Allowed

Rohit G.S v. the Divisional Manager

Karnataka HC7 Jun 2022MFA/10880/2010

Case brief

AI extract

What is this about?

The High Court allowed the Motor Vehicle Appeal, setting aside the Tribunal's dismissal of the compensation claim. It held the auto rickshaw driver was rash and negligent based on the charge sheet and spot sketch, remanding the case solely for determining compensation quantum. Interest was denied due to appellant's delays.

What did the court decide?

Judgment and award dismissed on 10.03.2010 in MVC No.3391/2008 set aside; matter remanded for quantum of compensation; no interest awarded due to appellant's delays.

Rohit G.S Vs the Divisional Manager — Insurance | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 07^TH DAY OF JUNE, 2022

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BEFORE

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THE HON'BLE Mr. JUSTICE HANCHATE SANJEEVKUMAR

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M.F.A.NO.10880 OF 2010

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BETWEEN :

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ROHIT G.S AGED 27 YEARS S/O SATHYANARAYANA, R/A NO.203, NANDINI NILAYA, RANGANATHA LAYOUT, BANNARAGHATTA, BANGALORE 83. …APPELLANT

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(BY SRI. PRAKASH, ADVOCATE FOR SRI. M ANIL KUMAR , ADVOCATE)

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AND :

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1 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD DIVISIONAL OFFICE NO.03, MAHALAXMI CHAMBERS, M G ROAD, BANGALORE - 1

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2 . B G NAGARAJ, MAJOR FATHER S NAME NOT KNOWN TO APPELLANT, NO.19, 19TH MAIN, J C NAGAR, BANGALORE - 06

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…RESPONDENTS

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(BY SMT. HARINI SHIVANANDA, ADVOCATE FOR R1(THROUGH VC)

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R2 - NOTICE DISPENSED WITH VIDE ORDER DATED 07.06.2022)

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THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 10.3.2010 PASSED IN MVC NO.3391/2008 ON THE FILE OF IX ADDITIONAL SENIOR CIVIL JUDGE, MEMBER, MACT-7, COURT OF SMALL CAUSES, BANGALORE, DISMISSING THE CLAIM PETITION FOR COMPENSATION.

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THIS MFA COMING ON FOR ORDERS THIS DAY THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is filed under Section-173(1) of the Motor Vehicles Act 1988, (hereinafter referred to as ‘MV Act’ for brevity) by the appellant, challenging the judgment and award dated 10.03.2010, passed in MVC No.3391/2008, on the file of IX Additional Senior Civil Judge, Member, MACT-7, Court of Small Causes, Bengaluru (hereinafter referred to as ‘the Tribunal’ for brevity).

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The brief facts of the case is, the appellant-claimant has contended that on 14.10.2007, at about 4.00 p.m., he was proceeding as pillion rider on Motor Cycle bearing registration No.KA-05-Y-7670 on T.Mariyappa Road, Lalbagh South Gate, when the said Motor cycle reached near house No.345, all of a sudeen auto rickshaw bearing registration No.KA-02-C-2383 which was

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coming from opposite direction driven by its driver with high speed, in rash and negligent manner, dashed against the Motor cycle, as a result he fell down and sustained grievous injuries all over the body.

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Hence, the appellant had filed claim petition under Section-166 of the M.V. Act, claiming compensation for the injuries sustained in the accident. However, the Tribunal had dismissed the claim petition on the ground that there is no actionable negligence on the part of the driver of the auto rickshaw. Therefore, the Tribunal has dismissed the claim petition. The claimant challenging the same has preferred this appeal.

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The learned counsel for the appellant-claimant submitted that, after the investigation, the Investigating Officer had filed charge sheet against the driver of the auto rickshaw. Furthermore, upon perusal of the spot sketch, the auto rickshaw driver had come on the wrong side of the road and hit to the motor cycle, therefore the spot sketch and spot mahazar approves the fact that the auto rickshaw came to the wrong side of the road and hit the motor cycle. Therefore, the actionable negligence is proved on the part of

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the driver of auto rickshaw, but the Tribunal had not appreciated evidences in a true and correct perspective manner. Just because the complaint is lodged by the driver of auto rickshaw against the rider of the motor cycle, but after investigation, whoever is the accused in the charge sheet remains liable, because filing charge sheet itself is a fact or truth finding process. Therefore, in this regard, the Tribunal has not appreciated the evidence correctly and has rendered injustice by dismissing the claim petition.

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On the other hand, the learned counsel for the respondent No.1 submitted that the Tribunal has correctly assessed and appreciated the evidence on record and rightly dismissed the claim petition. Further submitted that initially the complaint was lodged by the auto rickshaw driver as against the rider of the motor cycle, therefore it was very initial point of time. The complaint is filed making accusation against the rider of the motor cycle, that the rider of the motor cycle had driven the motor cycle in rash and negligent manner and dashed to the auto rickshaw. Therefore, he submitted that, the driver of the auto rickshaw was not rash and negligent in driving the auto rickshaw. Hence, submitted that the Tribunal correctly appreciated the evidences and rightly dismissed

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the claim petition, which needs no interference. Therefore prays for dismissal of the appeal.

