Partly allowed

Thimmakka v. D. Manjunatha

Karnataka HC9 Feb 2023MFA/6402/2013

Case brief

AI extract

What is this about?

This appeal challenged the dismissal of a motor accident compensation claim. The High Court set aside the lower tribunal's order, finding a gross error in ignoring totality of evidence. The matter was remanded for fresh adjudication.

What did the court decide?

The impugned judgment and award dated 30.01.2013 was set aside, and the matter was remanded back to the jurisdictional tribunal for fresh adjudication.

Thimmakka Vs D. Manjunatha — Motor Accident Claims | Karnataka HC (2023)

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MFA No. 6402 of 2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 9^TH DAY OF FEBRUARY, 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. 6402 OF 2013 (MV-I)

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BETWEEN:

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THIMMAKKA AGED ABOUT 49 YEARS W/O.LATE KARIYANNA

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KEMPAIAH AGED ABOUT 29 YEARS S/O.LATE KARIYANNA

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BOTH ARE R/AT JOGIHALLI VILLAGE KALLAMABELLA HOBLI SIRA TALUK

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TUMKUR DISTRICT–572 137

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…APPELLANTS

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(BY SRI PATEL D. KARE GOWDA, ADVOCATE)

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AND:

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Digitally signed by B LAVANYA Location: HIGH COURT OF KARNATAKA

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D.MANJUNATHA AGED ABOUT 30 YEARS S/O.DHALAPPA R/AT THARUR KALLAMBELLA HOBLI SIRA TALUK, TUMKUR DISTRICT – 572 137

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THE UNITED INDIA INSURNANCE COMPANY LTD. JAYADEVA COMPLEX I FLOOR, B.H.ROAD TUMAKURU – 572 101 BY ITS MANAGER

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…RESPONDENTS

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(BY SRI SRISHAILA, ADVOCATE FOR R2;

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R1 IS SERVED)

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MFA No. 6402 of 2013

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED:30.1.2013 PASSED IN MVC NO.1022/2009 ON THE FILE OF THE SENIOR CIVIL JUDGE AND ADDITIONAL MACT AT SIRA.

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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 claimants being aggrieved

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by the judgment and award dated 30.01.2013 passed by the Senior Civil Judge and Additional MACT at Sira (hereinafter referred to as ‘the tribunal’ for short) in MVC.No.1022/2009, wherein the tribunal has dismissed the claim petition preferred by the claimants for the death of one Kariyanna having occurred in the road traffic accident on 06.07.2009.

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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:

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On 06.07.2009 at 9.00 p.m. the deceased Kariyanna and

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Mahadevappa were proceeding by walk on the left side of the road near the land of Honnappa at Dodda Aladamara Village on NH-4, during which time, a motor cycle bearing registration No.KA.06.EB.6415 came in a rash and negligent manner from

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Jogihalli service road so as to endanger human life and safety and dashed against the deceased Kariyanna. Due to the accident, Kariyanna sustained grievous injuries and immediately, he was shifted to NIMHANS, Bengaluru and thereafter, he was referred to District Hospital at Tumakuru. When Kariyanna was under treatment, due to the injuries sustained by him, he succumbed to the same on 18.07.2009.

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3.1 It is the case of the claimants, who are none other than the wife and son of the deceased that the deceased Kariyanna was an agriculturist and also doing sheep business and he was earning an income of Rs.10,000/- per month and the claimants were dependant on the deceased financially and emotionally.

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3.2 On service of notice, respondent Nos.1 and 2 i.e. the owner-cum-rider of the motor cycle and the Insurance Company as per para-4 of the impugned judgment shows that they have appeared and filed their statement of objections whereas in the first page of the judgment and award, it is shown that respondent No.1 was placed ex parte and respondent No.2 is represented by the pleader

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MFA No. 6402 of 2013

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B.K.Chandrashekaraiah. The same is contrary to para-4 of the impugned judgment wherein it is stated that respondent No.1 has contended that the vehicle was insured with respondent No.2 and any liability on his part would have to be indemnified by Insurer-respondent No.2, as policy was in force. Respondent No.2 has filed statement of objections inter alia contending that the Insurance Company is not liable to indemnify or pay the compensation, in view of violation of terms and conditions of policy and that the petition is liable to be dismissed.

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3.3 On the basis of pleadings, the tribunal framed relevant issues for consideration. In order to substantiate the issues and to establish the case, claimant No.2 examined himself as PW.1 and another witness as PW.2 and got marked documents as Exs.P1 to P9. Thereafter, Exs.P10 to P12 was got marked on behalf of the claimants, pursuant to the remand by this Court in MFA.No.8603/2010 dated 30.11.2011, whereas, respondents have not led any evidence, but after remand, respondent No.2 examined one of the Investigating Officers as RW.1 and got marked the policy as Ex.R1.

