Nanegouda Basanagouda Biradar vs Akhandappa Siddappa Badaradinni
2022 Latest Caselaw 1036 Kant

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

      DATED THIS THE 24 T h DAY OF JANUARY, 2022

                       BEFORE

     THE HON'BLE MR.JUSTICE S.VISHWAJITH SHETTY

              M.F.A. No.25037/2012 (MV)

BET WEEN

NANEGOU DA B ASANAGOU DA BIRADAR,
AGED AB OUT : 17 Y EARS, OCC: COOLIE,
SINCE MINOR B Y HIS MGF BASANAGOU DA
BHIMANAGOU DA BIRADAR,
AGE: 46 YEARS, OCC:COOLIE,
R/O: GADDANAKERI VILLAGE,
TQ: B AGALKOT .
                                           ...APPELLANT
(BY SRI. MANOJ B IKKANANAVAR FOR
 SRI.ANAND R. KOLL I, ADVOCATE)

AND

1.    AKHANDAPPA S IDDAPPA B ADARADINNI,
      AGE: MAJOR, OCC: BUSINESS,
      OWNER OF TRACTOR TRAILER UNIT
      NO.KA-24/ T-3245/ 3246,
      R/O: GADDANAKERI VILLA GE,
      TQ: B AGALKOT.

2.    THE LAW OFFICER,
      B AJAJ ALLIANZ GENERAL INSU RANCE CO.LTD,
      MADIVALE ARCADE, CLUB ROAD,
      B ELAGAVI.
                                         ...RESPONDENTS

(BY SRI.S.K.KAYAKAMATH, ADVOCATE FOR R2)
(APPEA L AB ATED AS AGAINST R1)

     THIS MISCELLANEOUS FIRST APPEA L IS FILED UNDER
SECTION 173(1) OF MOTOR VEH ICLES ACT, 1988, AGAINST
THE J UDGMENT AND AWARD DATED 04.09.2 012 PASS ED IN
                                    2




MVC No. 724/2010 B Y THE M.A.C.T-II, B AGALKOT, PARTLY
ALLOWING THE CLAIM PET IT ION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.

     THIS APPEA L COMING ON FOR ADMISSION, TH IS DAY
THE COU RT DELIVERED THE FOLL OWING:

                             JUDGMENT

The claimant has filed the instant appeal

challenging the judgment and award d ated 04.09.2012

mad e in MVC No. 724/2010 by the MACT-II, Bag alkot.

2. Though this appeal is listed for admission,

with the consent of the learned counsels appearing

for the parties, the appeal is taken up for final

disposal. The parties to this appeal are referred to by

their rankings before the Tribunal for the purpose of

convenience.

3. Brief facts of the case that would be

relevant for the purpose of disposal of this appeal

are:

The claimant who was a minor aged about 16

years in the year 2010 had filed MVC No.724/2010

claiming compensation of ` 12,20,000/- with interest

from the owner and insurer of the offending tractor

and trailer bearing registration No.KA-24/T-3245 and

3246 in respect of the injuries suffered by him in the

road traffic accident that had taken place on

09.09.2010 wherein the aforesaid tractor and trailer

was allegedly involved. It is the case of the claimant

that on 09.09.2010, he and his father had gone to

Maliyappayya temple at Gaddankeri village and when

they were returning from the said temple, the driver

of the offending tractor and trailer bearing

registration No.KA-24/T-3245 and 3246 who was

driving the said vehicle in a rash and negligent

manner dashed against the minor claimant near Keri

Halla and caused the accident. In the said accident,

the minor claimant had suffered grievous injuries and

he was shifted to Kerudi Hospital, Bagalkot, wherein

he was admitted as an inpatient and undergone

prolonged treatment in respect of the injuries

suffered by him in the said accident. The claimant

had filed claim petition under Section 166 of the

Motor Vehicles Act, 1988 (for short, the 'Act'), as

against owner and insurer of the offending vehicle

and the tribunal vide its judgment and award

impugned herein had dismissed the said claim

petition and being aggrieved by the same, the

claimant is before this Court.

4. Learned counsel for the claimant submits

that the tribunal was not justified in dismissing the

claim petition having regard to the oral and

documentary evidence available on record. He

submits that the police after investigation have filed

a charge sheet as against the driver of the offending

tractor and trailer and therefore the tribunal had

erred in coming to the conclusion that the accident

had not taken place in view of the rash and negligent

driving of the tractor and trailer by its driver. He

submits that the minor claimant was taken to hospital

by Ramanna Hugar, who is an eyewitness to the

accident in question and his statement has been

recorded by the police wherein he has categorically

said that the accident was caused due to the rash

and negligent driving of the offending tractor and

trailer which had dashed against the minor claimant

who was walking on the side of the road. He submits

that merely for the reason that in the hospital

records, it has been recorded that the injuries were

caused due to fall from the tractor, the tribunal could

not have completely ignored the charge sheet filed.

