Khutubuddin S/O Akbarsab Shaik ... vs Topu S/O Babu Chavan And Ors
2022 Latest Caselaw 4861 Kant

          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

       DATED THIS THE 16TH DAY OF MARCH 2022

                        BEFORE

     THE HON'BLE MR. JUSTICE ASHOK S. KINAGI

          M. F. A. NO.201788 OF 2016 (MV)

BETWEEN:

KHUTUBUDDIN,
S/O AKBARSAB SHAIK (SUNAR),
AGED ABOUT 45 YEARS,
OCC: PETTY BUSINESS, NOW NIL,
R/O: LAL TALAB, BASAVAKALYAN,
BIDAR DISTRICT - 584 101.
                                        ..APPELLANT
(BY SRI. SANJEEVKUMAR C PATIL, ADVOCATE)

AND:

TOPU,
S/O BABU CHAVAN,
R/O: KALKHORA THANDA (HEERU THANDA),
BASAVAKALAYN TALUK, BIDAR DISTRICT.
DIED BY LRS.
1.     SUSHMA,
       W/O LATE TOPU CHAVAN,
       AGED ABOUT 31 YEARS,
       OCC: HOUSEHOLD,
2.     DEEPIKA,
       D/O LATE TOPU CHAVAN,
       AGED ABOUT 9 YEARS,
                         2




3.   DIVYA,
     D/O LATE TOPU CHAVAN,
     AGED ABOUT 7 YEARS,

4.   SANDHYA,
     D/O LATE TOPU CHAVAN,
     AGED ABOUT 3 YEARS,

5.   BABU,
     S/O HEERU CHAVAN,
     AGED ABOUT 56 YEARS,
     OCC: COOLIE

6.   GUJABAI,
     W/O BABU CHAVAN,
     AGED ABOUT 53 YEARS,
     OCC:HOUSEHOLD,

     RESPONDENTS 2 TO 5 ARE MINORS
     REP. BY RESPONDENT No.1 - MOTHER,
     ALL ARE R/O KALHORA THANDA
     (HEERU THANDA),
     BASAVAKALAYN TALUK,
     BIDAR DISTRICT - 584 101.

7.   THE MANAGER,
     ICICI LAMBORD GENERAL INSURANCE
     COMPANY LTD,
     ICICI BANK TOWERS,
     BANDRA-KURLA COMPLEX,
     BANDRA EAST, MUMBAI - 400 001.
                                     ...RESPONDENTS
(BY SRI. SUDARSHAN M., ADVOCATE FOR R-7;
    R1, R5 & R6 ARE SERVED;
    R2 TO R4 ARE MINORS REP. BY R-1)

   MFA FILED U/S 173(1) OF MV ACT, BY THE ADVOCATE
FOR APPELLANT, PRAYING THAT THIS HON BLE COURT
MAY BE PLEASED TO MODIFY THE JUDGMENT AND AWARD
                             3




DATED 23.12.2015 PASSED BY THE II ADDL. DISTRICT
AND SESSIONS COURT AND ADDL. MACT, BIDAR SITTING
AT BASAVAKALYAN IN MVC NO.622/2011, BY ENHANCING
THE COMPENSATION AND FIXED THE ENTIRE LIABILITY
ON THE RESPONDENTS.

     THIS MFA COMING ON FOR ADMISSION THIS DAY,
THE 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 claimant aggrieved by

the judgment and award dated 23.12.2015 passed in

MVC No.622/2011 by the II Additional District and

Sessions Court and Additional Motor Accident Claims

Tribunal, Bidar sitting at Basavakalyan.

For the sake of convenience, parties are referred

to as per their ranking before the Claims Tribunal.

Appellant is the claimant and respondents are the

respondents before the Tribunal.

2. Brief facts giving rise to filing of this appeal

are as under:

That on 18.06.2011 at about 8.30 p.m., the

claimant was proceeding on his motorcycle bearing

registration No.KA-39/E-7435 near by

Hanumanthwadi village on Mudbi-Basavakalyan road,

at that time, another motorcycle bearing registration

No.KA-56/E-908, which came in opposite direction in a

rash and negligent manner and dashed to the vehicle

of the claimant. As a result, the aforesaid accident,

the claimant sustained grievous injuries and spent

huge amount for medical treatment. Hence, the

claimant has filed claim petition under Section 166 of

M.V.Act, seeking compensation for the injuries

sustained in the road traffic accident.

