D Suresha vs H S Ajjappa @ Ajjanna
2021 Latest Caselaw 5925 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 10TH DAY OF DECEMBER 2021

                          BEFORE

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

                MFA No.2360 OF 2016(MV)

BETWEEN:

D.Suresha,
S/o Dyamanna,
Aged about 28 years,
Kirani Business and Agriculturist,
R/o Hirebennur Village,
Chitradurga Taluk-577501.                 ... Appellant

(By Sri. Shashidhara R., Advocate)

AND:

1.     H.S. Ajjappa @ Ajjanna,
       S/o Shivakumarappa,
       Aged about 39 years,
       R/o Hirebennur Village,
       Chitradurga Taluk,
       Chitradurga District-577501.

2.     The Branch Manager,
       New India Insurance Co. Ltd.,
       Branch Office,
       Vijayashree,
       Opp: Nanjundeswara Petrol Bunk,
       B.D.Road, Chitradurga-577 501.
                                            ... Respondents

(By Sri. E.I.Sanmathi, Advocate for R2:
R1 served)
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      This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:22.04.2015 passed
in MVC No.583/2012 on the file of the 1st Additional
Senior Civil Judge & 4th MACT, Chitradurga, partly allowing
the claim petition for compensation and seeking
enhancement of compensation.

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

                     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 claimant being

aggrieved by the judgment dated 22.04.2015 passed

by the Motor Accident Claims Tribunal, Chitradurga in

MVC No.583/2012.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 10.09.2012, the claimant

was proceeding on motorcycle bearing registration

No.KA-16/K-3875 as a pillion rider towards his native

place Hirebennur. When they reached near Sadanna's

Farm Field, Sirigere village, at that time, the rider

rode the same negligently at a high speed. As a

result, the motorcycle capsized. Due to the result of

the aforesaid accident, the claimant sustained

grievous injuries and was hospitalized.

3. The claimant filed a petition under Section

166 of the Act seeking compensation. It was pleaded

that he spent huge amount towards medical

expenses, conveyance, etc. It was further pleaded

that the accident occurred purely on account of the

rash and negligent driving of the offending vehicle by

its driver.

4. On service of notice, the respondent No.2

appeared through counsel and filed written statement

in which the averments made in the petition were

denied. The age, avocation and income of the claimant

and the medical expenses are denied. It was pleaded

that the petition itself is false and frivolous in the eye

of law. It was further pleaded that the accident was

due to the rash and negligent riding of the vehicle by

the rider of the motorcycle. The rider of the

motorcycle did not have 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

claimant is exorbitant. Hence, he sought for dismissal

of the petition.

The respondent No.1 did not appear before the

Tribunal inspite of service of notice and was placed

ex-parte.

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

the Claims Tribunal framed the issues and thereafter

recorded the evidence. The claimant himself was

examined as PW-1 and Dr.Ambarish was examined as

PW-2 and got exhibited documents namely Ex.P1 to

Ex.P46. On behalf of the respondents, one witness

was examined as RW-1 and got exhibited document

namely Ex.R1. The Claims Tribunal, by the impugned

judgment, inter alia, held that the insured has violated

the policy condition and the claimant himself fell from

bike by skid of motorcycle, as a result of which, the

claimant sustained injuries. The Tribunal further held

that the claimant is entitled to a compensation of

Rs.50,000/- along with interest at the rate of 8% p.a.

and directed the owner of the offending vehicle to

deposit the compensation amount along with interest.

Being aggrieved, this appeal has been filed.

6. The learned counsel for the claimant has

raised the following contentions:

Firstly, the claimant was proceeding as a pillion

rider in the motorcycle bearing registration No.KA-

16/K-3875 which was ridden by respondent No.1 one

H.S.Ajjappa. Due to his rash and negligent riding the

claimant fell down and suffered injuries. Immediately

he has been admitted to the hospital and his father

has lodged a complaint against the rider of the

motorcycle. The police have filed the FIR and charge

sheet against the rider of the motorcycle. From the

aforesaid documents it is very clear that respondent

No.1 was driving the motorcycle and he was negligent

in causing the accident.

Secondly, the claimant himself was examined as

PW-1 and he has produced 46 documents. He has

deposed that the rider of the motorcycle was negligent

in causing the accident and he was proceeding as a

pillion rider. The respondent has taken the contention

that the claimant was riding the motorcycle. To prove

their case respondents have not examined any

eyewitnesses and not produced any documents. The

Tribunal only on the basis of the wound certificate has

held that the claimant was riding the motorcycle. This

finding of the Tribunal is contrary to the materials

available on record. Hence, he 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

claimant himself was riding the motorcycle. To make

false claim he has taken a contention that he was

proceeding as a pillion rider.

Secondly, in the first instance when he was

admitted to the hospital, as per the wound certificate

- Ex.P6 it is written that the history of the accident is

self fall from the bike. Therefore, it is very clear that

he was riding the motorcycle and fell down, therefore,

Insurance Company is not liable to pay the

compensation. The Tribunal has rightly held that

since he was riding the motorcycle Insurance

Company is not liable to pay the compensation.

Hence, he sought for dismissal of the appeal.

8. Heard the learned counsel for the parties.

Perused the judgment and award and the original

records.

      9.   The case       of    the claimant           is that   on

10.09.2012,       the   claimant           was   proceeding      on

motorcycle bearing registration No.KA-16/K-3875 as a

pillion rider along with one H.J.Nagaraja towards his

native place Hirebennur. When they reached near

Sadanna's Farm Field, Sirigere village, at that time,

the rider rode the same negligently at a high speed.

As a result, the motorcycle capsized. As a result of

the aforesaid accident, the claimant sustained

grievous injuries. Immediately after the accident

claimant was shifted to Government Hospital,

Bharamasagara, thereafter shifted to SSIMS Hospital,

Davanagere. Immediately after the accident a

complaint has been lodged as per Ex.P1 against the

rider of the motorcycle i.e., H.J.Nagaraja, the police

also filed FIR and after thorough investigation filed

charge sheet against the said Nagaraj who was riding

the motorcycle. To prove the case, claimant

examined himself as PW-1 and categorically stated

that he was proceeding in the motorcycle as a pillion

rider and one H.J.Nagaraja was riding the motorcycle.

In the medical records Ex.P6 - wound certificate, it

has been written that the history of the accident is

skid from bike. The Tribunal without considering the

evidence of PW-1 and other documents, only on the

basis of Ex.P6 has come to the conclusion that the

claimant was riding the motorcycle. This finding of

the Tribunal is contrary to the materials available on

record. Even the respondents have taken a

contention that the claimant was riding the

motorcycle. To prove that, they have not examined

respondent No.1 who is the owner of the offending

vehicle and also none of the parties have examined

H.J.Nagaraja and the claimant has also not examined

any officers from the Government Hospital,

Bharamasagara to prove that the entries made in

Ex.P6 is not correct. Without considering these

aspects of the matter, only on the basis of Ex.P6 the

Tribunal has held that the claimant was riding the

motorcycle. This finding of the Tribunal is

unsustainable. Under these circumstances, the matter

requires to be remanded back to the Tribunal for fresh

consideration after giving opportunity to both the

parties to adduce additional evidence and produce

additional documents to prove their respective cases.

10. Accordingly, appeal is allowed. Judgment

and award passed by the Tribunal is set aside. The

matter is remanded back to the Tribunal afresh after

giving an opportunity to both the parties to adduce

additional evidence and to produce additional

documents. All the contentions of the parties are left

open.

The Tribunal is directed to consider the matter

afresh without being influenced by the finding given in

this appeal.

Sd/-

JUDGE

Cm/-