Karnataka High Court
Rathnamma vs Davanagere District Health And ... on 9 June, 2022
Bench: H T Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JUNE 2022
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MFA No.171 OF 2018(MV)
BETWEEN:
RATHNAMMA W/O RAMAPPA,
AGED ABOUT 51 YEARS,
AGRICULTURIST NOW NILL,
R/O AAIYANAHALLI VILLAGE,
HOLALKERE TALUK - 577 526.
CHITRADURGA DISTRICT.
NOW AT MADAGINAKERE VILLAGE,
JAGALUR TALUK,
DAVANAGERE DISTRICT - 577 528.
...APPELLANT
(BY SRI.SHASHIDHARA R., ADVOCATE)
AND:
1. DAVANAGERE DISTRICT HEALTH AND
FAMILY WELFARE OFFICER,
DHWO OFFICE,
DAVANAGERE DISTRICT, HALL NO.23,
A BLOCK, DISTRICT HEALTH AND
FAMILY WELFARE OFFICE, P B ROAD,
DAVANAGERE - 577 001.
OWNER OF AMBULANCE BEARING
NO.KA-42/G-0345.
2. THE DIVISIONAL MANAGER,
NATIONAL INSURANCE CO. LTD.,
MELAGIRI PLAZA, M.C.C. B BLOCK,
2
DENTAL COLLEGE ROAD,
DAVANAGERE - 577 001.
3. DHWO C/O GVK EMERGENCY,
MANAGEMENT AND RESEARCH INSTITUTE,
SDTC HOUSING BOARD COLONY,
GOVT UNANI MEDICAL COLLEGE OPPOSITE,
JMS COMPOUND, MAGARI ROAD,
BANGALORE - 560 079.
4. THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO. LTD.,
DIVISIONAL OFFICE-34/3,
MMK COMPLEX, AKKAMAHADEVI ROAD,
P J EXTENSION, DAVANAGERE - 01.
...RESPONDENTS
(BY SRI.O.MAHESH, ADVOCATE FOR R4;
NOTICE TO R1 TO R3 IS DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT, AGAINST JUDGMENT AND AWARD DATED 02.06.2017
PASSED IN MVC NO.60/2016, ON THE FILE OF THE I
ADDITIONAL SENIOR CIVIL JUDGE AND V MACT,
DAVANAGERE DISMISSING THE CALIM PETITION AS NOT
MAINTAINABLE.
THIS MFA COMING ON FOR FURTHER ORDERS THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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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 02.06.2017 passed
by the I Additional Senior Civil Judge & V MACT,
Davangere in MVC No.60/2016.
2. Facts giving rise to the filing of the appeal
briefly stated are that 14.09.2014 one Shashank was
not feeling well, so the claimant along with others
brought said Shashank to Jagalur Government
Hospital, wherein the doctor advised to shift him to
Davanagere Chigateri Hospital. Therefore, they were
shifting the said Shashank through 108 Ambulance
bearing Registration No.KA-42/G.0345. On the way to
the Davanagere via Bilichodu, reached near SSIMS
hospital on High way opposite to Vinayaka rice mill at
about 11.30 P.M., one lorry was proceeding in front of
the Ambulance and the driver of the said lorry has
slow down the speed of the lorry so that the
Ambulance driver has tried to take the ambulance
towards left side. Thereafter, the driver of the
unknown Car was came back side the Ambulance in a
rash and negligent manner, dashed behind the
Ambulance, thereafter, the Ambulance touched the
lorry which was proceeding in front of the Ambulance
and the Ambulance again touched the iron angular.
As a result of the aforesaid accident, the claimant
along with others 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 No.4
appeared through counsel and filed written statement
in which the averments made in the petition were
denied. The liability is subject to terms and conditions
of the policy. The age, avocation and income of the
claimant and the medical expenses are denied. It was
further pleaded that the quantum of compensation
claimed by the claimant is exorbitant. Hence, he
sought for dismissal of the petition.
The claim petition against respondent No.2 is
dismissed.
The respondent No.3 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 herself was
examined as PW-4 and examined other two witness as
PW-5 and PW-6 and got exhibited documents namely
Ex.P1 to Ex.P44(a). On behalf of the respondents,
neither examined any witness nor exhibited any
document on their behalf. The Claims Tribunal, by the
impugned judgment, inter alia, dismissed the claim
petition on the ground that the claim petition is not
maintainable. Being aggrieved, this appeal has been
filed.
6. Sri Shashidhar, learned counsel for the
claimant has contended that the claimant has claimed
that her monthly income was Rs.3,000/- per month.
Therefore, the annual income is within the limits
prescribed under Section 163A of the Act. By
oversight, in the chief-examination, it has been
wrongly claimed that the monthly income of the
claimant was Rs.10,000/-. Hence, he sought for
remanding the matter for fresh consideration.
7. Per contra, Sri O. Mahesh, learned counsel
for the Insurance Company has contended that in the
chief-examination, the claimant has specifically
claimed that her monthly income was Rs.10,000/-.
Since the claim petition filed under Section 163A of
the Act is not maintainable, the Tribunal has rightly
rejected the claim petition.
He further contended that if this Court remands
the matter back to the Tribunal, all the contentions of
the parties may be left open and if the claimant
succeeds in the appeal, she is not entitled to the
interest for the period from where the litigation is
pending due to her fault.
8. Heard the learned counsel for the parties
and perused the original records.
9. It is not in dispute that the claimant has
sustained injuries in the road traffic accident occurred
due to rash and negligent driving of the offending
vehicle by its driver. Hence, she has filed the claim
petition under Section 163A of the Act.
The specific claim in the claim petition is that she
was earning Rs.3,000/- per month. The contention of
the learned counsel for the appellant is that in the
chief-examination by affidavit, it has wrongly claimed
that her monthly income was Rs.10,000/-.
Under these circumstances, the matter requires
to be remitted back to the Tribunal for fresh
consideration. Therefore, the appeal is allowed in
part. 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.
All the contentions of the parties are left open.
In case if the claimant succeeds in the appeal,
she is not entitled to the interest for the period from
where the litigation is pending before this Court.
Sd/-
JUDGE
HA/-
