Ratnamma vs Ramesha
2021 Latest Caselaw 5749 Kant

                              1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 8TH DAY OF DECEMBER 2021

                        BEFORE

     THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD

               MFA No.4245 OF 2016 (MV)

BETWEEN:

1.     Ratnamma
       w/o Late K G Laxmanappa,
       aged about 55 years,

2.     Anil Kumar
       S/o late K G Laxmanappa,
       aged about 28 years,

3.     Savitha
       S/o late K G Laxmanappa,
       aged about 29 years,

4.     Vanitha
       D/o Late K G Laxmanappa,
       aged abotu 25 years,

       All are residing at
       Baradavalli,
       Sagar Taluk-577401
       Shivamogga District.
                                               ... Appellants

(By Sri. Nataraj Donkennanavar, Advocate for
    Sri. Pruthvi Wodeyar, Advocate)
                             2



AND:

1.     Ramesha
       S/o Huchappa
       Aged about 37 years
       R/o Padavagodu
       Sagar Taluk - 577 401
       Shivamogga District
       Driver of Motor Cycle
       Bearing Regn. No.KA-15/Q-6568

2.     Basavaraj
       S/o Ganapathi
       Aged about 38 years
       R/o Baradavalli Village
       Sagar Taluk - 577 401
       Shivamogga District
       Owner of Motor Cylce
       Bearing Regn. No.KA-15/Q-6568

3.     The Divisional Manager
       The National Insurance Co. Ltd.
       SS Complex, Near Harsha Complex
       B.H.Road, Shivamogga - 577 201
                                          ... Respondents

(By Sri.Sumanth Kumar S. Patil, Advocate
    for R1 & R2: Sri. C.M. Poonacha, Adv. For R3)

       This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:06.04.2016 passed
in MVC No.797/2011 on the file of the V Additional District
& Sessions Judge, and Additional MACT, Shivamogga,
Sitting at Sagar, dismissing the claim petition for
compensation.

      This MFA, coming on for hearing, this day, this
Court, delivered the following:
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                      JUDGMENT

This appeal under Section 173(1) of the Motor

Vehicles Act, 1988 (hereinafter referred to as 'the Act',

for short) has been filed by the claimants being

aggrieved by the judgment dated 06.04.2016 passed

by the Motor Accident Claims Tribunal, Shivamogga

sitting at Sagar in MVC No.797/2011.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 30.06.2011 at about 10.30

p.m. the deceased Laxmanappa was proceeding in a

motorcycle bearing registration No.KA-15/Q-6568

along with one Ramesh as a pillion rider. At that time,

the rider of the motorcycle rode the same at a high

speed and in a rash and negligent manner, dashed

against the deceased. As a result of the aforesaid

accident, the deceased sustained grievous injuries and

succumbed to the injuries in the hospital on

01.07.2011.

3. The claimants filed a petition under Section

166 of the Act seeking compensation for the death of

the deceased along with interest.

4. On service of summons, the respondent

Nos.1 to 3 appeared through counsel and respondent

Nos. 2 and 3 filed separate written statements in

which the averments made in the petition were

denied. Respondent No.1 adopted the written

statement filed by respondent No.2. The age,

occupation and income of the deceased are denied. It

was pleaded that the petition itself is false and

frivolous in the eye of law.

It was further pleaded by respondent No.2 that

the rider of the offending vehicle was having a valid

and effective driving licence as on the date of the

accident and respondent No.3 is liable to pay the

compensation.

It was pleaded by respondent No.3 that the

accident was due to the rash and negligent riding of

the motorcycle by the deceased himself. The driver of

the offending vehicle did not possess valid driving

licence as on the date of the accident. The liability is

subject to terms and conditions of the policy. It was

further pleaded that the quantum of compensation

claimed by the claimants is exorbitant. Hence, they

sought for dismissal of the petition.

5. On the basis of the pleadings of the parties,

the Claims Tribunal framed the issues and thereafter

recorded the evidence. The claimants, in order to

prove their case, examined claimant No.2 as PW-1

and other two witnesses as PW-2 and PW-3 and got

exhibited documents namely Ex.P1 to Ex.P10. On

behalf of respondents, two witnesses were examined

as RW-1 and RW-2 and got exhibited documents

namely Ex.R1 to Ex.R14. The Claims Tribunal, by the

impugned judgment, inter alia, held that the accident

took place on account of rash and negligent driving of

the deceased himself and dismissed the claim petition.

