Allowed

Smt Anith D Souza v. MD Abdul Reheman

Karnataka HC18 Mar 2021MFA/3960/2017

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed an appeal against the Motor Accident Claims Tribunal, quashing the dismissal award and remitting the case to afford the claimants a fresh opportunity to produce an eyewitness and the investigating officer as witnesses.

What did the court decide?

The impugned judgment of the Tribunal is quashed. The matter is remitted to the Tribunal to record evidence by allowing appellants to produce an eyewitness and the Investigating Officer.

Smt Anith D Souza Vs MD Abdul Reheman — Motor Accident Claims | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 18^TH DAY OF MARCH 2021

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PRESENT

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THE HON'BLE MR. JUSTICE ALOK ARADHE

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AND

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THE HON'BLE MR. JUSTICE ASHOK S. KINAGI

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M. F. A. NO.3960 OF 2017 (MV)

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BETWEEN:

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SMT. ANITH D SOUZA

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W/O LATE DENNIS D SOUZA

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@ REGINALD DENNIS D SOUZA,

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AGED ABOUT 39 YEARS,

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DONALD ASHWIN D SOUZA

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S/O LATE DENNIS D SOUZA

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@ REGINALD DENNIS D SOUZA, AGED ABOUT 17 YEARS

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ANVITHA DIYONA D SOUZA

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S/O LATE DENNIS D SOUZA

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@ REGINALD DENNIS D SOUZA, AGED ABOUT 14 YEARS,

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APPELLANT No.2 & 3 ARE MINORS REPRESENTED BY THEIR NATURAL GUARDIAN MOTHER, APPELLANT NO. 1,

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ALL ARE RESIDING AT IGNESHIOUS VILLA, MALLETTU MANE, BOLA VILLAGE, KODI POST, KARKALA

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AT PRESENT RESIDING AT C/O GRACY D SOUZA, W/O WILSON SEQYUERA, BLUE MOON APARTMENT, FLAT NO.201 BRAMHAGIRI CIRCLE, UDUPI TALUK, UDUPI DISTRICT-34.

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...APPELLANTS

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(BY SRI. PRATHEEP K C, ADVOCATE)

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AND:

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MD. ABDUL REHEMAN AGED ABOUT 73 YEARS, S/O ABDUL REHEMAN, R/AT, REHEMAN MANZIL, HOSANGADI, MAROOR POST, MANGALORE-575 004.

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THE NATIONAL INSURANCE CO. LTD, MOODABIDRI REP. BY ITS NEAREST DIVISIONAL MANAGER, DIVISIONAL OFFICE, IDYAPOORNA COMPLEX, 2^ND FLOOR, NEAR HEAD POST OFFICE, UDUPI-575 065.

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3. DULSIN D SOUZA

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W/O LATE CLEMENT D SOUZA, AGED ABOUT 73 YEARS, IGNESHIOUS VILLA, MALLETTU MANE, BOLA VILLAGE, KODI POST, KARKALA

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AT PRESENT RESIDING AT C/O GRACY D SOUZA, W/O WILSON SEQYUERA, BLUE MOON APARTMENT, FLAT NO.201, BRAMHAGIRI CIRCLE,

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UDUPI TALUK, UDUPI DISTRICT-34.

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….RESPONDENTS

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(BY SRI. SHIVANNE GOWDA, ADVOCATE FOR R-2 R-1 AND R-3 ARE SERVED AND UNREPRESENTED)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 09.01.2017 PASSED IN MVC No.675 OF 2014 ON THE FILE OF THE PRINCIPLE SENIOR CIVIL JUDGE, UDUPI AND ADDITIONAL MACT, UDUPI, DISMISSING THE CLAIM PETITION FOR COMPENSATION.

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THIS MFA COMING ON FOR ADMISSION THIS DAY, ALOK ARADHE J., DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal under Section 173(1) of the Motor Vehicles

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Act, 1988 (hereinafter referred to as ‘the Act’, for short) has

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been filed by the claimants against the judgment dated

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09.01.2017 passed by the Motor Accident Claims Tribunal.

