IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JANUARY, 2021
PRESENT
THE HON'BLE MRS.JUSTICE S.SUJATHA
AND
THE HON'BLE MR. JUSTICE M.I.ARUN
M.F.A.No.3590/2018 (MV)
BETWEEN :
1. MOHINI
W/O LATE S.K.JAYASHANKAR, 34 YEARS
2. RAKSHITH
S/O LATE S.K.JAYASHANKAR, 14 YEARS
A-2 REP. BY A-1.
3. GANGAMMA
W/O SANNARAMEGOWDA
@ KUCHELA, 68 YEARS
ALL ARE R/O SOREKAIPURA,
HIRISAVE HOBLI,
CHANARAYAPATNA TALUK,
HASSAN DISTIRCT - 573211. ...APPELLANTS
(BY SMT.A.R.SHARADAMBA, ADV.)
AND :
1. KUMAR
S/O MARIGOWDA, 29 YEARS,
K.A. 44 T 204 & 205 TRACTOR DRIVER,
R/O ANKANAHALLY VILLAGE,
KASABA HOBLI,
HOLENARASIPUR TALUK-573210.
2. MOKSHAYINI
W/O HUCHEERAIAH, 59 YEARS,
-2-
K.A. 44 T 204 & 205 TRACTOR OWNER,
R/O THAVANANDI VILLAGE,
HALEKOTE HOBLI, HOLENARASIPUR TALUK,
HASSAN DISTRICT.
3. THE MANAGER
ORIENTAL INSURANCE COMPANY LIMITED,
DIVISIONAL OFFICE,
S.S.COMPLEX, SUBHASH SQUARE,
HASSAN-573201
(K.A. 44 T 204 & 205 TRACTOR
INSURANCE POLICY HOLDER) ...RESPONDENTS
(BY SRI A.N.KRISHNA SWAMY, ADV. FOR R-3;
R-1 NOTICE DISPENSED WITH; R-2 SERVED.)
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF
M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED
20.03.2018 PASSED IN MVC No.106/2017 ON THE FILE OF THE
III ADDITIONAL DISTRICT JUDGE & MACT, HASSAN,
DISMISSING THE CLAIM PETITION FOR COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
S. SUJATHA, J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is directed against the judgment and award dated 20.03.2018 passed in MVC No.106/2017 on the file of the III Additional District Judge and MACT at Hassan [Tribunal for short].
2. The claimants instituted the petition under Section 166 of the Motor Vehicles Act, 1988 seeking compensation for the death of S.K.Jayashankar in the road traffic accident.
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3. The claimants averred in claim petition that on 15.10.2016 between 5.15 a.m., to 6.00 a.m., near Nagachowdeshwari Petrol Bunk, Hiresave, B.M.Road, NH-75, the deceased met with the road traffic accident while crossing the road owing to the rash and negligent driving of the driver of the Tractor and Trailer bearing registration No.KA-44-T-204 and 205. As a result, the said S.K.Jayashankar sustained fatal injuries and succumbed to the same while shifting to the government hospital, Hirisave.
4. It was contended that the deceased was earning Rs.10,000/- per month as an employee at Nagachowdeshwari petrol bunk besides earning income from agriculture and business. Due to the sudden demise of the deceased, the claimants have lost the bread earning member and are suffering from loss of dependency etc. On these set of grounds, the claimants sought for compensation.
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5. On issuance of summons, the respondents appeared through their respective counsel and filed separate objections denying the petition averments. The main defence set up by the insurer was that the driver of the offending vehicle had no valid driving licence to drive the said Tractor/Trailer.
6. On the basis of the pleadings, issues were framed. Re-casted issue and additional issue framed by the Tribunal reads as under:
Recasted issue:
1. Whether petitioners prove that on 15.10.2016 between 5.15 to 6.00 a.m., the husband of the petitioner No.1 namely Jayashankar was crossing the NH 75, B.M. Road near Nagachoudeshwari petrol bunk, Hirisave, the respondent No.2's Tractor and Trailer bearing Reg.No.KA-44-T-204 and 205 was driven by respondent No.1 in rash and negligent manner and dashed against said Jayashankar, who has sustained grievous injuries on all parts of the -5- body and succumbed to the said injuries on the way to the Government Hospital, Hirisave?
