Sri Shankara Naik vs Ramanagouda
2021 Latest Caselaw 1178 Kant

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 19TH 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.6242/2019 (MV)

BETWEEN :

1.     SRI SHANKARA NAIK
       S/O LATE CHANDRA NAIK,
       AGED ABOUT 52 YEARS,
       OCC: AGRICULTURE,
       R/O NANDIBEVOOR THANDA,
       NANDIBEVOOR POST, HARAPANAHALLI TALUK,
       DAVANAGERE DISTRICT-583131.

2.     SMT.NEELIBAI
       W/O SHANKARA NAIK,
       AGED ABOUT 50 YEARS
       R/O NANDIBEVOOR THANDA,
       NANDIBEVOOR POST, HARAPANAHALLI TALUK,
       DAVANAGERE DISTRICT-583131.

3.     RAJESHWARI
       D/O SHANKARA NAIK,
       AGED ABOUT 19 YEARS
       R/O NANDIBEVOOR THANDA,
       NANDIBEVOOR POST, HARAPANAHALLI TALUK,
       DAVANAGERE DISTRICT-583131.

4.     PAVITHRA
       D/O SHANKARA NAIK,
       AGED ABOUT 16 YEARS
       R/O NANDIBEVOOR THANDA,
       NANDIBEVOOR POST,
                          -2-

        HARAPANAHALLI TALUK,
        DAVANAGERE DISTRICT-583131.

5.      RAKISHTHA
        D/O SHANKARA NAIK,
        AGED ABOUT 19 YEARS
        R/O NANDIBEVOOR THANDA,
        NANDIBEVOOR POST, HARAPANAHALLI TALUK,
        DAVANAGERE DISTRICT-583131.

        THE APPELLANTS NO.4 & 5
        ARE MINORS, REP BY THEIR
        NATURAL GUARDIAN THEIR
        MOTHER i.e. APPELLANT NO.2          ...APPELLANTS

           (BY SRI VIGHNESHWAR S. SHASTRI, ADV.)

AND :

1.      RAMANAGOUDA
        S/O BASAVANAGOUDA,
        AGED ABOUT 35 YEARS
        R/O NANDIBEVOOR THANDA,
        NANDIBEVOOR POST, HARAPANAHALLI TALUK,
        DAVANAGERE DISTRICT-583131

2.      SRI PAMPANNA
        S/O RAMAPPA
        R/O NANDIBEVOOR THANDA,
        NANDIBEVOOR POST, HARAPANAHALLI TALUK,
        DAVANAGERE DISTRICT-583131

3.      THE MANAGER
        NATIONAL INSURANCE CO. LTD.,
        MMC-B-BLOCK, DENTAL COLLEGE ROAD,
        DAVANAGERE
        TALUK & DISTRICT-577001        ...RESPONDENTS

(BY SMT.GEETHA RAJ, ADV. FOR R-3; R-1 & R-2 ARE SERVED.)

      THIS M.F.A. IS FILED UNDER SECTION 173(1) OF
M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED
13.06.2019 PASSED IN MVC No.570/2017 ON THE FILE OF THE
                         -3-

SENIOR   CIVIL  JUDGE    &   MACT-IX,  HARAPANAHALLI,
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 13.6.2019 passed in MVC No.570/2017 on

the file of the Sr. Civil Judge & MACT-IX, Harapanahalli

[Tribunal for short].

2. The claimants instituted the petition under

Section 166 of the Motor Vehicles Act, 1988 seeking

compensation for the death of Ravi Naik in the road

traffic accident.

3. For the sake of convenience, the parties are

referred to as per their status before the Tribunal.

4. It was averred in the claim petition that on

17.6.2017 at about 8.00 a.m. the deceased Ravi Naik

while riding the motor cycle bearing Reg. No.KA-35/Q-

4954 as a pillion rider along with Halesh Naik being the

rider, in front of the Nandibevoor Government Hospital,

Nandibevoor village, Harapanahalli Taluk, the rider of

the motor cycle bearing Reg.No.KA-17/EX-0696

(offending vehicle) has dashed to the deceased's motor

bike due to the actionable negligence in riding the

vehicle in a rash and negligent manner with high speed.

As a result, the deceased pillion rider fell down and

sustained fatal injuries and died at the hospital on

17.7.2017.

5. It was contended that the claimants being

the parents and the sisters of the deceased were

dependent on the deceased who was earning more than

Rs.30,000/- per month by doing agricultural work. The

untimely death of the deceased has caused untold

hardship to them and they are suffering mentally and

financially with loss of dependency, loss of love and

affection etc., On these set of facts and grounds, the

claimants sought for compensation.

6. In response to the service of notice by the

Tribunal, the respondents appeared before the

Tribunal. The respondent No.3-insurer contested the

claim by filing objections. No objections were filed by

the respondents 1 and 2.