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Facts giving rise to the filing of the appeal, briefly stated, are that on 31.05.2014 at about 4.30 p.m., the deceased, Dennis D'Souza was riding his TVS motorcycle bearing Reg.No.KA-19-X-1666 from Jarigekatte and when he reached Perooru of Mundkooru Village of Karkala Taluk, a

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stage carriage vehicle bearing Reg.No.KA-19-D-2377

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proceeding towards Jarigekatte side from Sachcharipete side driven by its driver in a rash and negligent manner, dashed against the deceased and in the result, deceased fell down and sustained grievous injuries. The deceased was hospitalized and during the course of treatment, he expired on 04.06.2014. The claimants thereupon filed a petition under Section 166 of the M.V.Act claiming compensation inter alia on the ground that the accident has taken place on account of rash and negligent driving of the driver of the stage carriage vehicle. It was also pleaded that the deceased was an agriculturist and was maintaining a dairy farm and used to earn Rs.12,000/- p.m.. It was further pleaded that the claimants are entitled to compensation of Rs.33,78,000/- along with 12% interest, on account of death of the deceased in the aforesaid accident.

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3. Respondent No.1 did not file written statement.

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Respondent No.2 filed the written statement in which the

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averments made in the claim petition were denied. It was further denied that the accident took place on account of rash and negligent driving of the driver of the stage carriage vehicle. The age, avocation and income of the deceased were also denied. It was however admitted that the policy was in force. It was further pleaded that the liability, if any, is subject to the terms and conditions of the policy.

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On the basis of pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimant No.1 has examined herself as PW-1 and one Manohar Shettigar is examined as PW-2 and got exhibited documents namely Ex.P1 to Ex.P10. On behalf of the respondents, Thomas Pias and Piniya Naik were examined as RW-1 and RW-2 and got exhibited documents namely Ex.R1 to Ex.R4. The Claims Tribunal, vide judgment dated 09.01.2017, dismissed the petition preferred by the

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claimants on the ground that they have failed to examine the complainant and adverse inference was drawn against

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the claimants. In the aforesaid factual background, this appeal has been filed.

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Learned counsel for the appellants, at the outset, submitted that the accident was witnessed by one Clemant D'Souza who had filed the complaint. However, on account of inadvertence on the part of the counsel, the aforesaid witness could not be examined on behalf of the claimants. It is further submitted that the claimants be afforded an opportunity to examine the aforesaid witness.

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On the other hand, learned counsel for the

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Insurance Company has opposed the aforesaid prayer.

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We have considered the submission made on both sides. In the fact situation of the case and taking into account the well settled legal principle that due to inadvertence on the part of the counsel, a party should not suffer, we are inclined to grant one opportunity to the

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claimants to produce the complainant who is an eye-witness to the aforesaid accident as well as the Investigating Officer.

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In the result, the judgment dated 09.01.2017 passed by the Claims Tribunal is quashed. Matter is remitted to the Claims Tribunal for affording an opportunity to the claimants to produce the complainant namely Clemant D'Souza, who is the eye-witness to the accident and the Investigating Officer, as witnesses before the Claims Tribunal.

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Learned counsel for the parties undertake to appear before the Claims Tribunal on 01.04.2021, along with a copy of this judgment. The Claims Tribunal, thereafter, shall afford an opportunity to the claimants to produce the eyewitness to the accident and the Investigating Officer and thereafter record the evidence of the parties on the issue with regard to the manner of accident. In case the appellants are not able to produce the Investigating Officer, the Claims Tribunal shall issue summons to the Investigating

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Officer for his appearance. The Claims Tribunal shall make an endeavour to decide the case within a period of three months there from.

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Accordingly, the appeal is disposed of.

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SD/JUDGE

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SD/JUDGE

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Smt Anith D Souza v. MD Abdul Reheman

Case brief

What is this about?

What did the court decide?

Smt Anith D Souza v. MD Abdul Reheman

Case brief

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