Smt. Narasamma vs Sri. K R Ravi
2022 Latest Caselaw 9819 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 28th DAY OF JUNE 2022

                          BEFORE

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

                MFA No.3449 OF 2019(MV)


BETWEEN:

1.     Smt.Narasamma,
       W/o.Late T.M.Sathish,
       Now aged about 28 years.

2.     Master Hemanth,
       S/o.Late T.M.Sathish,
       Now aged about 9 years.

3.     Master Tarun,
       S/o.Late T.M.Sathish,
       Now aged about 7 years.

4.     Smt.Yashodamma,
       W/o.Late Maradi Rangappa,
       Now aged about 62 years.

2nd and 3rd minor appellants
Are represented by natural
Guardian/mother, 1st appellant
Herein.

All are residing at
Thalagunda Village,
Kalambella Hobli,
Sira Taluk, Tumkur District.         ... Appellants

(By Sri.Gopalkrishna N., Advocate)
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AND:

1.     Sri K.R.Ravi,
       S/o.Sharadamma,
       Major in age,
       Residing at No.199,
       5th Cross, Chowdeshwari
       Nagar, Laggere,
       Bengaluru - 560 058.

2.     Shriram General
       Insurance Company Ltd.
       3rd Floor, S & S Corner Building,
       Opp. Bowring and Lady Curzon
       Hospital, Shivaji Nagar,
       Bengaluru - 560 001.                ... Respondents

(By Sri.O.Mahesh, 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 01.03.2019 passed
in MVC No.6350/2017 on the file of the XIII Additional
Judge, Court of Small Causes and Member, MACT,
Bengaluru (SCCH-15), dismissing the claim petition for
compensation.

      This MFA, coming on for hearing, this day, this
Court, delivered the following:

                      JUDGMENT

This appeal under Section 173(1) of the Motor

Vehicles Act, 1988 (hereinafter referred to as 'the Act',

for short) has been filed by the claimants being

aggrieved by the judgment dated 01.03.2019 passed

by the Motor Accident Claims Tribunal, Bengaluru

(SCCH:15) in MVC No.6350/2017.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 19.06.2017 at 7.30 p.m.,

the deceased T.M.Sathish was proceeding on

motorcycle bearing registration No.KA-02/EL-725

along with a pillion rider from his village Thalagunda

on the left side of Tumkur - Bengaluru NH-04 road

and on the way after taking 'U' turn at Billanakote

village, the deceased ridden the vehicle to Alankar

Dhaba which is situated on the southern side, i.e., on

the left side of Bengaluru towards Tumkur road, after

taking food at Alankar Dhaba, the deceased was going

towards Billanakote village in front of Alankar Dhaba,

near Dabaspete, Nelamangala Taluk, at that time, a

canter bearing registration No.KA-52/9513 which was

being driven in a rash and negligent manner, came to

the extreme left side of the road and dashed against

the motorcycle of the deceased. As a result of the

aforesaid accident, the deceased sustained grievous

injuries and succumbed to the injuries.

3. The claimants filed a petition under Section

166 of the Act seeking compensation for the death of

the deceased along with interest.

4. On service of summons, 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, occupation and income of the deceased 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 motorcycle by the deceased himself. It

was further pleaded that the driver of the offending

vehicle did not possess 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 claimants 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 claimants, in order to

prove their case, examined claimant No.1 as PW-1

and other two witnesses as PW-2 and PW-3 and got

exhibited documents namely Ex.P1 to Ex.P14. On

behalf of respondents, one witness was examined as

RW-1 and got exhibited document namely Ex.R1. The

Claims Tribunal, by the impugned judgment, inter alia,

held that the claimants have failed to establish that

the accident has occurred and the deceased died due

to rash and negligent driving of the driver of the

offending vehicle. Hence, dismissed the claim

petition. Being aggrieved, this appeal has been filed.

6. Sri N.Gopalakrishna, the learned counsel for

the claimants has raised the following contentions:

Firstly, the accident has occurred due to the

negligence of the driver of the canter bearing

registration No.KA-52/9513. The Tribunal has erred in

holding that the deceased himself is negligent in

causing the accident.

