Allowed

Manikantha S/O Ningappa Wali v. Hasanasab Appalall Mulla

Karnataka HC25 Jan 2024MFA/101286/2018

Case brief

AI extract

What is this about?

The High Court allowed the appeal against the dismissal of a motor accident claim. Finding that a date discrepancy between the complaint and witness testimony was attributable to the illiterate complainant's mistake, the Court set aside the impugned judgment, fixed the accident date, and awarded compensation.

What did the court decide?

Impugned judgment set aside; claim petition allowed; compensation of Rs. 1,58,000/- awarded with interest.

Manikantha S/O Ningappa Wali Vs Hasanasab Appalall… — Motor Accident Claims | Karnataka HC (2024)

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NC: 2024:KHC-D:1835 MFA No. 101286 of 2018

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 25^TH DAY OF JANUARY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE V.SRISHANANDA

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MISCELLANEOUS FIRST APPEAL NO.101286/2018(MV-I)

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BETWEEN:

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MANIKANTHA S/O. NINGAPPA WALI, AGE: 12 YEARS, OCC: STUDENT, SINCE MINOR REPRESENTED BY NATURAL MOTHER SMT. MAHADEVI W/O. NINGAPPA WALI, AGE: 30 YEARS, OCC: COOLIE, R/O: MANIKWADI, TQ: GOKAK, DIST: BELAGAVI – 593 107.

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…APPELLANT

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(BY SRI SANTOSH S. HATTIKATAGI, ADVOCATE)

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AND:

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HASANASAB APPALALL MULLA, AGE: 25 YEARS, OCC: BUISNESS, R/O: MAHALINGESHWAR NAGAR FALLS ROAD, GOKAK, TQ: GOKAK, DIST: BELAGAVI-593107.

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Digitally SAMREEN signed by AYUB SAMREEN DESHNUR AYUB DESHNUR

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THE ORIENTAL INSURANCE CO. LTD., BY ITS SENIOR DIVISIONAL MANAGER, SHANABAG CHAMBERS, KIRLOSKAR ROAD, BELAGAVI – 593 107.

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…RESPONDENTS (BY SRI M.Y.KATAGI, ADVOCATE FOR R2; R1 IS SERVED)

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THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 06.01.2018 PASSED IN MVC NO.874/2016 ON THE FILE OF THE I-ADDITIONAL SENIOR CIVIL JUDGE, GOKAK, DISMISSING THE PETITION FILED UNDER SECTION 166 OF M.V.ACT.

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NC: 2024:KHC-D:1835 MFA No. 101286 of 2018

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

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JUDGMENT

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Though the matter is listed for orders, by consent of

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the parties, the matter is taken up for final disposal.

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The unsuccessful claimant is the appellant who is challenging the validity of the judgment and award passed in MVC No.874/2016 on the file of the I Additional Senior Civil Judge, Gokak dated 06.01.2018.

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Facts in brief which are utmost necessary for the disposal of the present appeal are as under.

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3.1. The guardian of a minor who got injured in a road traffic accident occurred on 19.03.2016 when the said minor boy was returning from the school involving a motor cycle bearing Registration No.KA-49/S-0954 lodged a claim for compensation in regard to the accidental injuries.

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3.2. The claim petition was resisted by filing a

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detailed written statement denying the involvement of motorcycle bearing Registration No.KA-49/S-0954.

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3 - NC: 2024:KHC-D:1835 MFA No. 101286 of 2018

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3.3. Tribunal after raising necessary issues recorded

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the evidence of the claimant who is the guardian of the minor injured, an eye witness and the doctor who issued the disability certificate. As against the oral evidence placed on record by the claimants, no oral evidence is placed on record by the Insurance Company. The claimants have placed 39 documentary evidence on record and on behalf of the Insurance Company, insurance policy is marked as EX-R1.

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3.4 On conclusion of recording of evidence, learned Trial Judge heard the parties in detail and on consideration of the material evidence placed on record by the parties, dismissed the claim petition by recording a finding that the complaint is lodged on 21.03.2016 and in the complaint, it has been mentioned that the accident has occurred on 20.03.2016. Though actual accident has taken place on 19.03.2016, whereby, the claimant failed to establish that the accidental injuries sustained by the minor/appellant on

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the account of a rash and negligent rider of the motorcycle bearing Registration No.KA-49-S-0954.

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Being aggrieved by the same, the claimant is in

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appeal.

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Reiterating the grounds urged in the appeal memorandum, learned counsel Sri. Santosh S. Hattikatagi draws the attention of this Court to the contents of the complaint and contended that the claimant is an illiterate lady; except subscribing her signature she cannot read or write any launguage and therefore, she was unable to understand the niceties of law. He further submitted that she has subscribed the signature on the prepared complaint believing that the contents of the complaint is properly mentioned.

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He further contended that in the complaint itself, there is a mention that the incident has occurred on Saturday when the boy had been to the school and claimant has to attend her menial work in a dhaba. Therefore, tribunal ought not to have dismissed the claim

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on the ground that the accidental injuries is treated on 19.03.2016 for the accident which has occurred on 20.03.2016 and sought for allowing the appeal.

