Allowed

Lakkawwa S/O Kumar Bajantri v. Ravindra Maruti Pattrut

Karnataka HC11 Aug 2022MFA/20955/2013

Case brief

AI extract

What is this about?

The High Court allowed the miscellaneous first appeal against a Motor Accidents Claim Tribunal order dismissing a compensation claim. Finding that the Tribunal had not properly appreciated contradictory evidence and that the accident's occurrence was not disputed, the Court remitted the matter for fresh hearing to adduce evidence regarding the mechanics of the accident.

What did the court decide?

The impugned judgment and order dismissing the claim petition are set aside; the matter is remitted to the Tribunal for fresh consideration and evidence.

Lakkawwa S/O Kumar Bajantri Vs Ravindra Maruti Pattrut — Insurance | Karnataka HC (2022)

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MFA No. 20955 of 2013

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IN THE HIGH COURT OF KARNATAKA

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DHARWAD BENCH

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DATED THIS THE 11^TH DAY OF AUGUST, 2022

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BEFORE

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THE HON'BLE MR JUSTICE H.P.SANDESH MISCELLANEOUS FIRST APPEAL NO. 20955 OF 2013 (MV-D)

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BETWEEN:

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LAKKAWWA S/O KUMAR BAJANTRI AGE:33 YEARS,OCC:HOUSEHOLD,: RAIBAG

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RAVINDRA S/O KUMAR BAJANTRI AGE: 17 YEARS,OCC: STUDENT,

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SRIDEVI D/O KUMAR BAJANTRI AGE: 15 YEARS, OCC:STUDENT,

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SRIKANT S/O KUMAR BAJANTRI AGE: 12 YEARS, OCC:STUDENT,

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ALL ARE R/O: NILAJI, TAL : RAIBAG, DIST:BELGAUM.

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…APPELLANTS

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(BY SRI. K H BAGI, ADVOCATE)

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AND:

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Digitally signed by AND: J MAMATHA J Location: MAMATHA Dharwad Date: 2022.08.18

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12:25:13 +0530 1. RAVINDRA MARUTI PATTRUT AGE: 40 YEARS, OCC: BUSINESS, R/O : CHINCHALI, TAL : RAIBAG DIST:BELGAUM.

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THE NEW INDIA ASSURANCE CO, LTD THROUGH ITS DIVISIONAL MANAGER CLUB ROAD, BELGAUM.

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KALLAPPA S/O BHIMARAO BAJANTRI AGE: 62 YEARS, OCC: NIL, R/O: NILAJI, TAL : RAIBAG

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MFA No. 20955 of 2013

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DIST:BELGAUM.

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SMT.INDRAWWA KALLAPPA BAJANTRI AGE: 57 YEARS, OCC: HOUSEHOLD R/O: NILAJI, TAL : RAIBAG DIST:BELGAUM.

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…RESPONDENTS

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(BY SRI.G.N.RAICHUR, ADV. FOR R2, R1, R3 AND R4 ARE SERVED)

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THIS MFA IS FILED UNDER SECITON 173 (1) OF INDIAN MV ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 28.12.2011 PASSED IN MVC No.383/2006 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-II, AND MEMBER ADDL. MACT., BELGAUM, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL COMING ON FOR ADMISSION, THIS DAY. THE COURT DELIVERED THE FOLLOWING.

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JUDGMENT

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Though this matter is listed for admission, with the

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consent of learned counsel appearing for the parties, the matter is taken up for final disposal.

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The factual matrix of the case of the claimants before the Tribunal is that on 24.01.2006 when the deceased (Kumar Kallappa Bajanthri) being the pillion rider and Vittal Sidram Hasare being the rider were proceeding on a Hero Honda motorcycle bearing registration No.KA-23/Q-7031 in a moderate speed on his left side of the road near Nilaji Alaknur

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MFA No. 20955 of 2013

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road within the limits of Nilaji village, the driver of a tractor and trailer bearing registration No.KA-23/TA-175-176 which was ahead of the said motorcycle suddenly took the tractor in reverse direction. As a result of the heavy impact, Kumar Kallappa Bajanthri died on the spot and Vittal Sidram Hasare (claimant in M.V.C.No.381/2006) sustained grievous injuries. It was the claim of the claimants before the Tribunal that prior to the accident, the deceased was hale and healthy and doing tailoring and motor winding work and thereby earning Rs.6,000/- p.m. and maintaining his family. Due to the untimely death of their son, the family has lost the bread earner of the family. Hence, the claimants filed claim petitions before the Tribunal seeking for compensation.