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In order to find out who was driving the vehicle in rash and negligently, the evidence have to be properly appreciated, Ex.P1 is FIR, Ex.P2 is the complaint. It is true that the driver of auto rickshaw vehicle No.KA-02-C-2383 had lodged complaint as against the rider of the motor cycle. Accordingly, FIR was registered as against the rider of the motor cycle No.KA-05-Y-7670 . The tribunal has swayed away by this FIR and complaint, but the complaint is only first information regarding the accident which had taken place. After conducting the investigation based upon the complaint, the Investigating Officer had filed charge sheet against the driver of auto rickshaw vehicle No.KA-02-C-2383. Therefore, swaying away by just complaint and FIR is not proper. The investigation was conducted as per statute and it has its own weightage. The charge sheet material cannot be brushed aside easily without there being any contra things to that. Therefore, as per the charge sheet the driver of the auto rickshaw has caused the accident in question.

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Further this Court also assessed the evidences i.e., Ex.P4Spot Sketch and Ex.P5-Spot Mahazar and as per these documents, evidences found in the course of investigation regarding the width of the road which is 40 feet and the place of the spot of accident is at 15 feet away from the southern edge of the road and 25 feet away from the northern edge of the road. The motorcycle was going from East to West and auto rickshaw was coming from West to East. Therefore, both vehicles were moving opposite to each other. Therefore, upon considering the spot of accident, it is found out that the auto rickshaw driver had come towards his wrong side i.e., towards his right hand side excessively and hit to the motor cycle. Therefore, the auto rickshaw driver had excessively come 5 feet towards the southern side and hit to the motor cycle. Therefore auto rickshaw driver was rash and negligent in driving the auto rickshaw. It is found that, the rider of the motor cycle was on his correct side within 20 feet, which is in the middle of the road but the auto rickshaw had crossed the middle of the road and hit the motor cycle. Therefore, these sketch and spot mahazar clearly proves the fact that the auto rickshaw driver had come to the wrong side of the road and hit to the motor cycle. Therefore, after

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investigation, charge sheet was filed as against the auto rickshaw driver, therefore investigation conducted is found to be genuine investigation and accordingly the driver of the auto rickshaw was charge sheeted. Therefore, the auto rickshaw driver is found have driven the auto rickshaw in rash and negligent manner and caused the accident, which is not correctly appreciated by the Tribunal. Therefore, the reasonings and findings given by Tribunal are not correct.

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Further the respondent No.1 Insurance Company who is the insurer of the auto rickshaw vehicle No.KA-02-C-2383 had preferred the appeal in MFA No.8091/2011 against the judgment and award passed in respect of very same accident and in that case, the Tribunal in MVC No.3387/2008 had fastened liability on owner and insurer of the auto rickshaw. This Court on 18.03.2016 had dismissed the appeal of the insurer of the auto rickshaw in MFA No.8091/2011 by holding that the auto rickshaw driver was rash and negligent in driving. Therefore, the co-ordinate bench of this Court had already held there was actionable negligence and rashness on the part of the driver of the auto rickshaw. Therefore, this is one more circumstance to allow the appeal by setting aside

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judgment and award passed by the Tribunal. Therefore dismissal of claim petition in MVC No.3391/2008 by the Tribunal, is not correct.

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Hence, the present appeal is liable to be allowed.

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So far as quantum of compensation is concerned, the matter is remanded to the Tribunal for determination of the compensation upon appreciating the evidence on record. Therefore, the matter is required to be remanded to the Tribunal only for the purpose of determination of the compensation without going into the aspect of rash and negligent driving. Hence, the remand is to the limited extent only for the purpose of determination of quantum of compensation. Even though on 27.8.2019, the order dated 09.12.2014 was recalled but later on, necessary steps were not taken by the appellant so as to cause service of notice to respondent No.2. The respondent No.2 was placed Ex.Parte before Tribunal, therefore, the recourse for respondent No.2 ought have been taken for seeking dispensation of notice to respondent No.2. Since he is placed ex-parte before the Tribunal but without doing so, the appellant had dragged the case for 12 years. Therefore, the respondent No.1 Insurance company is not liable to pay the interest on these period. Therefore, the appellant is not entitled for the

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interest for a period from 27.08.2019 to till date, as there is delay of 1366 days in filing the recalling application and 152 days delay in filing the appeal. Both sides are given liberty to adduce any further evidence both oral and documentary.

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Accordingly, I proceed to pass the following:

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ORDER

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i. The appeal is allowed.

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ii. The judgment and award dated 10.03.20210, passed in MVC No.3391/2008, on the file of IX Additional Senior Civil Judge, Mmeber, MACT-7, Court of Small Causes, Bengaluru is set aside.

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iii. The matter is remanded to the tribunal in which the instant MVC is pending, the remand is only to the extent of determination of quantum of compensation.

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iv. The appellant had not taken any steps for service of notice to respondent No.2. Therefore the appeal came to be dismissed on 19.12.2014 and later this Court vide order dated 27.08.2019 had recalled the said dismissal order but observed that there was delay of 1366 days in filing the recalling application. Hence, appellant is not entitled interest for 1366 days.

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v. Furthermore, there is 152 days delay in preferring this appeal. Therefore, appellant is also not entitled for the interest for the delay caused in filing the appeal.

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vi. The Tribunal is directed to dispose of the claim petition within five months from the date of receipt of the copy of this order.

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vii. Both the parties are hereby directed to appear before the Tribunal on 29.6.2022.

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viii. Registry is directed to return the Trial Court Records to the Tribunal, along with certified copy of the order passed by this Court forthwith without any delay.

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ix. Draw award accordingly.

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Sd/-

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JUDGE

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AKV

Rohit G.S v. the Divisional Manager

Case brief

What is this about?

What did the court decide?

Rohit G.S v. the Divisional Manager

Case brief

What is this about?

What did the court decide?

What the court decided

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