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Per contra , Sri. M Y. Katagi, learned counsel representing the Insurance Company, argued that the documents produced by the claimant is properly appreciated and claimant is estoped from contending contra to the contents of the complaint as well as the other documents placed on record and the same has been likely appreciated by the Tribunal and has rightly dismissed the claim petition and sought for dismissal of the appeal.

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In view of the rival contentions of the parties, this Court perused the material on record meticulously. On such perusal of material on record, the wound certificate issued by the Government Hospital marked at EX-P6 shows that the minor boy has been treated in the NIMRA Hospital, Gokak at the first instance on 19.03.2016.

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In the EX-P6, it has been specifically mentioned that the road traffic accident has occurred on 19.03.2016

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and the minor boy was treated in the Government Hospital, Gokak at about 2.30 P.M. In the complaint dated 20.03.2016, it has been mentioned that ‘F ¢ªÀ¸À £Á£ÀÄ £À£Àß ªÀÄUÀ¤UÉ ±À¤ªÁgÀ EzÀÄÝzÀjAzÀ ¨ÉÃ£ÀUÉ JzÀÄÝ gÉr ªÀiÁr ±Á¯ÉUÉ PÀ¼ÀÄ»¹ ¤vÀåzÀAvÉ UÉÆÃPÁPÀPÉÌ PÉ®¸ÀPÉÌ ºÉÆÃzÉ£ÀÄ‘. The said averments and date of complaint is taken note of by the Tribunal in dismissing the claim petition stating that injured had been treated on 19.03.2016, whereas, the complaint is lodged on 20.03.2016 mentioning the date of accident on 20.03.2016.

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With regard to this ambiguity in the date, this Court perusd the calendar of the year 2016. Since there is a specific day mentioned as ‘±À¤ªÁgÀ‘ (Saturday), the said day in the month of March, 2016 is the day for which the date is 19.03.2016 and not 20.03.2016. The Tribunal ought to have taken into consideration this aspect of the matter while considering the contents of the complaint. More so, when the complainant is a rustic illiterate lady.

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Based on the date of the complaint, other documents namely Mahazar, etc., has been drawn by the Police, wherein, there is a mention that, yesterday the accident has occurred. Actually, f the date of complaint is 19.03.2016 and if the Mahazar has taken place on 21.03.2016, the contents of Mahazar should have been day before yesterday instead of yesterday.

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Ex.P1 is the computerized complaint and the claimant who is the mother of the minor injured has written in English letters her name as Madevi, even the letters that has been subscribed in the complaint do not indicate that it is Madevi. Nevertheless, from the said signature, one can make out that the complainant is illiterate and she has subscribed the signature to the prepared complaint where the date is shown as 20.03.2016.

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When the day and date are matched, in regard to the complaint averments, in the complaint there is the specific mention that the accident has occurred on

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Saturday which should have been 19.03.2016 in the complaint and due to inadvertence, the same has been mentioned as 20.03.2016.

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Therefore, by exercising the power vested in this Court in the appellate jurisdiction, there is a scope for revisiting into the material evidence on record. It is settled principles of law that while considering the proof of accident in a claim for compensation, the Tribunal or for this Court is not expected to seek a proof as if it is a criminal case.

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Therefore, this Court is of the considered opinion that the finding of the Tribunal that the claimant failed to establish that he sustained accidental injuries on 19.03.2016 and in the complaint it has been mentioned as 20.03.2016 and therefore there is a false involvement of the motorcycle bearing Registration No.KA-49/S-0954 needs to be set aside.

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Eyewitness testimony who has been examined as PW3 fortifies the said aspect of the matter and it is PW3 who informed the complainant about the accident.

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Consequently, this Court is of the considered opinion that the claimant is successful in establishing that her minor son sustained injuries in a road traffic accident that occurred on 19.03.2016 involving motorcycle bearing Registration No.KA-49/S-0954.

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This would take us to the next question in the appeal to be decided as to what is the compensation that the claimant would be entitled ?

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Admittedly, the claimant was aged 10 years as on the date of the accident.

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Therefore, he would be entitled to compensation as per the principles of law enunciated in MASTER MALLIKARJUN VS. THE DIVISION MANAGER, NATIONAL INSURANCE CO.LTD. AND ANOTHER reported in 2013 ACJ 2445 . Therefore, the claimant would be entitled to a sum

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NC: 2024:KHC-D:1835 MFA No. 101286 of 2018

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of Rs.1,58,000/- as the compensation. Hence, the following order is passed:

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ORDER

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(i) The appeal is allowed.

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(ii) The impugned judgment and award passed in M.V.C. No.874/2016 dated 06.01.2018 on the file of the I Additional Senior Civil Judge and Additional MACT., Gokak, is hereby set-aside.

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(iii) The claim petition is allowed and the claimant is entitled to sum of Rs.1,58,000/- with interest at 6% per annum from the date of petition till realization.

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(iv) Insurance Company is granted four weeks time to deposit the amount before the Tribunal.

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PMP/RH List No.: 1 Sl No.: 14 CT-ASC

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Sd/JUDGE

Manikantha S/O Ningappa Wali v. Hasanasab Appalall Mulla

Case brief

What is this about?

What did the court decide?

Manikantha S/O Ningappa Wali v. Hasanasab Appalall Mulla

Case brief

What is this about?

What did the court decide?

What the court decided

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