Karnataka High Court
Shabana And Ors vs Vidhyasagar And Anr on 10 February, 2022
Bench: S.R.Krishna Kumar, K S Hemalekha
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 10TH DAY OF FEBRUARY 2022
PRESENT
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
AND
THE HON'BLE MRS. JUSTICE K.S.HEMALEKHA
MFA NO.201993/2018 (MV)
BETWEEN:
1. Shabana W/o Irfan Naikwadi,
Age: 26 years, Occ: Household work,
R/o: Earlier residing at Maindargi,
Tq: Akkalkot, Dist: Solapur,
Presently residing at
Afzalpur Takke, Vijayapura-586101.
2. Shahista D/o Irfan Naikwadi,
Age: 5 years, Occ: Minor represent by her
next friend Natural mother appellant No.1,
Smt. Shabana W/o Irfan Naikwadi,
R/o. Vijayapura-586 101.
3. Husein S/o Abdul Naikwadi,
Age: 63 years, Occ: Coolie,
R/o: Earlier residing at Maindargi,
Tq: Akkalkot, Dist: Solapur
Presently residing at Afzalpur Takke,
Vijayapura-586 101.
2
4. Jahirabi W/o Husseisn Nikwadi,
Age: 58 years, Occ: Household,
R/o Earlier residing at Maindargi,
Tq: Akkalkot, Dist: Solapur,
Presently residing at Afzalpur Takke,
Vijayapura-586 101.
... Appellants
(By Sri Bapugouda Siddappa, Advocate)
AND:
1. Vidhyasagar S/o Shrikant Kate,
Age: 48 years, Occ: Business,
R/o: Katewadi, Tq: Baramati,
Dist: Pune-413103, (Maharashtra State).
2. The Branch Manager,
The New India Assurance Company Ltd.,
Gurukul Road, Vijayapura-586101.
... Respondents
(By Sri.Manvendra Reddy, Advocate for R2;
R1 served)
This Miscellaneous First Appeal is filed under Section
173 (1) of the Motor Vehicles Act, praying to call for the
records. To set aside the judgment and award dated
13.06.2018 passed in MVC No.497/2015 on the file of the
Court of the IV Additional District Judge and Member Motor
Accident Claims Tribunal No.XIII, Vijayapura at Vijayapura.
And allow this appeal and to grant the compensation
amount of Rs.23,15,500/- only as claimed by the
appellants before the Tribunal and etc.
3
This appeal coming on for orders this day,
K.S. Hemalekha J., delivered the following:
JUDGMENT
The claimants have preferred this appeal, assailing
the judgment and award dated 13.06.2018 passed in MVC
No.497/2015 by the Member, MACT-XIII & IV Addl. District
Judge, Vijayapura (hereinafter referred to as 'the Tribunal'
for short).
2. The petition filed by the claimants under
Section 166 of the Motor Vehicles Act came to be
dismissed on the ground that the FIR was lodged after one
month from the date of the accident.
3. The claimants, who are the wife, daughter and
parents of the deceased Irfan Naikwadi, who succumbed to
the injuries sustained in a fatal road traffic accident filed a
claim petition claiming compensation of Rs.23,15,500/-
contending that on 14.11.2014 at around 7.45 a.m., when
the deceased was proceeding near Hadapsar bus stand,
near Vaibhav Auto Rickshaw stand, the driver of the school
bus bearing No.MH-12-AQ-3836 came in a rash and
negligent manner and dashed against the deceased, due to
which he succumbed to the injuries. The deceased was
the sole earning member of the family and the claimants
were depending upon the income of the deceased.
4. In pursuance of the notice issued by the
Tribunal, respondent No.2-insruance company appeared
through an Advocate and contended that the petition is not
maintainable for want of territorial jurisdiction and denied
that the accident occurred due to the rash and negligent
driving of the school bus and sought to dismiss the claim
petition. However, respondent No.1 did not appear and
hence, placed Ex-parte.
5. On the basis of the pleadings, the Tribunal
framed the following:
ISSUES
1. Whether the petitioners prove that on
14.11.2014 at 7.45 p.m. near Vaibhav
Rickshaw stand, Hadapsar bus-tand
Pune, Irfan S/o Husein Naikwadi met
with road traffic accident due to the
actionable negligence on the part of the
driver of school bus bearing its
Reg.No.MH-12-AQ-3836 and succumbed
to the injuries.
2. Whether respondent No.2 proves that
violation of terms and conditions of
insurance policy?
3. Whether petitioners prove the age and
income of the deceased?
4. Whether petitioners are entitled for
compensation? If so, to what quantum
and from which of the respondents?
5. What is final order or award?
6. In order to substantiate the case of the
claimants, claimant No.4-the mother of the deceased
examined herself as PW.1 and got marked Exs.P1 to P6.
On the other hand, no evidence was adduced on behalf of
the respondents, however got marked Ex.R1-insurance
policy of the offending vehicle.
