Binub @ Binoop John vs Francis Cutinho
2021 Latest Caselaw 2125 Kant

                             1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

            DATED THIS THE 4TH DAY OF JUNE, 2021

                          BEFORE

            THE HON'BLE MR. JUSTICE H.P. SANDESH

                  M.F.A.NO.5826/2013 (MV)

BETWEEN:

BINUB @ BINOOP JOHN,
S/O LATE JOHNY,
AGED ABOUT 26 YEARS,
R/O VELATHINANIKAL,
MALOORU, MUVATTUPUDA POST,
AVOLI VILLAGE,
ERNAKULAM, KERALA-17.                         ... APPELLANT

       (BY SRI R. LAKSHMANA, ADVOCATE - THROUGH V.C.)

AND:

1.     FRANCIS CUTINHO,
       S/O LATE JOSEPH CUTINHO,
       AGED ABOUT 60 YEARS,
       R/O MOODUBETTU VILLAGE,
       SHANKARAPURA POST,
       UDUPI TALUK-576101.

2.     THE NEW INDIA INSURANCE CO. LTD.,
       BY ITS MANAGER, 2ND FLOOR,
       SRIRAM ARCADE,
       OPPOSITE HEAD POST OFFICE,
       UDUPI TALUK-576101.

3.     ANOOP S,
       S/O SASI,
       SUBHA NIVAS,
                                  2



       SHANTHINAGAR COLONY,
       TRIPUNITHURA,
       ERNAKULAM DISTRICT,
       KERALA DISTRICT-78.

4.     THE DIVISIONAL MANAGER,
       UNITED INDIA INSURANCE CO. LTD.,
       BY ITS MANAGER,
       2ND FLOOR, MANIKKANAM,
       PARAMBIL BUILDING,
       LAYAM ROAD, TRIPUNITHURA,
       ERNAKULAM DISTRICT,
       KERALA DISTRICT-78.                       ... RESPONDENTS

     (BY SMT. Y. ARUNA, ADVOCATE FOR R-2 - THROUGH V.C;
      SRI G.M. RAGHU, ADVOCATE FOR R-3 - THROUGH V.C;
       SRI O. MAHESH, ADVOCATE FOR R-4 - THROUGH V.C;
                         R-1 SERVED)

     THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 12.10.2012
PASSED IN MVC NO.433/2010 ON THE FILE OF THE PRINCIPAL
SENIOR CIVIL JUDGE, MEMBER, ADDITIONAL MACT, UDUPI,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.

    THIS M.F.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 01.06.2021, THIS DAY THROUGH VIDEO
CONFERENCE, THE COURT PRONOUNCED THE FOLLOWING:

                         JUDGMENT

This appeal is filed challenging the judgment and award

dated 12.10.2012 passed in M.V.C.No.433/2010, on the file of

the Principal Senior Civil Judge, Additional, MACT, Udupi ('the

Tribunal' for short) dismissing the claim petition.

2. The parties are referred to as per their original

rankings before the Tribunal to avoid the confusion and for the

convenience of the Court.

3. The factual matrix of the case is that the claim

petition was filed on 28.05.2010 under Section 163-A of the

Motor Vehicles Act, 1988 ('MV Act' for short) as amended by Act

54/1994, wherein the petitioner has contended that he was the

driver of the Santro car and the accident occurred due to the

negligence on the part of the driver of the offending vehicle. As

a result, he has sustained injuries and spent an amount of

Rs.1,25,000/- towards medical expenses and also he has taken

continuous medication and due to the accident, he has suffered

permanent disability.

4. The claim petition was opposed by respondent No.1

by filing a detailed objection statement on 26.07.2010

contending that negligence was on the part of the driver of the

offending vehicle i.e., mini lorry. The Insurance Company also

filed a detailed objection statement denying the negligence on

the part of the driver of the mini lorry and contended that

liability is subject to terms and conditions of the policy.

5. The claimant in order to substantiate his case,

examined himself as P.W.1 and examined the doctor as P.W.2

and other witness as P.W.3 and got marked the documents at

Exs.P.1 to 14. The respondents have not led any evidence,

however got marked the documents at Exs.R.1 and 2. The

Tribunal after considering both oral and documentary evidence

placed on record, dismissed the claim petition coming to the

conclusion that the claimant himself is the tort-feasor as he has

admitted in the cross-examination that he paid the fine and

pleaded guilty before the criminal Court. Hence, the present

appeal is filed before this Court.