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The Insurance Company in pursuance of the notice, filed the written statement stating that the tractor trailer was insured with respondent No.2 and respondent No.1 was the owner of the said vehicle. The liability is subject to the terms and conditions and the driver was not having a valid driving license to drive the vehicle and denied all the allegations made in the claim petition and prayed the Court to dismiss the claim petition.

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MFA No. 20955 of 2013

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In support of their claim, the claimants got examined wife of the deceased as PW-1, the injured Vittal Sidram Hasare (claimant in M.V.C.No.381/2006) as PW-2, the doctor as PW-3 and one eyewitness as PW-4 and also got marked documents Ex.P.1 to Ex.P.12. On the other hand, respondents did not examine any witness but got marked the copy of the policy as Ex.R.1.

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The Tribunal after assessing both oral and documentary evidence particularly the evidence of PWs-2 and 4 comes to the conclusion that their evidence was contradictory to each other and created a doubt whether the alleged accident occurred as contended by the claimants and hence, dismissed the claim petitions. Accordingly, the claimants who are the legal heirs of deceased Kumar Kallappa Bajanthri have filed the present appeal before this Court.

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Learned counsel appearing for the

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appellants/claimants would vehemently contend that the occurrence of the accident between the Hero Honda motorcycle as well as the tractor-trailer is not disputed. But the Tribunal failed to look into the document at Ex.P.3 and Ex.P.5 which

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MFA No. 20955 of 2013

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clearly disclose that the driver of the tractor was driving the tractor and the charge-sheet has been filed against him. Therefore, the fact whether the deceased was the rider or the injured claimant was the rider of the motorcycle is irrelevant and Tribunal has failed to appreciate the evidence of PW-2 wherein he has categorically deposed that he himself was riding the motorcycle. PW-2 is a village rustic and illiterate person. He appeared before the Court for the first time and due to fear he could not understand the questions while cross-examination. The same has not been considered by the Tribunal and the very approach of the Tribunal is erroneous. The Tribunal has failed to take into consideration the complaint, FIR, spot panchanama and other documents and without even touching and discussing the said documents comes to the conclusion that the very accident itself is doubtful. Hence, he submits that the impugned judgment and order calls for interference of this Court.

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Per contra, learned counsel for the Insurance

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Company would vehemently contend that PWs-2 and 4 claim that the deceased was riding the motorcycle and PW-2 was the pillion rider. PW-1, wife of the deceased states that the

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MFA No. 20955 of 2013

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deceased was proceeding on the motorcycle as a pillion rider. PW-2 is the injured witness and PW-4 is the eyewitness to the incident. Hence, the Tribunal has not considered the evidence of PW-1, the wife of the deceased Kumar Kallappa Bajanthri who has not all witnessed the incident. Hence, the Tribunal has rightly found contradictions in the evidence of PWs-2 and 4 as well as the claim made by the claimants and held that there cannot be two pillion riders for a single motorcycle. and hence comes to the conclusion with regard to the alleged accident and rightly dismissed the claim petition. Hence, the Tribunal has rightly found contradictions in the evidence of PWs-2 and 4 as well as the claim made by the claimants and held that there cannot be two pillion riders for a single motorcycle. Learned counsel would also submit that the injured claimant who is the petitioner in M.V.C.No.381/2006 has not challenged the judgment and order of the Tribunal and hence it does not require any interference.

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Having heard the learned counsel appearing for the parties and also on perusal of the material available on record, the points that arise for consideration of this Court are:

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MFA No. 20955 of 2013

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i) Whether the Tribunal has committed any error in dismissing the claim petition?

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ii) What order?

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Reg:Point No.1:

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On perusal of the material on record, it is seen that the Tribunal has come to the conclusion that the evidence of PW-1 with regard to the accident cannot be considered as she is not an eyewitness. No doubt, PW-2 in the affidavit claims that he was the pillion rider on the Herohonda motorcycle. But during the course of cross-examination, the Insurance Company suggested that he was riding the motorcycle at the time of the incident and the same has been denied by PW-2. A further suggestion was made that deceased Kumar Kallappa Bajanthri was riding the motorcycle who was not having the driving license and the said suggestion is also denied.