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MFA No. 6402 of 2013

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It is the vehement contention of learned counsel for appellants-claimants that the tribunal has committed a gross error in not appreciating the material evidence both oral and documentary and has passed an erroneous order, which is illegal and requires to be set aside. It is the contention of learned counsel that the tribunal has lost sight of the fact that the deceased met with the accident on 06.07.2009 which is seriously not disputed by the contesting respondents and also the fact that the criminal case came to be registered as against the rider of the motor cycle, the offending vehicle and charge sheet also came to be laid against him which are all produced and marked by way of Police records pursuant to enquiry and investigation in Exs.P1 to P7 and thereafter, Exs.P8 to P10 came to be marked, which are medical records of the concerned Hospital.

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4.1 It is the further contention of learned counsel for the appellants-claimants that the Police records produced at Exs.P1 to P7, laying of charge sheet and criminal case being registered as against the rider of the motor cycle is proved. The same is not questioned or challenged either by the rider of the motor cycle. This aspect of the matter has been lost sight by the

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MFA No. 6402 of 2013

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tribunal in dismissing the claim petition in totality. The reasoning of the tribunal is perverse and contrary to the material placed on record. The tribunal has dismissed the claim petition on the ground that in Ex.P10, which is the hospital record i.e. the first date of admission of the deceased immediately after the occurrence of accident, wherein the history of case was mentioned that ‘the deceased was riding a cycle, when it was hit by a bike’ and also on the ground that the deceased was brought to the Hospital by one Rajanna, who signed as the guardian of the patient. According to the tribunal, the said Rajanna having not been examined as a witness and the claimants not being the signatories to Ex.P10, are fatal to the case. Hence, the tribunal has dismissed the claim petition as there being contrary statement made in Ex.P10 and also in the complaint-Ex.P2.

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4.2 Learned counsel contends that the tribunal has based its reliance for dismissal on the ground that the claimants are not sure as to where the accident has occurred whether on the service road of NH-4 or on NH-4 main road itself. On these grounds, he contends that the tribunal has totally erred in dismissing the claim petition, which is contrary to the material

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MFA No. 6402 of 2013

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evidence placed on record both oral and documentary. He further contends that the tribunal has not considered the evidence of PWs.1 and 2 and also the evidence of RW.1. It is a clear case of the claimants that PW.2, who was walking along with deceased Kariyanna and Mahadevappa, who was the eye witness and he has clearly narrated the incident as to how the accident occurred on the service road of NH-4 leading to the injuries suffered by the deceased and thereafter, he succumbed to the same. This aspect of the matter has not been considered by the tribunal. On these submissions, learned counsel seeks to allow this petition and to set-aside the judgment passed by the tribunal.

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Per contra , learned counsel for the Insurance Company vehemently contends that the judgment and award passed by the tribunal is in accordance with the materials placed on record and there is no illegality or perversity in the judgment passed by the tribunal. He further contends that the tribunal is right in dismissing the claim petition, as there are several infirmities and laches in the contention put-forth by learned counsel for claimants and so also, in the documents produced by them.

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MFA No. 6402 of 2013

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5.1 Learned counsel for Insurance Company primarily relies on three fundamental points of contradictions of the claimants namely, (i) there is a delay in filing the complaint before the Police Station, which is 12 days after occurrence of accident; (ii) the number of the vehicle which was involved in the accident is stated to have been noted down, but the same is not mentioned at the first instance in Ex.P10 before the Hospital authorities and so also, (iii) the vehicle number which was noted down is not stated before the Government Hospital, Tumakuru or before Nimhans Hospital.

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5.2. Learned counsel also contends that there is discrepancy in Ex.P10-the hospital records, wherein initially at the first instance, when the deceased was taken to the Hospital, history of incident was mentioned as ‘the patient was riding a cycle, when it was hit by a bike’, whereas in the claim petition, it is stated that the deceased was walking on the side of the road along with one Mahadevappa and followed by another person one PW.2, which runs contrary to the claim petition and narration of events in the evidence of PWs.1 and 2. Therefore, there is discrepancy and claimants have not come

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MFA No. 6402 of 2013

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before the Court with clean hands that it appears that there is collusion between claimants and the owner of the offending vehicle in making unlawful gain from the Insurance Company. It is also contended by learned counsel that though Ex.P10 is recorded and also mention of MLC, nothing has been produced or placed by the claimants to establish or substantiate the same. In view of the same and there being no MLC records, the case put-forth by the claimants appears to be frivolous, concocted and fabricated. On these grounds, he sustains the judgment of the tribunal and seeks for dismissal of this appeal.