He submits that three eyewitnesses have been

examined by the police who have categorically stated

that the tractor and trailer dashed against the minor

claimant who was walking on the side of the road. He

also submits that the owner of the tractor-cum-trailer

has not disputed the accident in question.

5. Per contra, learned counsel appearing for

the insurer submits that the doctor who had treated

the injured claimant had spoken about the history of

the accident. He submits that initial records speak

the truth and therefore the subsequent charge sheet

filed by the police looses significance. He submits

that the tribunal having relied upon the judgment of

this Court in MFA 794/2009 disposed of on

13.08.2010 has rightly dismissed the claim petition

and accordingly, he prays to dismiss the appeal.

6. I have carefully appreciated the arguments

addressed on both sides and also perused the

material available on record.

7. The claimant was a minor who was aged

about 16 years as on the date of the accident. In the

alleged accident the claimant had suffered grievous

injuries including fracture of pelvis. The claimant was

treated as an inpatient in the private hospital for

substantial period. From the records, it is seen that

the claimant was taken to the hospital by one

Ramanna Hugar. Having regard to the fact that the

claimant was a minor and that he had suffered

grievous injuries in the accident, it can be presumed

that in normal circumstances, it is the person who

had taken the injured minor would have given the

history of accident. In the case on hand, said

Ramanna Hugar who had taken claimant to the

hospital was examined by the police as an

eyewitness. In his statement, he has clearly stated

that the accident was caused by the driver of the

offending tractor and trailer who dashed against the

minor claimant. The charge sheet would go to show

that in addition to the said Ramanna Hugar, there are

other eyewitnesses to the accident. The injured

claimant as well as the said eyewitnesses are the

best persons to speak about the accident in question.

Merely for the reason that initially in the hospital

records, the history has been given that the injuries

were caused due to fall from the tractor, in my

considered view the tribunal was not justified in

dismissing the claim petition. The involvement of

tractor in the incident is not a complete new theory.

Even in the hospital records presence of tractor in

found. The question is whether injury had suffered

due to the fall from the tractor or because of the fact

that the driver of the offending tractor trailer dashed

against the claimant who was pedestrian. The doctor

who has been examined as PW.2 is not an eyewitness

to the incident. He has spoken on the basis of the

records maintained in the hospital. Except the history

mentioned the hospital, the entire oral and

documentary evidence available on record would go

to show that the accident in question was caused by

the driver of the offending tractor and trailer and the

claimant was injured in the said accident. It is also

required to take note of the fact that the owner of

the tractor and trailer has not disputed the

involvement of the offending tractor and trailer in the

accident in question. In addition to the same, the

driver of the tractor and trailer who would have been

the best witnesses, to speak about the incident in

question in which minor claimant had suffered

injuries was not examined. The respondents have not

made any efforts to examine the driver of the

offending tractor and trailer before the tribunal. The

records do not disclose about the result of the

criminal case which was registered against the driver

of the offending tractor and trailer. Under the

circumstances, I am of the considered view that if an

opportunity is granted to the claimant as well as

respondents to prove their respective cases before

the tribunal, it would meet the ends of justice. More

so having regard to the charge sheet filed by the

police wherein statements of three eyewitnesses have

been examined. Under the circumstances, I deem it

fit to set-aside the impugned judgment and award

passed by tribunal and remit the matter for fresh

disposal of the claim petition after affording

opportunity to the both parties to lead additional

evidence, if any. Accordingly, the following:

ORDER

The Miscellaneous First Appeal is

allowed.

The judgment and award dated

04.09.2012 passed by M.A.C.T-II, Bagalkot,

in MVC No.724/2010 is set aside. The

matter is remitted to the tribunal to dispose

of the claim petition after granting an

opportunity to all parties to lead additional

evidence, if any.

           Having     regard        to   the   fact    that   the

      claim    petition   is   of    the   year       2010,   the

tribunal shall make efforts to dispose of the

claim petition as expeditiously as possible,

but not later than a period of six months

from the date of receipt of certified copy of

this order. The parties shall appear before

the tribunal on 14.02.2022 without awaiting

for any further notice from the tribunal.

The registry shall forthwith return the

records to the tribunal so as to enable the

tribunal to comply the order passed by this

Court.

Sd/-

JUDGE

AC/ CL K