Partly allowed

Arun Gadag v. M/S National Insurance Co. Ltd.

Karnataka HC13 Oct 2022MFA/1012/2021

Case brief

AI extract

What is this about?

In an appeal under Section 173(1) of the MV Act filed by an injured motorcycle rider against the assessment rejecting his compensation claim, the High Court of Karnataka allowed the appeal and remanded the matter back to the Claims Tribunal.

What did the court decide?

The judgment and award of the Tribunal are set aside, and the matter is remitted back to the Tribunal for fresh consideration.

Arun Gadag Vs M/S National Insurance Co. Ltd. — Motor Accident Claims | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^TH DAY OF OCTOBER 2022

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BEFORE

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THE HON’BLE MR.JUSTICE H.T.NARENDRA PRASAD

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MFA No.1012 OF 2021(MV)

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BETWEEN:

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Mr. Arun Gadag, S/o Ganeshappa, Aged about 28 years, R/o 7/2/169, Hospet Road, MUG 2^nd Line/20, Hudco Colony, Koppal-583 231, And also R/at # 5123, Restige, Shanthiniketan, Whitefield, Bengaluru-560 048. … Appellant

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(By Sri.Gurudev Prasad K.T., Advocate)

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AND:

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M/S National Insurance Co. Ltd.,

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Motor Claims Hub, No.144, Subharam Complex, M.G.Road, Bengaluru-560 001.

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Mr. Prajwall G.M.,

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S/o Mallikarjuna, Nelavagilu, Hosakote Taluk, Bengaluru Rural Dist-562 122. ... Respondents

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(By Sri.Sanmathi E.I., Advocate for R1; Notice to R2 is D/W V/o dated: 13.10.2022)

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This MFA is filed under Section 173(1) of MV Act, against the Judgment and Award dated:15.03.2019 passed in MVC No.4546/2018 on the file of the XVII- Additional Judge, Court of Small Causes and Member, MACT, Mayo Hall Unit, Bengaluru (SCCH-21) dismissing the claim petition for compensation.

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This MFA, coming on for orders, this day, this Court, delivered the following:

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J U D G M E N T

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This appeal under Section 173(1) of Motor Vehicles

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Act, 1988 (hereinafter referred to as ‘the Act’) has been filed by the claimant being aggrieved by the judgment and decree dated 15.03.2019 passed by the XVII Addl. Judge, Court of Small Causes and Member, MACT, Mayo Hall Unit, Bengaluru (SCCH-21) in MVC No.4546/2018.

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Facts giving rise to the filing of the appeal briefly stated are that on 17.05.2018 at about 5.30 a.m., the claimant was proceeding on the motorcycle bearing registration No.KA-01/HT-4708 on ring road, near Lumbini Garden, Bangalore city. At that time, a car bearing registration No.KA-53/C-5585 being driven by its driver at a

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high speed and in a rash and negligent manner, dashed to the vehicle of the claimant. As a result of the aforesaid accident, the claimant sustained grievous injuries and was hospitalized.

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The claimant filed a petition under Section 166 of

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the Act seeking compensation. It was pleaded that he spent huge amount towards medical expenses, conveyance, etc. It was further pleaded that the accident occurred purely on account of the rash and negligent driving of the offending vehicle by its driver.

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On service of notice, the respondent No.1 appeared through counsel and filed written statement in which the averments made in the petition were denied. The age, avocation and income of the claimant and the medical expenses are denied. It was pleaded that the petition itself is false and frivolous in the eye of law. It was further pleaded that the accident was due to the rash and negligent

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riding of the vehicle by the claimant himself. It was further pleaded that the driver of the offending vehicle did not have valid driving licence as on the date of the accident. It was further pleaded that the liability is subject to terms and conditions of the policy. It was further pleaded that the quantum of compensation claimed by the claimant is exorbitant. Hence, he sought for dismissal of the petition.

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The respondent No.2 did not appear before the Tribunal inspite of service of notice and was placed exparte.

