Mohini vs Kumar
2021 Latest Caselaw 30 Kant

     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.

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.

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

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

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:

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.

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

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

- 10 -

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.

- 11 -

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.