Being aggrieved, this appeal has been filed.

6. The learned counsel for the claimants has

raised the following contentions:

Firstly, the deceased Laxmanappa was

proceeding in the motorcycle as a pillion rider and one

Ramesh was riding the motorcycle. But the Tribunal

has erred in giving a finding that the deceased himself

was riding the motorcycle and he fell down and

sustained injuries and dismissed the claim petition.

This finding of the Tribunal is perverse and contrary to

the materials available on record.

Secondly, the eyewitness to the accident PW-3 in

his evidence has stated that the deceased was

proceeding as a pillion rider and the respondent No.1

was riding the motorcycle. Even the complainant has

been examined as PW-2. He has categorically stated

that he has lodged the complaint that deceased was

traveling as a pillion rider. But in the complaint it is

wrongly mentioned as deceased was riding the

motorcycle. The police, after thorough investigation

have filed the charge sheet against the rider of the

motorcycle, i.e., respondent No.1. Therefore, it is

very clear that the deceased was proceeding as a

pillion rider. The Tribunal only on the basis of the

medical records of the hospital has come to the

conclusion that the deceased was riding the

motorcycle and he fell down and there is a self fall and

the Tribunal has failed to consider the evidence of

PW1, PW2 and PW3 and charge sheet. Therefore, this

finding of the Tribunal is unsustainable. Hence,

sought for allowing the appeal.

7. On the other hand, the learned counsel for

the Insurance Company has raised the following

contentions:

Firstly, as on the date of the accident the

deceased was riding the motorcycle. He lost control

and fell down from the motorcycle. Since it is a self

fall, the Insurance Company is not liable to pay the

compensation.

Secondly, PW-2 has given a complaint. In the

FIR it is clearly stated that the deceased was riding

the motorcycle. Even in the first instance when he was

admitted in the hospital, the hospital records shows

that it is a self-fall from two wheeler. Therefore, it is

very clear that he was riding the motorcycle and fell

down and suffered injuries and succumbed to the

injuries. Hence, he sought for dismissal of the appeal.

8. Heard the learned counsel for the parties

and perused the judgment and award and original

records.

9. The case of the claimants is that on

30.06.2011 at about 10.30 p.m. the deceased

Laxmanappa was proceeding in a motorcycle bearing

registration No.KA-15/Q-6568 along with one Ramesh

as a pillion rider. At that time, the rider of the

motorcycle rode the same at a high speed and in a

rash and negligent manner, dashed against the

deceased. As a result of the aforesaid accident, the

deceased sustained grievous injuries and succumbed

to the injuries in the hospital on 01.07.2011.

10. To prove their case claimants have examined

PW-2 Gururaj who is the complainant. He has deposed

that he has given a complaint stating that the

deceased was traveling as a pillion rider and due to

the rash and negligent riding of the respondent No.1

the deceased suffered injuries and they have also

examined PW-3 who is an eyewitness to the accident.

He has categorically stated that the deceased was

proceeding as a pillion rider. In the FIR it has been

registered that the deceased was riding the

motorcycle but the police after thorough investigation

have filed charge sheet against respondent No.1.

The Tribunal without considering this aspect of the

matter and without considering the evidence of PW2

and PW-3 only on the basis that he was the rider of

the motorcycle based on the medical records of

Nanjappa Hospital and Nimhans Hospital, Bangalore

where it has been written as self-fall has held that the

accident occurred due to negligence of the deceased

himself and hence dismissed the claim petition. Under

these circumstances, the matter requires to be

remanded back to the Tribunal for fresh consideration

reserving liberty to the claimants to examine any

official from Nanjappa Hospital, Shimoga and Nimhans

Hospital, Bengaluru to prove that the entries made in

the medical records is not correct.

11. Accordingly appeal is allowed. The judgment

and award passed by the Tribunal is set aside. The

matter is remanded back to the Tribunal for

reconsideration afresh in accordance with law, after

giving opportunity to both the parties to adduce

additional evidence and to produce additional

documents. It is made clear that the Tribunal has to

decide the matter in accordance with law not being

influenced by the observations made in this appeal.

All the contentions of the parties are left open.

Sd/-

JUDGE

Cm/-