Manur, Adv.)

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And:

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1 Aminoddin, S/o Mastan Mulla, Aged about 35 years, Occ;Auto Driver, R/o Managoli, Now r/a Jumanal, Tq. & Dist. Bijapur. 2 The Branch Manager, Oriental Insurance Company Limited, Branch Bijapur, S.S.Front Road, Near Siddeshwar Temple, Bijapur.

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…. Respondents.

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(By Sri S.B. Patil, Adv. for R1 Sri Sanjay M.Joshi, Adv. for R2)

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This Miscellaneous First Appeal is filed under Section 173(1) of the Motor Vehicles Act, 1988, against the judgment and award dated 24.6.2011 in MVC No.30/2010 on the file of the Motor Accident Claims Tribunal, Bijapur, etc.

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This Miscellaneous First Appeal coming on for Hearing this day, the Court delivered the following:

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JUDGMENT

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This appeal is directed against the judgment and award in MVC No.30/2010 dated 24.6.2011 on the file of the Motor

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Accidents Claims Tribunal, Bijapur.

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The appellant/claimant filed the claim petition seeking

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compensation in a sum of Rs.5 lakhs towards injuries sustained by him in a motor vehicle accident occurred on 7.12.2007. It is contended that the claimant and his friends were travelling in a Car bearing registration No.KA-28/M-6153 owned by Sri V.S.Patil. The vehicle was driven by Anil Dube. While the car was proceeding from Bijapur to Kolhar, one Piaggio Tum Tum Autorickshaw bearing registration No.KA-28/A-3939 came from the opposite direction at Jumanal Cross in great speed and dashed against the Car.

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It is his case that the car was driven by Anil Dube very slowly and cautiously. The accident had occurred entirely on account of the rash and negligent driving of the driver of the Autorickshaw. As a result of the accident, the car was turtled causing grievous injuries to the claimants. Immediately, he was taken to a private hospital. Thereafter, he was taken to Dr.A.A.Magi, Orthopaedic Surgeon, where he was admitted for 4 days. He is taking follow up treatment as per the Doctor’s advice. He has incurred huge medical expenses. He was aged 56 years and was earning Rs.12,000/- per month. On account of the accidental injuries, his movements are restricted. Therefore, he is finding it difficult to do day-to-day work.

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Upon service of notice, respondent Nos.1 and 2 have appeared through their learned Advocates and filed their written statement opposing the claim petition.

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On the basis of the pleadings of the parties, the Tribunal

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has framed the issues as under:

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“(1) Whether petitioner proves that on 7.12.2007 at about 15.30 hours at Jumanal Cross, 12 kms. away from Bijapur while he was travelling in the Alto Car bearing Reg.No.KA-28/M-6153, one Piaggio Tum Tum Autorickshaw bearing No.KA-28/A-3939 came from opposite direction with great speed being driven by its driver and in rash and negligent manner and dashed to his car and caused accident, as a result of which, he sustained grievous injuries in the said accident?

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(2) Whether petitioner is entitled for compensation? If so, what is a quantum and from whom?

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(3) What order or award?”

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The claimant got himself examined as P.W1.

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Dr.A.A.Magi, who had treated him was examined as P.W2 and documents Ex.P1 to Ex.P8 have been marked in their evidence. Respondent No.2-Insurance Company has produced Insurance Policy, which was marked by consent as Ex.R1. However, it has not let in any oral evidence. On appreciation of the materials on record, the Tribunal has held that there was no negligence on the part of the

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driver of the Autorickshaw and that the accident had occurred due to the negligence of the Car driver. Consequently, the claim petition is dismissed.

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Learned Counsel for the appellant submits that the accident had occurred due to the rash and negligent driving of the driver of the Autorickshaw. The claimant was examined as P.W1. He has stated that the car was driven cautiously on the left side of the road. The Autorickshaw came from the opposite direction in a high speed and dashed against the car. It is further submitted that on account of the accident, the claimant had sustained grievous injuries all over the body. Immediately he was taken to a private hospital and thereafter, he was taken to Dr.A.A.Magi, an Orthopaedic Surgeon at Bijapur and he was admitted there for 4 days. A complaint was filed against the driver of the Autorickshaw at Ex.P2, FIR was registered as per Ex.P1, the spot mahazar was marked as Ex.P3 and the wound certificate was marked at Ex.P4. These documents would clearly establish that the reason for the accident is the rash and negligent driving of the driver of the Autorickshaw. The Tribunal has failed to

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appreciate all these documents. It is argued that no complaint has been registered against the driver of the Car. It is further argued that without appreciating these documents, the Tribunal has dismissed the claim petition.

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On the other hand, learned Counsel appearing for the second respondent-Insurance Company has sought to justify the impugned judgment and award.

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I have carefully considered the arguments of the learned Counsel made at the Bar and perused the materials placed on record.

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The case of the appellant/claimant is that he was travelling in the Car on 7.12.2007 along with his friends. It was driven by Anil Dube cautiously on the left side of the road. When the car came near Jumanal Cross, the Autorickshaw came from the opposite direction in high speed and dashed against the car, as a result of which, the car was turtled. The claimant sustained grievous injuries to the left shoulder and fracture to the lateral end of the lavical and injuries to

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the body. Immediately thereafter he was taken to a private hospital for treatment in the same Autorickshaw. Thereafter, he was taken to Dr.A.A.Magi, an Orthopaedic Surgeon at Bijapur for treatment.

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The claimant has produced the complaint-Ex.P2, the FIREx.P1, the spot mahazar-Ex.P3, the wound certificate-Ex.P4, MVI report-Ex.P5 and the charge sheet-Ex.P6. In the complaint, it was categorically stated that the Autorickshaw came from the opposite direction and dashed against the car. The mahazar report describes the place of accident. A charge sheet was filed against the driver of the Autorickshaw. However, no complaint has been filed against the driver of the Car. The Tribunal without taking notice of the contents of these documents has dismissed the claim petition by relying on the statement made by the claimant in his cross-examination. It is to be stated here that the driver of the Autorickshaw has not been examined in the case. The second respondent-Insurance Company has also not let in any oral evidence. It has only marked the copy of the policy of the Insurance. Keeping in mind all these aspects of the

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matter, the Tribunal ought to have decided the case. I am of the view hat the Tribunal has to reconsider the matter.

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In the result, the appeal succeeds and it is accordingly allowed in part. The judgment and award dated 24.6.2011 in MVC No.30/2010 is hereby quashed. The matter is remitted back to the Tribunal for fresh disposal in accordance with law. Parties to the claim petition are permitted to lead further evidence, if they so desire. Registry is directed to send the records back to the Tribunal forthwith. No costs.

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Sd/JUDGE.

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BMM/-

Ravindra S/O Shivappa Hadali, v. Aminoddin S/O Mastan Mulla

Case brief

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Ravindra S/O Shivappa Hadali, v. Aminoddin S/O Mastan Mulla

Case brief

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