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The other witness PW-3 is the doctor and the evidence of the doctor is not relevant to consider this appeal.

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The other witness is PW-4 who claims that at the time of the accident he was going on a bicycle and at that time,

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MFA No. 20955 of 2013

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he saw deceased Kumar Kallappa Bajanthri riding the motorcycle. But, in the cross-examination a suggestion was made that at the time of the incident, the injured Vittal Hasare was riding the said motorcycle and the same has been denied by him.

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On perusal of the FIR i.e., Ex.P.1, it is seen that there is a mention that the deceased Kumar Kallappa Bajanthri was proceeding on the motorcycle as a pillion rider and PW-2 was riding the motorcycle and Ex.P.5, the charge-sheet is also in consonance with the FIR.

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Learned counsel appearing for the

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respondent/Insurance Company also brought to the notice of this Court, Ex.P.2 wherein one Kallappa Bhimrao Bajanthri gave the complaint before the police which was in terms of Ex.P.1, FIR and also in terms of Ex.P.5, charge-sheet which disclosed that deceased Kumar Kallappa Bajanthri was proceeding on the motorcycle as a pillion rider and PW-2 was riding the motorcycle. The said Kallappa bhimrao Bajanthri was not examined before the Tribunal but instead PW-4 who allegedly claims to have witnessed the accident has been examined and

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MFA No. 20955 of 2013

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he has not given any complaint before the police. The evidence of PW-2 and PW-4 is contrary to the claim of the appellants herein. Both of them have stated in their evidence that PW-2 was the pillion rider. Merely because the evidence of PW-4 is in consonance with the evidence of PW-2, the very observation of the Tribunal that the evidence of PW-2 and 4 is contradictory to each other against the claimants cannot be accepted. The Tribunal in paragraph 17 has made observation that considering the evidence and discussions made, the very versions of PW-2 who is the injured claimant and PW-4 who is the eye witness to the incident is contradictory and thereby it creates a doubt as to who actually was riding the motorcycle at the time of the accident but the fact that the accident occurred between the motorcycle as well as the tractor has not been denied in the written statement filed by the Insurance Company.

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The Insurance Company in the written statement contended that the vehicle was insured with the Insurance Company and the liability was accepted only in terms of the terms and conditions. It is not the case of the Insurance company that the insured has violated the terms and

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MFA No. 20955 of 2013

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conditions. No doubt the evidence of PWs-2 and 4 is contradictory to the claim made by the claimants but the Insurance Company has not examined any witnesses disputing the occurrence of the very accident except marking of the policy at Ex.R.1 and suggested in the cross-examination that PW-2 was riding the motorcycle. The claim of the claimants cannot be discarded and it requires examination of the Investigation Officer with regard to the occurrence of the accident. In the absence of the evidence of the complainant who gave the complaint, this Court is of the opinion that it is appropriate to set aside the judgment and order of the Tribunal dismissing the claim petition and both parties to adduce evidence regarding the same. Hence the matter requires to be remitted back to the Tribunal and the concerned witnesses have to be examined before the Tribunal and then the Tribunal has to take a decision in the matter. Since no dispute regarding involvement of offending vehicle in the accident and only dispute is with regard to was riding the motorcycle at the time of the accident. In view of the above, I answer point No.1 in the affirmative.

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MFA No. 20955 of 2013

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In view of the above discussions, I pass the

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following:

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ORDER

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i) The appeal is allowed,

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ii) The impugned judgment and order dated 28.12.2011 passed by the Fast Track Court II and Addl. MACT, Belgaum, in M.V.C.No.383/2006 is set aside.

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iii) The matter is remitted back to the Tribunal to consider the matter afresh in view of the observations made by this Court,

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iv) The respective parties may be given an opportunity before the Tribunal to adduce evidence,

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v) The Tribunal is also directed to dispose of the matter within an outer limit of six months,

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vi) The parties are directed to appear before the Tribunal on 02.09.2022 without expecting any notice from the Tribunal and the parties are also directed to assist the Court in disposal of the matter within the time stipulated,

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MFA No. 20955 of 2013

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vii) The registry is directed to send back the TCR forthwith.

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(Sd/-) JUDGE

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Lakkawwa S/O Kumar Bajantri v. Ravindra Maruti Pattrut

Case brief

What is this about?

What did the court decide?

Lakkawwa S/O Kumar Bajantri v. Ravindra Maruti Pattrut

Case brief

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