7. The Tribunal held that claimants have failed to
prove that the accident occurred due to the rash and
negligent driving of the driver of the school bus bearing
Reg.No.MH-12-AQ-3836 and the deceased succumbed to
the injuries due to the accident and dismissed the claim
petition.
8. Heard the learned counsel for the
appellants/claimants and the learned counsel for
respondent No.2-insurance company.
9. Sri. Bapugouda Siddappa, learned counsel for
the appellants would contend that the Tribunal has
dismissed the claim petition on the ground that the FIR
was lodged at a delayed period and the claimants have
failed to establish that the accident occurred due to the
rash and negligent driving of the driver of the school bus.
In support of his contention, he relied upon the judgment
of the Hon'ble Apex Court in the case of Ravi vs.
Badrinarayan and others reported in (2011) AIR SCW
1530.
10. Per contra, Sri. Manvendra Reddy, learned
counsel for respondent No.2-insurance company would
contend that the Tribunal has considered the inordinate
delay in lodging the FIR as the accident occurred on
14.11.2014 and FIR was lodged on 14.12.2014 and would
contend that an inference would be drawn that the alleged
accident never took place on 14.11.2014 and the FIR was
lodged in collusion with the owner of the vehicle and the
police.
11. Having heard the learned counsel for the
parties and in view of the rival contentions, the only point
that arises for consideration in this appeal is,
Whether the judgment and award passed by
the Tribunal requires any interference?
12. The occurrence of the accident on 14.11.2014
and the death of the deceased Irfan Naikwadi due to the
injuries sustained by him in the said accident are disputed
by the insurance company before the Tribunal on the
ground that there is no nexus between the accident and
the death of the deceased. However, the contention of
delay in lodging the complaint is not forthcoming in the
objection. The Tribunal framed issue No.1 casting the
burden on the petitioners to prove that the accident
occurred due to the rash and negligent driving of the driver
of the school bus bearing Reg.No.MH-12-AQ-3836 and due
to which the deceased succumbed to the injuries. The
Tribunal while answering the said issue has held that the
counsel for respondent No.2-insurance company has
contended that the accident occurred on 14.11.2014 and
complaint was registered on 14.12.2014. Considering the
submission of the learned counsel for the insurance
company, the Tribunal held that the delay caused in filing
the FIR will create doubt in the mind of the Court whether
the actual accident had taken place. The Tribunal while
answering issue No.1 failed to consider that the said
contention of delay in lodging the FIR was not taken at the
first instance by the insurance company, nor this can be
the only ground to hold that the said accident has not
taken place and there are many circumstances which can
be attributed to prove that the accident occurred due to
the rash and negligent driving of the offending vehicle.
13. The insurance company has not led any
evidence on its behalf to substantiate that the said
accident has not occurred on the said date, on the contrary
the objection and cross-examination of PW.1 speak about
the occurrence of the accident as on 14.11.2014. Thus, the
Tribunal dismissing the claim petition on the ground of
delay in filing the FIR is not acceptable.
14. The Hon'ble Apex Court in the case of Ravi vs.
Badrinarayan and others supra, considering these
aspects has held that merely on the ground of delay in
lodging the FIR it cannot be held that the accident is not
genuine, but other relevant factors needs to be considered.
The relevant portion of the said judgment is extracted
hereunder:
"17. It is well settled that delay in lodging
the FIR cannot be a ground to doubt the
claimant's case. Knowing the Indian conditions
as they are, we cannot expect a common man to
first rush to the police station immediately after
an accident. Human nature and family
responsibilities occupy the mind of kith and kin
to such an extent that they give more
importance to get the victim treated rather than
to rush to the police station. Under such
circumstances, they are not expected to act
mechanically with promptitude in lodging the FIR
with the Police. Delay in lodging the FIR thus,
cannot be the ground to deny justice to the
victim."
15. In the present case, the claimants are the wife,
daughter and parents of the deceased Irfan Naikwadi and
there could be many reasons attributing to the delay in
lodging the FIR, as the wife has lost her husband, the child
has lost her father and the parents have lost their son and
one cannot expect to lodge a complaint immediately when
the calamity was fallen upon them. The dismissal of the
claim petition on the ground that there is delay in lodging
the FIR is not justifiable.
16. In view of the reasons stated above, the point
raised for consideration is answered in the affirmative
holding that the judgment and award passed by the
Tribunal calls for interference.
17. In the result, we pass the following
ORDER
i) The appeal is allowed in part.
ii) The impugned judgment and award dated
13.06.2018 passed by the Tribunal in MVC
No.497/2015 is hereby set aside and the
matter is remitted back to the Tribunal for
reconsideration afresh on all aspects of the
matter.
iii) Appellants and respondent No.2 are directed to
appear before the MACT, Vijayapur on
21.03.2022.
iv) Registry is directed to transmit the Trial Court
records to the Tribunal forthwith.
Sd/-
JUDGE
Sd/-
JUDGE
SMP/LG