3. The respondent No.1 did not appear before

the Tribunal inspite of service of notice and was placed

ex-parte. Respondent No.2 - Insurance Company

appeared and filed written statement denying the

averments made in the claim petition. It is contended

that the accident was occurred as a result of

contributory negligence of the claimant. As on the

date of accident, claimant and respondent No.1 was

not holding valid and effective driving license. Hence,

prayed to dismiss the claim petition.

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

the Claims Tribunal framed the issues. The claimant

examined himself as PW-1 and got marked the

documents as Ex.P1 to Ex.P39. On behalf of the

respondents, the Official of respondent No.2 was

examined as RW-1 and got marked the documents as

Ex.R1 and Ex.R2. The Tribunal, after considering the

material on record, recorded a finding that the

claimant has proved that he met with an accident on

18.06.2011, and accident was occurred due to rash

and negligent riding of the rider of motorcycle bearing

registration No.KA-56/E-908. Further, held that

claimant is entitled for compensation and

consequently allowed the petition in part and awarded

a compensation of Rs.44,400/- with interest at the

rate of 7% p.a., from the date of petition till its

realization. Further, ordered that respondents No.1

and 2 shall satisfy the amount within two months from

the date of receipt of copy of the order. Further,

placing a reliance on judgment dated 09.06.2015 in

MFA.No.1349/2011, passed by this Court, 40% is

deducted in the compensation on the ground that

claimant was not having valid driving license. The

claimant being aggrieved by the judgment and award

passed by the Tribunal in deducting 40% of

compensation amount has filed this appeal.

5. Heard learned counsel for the claimant and

learned counsel for respondent No.7.

6. The learned counsel for the claimant submits

that the accident was occurred due to rash and

negligent riding of the rider of the motorcycle bearing

registration bearing No.KA-56/E-908, and chargesheet

is filed against the respondent No.1 - Topu S/o Babu

Chavan. He further submits that no chargesheet is

filed against the claimant. He further submits that the

Tribunal has committed an error in deducting 40% of

amount in the compensation, on the ground that

claimant was not having valid driving licence. Hence,

on these grounds, he prays to allow the appeal.

7. Per contra, learned counsel for respondent

No.7 - Insurance Company supports the impugned

judgment and award passed by the Tribunal.

8. Perused the records and considered the

submissions made by learned counsel for the parties.

9. The point that arise for consideration is with

regard to liability.

10. It is not in dispute that the claimant met

with an accident has occurred due to rash and

negligent riding of the rider of the motorcycle bearing

registration bearing No.KA-56/E-908. In order to

prove, the accident occurred due to rash and

negligent riding of the rider of the motorcycle bearing

registration bearing No.KA-56/E-908, the claimant has

produced copy of FIR and charge-sheet marked as

Ex.P1 and Ex.P8. Ex.P8 discloses that the accident

occurred due to rash and negligent riding of the rider

of the motorcycle bearing registration bearing No.KA-

56/E-908.

The Tribunal has observed that, the claimant

was not holding valid driving licence as on the date of

accident and for the said reason, Tribunal has

deducted 40% in the compensation amount. The

claimant has produced the chargesheet - Ex.P8.

Ex.P8 discloses that the accident occurred due to rash

and negligent riding of the rider of the motorcycle

bearing registration bearing No.KA-56/E-908.

Further, no chargesheet has been filed against the

claimant. Further, respondent No.2 has not placed

any material before the Tribunal to show that, the

claimant has contributed for the cause of accident. In

the absence of contributing negligence on the part of

claimant. The Tribunal has committed an error in

deducting 40% in the compensation amount.

11. In view of the above discussion, the appeal

is allowed in part. Judgment and award passed by the

Tribunal dated 23.12.2015, is modified. The claimant

is entitled to the compensation as awarded by the

Tribunal. Respondent No.7 - Insurance Company is

liable to pay the entire compensation amount to the

claimant and directed to deposit the compensation

amount along with interest, within a period of eight

weeks from the date of receipt of copy of this

judgment.

SD/-

JUDGE

GRD