Karnataka High Court
Sunitha M A B.Ed vs Virupaksha on 8 July, 2022
Bench: H T Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF JULY 2022
BEFORE
THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD
MFA No.3031 OF 2019(MV)
BETWEEN:
Sunitha M.A. B.Ed.,
W/o Narayanaswamy,
Aged about 32 years,
Near Nethaji School,
J.C.Road, Vijayanagara,
Hassan-573 201. ... Appellant
(By Smt.Sharadamba A.R., Advocate)
AND:
1. Virupaksha,
S/o Doddashivappa,
Major,
R/o # 98, Chikkalale Village,
Hirikalale Post,
K.R.Pete Taluk, Mandya District.
2. The Manager,
TATA AIG General Insurance
Company Ltd.,
Venisoor Corporate Park,
Nikolas Piramal Cover,
9th Floor, Kadam Marg,
Layer Paraali, Mumbai-400013.
R/by 2nd Floor,
G.P. and Devi Jambookeshava Arcade,
Bengaluru-560 052. ... Respondents
2
(By Sri.B.Pradeep., Advocate for R2:
Notice to R1 is served and unrepresented)
This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated: 05.02.2019
passed in MVC No.404/2017 on the file of the III Additional
District Judge and MACT, at Hassan, partly allowing the
claim petition for compensation and seeking enhancement
of compensation.
This MFA, coming on for admission, this day, this
Court, delivered the following:
JUDGMENT
This appeal under Section 173(1) of Motor
Vehicles Act, 1988 (hereinafter referred to as 'the
Act') has been filed by the claimant being aggrieved
by the judgment and decree dated 05.02.2019 passed
by the III Additional District Judge and MACT at
Hassan in MVC No.404/2017.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 17.09.2016 at about 2.30
p.m. the claimant was proceeding on her Scooty
bearing registration No.KA-09/EE-4496 in front of
Karale Indresh House, Ashoka road. At that time, a
motorcycle bearing registration No.KA-54/J-3199
being ridden by its rider at a high speed and in a rash
and negligent manner, dashed to the vehicle of the
claimant. As a result of the aforesaid accident, the
claimant sustained grievous injuries and was
hospitalized.
3. The claimant filed a petition under Section
166 of the Act seeking compensation. It was pleaded
that she spent huge amount towards medical
expenses, conveyance, etc. It was further pleaded
that the accident occurred purely on account of the
rash and negligent driving of the offending vehicle by
its driver.
4. On service of notice, the respondent Nos.1
and 2 appeared through counsel and respondent No.2
filed written statement in which the averments made
in the petition were denied. The age, avocation and
income of the claimant and the medical expenses are
denied. It was pleaded that the petition itself is false
and frivolous in the eye of law. It was further pleaded
that the accident was due to the rash and negligent
riding of the vehicle by the claimant herself. It was
further pleaded that the rider of the offending vehicle
did not have valid driving licence as on the date of the
accident. It was further pleaded that the liability is
subject to terms and conditions of the policy. It was
further pleaded that the quantum of compensation
claimed by the claimant is exorbitant. Hence, he
sought for dismissal of the petition.
5. On the basis of the pleadings of the parties,
the Claims Tribunal framed the issues and thereafter
recorded the evidence. The claimant herself was
examined as PW-1 and Dr.Basheer was examined as
PW-2 and got exhibited documents namely Ex.P1 to
Ex.P21. On behalf of the respondents, neither any
witness was examined nor got exhibited documents.
The Claims Tribunal, by the impugned judgment, inter
alia, held that the claimant has failed to prove that
she suffered injuries due to rash and negligent riding
of the rider of the offending vehicle and hence
dismissed the claim petition. Being aggrieved, this
appeal has been filed.
6. Smt.A.R.Sharadamba, the learned counsel
for the claimant has raised the following contentions:
Firstly, the claimant has suffered injuries in the
road traffic accident occurred on 17.09.2016 due to
rash and negligent riding of the rider of the
motorcycle bearing registration No.KA-54/J-3199.
Immediately after the accident, she has been shifted
to Janapriya Hospital, Hassan. As per MLC extract -
Ex.P18 it has been mentioned as 'RTA'. On the same
day, the hospital authorities have sent the intimation
to the police mentioning the number of the offending
vehicle as KA-54/J-3199. Inspite of intimation, the
police have not registered the FIR immediately. On
19.09.2016 brother of the claimant has lodged a
complaint. Thereafter the police have registered FIR.
The Tribunal only because the complaint was lodged
after two days of the accident has dismissed the claim
petition.
Secondly, pursuant to the complaint police have
registered FIR against the rider of the motorcycle and
filed the charge sheet, but he has not challenged the
same before any court of law. Even the Insurance
Company has not examined any witness to disprove
the case of the claimant. The Tribunal has erred in
dismissing the claim petition.
Thirdly, even as per the IMV report - Ex.P5, both
the vehicles have been damaged. Therefore, it is very
clear that the offending vehicle was involved in the
accident. Hence, she sought for allowing the appeal.
7. On the other hand, Sri B.Pradeep, the
learned counsel for the Insurance Company has raised
following counter contentions:
Firstly, the accident occurred on 17.09.2016 and
the complaint has been lodged on 19.09.2016 and
there is a delay in lodging the complaint. Even as per
the evidence of PW-1, one Sanjeeve Gowda has taken
her to the hospital but as per the Medico Legal
Register, it is mentioned that one Manje Gowda has
taken her to the hospital and name of Sanjeeve
Gowda is not found in any of the records, there is
discrepancy in the medical records. Therefore, the
Tribunal has rightly dismissed the claim petition.
Hence, he sought for dismissal of the appeal.
8. Heard the learned counsel for the parties
and perused the judgment and award and the original
records.
9. The case of the claimant is that on
17.09.2016 at about 2.30 p.m. the claimant was
proceeding on her Scooty bearing registration No.KA-
09/EE-4496 in front of Karale Indresh House, Ashoka
road. At that time, a motorcycle bearing registration
No.KA-54/J-3199 being ridden by its rider at a high
speed and in a rash and negligent manner, dashed to
the vehicle of the claimant. As a result of the
aforesaid accident, the claimant sustained grievous
injuries and immediately she was shifted to Janapriya
Hospital, Hassan by one Manje Gowda as per the MLC
extract at Ex.P18. In the said document, history of
the accident has been mentioned as 'RTA'. Even as
per Ex.P2, i.e, the Police Intimation sent by the
hospital authorities, the vehicle number is clearly
mentioned as KA-54/J-3199. Since the police have
not registered the FIR on the basis of the Police
Intimation, brother of the claimant lodged a complaint
on 19.09.2016. Pursuant to the said complaint, the
police have registered FIR against the rider of the
motorcycle and after thorough investigation, filed
charge sheet against the rider of the offending vehicle.
Even as per the IMV report - Ex.P5, it is very clear
that both the vehicles were damaged. The Tribunal
has failed to consider all these materials which have
been produced by the claimant. The Tribunal only on
the ground of delay and the name of Sanjeevegowda
has not been mentioned in the MLC extract, has
dismissed the claim petition. This finding of the
Tribunal is perverse and contrary to the materials
available on record and the matter requires to be
remitted back to the Tribunal for fresh consideration.
10. Accordingly appeal is allowed. The judgment
and award passed by the Tribunal is set aside. The
matter is remitted back to the Tribunal for fresh
consideration in accordance with law. The Tribunal is
directed to dispose of the matter as expeditiously as
possible, without being influenced by any observations
made in this order.
Sd/-
JUDGE
Cm/-