6. The learned counsel for the appellant would

vehemently contend that it is not in dispute that the claimant

was driving the Santro car and it is also not in dispute that the

accident occurred involving of two vehicles and he has sustained

injuries. The learned counsel would contend that the Tribunal

has committed an error in dismissing the claim petition in

coming to the conclusion that the claimant is the tort-feasor.

The learned counsel would contend that the claim petition was

filed under Section 163-A of the MV Act and when the petition is

filed under Section 163-A of the MV Act and when the

amendment was brought into, the very intention and object of

bringing the enactment inserting Section 163-A of the MV Act

has not been properly appreciated by the Tribunal. When the

petition is filed under Section 163-A of the MV Act, the Tribunal

ought not to have come to the conclusion that the claimant is

the tort-feasor. The Court has to look into the involvement of

the vehicle and the injuries sustained in the road traffic accident

and the same has not been done.

7. Per contra, the learned counsel for respondent Nos.2

and 4 would vehemently contend that the Tribunal while

dismissing the claim petition, particularly in paragraph No.12 of

the judgment discussed in detail and relied upon the judgment

of the Apex Court reported in 2012 AIR SCW 10 and rightly

comes to the conclusion that the claimant is not entitled for

compensation. In paragraph No.12 it is held that he is the tort-

feasor and he clearly admitted in the cross-examination that he

pleaded guilty and paid the fine and he cannot claim the

compensation.

8. Having heard the arguments of the learned counsel

for the appellant and the learned counsel for respondent Nos.2

and 4, the point that arise for the consideration of this Court is:

(i) Whether the Tribunal has committed an error in coming to the conclusion that the claimant is the tort-feasor and he cannot maintain the claim petition?

9. Having heard the respective learned counsel and on

perusal of the records, it is not in dispute that the claimant has

filed the claim petition under Section 163-A of the MV Act as

amended by Act 54/1994 on 28.05.2010. The owner as well as

the Insurance Company have filed the objections/written

statement contending that the petition is filed under Section 166

of the MV Act. It is important to note that the Tribunal framed

issue Nos.1 and 2 assuming that the petition is filed under

Section 166 of the MV Act. When the claim petition is filed under

Section 163-A of the MV Act, the Tribunal ought not to have

framed issue Nos.1 and 2 whether the petitioner proves the

accident in question occurred due to rash and negligent driving

of the vehicle. The Tribunal failed to take note of the very

proviso of Section 163-A of the MV Act and the very object in

bringing the enactment and ought not to have considered the

negligence while considering the claim petition filed under

Section 163-A of the MV Act. The very wisdom of the legislature

has been missed out by the Tribunal and only issues ought to

have been framed with regard to the involvement of the vehicle

in the accident and whether the claimant has sustained the

injuries on account of use of the vehicle and the same has not

been done. In the case on hand, it has to be noted that two

vehicles are involved in the accident and the claimant attributed

negligence against the driver of the offending vehicle i.e. mini

lorry. In this regard, I would like to rely upon the judgment of

the Apex Court in the case of UNITED INDIA INSURANCE

COMPANY LIMITED v. SUNIL KUMAR AND ANOTHER

reported in (2014) 1 SCC 680 wherein it is categorically held

that the negligence cannot be considered in a case filed Section

163-A of the MV Act. I have already pointed out that the very

issues framed by the Tribunal is erroneous and also proceeded in

an erroneous approach considering the negligence. Hence, I am

of the opinion that the matter requires remand and the Tribunal

has to apply its mind considering the petition filed under Section

163-A of the MV Act and frame appropriate issues and if

necessary record the evidence of the witnesses for giving finding

to consider the matter in awarding the compensation in favour of

the claimant by giving an opportunity to the respective parties, if

necessary.

10. In view of the discussions made above, I pass the

following:

ORDER

(i) The appeal is allowed.

      (ii)    The impugned judgment and award of the
              Tribunal   dated     12.10.2012   passed     in
              M.V.C.No.433/2010 is hereby set aside.

(iii) The matter is remanded to the Tribunal to consider the matter afresh in view of the observations made in the judgment.

(iv) This is the matter of the year 2010 and hence the Tribunal is directed to dispose of the matter within six months from today.

(v) The respective learned counsel are directed to assist the Tribunal to dispose of the matter within the stipulated time.

(vi) The parties are directed to appear before the Tribunal on 28.06.2021 without expecting any notice.

(vii) The Registry is directed to transmit the records to the concerned Tribunal, forthwith.

Sd/-

JUDGE

MD