Yogesha vs The Divisional Manager
2022 Latest Caselaw 1966 Kant

                                1


   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 8TH DAY OF FEBRUARY, 2022

                            BEFORE

        THE HON'BLE MR. JUSTICE P. KRISHNA BHAT

     MISCELLANEOUS FIRST APPEAL NO.6801 OF 2011 (MV-I)
                    CONNECTED WITH
     MISCELLANEOUS FIRST APPEAL NO.6802 OF 2011 (MV-I)

IN M.F.A. NO.6801/2011:

BETWEEN:

       M. C. KRISHNA
       S/O. CHANNEGOWDA,
       AGED 38 YEARS,
       MALAGARANAHALLY VILLAGE,
       MADDUR TALUK,
       MANDYA DISTRICT.
                                               ... APPELLANT
       (BY SRI G.M. ANANDA, ADV.)


IN M.F.A. NO.6802/2011:

BETWEEN:

       YOGESHA
       S/O. KUMAR,
       AGED ABOUT 7 YEARS,
       MINOR,
       REPRESENTED BY HIS NATURAL GUARDIAN MOTHER,
       SMT. CHANNAMMA,
       RESIDENT OF KUDARAGUNDI VILLAGE,
       MADDUR TALUK,
       MANDYA DISTRICT.
                                              ... APPELLANT
       (BY SRI G.M. ANANDA, ADV.)
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AND:

1.     THE DIVISIONAL MANAGER
       ORIENTAL INSURANCE COMPANY LTD.,
       DIVISIONAL OFFICE,
       MUSLIM HOTEL COMPLEX,
       1ST MAIN ROAD, SARASWATHIPURAM,
       MYSURU.

2.     LINGARAJU R.C.
       S/O. CHALUVARAJU, NO.13,
       ARKAVATHI RIVER ROAD,
       DHOBHIGHAT ROAD,
       BENGALURU.
                                    ... RESPONDENTS (COMMON)
       (BY SRI S. SRISHAILA, ADV., FOR R-1, &
           NOTICE TO R-2 IS HELD SUFFICIENT VIDE ORDER
           DATED 11-9-2015)

     THESE MISCELLANEOUS FIRST APPEALS ARE FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT AGAINST THE
JUDGMENT AND AWARD DATED 3-1-2011 PASSED IN M.V.C. NOS.231
AND 235 OF 2008 ON THE FILE OF THE CIVIL JUDGE (SR. DN.) AND
MACT, MADDUR, DISMISSING THE CLAIM PETITIONS FOR
COMPENSATION.

     THESE MISCELLANEOUS FIRST APPEALS ARE COMING ON FOR
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

                       JUDGMENT

These appeals are at the instance of the claimants

calling in question the common judgment and award dated

3-1-2011 in M.V.C. Nos.231 and 235 of 2008 passed by the

Civil Judge (Sr. Dn.), Motor Accident Claims Tribunal,

Maddur.

2. It is the case of the claimants that on 29-3-2008, the

claimant-M.C. Krishna was riding motorcycle bearing

Registration No.KA-11/L-18 with his nephew, Yogesha, as a

pillion rider and at about 7:30 p.m., on Malagaranahally

Sompura Road, auto-rickshaw bearing Registration

No.KA-05/A402 being driven by its Driver in a rash and

negligent manner and at high speed, dashed against the

motorcycle resulting in serious injuries to the claimants.

3. Respondent No.1-owner of the auto-rickshaw entered

appearance before the Tribunal, but did not file any written

statement. Respondent No.2-Insurance Company filed its

detailed written statement denying the material averments in

the claim petitions and also denied liability to pay

compensation.

4. During trial, the claimants examined themselves as

P.Ws.1 and 2 and Exs.P.1 to P.8 were marked. Respondents

did not examine any witnesses and no documents were

marked on behalf of them. At the instance of the Tribunal,

accident register extracts were summoned from the Hospital

and marked as Exs.C.1 and C.2.

5. After hearing the learned counsel on both sides and

perusing the records, the Tribunal dismissed the claim

petitions on its finding that the claimants got created

documents by colluding with concerned Doctor and Police

Authorities and made a false claim before the Tribunal.