Additional Issue:
1. Whether said Jayashankar has contributed for the said accident?
7. On appreciation of evidence, the Tribunal answered the re-casted issue in the Negative and dismissed the petition holding that the additional issue does not survive for consideration.
8. Being aggrieved, the claimants have preferred the present appeal.
9. Learned counsel for the appellants argued that the Tribunal finding fault with the claimants/appellant in not examining the complainant and the mahazar witness Mr.Nataraj negatived the claim by dismissing the claim petition. On the contrary, the eye witness PW2 has clearly spoken about the manner of the accident. The evidence of PW3 was totally -6- ignored by the Tribunal. Doubting the involvement of the offending vehicle merely for the reason that claimants have not chosen to examine the Investigating Officer, claim petition has been dismissed. The Investigating Officer has filed the charge sheet against the driver of the offending vehicle after thorough investigation and the same ought to have been considered in a right respective.
10. Learned counsel for the insurer justifying the impugned judgment and award, submitted that the Tribunal on appreciation of the material evidence and on in-depth analysis of the same, has rightly dismissed the petition which deserves to be confirmed by this Court dismissing the appeal.
11. Having heard the learned counsel for the parties and perusing the material on record, the point that arises for our consideration is: -7-
In the facts and circumstances, whether the Tribunal is justified in dismissing the claim petition?
12. As could be seen from the records, the complaint [Ex.P3] was lodged by one Sri.Nagesh on 15.10.2016 at 06.15 a.m., wherein it has been stated that he received the information regarding the accident in question from his relative Sri.Nataraj through a telephonic call. It was stated that the unknown vehicle has hit the deceased. Accordingly, he requested the police authorities to trace the driver who has driven the said unknown vehicle in a rash and negligent manner. Based on the same, the police have registered the complaint in Crime No.168/2016 on 15.10.2016 at 9.00 a.m. Charge sheet at Ex.P1 indicates the name of Sri.Nataraj as CW3 who was present at the time of drawing spot mahazar and appears to be the person who is said to have last seen the deceased while alive. But the said person was not examined by the claimants. -8- Added to this, no spot mahzar was produced by the claimants and I.O. was not examined. Considering these aspects, the Tribunal has dismissed the claim petition answering the issue No.1 in the Negative.
13. Learned counsel for the appellants has made a fervent plea that one more opportunity may be provided to the claimants to examine the complainant, informant as well as the Investigating Officer to establish their case since charge sheet has been filed against the driver of the offending vehicle after conducting the investigation in accordance with law. Merely non-examination of these crucial witnesses would not hamper the legal rights of the claimants in seeking compensation under the beneficial Legislation.
14. It is true that the burden lies on the claimants to establish the factum of involvement of the offending vehicle in the accident in question. Having regard to the manner of accident, it was obligatory on -9- the part of the claimants to examine the crucial witnesses which would clinch the issue. Merely for not examining the crucial witnesses, claimants should not suffer. We find some considerable force in the submissions made by the learned counsel for the appellants/claimants. It is well settled that justice is not only to be done but seen to have been done. Keeping the said principles in mind and in the interest of justice and equity, we deem it appropriate to provide an opportunity to the claimants to establish their case. Accordingly, the impugned order is set aside reserving liberty to both the parties to adduce fresh evidence, if any.
15. Hence, the following:
ORDER i] Appeal is allowed.
ii] The judgment and award impugned dated 20.03.2018 passed by the Tribunal is set aside
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and the matter is re-stored to the file of the Tribunal for re-consideration.
iii] The Tribunal shall provide an opportunity to both the parties to adduce fresh evidence, if any. iv] All the rights and contentions of the parties are left open.
v] The Tribunal shall decide the matter on merits in accordance with law in an expedite manner. vi] It is made clear that the claimants shall not be entitled to payment of interest even in the event of they succeeding in the matter after remand from the date of the claim petition till today i.e., 04.01.2021. Or in other words, the claimants shall be entitled to payment of interest from today i.e., 04.01.2021 till the realization of the award amount if they succeed in the claim petition.
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vi] Since both the parties are represented by their respective learned counsel, the parties are directed to appear before the Tribunal on 04.02.2021 without waiting for any notice and shall receive further orders.
Sd/-
JUDGE Sd/-
JUDGE NC.