Raghu vs Sri Umesh
2022 Latest Caselaw 12311 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 11TH DAY OF OCTOBER, 2022

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

                  M.F.A.NO.2632/2013 (MV)

BETWEEN:

RAGHU
S/O RENUKAPPA
29 YEARS
R/O VINAYAKANAGARA
GUBBI TOWN, GUBBI-572 216
TUMAKURU DISTRICT.                            ... APPELLANT

          (BY SRI PATEL D. KAREGOWDA, ADVOCATE)

AND:

1.     SRI UMESH
       47 YEARS
       S/O GUBBI HUCHAIAH
       R/O CHIKKONAHALLY VILLAGE
       GUBBI TALUK-572 216
       TUMAKURU DISTRICT.

2.     THE ORIENTAL INSURANCE COMPANY LIMITED
       BRANCH OFFICE, I FLOOR, T.G.M.A., BUILDING
       J.C.ROAD, TUMAKURU TOWN-572 101
       BY ITS MANAGER.                     ... RESPONDENTS

        (BY SRI C.R. RAVISHANKAR, ADVOCATE FOR R-2;
                        R-1 IS SERVED)


     THIS M.F.A., IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 18.12.2012
PASSED IN MVC NO.1446/2008 ON THE FILE OF THE SENIOR
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CIVIL JUDGE, ADDITIONAL MACT-17, GUBBI, DISMISSING THE
CLAIM PETITION FOR COMPENSATION.

     THIS M.F.A., COMING ON FOR FINAL HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                        JUDGMENT

Heard the learned counsel appearing for the appellant and

the learned counsel appearing for respondent No.2/Insurance

Company.

2. This appeal is filed challenging the judgment and

award dated 18.12.2012, passed in M.V.C.No.1446/2008 on the

file of Senior Civil Judge and Additional MACT-17 at Gubbi ('the

Tribunal' for short).

3. The parties are referred to as per their original

rankings before the Tribunal to avoid confusion and for the

convenience of the Court.

4. The factual matrix of the case of the claimant before

the Tribunal is that on 19.08.2008 at 8:00 a.m, the claimant and

his father had gone to Champa Hotel to supply milk to the said

Hotel and the claimant was standing near their TVS Moped

bearing registration No.KA-06-EA-1816 on the extreme left side

of the road while his father had gone inside the Hotel and at that

time one luggage auto bearing registration No.KA-06-B-5558

came from Circle side in a rash and negligent manner at high

speed without following any traffic rules dashed against the

claimant and the TVS moped and went towards Subhashnagar

side without stopping, as a result, he has sustained injuries like

fracture of patella on right side, head injury with internal

bleeding, bleeding of left ear and other blood injuries.

Immediately, he was shifted to Government Hospital, Gubbi and

after the first aid he was shifted to Shri. Siddartha Medical

College Hospital, Tumakuru and thereafter because of head

injury, he was shifted to NIMHANS, Bengaluru.

5. The claimant in order to prove his case, he examined

himself as P.W.1 and also examined one witness as P.W.2 and

got marked the documents as Exs.P1 to P22. On the other hand,

the respondents have not examined any witness and also not

marked any documents.

6. The Tribunal, after considering both oral and

documentary evidence available on record comes to the

conclusion that there is a discrepancy in the evidence of the

claimant, particularly, the place of accident mentioned in the

hospital, wherein, a history was given that the accident took

place near Tumakuru and not Gubbi Bus stand and further it

also implies that the accident took place when he was 'going in a

bike'. Hence, comes to the conclusion that the manner in which

the accident alleged has not been proved. Hence, dismissed the

claim petition. Being aggrieved by the judgment of dismissal of

the claim petition, the present appeal is filed by the claimant.

7. The learned counsel appearing for the

appellant/claimant would vehemently contend that even the IMV

report mainly relied upon by the Tribunal regarding damages. An

IMV report clearly discloses the damages caused to the vehicles

i.e., auto rickshaw as well as the motorcycle. Hence, it is clear

that there was an accident. Whether the accident is on account

of the negligence on the part of the claimant or the driver of the

auto rickshaw has not been considered; instead dismissed the

entire claim petition. Hence, it requires an interference of this

Court.

8. Per contra, the learned counsel appearing for

respondent No.2/Insurance Company would vehemently contend

that the Tribunal in paragraph Nos.12 and 13 in detail discussed

the manner of accident as well as the Tribunal comes to the

conclusion that he was 'going in a bike' and he was not standing

on the extreme left side of the road and found the discrepancy in

the history given by the injured himself and rightly dismissed the

claim petition.

9. Having heard the respective counsel and on perusal

of the material available on record, particularly, on perusal of the

document Ex.P7-IMV report, it clearly discloses that there are

damages to both the vehicles. When such being the case,

whether it has sustained damages on the front portion or rear

portion is immaterial when an accident was taken place and both

the vehicles are involved in the accident and sustained damages.

The very approach of the Tribunal is erroneous. The Tribunal

while answering issue No.1 in paragraph No.13, taken note of

the fact that the petitioner himself has given the history that hit

by an auto rickshaw from behind while going in a bike. But it is

the claim of the claimant that he was standing on the extreme

left side of the road. When the injured was given the history

immediately after the accident that the involvement of two

vehicles, the Tribunal ought to have taken note of the said fact

into consideration, when an accident was taken place, the

damages was also caused to both the vehicles, the injured was

also sustained the injuries and he took treatment in the Hospital

and ought to have taken note of the negligence on the part of

the claimant as well as the driver of the offending vehicle

instead erroneously dismissed the claim petition. Hence, it

requires interference of this Court and it is a fit case to remand

the matter for re-consideration of contributory negligence and

determine the quantum of compensation.

10. In view of the discussions made above, I pass the

following:

ORDER

(i) The appeal is allowed.

      (ii)    The impugned judgment and award of the
              Tribunal   dated     18.12.2012,   passed   in

M.V.C.No.1446/2008, is hereby set aside.

(iii) The matter is remanded to the Tribunal to consider the matter afresh in the light of the observations made by this Court.

(iv) This is the matter of the year 2013. Hence, the Tribunal is directed to dispose of the matter within six months from today.

(v) The parties are directed to appear before the Tribunal on 08.11.2022 without expecting any separate notice from the Tribunal.

(vi) Both the parties and the respective counsel are directed to assist the Tribunal to dispose of the case within the stipulated period of six months from today.

(vii) The Registry is directed to transmit the records forthwith to the concerned Tribunal to enable both the parties and the respective counsel to appear before the Tribunal on 08.11.2022.

Sd/-

JUDGE

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