Partly allowed

Irayya S/O Shivalingayya Mathpati v. Dundappa S/O Basappa Kamatagi

Karnataka HC13 Jun 2024MFA/20971/2012

Case brief

AI extract

What is this about?

The High Court allowed the appeal in part, setting aside the lower Tribunal's dismissal of a motor accident compensation claim. The dismissal was due to lack of evidence linking the victim's injuries to the insured motorcycle. The matter was remanded to allow further evidence while exempting the insurance company from interest liability pending the new evidence.

What did the court decide?

The impugned order is set aside. The matter is remanded to the Tribunal to record additional evidence. Interest liability of the Insurance Company is exempted from 31.05.2013 to 13.06.2024.

Irayya S/O Shivalingayya Mathpati Vs Dundappa S/O… — Motor Accident Claims | Karnataka HC (2024)

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NC: 2024:KHC-D:8011 MFA No. 20971 of 2012

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 13^TH DAY OF JUNE, 2024

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BEFORE

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THE HON'BLE MR JUSTICE T. G. SHIVASHANKARE GOWDA

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MISCELLANEOUS FIRST APPEAL NO. 20971 OF 2012(MV)

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BETWEEN:

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IRAYYA S/O. SHIVALINGAYYA MATHPATI, AGE: 28 YEARS, OCC: AGRICULTURE, R/O: BELAGALI, TQ: MUDHOL, DIST: BAGALKOT.

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…APPELLANT

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(BY SRI. N.L. BATAKURKI, ADVOCATE)

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AND:

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DUNDAPPA S/O. BASAPPA KAMATAGI AGE: 28 YEARS, OCC: AGRICULTURE, R/O: DAVALESHWAR, TQ: MUDHOL, DIST: BAGALKOT.

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Digitally signed by GIRIJA A BYAHATTI Location: HIGH COURT OF KARNATAKA

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NATIONAL INSURANCE COMPANY LTD., DIVISIONAL OFFICE-(350700) JANPATTI, NEW DELHI-110001 (VEHICLE NO. KA-48, H-8546 POLICY NO.00539414 VALID FROM 06.08.2008 TO 05.08.2009)

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…RESPONDENTS

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(BY SRI. S.S. JOSHI, ADVOCATE FOR R2; NOTICE TO R1 SERVED)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S. 173(1) OF MOTOR VEHICLE ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 19-11-2011 PASSED IN MVC NO.769/2009 ON THE FILE OF THE M.A.C.T. IX, MUDHOL, DISMISSING THE CLAIM PETITION FILED UNDER SECTION 166 OF MV ACT.

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

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NC: 2024:KHC-D:8011 MFA No. 20971 of 2012

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JUDGMENT

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In this appeal the petitioner has challenged the judgment dated 19.11.2011 passed in M.V.C.No.769/2009 by the MACT-IX, Mudhol, (hereinafter referred to as ‘Tribunal' for short).

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The appellant was the petitioner and

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respondents were the respondents before the Tribunal. The parties will be referred as per their status before the Tribunal for the sake of convenience.

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The facts of the case are, on 17.04.2009 at

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about 10:00 p.m. while the petitioner was riding his bicycle on Mahalingapur to Belagali road, near the Ramesh Latur’s Garden land, he was hit by a motorcycle coming from the opposite direction, due to which he sustained injuries and was treated at Community Health Centre Mahalingapur and KLE Hospital, Belagavi. Seeking compensation of Rs.5 lakhs, he has approached the Tribunal.

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The claim is opposed the by respondents No.1 and 2. After holding enquiry and hearing both sides, the Tribunal by the impugned judgment dismissed the claim petition. Aggrieved by the same, the petitioner has filed this appeal on various Grounds.

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Heard the arguments of Sri. N. L. Batakurki, learned counsel for the appellant and Sri. S. S. Joshi, learned counsel for respondent No.2 – Insurance Company.