7. The insurer refuted the claim contending

that the rider/respondent No.1 of the offending vehicle

was not holding valid and effective driving licence.

Further, the respondent No.2 knowing fully well, had

deliberately and intentionally handed over the vehicle to

the unlicenced rider which resulted in breach of policy

conditions.

8. It was further contended that the amount of

compensation claimed by the claimants is highly

exorbitant and baseless. Accordingly, the insurer sought

for dismissal of the petition with costs.

9. On the basis of the pleadings, the following

issues were framed:

"1. Whether the petitioners prove that on 17.06.2017 at about 08-00 a.m., the deceased Ravi Naik is the pillion rider alongwith Halesh Naik being the rider of the motor cycle bearing Reg.No.KA-35/Q- 4954 when they were infront of the Nandibevoor Government Hospital, at that time the respondent No.1 being the rider of the motor cycle bearing Reg.No.KA-17/EX- 0696 driven the said vehicle in a rash and negligent manner with high speed and dashed to their motor cycle, as a result the deceased pillion rider Ravi Naik fell down and sustained grievous injuries and died in the hospital?

2. Whether the respondent No.3 proves that the rider of the vehicle bearing Reg.No.KA- 35/Q-4945 is not having valid and effective driving licence to drive the said vehicle?

3. Whether the respondent No.3 proves that the respondent No.1 is not having valid and effective driving licence to drive the said vehicle?

4. Whether the respondent No.3 proves that he is not liable to pay the compensation as contended in his objection?

5. Whether the petitioners are entitled for compensation, if so, from whom and how much?

6. What order or award?"

10. The claimant No. 1 was examined as PW-1

and got marked Exs.P1 to P7. The respondent No.3 has

got examined its Senior Assistant as RW-1 and Ex.R1

was got marked.

11. On analyzing the material evidence on

record, the Tribunal answered the issue Nos.1 to 5 in

the negative and dismissed the petition.

12. Being aggrieved, the claimants have

preferred the present appeal.

13. Learned counsel for the claimants

submitted that the Tribunal grossly erred in dismissing

the petition merely on the ground that no IMV report

and post mortem were produced to show that the

accident had occurred due to the fault of the

respondent No.1. The Tribunal has failed to discuss the

entire oral and documentary evidence while dismissing

the claim petition. The charge sheet filed by the police

against the rider of the offending vehicle being the

clinching evidence, the same was not properly

appreciated by the Tribunal. Dismissal of the claim

petition by the Tribunal ignoring the police records is

arbitrary and unjustifiable.

14. Learned counsel however made a fervent

plea that an opportunity may be provided to the

claimants to establish their case by producing the

necessary documents to prove their case.

15. Learned counsel for the insurer submitted

that in the absence of the corroborative evidence to

prove the case of the claimants, the Tribunal had no

other option except to dismiss the petition which has

been rightly done and the same does not warrant any

interference by this Court.

16. We have carefully considered the rival

submissions of the learned counsel appearing for the

parties and perused the original records.

17. It is true that in addition to the evidence of

PW-1, certain documents Exs.P1 to P6 were produced.

The complaint and the FIR would disclose that the

accident in question occurred on 17.6.2017 at abut

8.00 a.m.

18. The Tribunal has not addressed the issues

framed analyzing the evidence on record. No satisfactory

reasons are assigned by the Tribunal in dismissing the

claim petition qua the evidence tendered by the parties.

Even if the documents marked and exhibited by the

claimants were not worthy of acceptance, the same

requires to be discussed and a finding has to be given

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for discrediting the evidence. However, the request of

the learned counsel for the appellants-claimants that

an opportunity if given, the claimants would establish

their claim, requires to be considered in adjudicating

the claim made under the beneficial legislation and to

balance the scale of justice and equity.

19. Hence, we deem it appropriate to remand the

matter to the Tribunal by setting aside the impugned

judgment and award. It is made clear that any of the

observations made hereinabove shall not influence the

Tribunal in re-considering the matter afresh in

accordance with law.

Hence, the following :

ORDER

i) Appeal stands allowed.

     ii)         The impugned judgment and award

                 dated    13.06.2019     passed    in   MVC
                - 11 -

No.570/2017 on the file of the Senior

Civil Judge & MACT-IX at

Harapanahalli is set aside.

iii) The matter is remitted to the Tribunal

for reconsideration. The Tribunal shall

provide an opportunity of adducing

fresh evidence, if any, to both the

parties and shall dispose of the matter

in accordance with law, in an expedite

manner.

iv) All the rights and contentions of the

parties are left open. The parties are at

liberty to adduce fresh evidence, if any.

v) Since the parties are represented by

their respective counsel, the parties or

the learned counsel for the parties are

directed to appear before the Tribunal

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on 22.02.2021 without waiting for any

notice and shall take further orders.

Sd/-

JUDGE

Sd/-

JUDGE

Dvr: