Karnataka High Court
Zahara @ Zahanara Begum @ Zahar ... vs Dr Vidyanath Joshi on 24 May, 2022
Bench: B.Veerappa, K S Hemalekha
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MFA No.1278 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF MAY, 2022
PRESENT
THE HON'BLE MR. JUSTICE B.VEERAPPA
AND
THE HON'BLE MRS. JUSTICE K. S. HEMALEKHA
MISCELLANEOUS FIRST APPEAL No.1278 OF 2021 (MV)
BETWEEN:
1. ZAHARA @ ZAHANARA BEGUM @ ZAHAR BANU
W/O MOHAMMED ZAKI,
AGE ABOUT 45 YEARS
R/AT NO. 11/1, 7TH CROSS,
VINAYAKA NAGAR,
OLD GUDDADAHALLI,
BENGALURU - 560026.
AND ALSO
RESIDING AT NO. 2ND MAIN,
4TH CROSS, KALIDAS NAGAR,
HARIHARA - 577601.
...APPELLANT
(BY SRI. N. KUMAR., ADVOCATE)
AND:
1. DR. VIDYANATH JOSHI,
S/O LATE BAALAMUKUNDA JOSHI,
3RD FLOOR, K. V. V. SAMRAT,
Digitally signed by 217/A, 3RD MAIN,
MALATESH K C OUTER RING ROAD,
Location: High
Court of Karnataka KASTHURI NAGAR,
BENGALURU - 560043.
2. NEW INDIA ASSURANCE CO. LTD.,
NO. 301, 2B UNITY BUILDING,
ANNEXE, 11TH A CROSS,
P. KALINGA RAO ROAD,
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MFA No.1278 of 2021
MISSION ROAD, NEAR MISSION SCHOOL,
BENGALURU - 560027.
...RESPONDENTS
(BY SRI K. POORNABODHA RAO, ADVOCATE FOR R2;
R1 IS SERVED BUT UNREPRESTNED)
****
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT, PRAYING TO SET ASIDE THE
JUDGMENT AND AWARD DATED 02.01.2020 PASSED IN MVC
No.1992/2017 ON THE FILE OF THE XVI ADDITIONAL JUDGE,
COURT OF SMALL CAUSES, MEMBER, MACT, BENGALURU,
(SCCH-14), AND TO ALLOW THE CLAIM PETITION IN FULL AND
PASS SUCH OTHER ORDERS AS DEEMED FIT IN THE
CIRCUMSTANCES OF THE CASE, IN THE INTEREST OF JUSTICE
AND EQUITY.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
ADMISSION THIS DAY, B.VEERAPPA J., DELIVERED THE
FOLOWING:
JUDGMENT
It is an unfortunate case where, the mother who lost her
daughter in the road traffic accident has filed the present
Miscellaneous First Appeal against the judgment and award
dated 02.01.2020 passed in MVC No.1992/2017 on the file of
the Member, MACT, XVI Additional Judge, Court of Small
Causes, Bengaluru, (SCCH-14), dismissing the claim petition
for compensation.
MFA No.1278 of 2021
2. It is the case of the appellant/claimant that she filed
claim petition under Section 166 of the Motor Vehicles Act
against the respondents claiming compensation of `25,00,000/-
for the death of her daughter-Khamar Taj, aged about 18
years, in a road traffic accident, contending that her deceased
daughter was working as a tailor and was earning `20,000/-
per month. It is further case of the claimant that on
11.11.2015, at about 2.45 pm, the deceased was returning
from Anagodu to Harihara as a pillion rider with one Fazil Pasha
in a bike bearing registration No.KA-17/EP-2682, when they
reached N.H.4, Honnur Gollarahatti, Davanagere, at that time,
the rider of the bike rode the same in a rash and negligent
manner and deceased fell down from the bike. As a result of
the same, deceased sustained grievous injuries to the head and
all over the body. Immediately, she was shifted to SSIM
Hospital, Davanagere, wherein she succumbed to the injuries
on the next day i.e., on 12.11.2015 at about 12.45 pm.
Thereafter, post mortem was conducted and body was handed
over to the claimant. Huge amount was spent towards
transportation of dead body and funeral expenses. The police
registered a criminal case and filed the charge sheet against
MFA No.1278 of 2021
the rider of the offending bike for the offences punishable under
Sections 279 and 337 of the Indian Penal Code. It was further
contended that the respondent No.2 being the owner and
respondent No.3 being the insurer of the offending vehicle are
jointly and severally liable to pay the compensation.
3. The respondent Nos.2 and 3 filed separate written
statement. The respondent No.2 contended that he is the
owner of the vehicle and respondent No.1 is the insurer of the
bike bearing registration No.KA-17/EP-2682 and that the cause
of the accident as mentioned in the petition is far from truth.
The deceased being the pillion rider, lost balance and fell down
on the road and sustained injuries. It is not due to the rash
and negligent riding of the rider, the mishap has occurred. It is
a created story and concocted by the claimant for the purpose
of the compensation, and therefore, sought to dismiss the claim
petition.
4. The respondent No.3 filed objections, admitted the
issuance of Insurance Policy in favour of respondent No.2 and
its validity in respect of the bike bearing registration No.KA-
17/EP-2682. It was contended that the claimant is not the
MFA No.1278 of 2021
legal heir or dependent on the deceased. Hence, the claim
petition is not maintainable. Without prejudice to the said
contention, the claimant was called upon to prove her
relationship with the deceased and right to compensation, and
sought to dismiss the claim petition.
5. Based on the aforesaid pleadings, the Tribunal, framed
the following points for consideration.
(1) Whether the petitioner proves that, she
is the legal representative of the deceased?
(2) Whether the petitioner proves that
Khamar Taj died due to injuries sustained by her
in an accident occurred on 11.11.2015 at about
2.45 pm near Honnur Gollarahatti, Davanagere
Taluk, Davanagere, arising due to the rash and
negligent riding of rider of the bike bearing
No.KA-17/EP-2682?
(3) Whether the petitioner is entitled for
compensation? If so, how much and from
whom?
6. In order to prove her case, the claimant examined herself
as P.W.1 and got marked the documents Exs.P.1 to P.16. On
the other hand, the respondent No.3 examined its Assistant
MFA No.1278 of 2021
Manager as R.W.1 and got marked documents as per Exs.R.1
to R.4.
7. The Tribunal, considering both oral and documentary
evidence on record, recorded a finding that the claimant failed
to prove that she is the legal representative of the deceased-
Khamar Taj, and that the claimant proved that her daughter-
Khamar Taj died due to the injuries sustained in the road traffic
accident that occurred on 11.11.2015 at 2.45 pm near N.H-4,
Honnur Gollarahatti, Davanagere, due to rash and negligent
riding of the rider of the bike bearing registration No.KA-17/EP-
2682 and the claimant is not entitled to compensation.
Accordingly, the Tribunal dismissed the claim petition. Hence
the present Miscellaneous First Appeal is filed by the claimant.
8. The Insurance Company has not filed any Appeal against
the adverse finding recorded by the Tribunal in respect of 2nd
issue holding that the claimant proved that the accident
occurred on 11.11.2015 due to rash and negligent riding of the
bike by its rider which resulted in death of the victim.
9. We have heard the learned counsel for the parties to the
lis.
MFA No.1278 of 2021
10. Sri N.Kumar, learned counsel for the appellant, while
filing the present Miscellaneous First Appeal, has also filed I.A
No.1/2021 for production of additional documents to prove that
Zahara @ Zahanara Begum @ Jahar Banu, are one and the
same, and she is the mother of the deceased and is entitled to
compensation and has produced the following documents:
(i) Copy of the petition and objections in
Crl.Misc.No.148/2014.
(ii) Copy of the entire depositions in
Crl.Misc.No.148/2014.
(iii) Copy of the entire deposition in S.C.No.54/20123
(iv) Copy of the sale deed dated 03.03.2018.
(v) Copy of Aadhar Card of the appellant.
(vi) Copy of PAN Card of the appellant.
(vii) Birth Certificate.
11. The Tribunal has recorded a finding that the claimant has
proved that her daughter-Khamar Taj died due to the injuries
sustained by her in the road accident that occurred on
11.11.2015 due to rash and negligent riding of the rider of the
bike. The owner of the vehicle has stated in the objections that
the deceased is the daughter of the claimant and deceased
MFA No.1278 of 2021
being the pillion rider, fell on the road as she lost balance and it
is not due to rash and negligent riding of the bike by its rider.
12. In view of the additional documents produced by the
learned counsel for the appellant in the present appeal to prove
that the claimant is the mother of the deceased, we deem it
proper that the Tribunal shall look into the same.
13. The Tribunal, while considering the claim petition filed
under Section 166 of the Motor Vehicles Act, ought to have
summoned the claimant to produce the documents to prove
that she is the mother of the victim and should not have
dismissed the claim petition holding that the claimant is not the
legal representative of the deceased, having recorded a finding
that the accident occurred due to rash and negligent riding of
the bike. Since the Insurance Company has not challenged the
said finding, taking into consideration the provisions of the
Motor Vehicles Act which is a beneficiary legislature, we are of
the considered opinion that the matter has to be reconsidered
by the Tribunal after providing an opportunity to the claimant
to produce the additional documents.
MFA No.1278 of 2021
14. Though Sri Poornabodha Rao, learned counsel for the
respondent No.2 has not filed any objections to the application
for production of additional documents, orally opposed the
application. However, the fact remains that the finding
recorded by the Tribunal to the effect that the accident
occurred due to rash and negligent riding of the bike by its
rider is not challenged.
15. Keeping in view the intention of the legislature, we are of
the considered opinion that the matter has to be remitted to
the Tribunal to decide the issue whether the claimant is the
legal heir of the deceased and proceed further in accordance
with law, as there is already an adverse finding against the
Insurance Company that the claimant has proved that the
accident occurred due to rash and negligent riding of the bike
by the rider of bike.
16. In view of the above I.A.No.1/2021 for production of
additional documents is hereby allowed. Since this Court,
considering the facts and circumstances of the case, allowed
the application for production of additional documents,
necessarily the matter has to go back to the Tribunal to decide
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MFA No.1278 of 2021
the legal representative of the deceased Khamar Taj and
proceed to determine the quantum of compensation, in
accordance with law, as already there is a finding that the
accident has occurred due to rash and negligent riding of the
bike. Further, Ex.P.1-FIR with complaint, Ex.P.5-charge sheet
filed against the rider of the bike have not been challenged.
The Tribunal shall proceed with the matter after providing
opportunity to both the parties to lead further evidence, if any,
only respect of relationship of the deceased with the claimant
based on the additional documents relied upon by the
appellant, subject to production of the certified copies of the
said documents.
17. In view of the above, we pass the following:
ORDER
(i) I.A.No.1/2021 for production of additional documents
is hereby allowed.
(ii) Consequently, the present Miscellaneous First Appeal
is allowed in part.
(iii) The impugned judgment and award dated 02.01.2020
passed in MVC No.1992/2017 on the file of the
Member, MACT, XVI Additional Judge, Court of Small
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MFA No.1278 of 2021
Causes, Bengaluru, (SCCH-14), only in so far as
negating the issue Nos.1 and 3 of the impugned
judgment and award is hereby set-aside.
(iv) The matter is remanded to the Tribunal to reconsider
Issue Nos.1 and 3 with regard to relationship between
the claimant and the deceased in the light of the
additional document Nos.1 to 7 produced by the
learned counsel for the appellant in I.A.No.1/2021,
subject to production of certified copies of the same,
after giving opportunity to both the parties to lead
further oral and documentary evidence, if any, by both
the parties, and proceed strictly in accordance with
law.
(v) The parties are directed to appear before the Tribunal
on 20.06.2022.
(vi) The Tribunal is directed to decide Issue Nos.1 and 3
and proceed to pass orders in accordance with law,
within three months from 20.06.2022.
(vii) The registry is directed to return the Trial Court
Records, forthwith.
Sd/-
JUDGE
Sd/-
JUDGE
kcm