6. Learned counsel for the appellants-claimants

submitted that the Tribunal has erred in dismissing the claim

petitions in spite of overwhelming material produced before it

to show that accident had taken place on account of rash and

negligent driving by Driver of the offending auto-rickshaw and

the claimants had suffered injuries. He contended that the

Tribunal has mainly placed reliance on medical documents

and after noticing certain discrepancies and giving undue

importance to the same passed an erroneous judgment.

Therefore, the judgment and award is liable to be set aside

and the appeals are entitled to be allowed.

7. Learned counsel for the respondent-Insurance

Company, per contra, vehemently contended that after

elaborate consideration of the evidence and more particularly,

Exs.C.1 and C.2-accident register extracts/medical records,

the Tribunal has proceeded to dismiss the claim petitions and

therefore, there is no merit in the appeals and they are liable

to be dismissed.

8. I have given my anxious consideration to the

submissions made by the learned counsel on both sides and

perused the records.

9. The claimants have asserted in the claim petitions

that on 29-3-2008, while the claimant-M.C. Krishna was a

rider, and another claimant-Yogesha was a pillion rider of a

motorcycle and at about 7:30 p.m., while they were

proceeding on Malagaranahally Sompura Road, the offending

auto-rickshaw being driven by its Driver in a rash and

negligent manner came from opposite direction and dashed

against the motorcycle resulting in grievous injuries to both of

them. Respondent No.1-owner of the auto-rickshaw having

entered appearance has not filed his written statement. In

the written statement filed by respondent No.2-Insurance

Company at paragraph No.6, the following statement of facts

occurs:

"xxx xxx xxx

6. This respondent submits that, the driver of Auto Rickshaw KA-05-A-402 was driving the same slowly and cautiously and that the petitioner being the rider of the motor cycle KA-11 L-18 who was driving the same in a very rash and negligent manner and at high speed attempted to over take another vehicle and came to the extreme right side without observing the vehicles coming from the opposite direction and dashed against the auto- rickshaw. However, without prejudice this respondent submits that, this Hon'ble Court may be pleased to take into consideration the contributory negligence of both rider of the motor cycle and driver of auto rickshaw and fix the liability."

Therefore, it is explicit that even the respondent-

Insurance Company did not dispute the collision between the

motorcycle and the offending auto-rickshaw and it has only

set up a case that negligence or at least part of the negligence

for causing the accident was on the part of the claimant-rider.

10. Apart from the same, the other documents

produced, namely Ex.P.1-F.I.R. and Ex.P.2-charge-sheet

clearly show that the complaint was lodged within nearly

three hours of the accident, wherein there is clear mention

about the nature of the vehicle, namely auto-rickshaw and

also the registration number of the same, namely

KA-05/A402 which was involved in the accident. However,

the Tribunal laid undue importance on certain irrelevant

aspects like the owner of auto-rickshaw being resident of

Bengaluru and auto-rickshaw being found in a distant

location, namely Maddur and thereby, proceeded to disbelieve

the version of the claimants that the accident, indeed, had

occurred in the manner claimed by them. The Tribunal

completely failed to appreciate the pleadings of the Insurance

Company at paragraph No.6 of its written statement, evidence

and the complaint having been lodged at the earliest instance

without any unreasonable delay with clear description of the

vehicle, and has needlessly proceeded on an initial

presumption that the claimants had approached the Tribunal

in order to play fraud on the Court. Approach of the learned

Tribunal is wholly unjustified in the facts and circumstances

of the case and on account of the same, miscarriage of justice

has taken place. Accordingly, the judgment and award is

liable to be set aside. Hence, I pass the following

ORDER

i. Appeals are allowed;

ii. The judgment and award dated 3-1-2011 in M.V.C.

Nos.231 and 235 of 2008 passed by the Civil Judge

(Sr. Dn.), Motor Accident Claims Tribunal, Maddur,

is set aside;

iii. The matter is remanded to the Tribunal for fresh

disposal in accordance with law and all contentions

are kept open;

iv. The Tribunal shall dispose of the matter as early as

possible at any event on or before 31-8-2022, and

v. Transmit the records to the Tribunal, forthwith.

Sd/-

JUDGE

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