Mr Santhosh @ Santhosh Kumar vs Mr Arun Prabha
2022 Latest Caselaw 8442 Kant

                        1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 09TH DAY OF JUNE 2022

                     BEFORE

THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD

          MFA No.7124 OF 2018 (MV)


BETWEEN:

MR. SANTHOSH @ SANTHOSH KUMAR
S/O. NARAYANA SALIAN,
AGED ABOUT 23 YEARS,
R/AT KUMER HOUSE, KAKWA,
MAILOTTU, ATHIKARIBETTU VILLAGE,
MANGALURU TALUK,
D.K. DISTRICT -575 018.
                                     ...APPELLANT

(BY SRI. RAVISHANKAR SHASTRY G., ADVOCATE)
(PH)

AND:

1.   MR. ARUN PRABHA
     S/O. LATE. SRIPATHI RAO,
     AGED ABOUT 58 YEARS,
     R/AT SHISHYAKUNJ,
     NO. 2-12, AIRPORT ROAD,
     KOPPALAKAD, YEYYADI,
     MANGALURU TALUK,
     D.K. DISTRICT-575 006.
                          2



2.   ICICI LOMBARD GENERAL
     INSURANCE CO. LTD.
     414, VEER SAVARKAR MARG,
     NEAR SIDDHI VINAYAKA TEMPLE,
     PRABHAVEDVI, MUMBAI,
     REPRESENTED BY ITS MANAGER,
     PIN-401 305.
                                ...RESPONDENTS

(BY SRI B. PRADEEP, ADVOCATE A/W SRI.
MALLIKARJUNA REDDY N.A., ADVOCATE FOR R2. (PH)
NOTICE TO R1 IS SERVED BUT UNREPRESENTED)

     THIS MFA IS FILED U/S 173(1) OF MV ACT
AGAINST      THE     JUDGMENT       AND     AWARD
DATED:04.04.2018 PASSED IN MVC NO.625/2016 ON
THE FILE OF THE I ADDITIONAL DISTRICT JUDGE &
MACT-II, MANGALURU D.K., DISMISSING THE CLAIM
PETITION FOR COMPENSATION.


     THIS MFA COMING ON FOR ADMISSION, THIS
DAY, THE 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 04.04.2018 passed

by the I Additional District Judge & II Additional Motor

Accident Claims Tribunal, Mangaluru (DK) in MVC

No.625/2016.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 16.09.2015, at about 9.30

p.m., the claimant was proceeding as a pillion rider on

motorcycle bearing registration No.KA-19-EA-5611

from Bijai side towards KSRTC, at that time, car

bearing registration No.KA-19-Z-8430, being driven

by its driver 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 he 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 No.2

appeared through counsel and filed written statement

in which the averments made in the petition were

denied.

The respondent No.1 did not appear before the

Tribunal inspite of service of notice and was placed

ex-parte.

5. On the basis of the pleadings of the parties,

the Claims Tribunal framed the issues and thereafter

recorded the evidence. The claimant himself was

examined as PW-1 and Dr. Sudhakar T. was examined

as PW-2 and got exhibited documents namely Ex.P1

to Ex.P15. On behalf of the respondents, no witness

was examined and got exhibited document namely

Ex.R1. The Claims Tribunal, by the impugned

judgment, inter alia, dismissed the claim petition.

6. The learned counsel for the claimant has

contended that the claimant has suffered an injury in

a road traffic accident occurred on 16.09.2015, due to

rash and negligent driving of driver of the car bearing

registration No.KA-19-Z-8430. Immediately after the

accident, he was shifted to A.J. Hospital. Since, it is a

private hospital, the claimant was unable to bear the

cost of the treatment, he was immediately shifted to

Government Wen Lock Hospital, Mangaluru on 1.40

a.m. i.e. on 17.09.2015.

In the wound certificate-Ex-P3, there is a

reference that, it is a road traffic accident. Thereafter,

the claimant has lodged a complaint against the driver

of the car and police has registered an FIR and then

charge sheet was filed. But the tribunal has failed to

look into all these records and without verifying the

same has erred in dismissing the claim petition.

He further contended that the respondent has

not examined any witnesses to disprove the case of

the claimant. The Tribunal only on the basis of the

records of the K.M.C. Hospital, where the claimant has

taken treatment after six months of the accident, has

held that false case has been filed. This finding of the

Tribunal is contrary to the material available on

record. Hence, he sought for allowing the appeal and

remanding the matter back to the Tribunal with an

opportunity to the parties to adduce additional

evidence.

7. On the other hand, the learned counsel for

the Insurance Company has contended that the

claimant has suffered an injury due to self fall from his

motor cycle bearing registration No.KA-19-EA-5611.

The offending car was not involved in the accident.

Even as per the K.M.C. hospital records, it is very

clear that it is bike skid and fall. Therefore, the

Tribunal has justified in dismissing the claim petition.

8. Heard the learned counsel for the parties

and perused the records.

9. The case of the claimant is that on

16.09.2015, at about 9.30 p.m., when the claimant

was proceeding as a pillion rider on motor cycle

bearing registration No.KA-19-EA-5611, the same was

ridden by one Sri. Raghavendra slowly and cautiously

by observing the traffic rules. When they reached

near Bata Showroom in Bijai, Mangaluru Taluk, a car

bearing registration No. KA.19-Z-8430, came in a rash

and negligent manner and dashed to the motorcycle.

Due to impact, the claimant has suffered an injury.

Thereafter, the claimant was immediately shifted to

Wenlock District Hospital, Mangaluru. In the hospital

records i.e. Ex-P3, the wound certificate, it is

mentioned that there is fracture of Right Tibia.

Thereafter, immediately the claimant has lodged a

complaint on 17.09.2015. As per Ex-P2-Complaint, it

is mentioned that he has suffered an injury due to

negligence of driver of the offending vehicle. The

police has also registered an FIR and after thorough

investigation has filed an charge sheet against the

driver of the offending vehicle. The offending vehicle

has been seized. The Insurance Company has not

examined the driver of the vehicle and has not

produced any document. The Tribunal without

considering all these aspects, relied only on the

medical records of the K.M.C. Hospital and dismissed

the claim petition. Therefore, the matter requires to

be remanded back to the Tribunal for fresh

consideration to give an opportunity to both the

parties to adduce additional evidence and produce

additional documents to establish their case.

Accordingly the appeal is allowed.

Judgment and award passed by the Tribunal is

set aside. The matter is remitted back to the Tribunal

with a direction to reconsider the matter a fresh

without being influenced by observation made in this

order and reserving liberty to the parties to adduce

additional evidence and produce any additional

documents to establish their case.

Since the parties are represented by their

counsel, the parties are directed to appear before the

Tribunal on 18.07.2022, without any further notice.

All the contentions of the parties are kept open.

The tribunal is directed to dispose of the matter,

within six months from the date of appearance of the

parties.

Sd/-

JUDGE

JY