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Having heard learned counsel for appellant and learned counsel for respondent-Insurance Company, the points that arise for consideration are –

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“(i) Whether the claimants have made out a case

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for interference? (ii) What order?”

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This is the second round of litigation of the claimants.

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In the earlier round of litigation, the claim petition came to be dismissed and the same was remanded by this Court in MFA.No.8603/2010 dated 30.11.2011 and the parties were permitted to adduce further evidence and to place material

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MFA No. 6402 of 2013

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before the Court and subsequent to the matter being remanded, the claimants adduced evidence and got marked Exs.P1 to P12, so also, the witnesses were cross-examined and similar fate was met with by the claimants with regard to dismissal of the claim petition. It is very unfortunate to note that the tribunal has not considered the material available on record, so also, did not bother to call for MLC records which is apparently shown in Ex.P10 and neither the claimants or respondents placed the MLC records to substantiate the case before the tribunal.

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In the present case, the occurrence of accident, involvement of the vehicle and the death of the deceased are all not seriously disputed either in statement of objections or in the cross-examination of the respondents as against PWs.1 or 2. However, the tribunal has based its reasoning only on the ground that there is discrepancy in Ex.P10 with regard to the deceased riding a cycle when he was hit by a bike and that being contrary to the complaint registered at Ex.P2, wherein the son of the deceased states that the deceased walking on the service road, so also, with regard to non production of MLC register. The tribunal has also placed its reliance for dismissal

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MFA No. 6402 of 2013

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on the ground that there is a delay in registration of complaint and also there is discrepancy in the spot sketch and that of the version narrated by the claimants.

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It is a fundamental rule of law that while deciding the motor accident cases, the tribunal has to decide the case on the basis of preponderance of probability and not on the proof beyond reasonable doubt to establish the case of the claimants. The tribunal does not deal with the criminal case but, it deals with the case with regard to claim of compensation in a road traffic accident. Therefore, it cannot place its reliance on delay of registration of complaint before the jurisdictional Police as that is not the relevant point of the day to be considered, in view of the fact of Ex.P10, which is the first document immediately after the occurrence of accident i.e. on the same date, when the deceased was immediately shifted to the District Hospital, Tumakuru. Therefore, there may be discrepancy in notings of the said document of the District Hospital, Tumakuru as to how the accident had occurred, which would be again subject to other materials placed before the Court.

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MFA No. 6402 of 2013

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It is the statement of PWs.1 and 2 that the deceased Kariyanna was walking on the service road, when he met with accident and he was not traveling on a cycle. PW.2 is none other than an eye witness, who was walking behind Kariyanna and Mahadevappa belonging to the same village. He has categorically stated that while deceased Kariyanna was walking, he was hit by a motor cycle i.e. the offending vehicle on service road of NH-4. Merely because there is discrepancy of mentioning NH-4 as the road, in which the accident occurred, that cannot be the basis for the tribunal to dismiss the claim petition and so also, in Ex.P10 that the patient was riding the cycle when he was hit by a bike. The tribunal cannot take stray incidents or mentioning in any of the document to base its reliance for dismissal of the claim petition. It has to decide the matter on the totality of the circumstances and the materials placed before it.

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Having perused the impugned judgment and having heard the submissions of learned counsel for the respective parties and going through the entire original records, this Court is of the opinion that the tribunal has committed a gross error in dismissing the claim petition without considering the entire

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MFA No. 6402 of 2013

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materials on record both oral and documentary. Hence, the said impugned judgment and award deserves to be set aside. Accordingly, it is set aside.

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In view of the fact that the tribunal has not decided the matter on merits with regard to other aspects, the matter deserves to be remanded for fresh disposal by giving an opportunity to the claimants as well as the respondents to lead any further evidence or cross-examine the witness and to produce any further documents, if any. Accordingly, 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 30.01.2013 passed by the Senior Civil Judge and Additional MACT at Sira in MVC.No.1022/2009 is set-aside;

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iii) The matter is remanded back to the jurisdictional tribunal for fresh adjudication;

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iv) In view of the fact that the accident occurred in the year 2009 and already a decade having passed, I deem it appropriate to direct the jurisdictional tribunal to dispose of the matter within an outer limit of six

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MFA No. 6402 of 2013

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months from the date of receipt of a copy of this order;

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v) Both parties along with respective counsel shall appear before the jurisdictional tribunal on 09.03.2023 without awaiting any further notice either from the tribunal or from this Court;

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vi) Parties are at liberty to adduce evidence and cooperate with the tribunal.

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vii) Registry shall transmit the original records to the jurisdictional tribunal forthwith.

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Sd/JUDGE

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LB List No.: 1 Sl No.: 39

Thimmakka v. D. Manjunatha

Case brief

What is this about?

What did the court decide?

Thimmakka v. D. Manjunatha

Case brief

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