Secondly, the deceased was coming in the edge

of the service road towards Bengaluru. The driver of

the canter was coming from Bengaluru. Even though

there is sufficient space to the road side he came

extreme left side and dashed against the motorcycle.

Thirdly, the claimants have examined PW-3 who

is an eyewitness to the accident. He has categorically

stated that the accident has occurred due to

negligence of the driver of the canter. But the

Tribunal has failed to consider all these aspects of the

matter.

Fourthly, it is the duty of the Tribunal to quantify

the compensation. But the Tribunal has not quantified

the same. Hence, he sought for allowing the appeal.

7. On the other hand, Sri O.Mahesh, the

learned counsel for the Insurance Company has raised

the following counter-contentions:

Firstly, the motorcycle was proceeding from

Tumkur to Bengaluru, i.e, one way which is prohibited

to proceed towards Bengaluru. Since the deceased

was on wrong side and also it was night at 7.30 p.m.,

he was negligent in causing the accident.

Secondly, earlier in the claim petition, it is

contended that the deceased was proceeding on left

side of Tumkur - Bengaluru NH-4 road, the driver of

the canter came from the opposite direction and

dashed against the motorcycle. Later, they have

amended the claim petition and stated that deceased

was coming at the edge of the road to take 'U' turn to

enter Bengaluru main road. There is contradiction in

the pleadings and the police records. Therefore, the

Tribunal is justified in dismissing 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 claimants is that on

19.06.2017 at 7.30 p.m., the deceased T.M.Sathish

was proceeding on motorcycle bearing registration

No.KA-02/EL-725 along with a pillion rider from his

village Thalagunda on the left side of Tumkur -

Bengaluru NH-04 road and on the way after taking U-

turn at Billanakote village, the deceased ridden the

vehicle to Alankar Dhaba which is situated on the

southern side, i.e., on the left side of Bengaluru

towards Tumkur road, after taking food at Alankar

Dhaba, the deceased was going towards Billanakote

village in front of Alankar Dhaba, near Dabaspete,

Nelamangala Taluk, at that time, a canter bearing

registration No.KA-52/9513 which was being driven in

a rash and negligent manner, came to the extreme

left side of the road and dashed against the

motorcycle of the deceased. As a result of the

aforesaid accident, the deceased sustained grievous

injuries and succumbed to the injuries.

10. Initially in the claim petition, the claimants

have explained the manner of accident as "on the left

side of Tumkur - Bangalore NH - 04 road at about

7.30 p.m. in front of Alankar Dhaba, near Dabaspete,

Nelamangala Taluk". Thereafter, they have filed an

application under Order VI Rule 17 of CPC to amend

the claim petition. Later they have described the

manner of the accident as "on the left side of Tumkur

- Bengaluru NH-4 road, on the way after taking U-

turn at Billanakote village, to go to Alankara DAbha

which is situated on the southern side, i.e., on the left

side of Bengaluru towards Tumkur road, after taking

food at Alankara Dabha, the deceased was going

towards Billanakote village U-turn to go to Bengaluru

on the footpath in front of Alankara Dabha, near

Dabaspete, Nelamangala Taluk. PW-1 has given

evidence before amending the claim petition. After

the amendment, PW-1 has not stepped into the

witness box to say about the manner of the accident

and describe the accident place. Even the police

records described the manner of the accident contrary

to the claim petition. The respondent has also not

examined the investigating officer. By looking into the

sketch, mahazar and IMV report, it shows that the

deceased was proceeding towards Bengaluru on

southern side of the road to take U-turn to enter

Bengaluru road. It appears, there is some

contradiction in the pleadings as well as police

records. The claimants require to examine PW-1 as

well as the investigating officer. The Tribunal has also

not quantified the compensation amount. Hence, the

matter requires to be remitted back to the Tribunal for

fresh consideration.

11. 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 with liberty to the parties to

adduce additional evidence and produce additional

documents. All the contentions of the parties are left

open.

The parties are directed to appear before the

Tribunal on 03.08.2022 at 11.00 a.m. without any

further notice. The Tribunal is directed to reconsider

the matter afresh in accordance with law, as

expeditiously as possible, without being influenced by

any observations made in this order.

Sd/-

JUDGE

Cm/-