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It is the contention of the learned counsel for

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the petitioner that, before the Tribunal, evidence was let in through an eyewitness in the form of PW2. The Tribunal did not appreciate his evidence. The wife of the injured has filed police complaint that some unknown vehicle has hit against the bicycle of her husband. Even in the medical records, as per Ex.P6 – wound certificate at KLE Hospital, the history is mentioned as the accident between the motorbike and Truck. The petitioner was not the inmate of the bus or the truck, he was a cyclist. The

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history mentioned in the hospital at Mahalingpur is not produced before the court. Due to this confusion, the claim of the petitioner is doubted by the Tribunal and no compensation is assessed and hence has sought for an opportunity to place relevant records, such as the history furnished at Mahalingapur Government Hospital, the evidence of the Investigating Officer who traced the motorcycle and also the medical officer who recorded the history of the accident. Without their evidence, the determination of the claim is miscarriage of justice and sought for an opportunity to the petitioner to place such evidence, for making legal claim.

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Per contra, learned counsel for the respondentInsurance Company has contended that, in the complaint it is clearly stated that it is a hit and run case. When the petitioner was taken to the KLE Hospital, Belagavi, on the next day, the history furnished that the accident was between the bike and truck. In both occasions, the involvement of the present motorcycle is not made known

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to the world. No evidence is placed before the Tribunal to connect the accident with the motorcycle in question. Under such circumstances, Tribunal is right in appreciating the evidence and dismissing the claim petition. If the matter is remanded as requested by the petitioner, the Insurance Company will be burdened for paying interest in case of any award and hence he supported the impugned judgment.

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I have given my anxious consideration to the arguments addressed by both the parties and perused the record.

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The material on record wound point out that, on 17.04.2009 at about 10:00 p.m. near the garden land of Ramesh Latur, the petitioner was riding motorcycle. Some villagers have informed the wife of the injured that her husband has sustained injuries in the accident. There upon, the petitioner was taken to the government hospital at Mahalingpur and then to the KLE Hospital, Belagavi.

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Ex.P2 is the complaint filed by the wife of the petitioner. It narrates that an unknown vehicle hit against the husband’s bicycle. Ex.P6 – wound certificate issued by KLE Hospital indicates that the accident is between the motorcycle and Truck. The material on record did not point out how the Investigating Officer has identified the motorcycle in question that it was the offending vehicle.

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PW2 is the fellow villager who claims to be the eyewitness. But his evidence does not inspire confidence of the court. It is the natural conduct of the villager that whenever their fellow village sustained any injuries, they would have informed the same to the family members. The conduct of PW2 to keeping silent and all of a sudden appearing before the Tribunal that he is the eyewitness cannot be accepted.

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In order to explain the accident like this, the evidence of the investigating officer, who filed the charge sheet, is the relevant. It is he who identified the offending vehicle and filed the charge sheet. The FIR is against the

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unknown vehicle and charge sheet is against a particular vehicle. It requires proper explanation before the Tribunal. As rightly contended by the learned counsel for the petitioner, for want of evidence, the Tribunal has dismissed the claim petition and because of the conduct of PW2 his evidence has been disbelieved. Hence the petitioner is seeking an opportunity to do his case in a proper manner by placing all relevant evidence before the Tribunal.

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Learned counsel for the Insurance Company is also right in contending that, in case of remand and the award passed against the Insurance Company, the Insurance Company will be burdened making payment of interest. Under the circumstances, equity can be done, giving an opportunity to the petitioner to place additional evidence and lessening the burden of Insurance Company for paying interest from the date of appearance of the Insurance Company in this appeal till today. Accordingly appeal merits consideration. In the result, the following:

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ORDER

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i. The appeal is allowed in part.

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ii. The judgment and award dated 19.11.2011 passed by the MACT-IX, Mudhol, in MVC No.769/2009, is set aside.

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iii. The matter is remanded back to the Tribunal to the stage of further evidence. The Tribunal shall give an opportunity to both the parties to lead additional evidence and then to decide the case on merits.

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iv. In the event of any award passed and liability fixed on the Insurance Company, the Tribunal shall incorporate that the Insurance Company is not liable to pay interest from 31.05.2013 till 13.06.2024.

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v. Without further notice, the parties shall appeal before the Tribunal and take further instructions on 15.07.2024.

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vi. Office to send back TCRs along with the copy

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of this judgment for reference of the

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Tribunal.

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Sd/JUDGE

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gab List No.: 1 Sl No.: 35

Irayya S/O Shivalingayya Mathpati v. Dundappa S/O Basappa Kamatagi

Case brief

What is this about?

What did the court decide?

Irayya S/O Shivalingayya Mathpati v. Dundappa S/O Basappa Kamatagi

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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