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On the basis of the pleadings of the parties, the

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Claims Tribunal framed the issues and thereafter recorded the evidence. The claimant himself was examined as PW-1 and another witness was examined as PW-2 and got exhibited documents namely Ex.P1 to Ex.P18. On behalf of the respondents, neither any witness was examined nor got exhibited documents. The Claims Tribunal, by the impugned judgment, inter alia, held that the involvement of the

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offending vehicle is not proved and hence dismissed the claim petition. Being aggrieved, this appeal has been filed.

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The learned counsel for the claimant has raised

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the following contentions:

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Firstly, the claimant has suffered injury in the road traffic accident occurred on 17.05.2018 due to rash and negligent driving of the driver of the car bearing registration No.KA-53/C-5585. Immediately after the accident claimant has lost consciousness, he was not in a position to identify the car number. When he has been admitted to the hospital, in the first instance he has given a statement before the doctor that the vehicle which hit him is a car and the same has been written in the hospital records produced as Ex.P16. The Tribunal has failed to consider this aspect of the matter.

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Secondly, after the claimant has recovered from the injury he lodged a complaint. The police after investigation have filed charge sheet against the driver of the offending

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vehicle. The same has not been disputed by the owner or the driver of the offending vehicle. The Tribunal without considering these aspects of the matter has erred in dismissing the claim petition. Hence, he sought for allowing the appeal.

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On the other hand, the learned counsel for the Insurance Company has raised following counter contentions:

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Firstly, the accident occurred on 17.05.2018 and the complaint has been lodged on 26.06.2018 after a delay of 39 days. The claimant has not given any proper reason for delay in lodging the complaint.

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Secondly, even though the police have filed charge sheet against the driver of the offending vehicle the investigation officer has not been examined to prove how they have obtained information regarding the vehicle. The Tribunal after considering the evidence on record has rightly dismissed the claim petition.

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Heard the learned counsel for the parties and

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perused the judgment and award.

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It is the case of the claimant that on 17.05.2018

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at about 5.30 a.m., the claimant was proceeding on the motorcycle bearing registration No.KA-01/HT-4708 on ring road, near Lumbini Garden, Bangalore city. At that time, a car bearing registration No.KA-53/C-5585 being driven by its driver at a high speed and in a rash and negligent manner, dashed to the vehicle of the claimant. As a result of the aforesaid accident, the claimant sustained grievous injuries and was hospitalized. After recovering from the injuries he filed a claim petition. The claimant examined himself as PW-1 and produced 18 documents.

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The specific case of the claimant is that immediately after the accident, he lost consciousness, he was not in a position to identify the registration number of the car but the moment he was admitted to the hospital he has given a

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statement that his vehicle has been hit by a car and the same has been entered in the MLC extract produced as Ex.P16 which is registered on 17.05.2018. Even the police have filed the charge sheet against the driver of the offending vehicle, but the Tribunal has failed to consider the said document. The claimant has not examined the doctor who has written the MLC extract and the parties have not examined the investigating officer to establish that the car bearing registration No.KA-53/C-5585 was involved in the accident. Under these circumstances, to give one more opportunity to both the parties the matter requires to be remanded back to the Tribunal for fresh consideration.

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Accordingly, appeal is allowed. The judgment and award passed by the Tribunal is set aside. The matter is remitted back to the Tribunal for fresh consideration after giving opportunity to both the parties to adduce evidence and to produce additional documents. The Tribunal is

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directed to dispose of the matter without being influenced by the observations made in this order.

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Both the parties and/or their advocates are directed to appear before the Tribunal at 11.00 a.m. on 09.11.2022 without any further notice. The Tribunal is directed to dispose of the matter within four months from the date of appearance of the parties.

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Sd/-

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Cm/-

Arun Gadag v. M/S National Insurance Co. Ltd.

Case brief

What is this about?

What did the court decide?

Arun Gadag v. M/S National Insurance Co. Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

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