Allowed

Sri G Mahesh v. the Divisional Manager

Karnataka HC4 Jan 2023MFA/123/2013

Case brief

AI extract

What is this about?

In a Motor Vehicles Act appeal, the High Court allowed the appeal against a Motor Accident Claims Tribunal order dismissing a claim petition. The Court set aside the Tribunal's judgment and remanded the matter for fresh consideration on the quantum of compensation and liability.

What did the court decide?

The judgment and award dated 04.10.2012 are set aside; the matter is remanded to the tribunal for fresh consideration to decide quantum of compensation and liability within four months.

Sri G Mahesh Vs the Divisional Manager — Insurance | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 4^TH DAY OF JANUARY, 2023

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BEFORE

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THE HON’BLE MR. JUSTICE PRADEEP SINGH YERUR

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MISCELLANEOUS FIRST APPEAL NO.123 OF 2013 (MV)

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BETWEEN:

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SRI G.MAHESH S/O.GOVINDA RAJU AGED ABOUT 21 YEARS R/AT NO.445, JANATHA COLONY BANNERGHATTA, JIGANI HOBLI ANEKAL TALUK – 562 104 BENGALURU DISTRICT ... APPELLANT (BY SRI G.A.VISWANATHA REDDY, ADVOCATE)

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AND:

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THE DIVISIONAL MANAGER BAJAJ GENERAL INSURANCE CO. LTD. NO.77, TBR COMPLEX ADJACENT TO JAIN COLLEGE NEW MISSION ROAD BENGALURU – 560 068

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SMT.R.RADHA W/O.T.RAVICHANDRA AGED ABOUT 32 YEARS R/AT NO.5, SIRUR PARK ROAD MALLESHWARAM SHESHADRIPURAM ROAD BENGALURU – 560 003 ... RESPONDENTS

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(BY SRI P.B. RAJU, ADVOCATE FOR R-1; R-2 IS SERVED)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 04.10.2012 PASSED BY VI ADDITIONAL JUDGE AND

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MACT, BENGALURU CITY (SCCH-2) IN MVC NO.9101/2010 AND ETC.

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THIS APPEAL COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is preferred by the claimant being aggrieved by the judgment and award dated 04.10.2012 passed by VI Additional Judge and MACT, Bengaluru City (SCCH-2) (for short ‘the tribunal’) in MVC.No.9101/2010. This appeal is founded on the premise that the tribunal has dismissed the claim petition and has committed an illegality and perversity without considering the material on record.

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Parties to the appeal shall be referred to as per their status before the tribunal.

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Brief facts of the case is as under:

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On 02.09.2010 at about 9.00 a.m. the claimant was stated to be traveling on a motor cycle bearing registration No.KA-51-Q-3890 as a pillion rider and when the rider and the claimant came near Jelli Mission, BengaluruBannerghatta road, a Scorpio bearing registration No.KA04-ME-9342 came from Bengaluru in a rash and negligent manner so as to endanger human life, dashed against the

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motor cycle, in which the claimant was a pillion rider. Due to which, the claimant sustained injuries to his body. Immediately, he was shifted to the Hospital, wherein he was treated as an inpatient and underwent surgery. It is stated that he was working as a Plumber and earning a sum of Rs.6,000/- per month and he was also studying PUC in Layola evening college. Subsequent to the occurrence of accident, the case came to be registered against the driver of Scorpio in Cr.No.396/2010 for the offences punishable under Sections 279 and 338 of IPC.

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3.1. Respondent No.1-Insurance Company appeared

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and filed statement of objections whereas respondent No.2owner of the offending vehicle remained absent and was placed ex parte . The Insurance Company denied the claim petition inter alia contending that the accident did not occur due to the negligence of the driver of the scorpio vehicle and denied all other contentions raised by the claimant in the claim petition and sought for dismissal of the claim petition.

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3.2. Based on the pleadings, the tribunal framed

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relevant issues for consideration. In order to substantiate the issues and establish the case, the claimant got

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examined himself as PW.1 and the Doctor as PW.2 and got marked the documents as Exs.P1 to P13, whereas respondent No.1-Insurance Company examined its Senior Executive as RW.1 and got marked the documents as Exs.R1 to R4.

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3.3. The tribunal being unsatisfied and unconvinced with the material evidence both oral and documentary and the arguments addressed by both learned counsel, has dismissed the claim petition.

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3.4. The main grounds for dismissal of the claim petition by the tribunal is for two reasons, one is that the claimant has not examined the best evidence i.e. the rider of the motor cycle and that there is certain contradictions with regard to the statement made by the claimant that he was a pedestrian in the Police records as well as in the medical records. Apart from this, nothing else is forthcoming in the impugned judgment and award for dismissal of the claim petition. Even if it is taken that the rider of the motor cycle has not been examined, that alone would not discredit the statement or evidence put-forth by the claimant and there is no mandatory requirement for adducing evidence of the rider as if the claimant is able to

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prove by material evidence both oral and documentary that he had sustained injuries and the offending vehicle was involved in a road traffic accident in a public way and is entitled to claim compensation. The second aspect that there was contradiction by the claimant himself as to whether he was a pedestrian or pillion rider, which has not been clearly established and the same cannot be a negative aspect to discredit the claimant from seeking compensation thereby dismissing the claim petition without adjudicating the merits of the matter. Admittedly, FIR and charge sheet has been laid against the driver of Scorpio and the crime is registered for the offences punishable under Sections 279 and 338 of IPC. In fact, it is also submitted that the criminal proceedings has been ended as the accused therein i.e. the driver of Scorpio has pleaded guilty and paid the fine. Therefore, the occurrence of accident and the involvement of vehicle are not seriously in dispute. The question revolves as to what is the compensation that requires to be awarded. However, the tribunal has dismissed the petition without adverting to the issue of compensation and the injuries sustained or disabilities encountered by the claimant.

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Having heard the learned counsel for claimant and learned counsel for respondent No.1, the points that would arise for consideration are that –

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“(i) Whether the tribunal is justified in dismissing the claim petition?

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(ii) What order?”

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I am in agreement with the contentions put-forth by the learned counsel for claimant that the tribunal has committed an error in not appreciating the material evidence placed on record including the Police records and medical records and the fact of laying of charge sheet and pleadment of the guilty by the driver of Scorpio. Therefore, this matter requires fresh consideration by the tribunal with regard to quantum of compensation and liability.

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With regard to involvement of vehicle and occurrence of accident, the same is established and proved by production of Police records. Therefore, the tribunal need not delve into these aspects. While considering the claim petition to be decided afresh, the tribunal shall delve only upon the issue of quantum of compensation and liability.

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In view of the fact that the accident having occurred on 02.09.2010, I deem it appropriate that the matter will have to be decided within a stipulated time frame to consider the issue raised by this Court. Accordingly, I deem it appropriate that the matter requires to be remanded for fresh consideration. Hence, I 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 04.10.2012 passed by VI Additional Judge and MACT, Bengaluru City, in MVC.No.9101/2010, is set aside;

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iii) The matter is remanded back to the tribunal for fresh consideration to decide the matter on the issue of quantum of compensation and liability;

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iv) The same shall be decided by the tribunal within a period of four (04) months from the date of receipt of a copy of this order;

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v) Parties to the proceedings along with their respective counsel shall appear before the jurisdictional tribunal on 02.02.2023 , without awaiting any further notice either from the tribunal or this Court.

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vi) Registry is directed to transmit the original records to the jurisdictional tribunal forthwith.

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Sd/JUDGE

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Sri G Mahesh v. the Divisional Manager

Case brief

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Sri G Mahesh v. the Divisional Manager

Case brief

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