Smt. Annapurna W/O Gangayya ... vs Mohammed Ahmed Khan S/O Firoz Khan
2023 Latest Caselaw 5085 Kant

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                                                            NC: 2023:KHC-D:8036-DB
                                                         MFA No. 102319 of 2022




                           IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
                               DATED THIS THE 1ST DAY OF AUGUST, 2023
                                               PRESENT
                             THE HON'BLE MR JUSTICE S.R. KRISHNA KUMAR
                                                  AND
                                 THE HON'BLE MR JUSTICE G BASAVARAJA
                           MISCELLANEOUS FIRST APPEAL NO. 102319 OF 2022

                      BETWEEN:

                      1.   SMT. ANNAPURNA W/O. GANGAYYA KERIMATH,
                           AGE:52 YEARS, OCC: HOUSEHOLD WORK,
                           R/O: GOA, NOW AT MALAMADDI, DHARWAD-580007.

                      2.   MADIVALAYYA S/O. GANGAYYA KERIMATH,
                           AGE:32 YEARS, OCC: NIL,
                           R/O: GOA, NOW AT MALAMADDI, DHARWAD-580007.
                      3.   NAGAVENI @ LAXMI D/O. GANGAYYA KERIMATH,
                           AGE: 26 YEARS, OCC: NIL,
                           R/O: GOA, NOW AT MALAMADDI,
                           DHARWAD-580007, PRESENTLY CAMPED AT
                           VADDARABANDA, ELAHI LANE, BALLARI.
                                                                      ...APPELLANTS
                      (BY SRI. B.S.SANGATI, ADVOCATE)
                      AND:
Digitally signed by
MOHANKUMAR B          1.   MOHAMMED AHMED KHAN S/O. FIROZ KHAN,
SHELAR
Location: HIGH
                           AGE: 28 YEARS, OCC: BUSINESS,
COURT OF
KARNATAKA
                           R/O: H.NO.4839, NEAR SUNNI MASJID,
Date: 2023.08.05
12:22:35 +0530             CHANDRAWADA, FATORDA MARGAO,
                           SOUTH GOA, GOA-403601.
                      2.   BAJAJ ALLIENZ GENERAL INSURANCE CO. LTD.,
                           GURU SAI PLAZA, NEAR ADARSH SCHOOL,
                           PAJIFONDA GOA, BRANCH OFFICE, NOOLVI BUILDING,
                           NEW COTTON MARKET, HUBBALLI.
                      3.   THE NEW INDIA ASSURANCE COMPANY LTD.,
                           VASCO DA GAMA GOA, DIVISION OFFICE, NEAR OLD
                           DY.S.P. OFFICE, DHARWAD
                                                                   ...RESPONDENTS
                      (BY SRI.R.H.ANGADI, ADVOCATE FOR R1; SRI. S.K.KAYAKMATH,
                      ADVOCATE FOR R2; SRI. N.R.KUPPELUR, ADVOCATE FOR R3)
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                                                NC: 2023:KHC-D:8036-DB
                                           MFA No. 102319 of 2022




      THIS MFA IS FILED U/S.173 (1) OF MOTOR VEHICLES ACT,
1988, AGAINST JUDGMENT AND AWARD DATED 30.05.2022 PASSED
IN MVC NO.207/2018 ON THE FILE OF PRL. SENIOR CIVIL JUDGE
AND MOTOR ACCIDENT CLAIMS TRIBUNAL, DHARWAD, DISMISSING
CLAIM PETITION FILED U/S 166 OF MOTOR VEHICLES ACT.

     THIS MFA COMING ON FOR ADMISSION, THIS                         DAY,
S.R.KRISHNA KUMAR J., DELIVERED THE FOLLOWING:

                              JUDGMENT

This appeal by the claimant in MVC No.207/2018 on the

file of learned Principal Senior Civil Judge and Member, MACT,

Dharwad, is directed against the impugned judgment and

award dated 30.05.2022, whereby the claim petition filed by

the appellant/claimant seeking compensation towards demise

of one Gangayya Kerimath, who died in a fatal road traffic

accident that occurred on 28.11.2017 was dismissed by the

Tribunal.

2. Heard the learned counsel for the

appellants/claimants as well as learned counsel for respondents

and perused the material on record.

3. The material on record discloses that the

appellants/claimants are wife and children of late Gangayya

Kerimath, who stated to have expired in a fatal road traffic

accident that occurred on 28.11.2017 at about 9.30 a.m. When

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the aforesaid late Gangayya Kerimath was standing on the left

side of the road along with his motorcycle bearing registration

No.GA-02/V-0234, offending vehicle which was Hyundai i-20

Car bearing registration No.GA-08/F-2570 came in a rash and

negligent manner and dashed against the aforesaid Gangayya

Kerimtaht, as a result of which, the said Gangayya Kerimath

sustained grievous injuries and succumbed to the same in the

hospital. Therefore, the claimants filed instant claim petition

seeking compensation.

4. It is seen that while respondent No.1 before the

Tribunal was owner of the offending vehicle, respondent No.2 is

the insurer of offending vehicle and respondent No.3 is the

insurer of motorcycle of the deceased Gangayya Kerimath. All

the respondents contested the said claim petition and

contended that the accident in question was on account of

negligent act of rider of motorcycle i.e. deceased Gangayya

Kerimath and consequently, question of granting compensation

would not arise.

5. After completion of pleadings of the parties,

claimant No.1-wife of the deceased Gangayya Kerimath

NC: 2023:KHC-D:8036-DB MFA No. 102319 of 2022

examined herself as PW1 and two witnesses were examined as

PW2 and PW3 and documentary evidence viz., Ex.P1 to P17

were marked by the claimants. On behalf of the respondents,

respondent No.2/Insurance Company examined its official as

RW1 and documentary evidence viz., Ex.R1 to R3 were marked.

6. After hearing the learned counsel for the parties,

the Tribunal framed two issues for its consideration viz., issue

No.1 relating to claim of the appellants regarding rash and

negligent driving of driver of the offending vehicle, which was

Hyundai i-20 bearing registration No.GA-08/F-2570 and issue

No.2 relating to quantum of compensation and payable by

whom. The Tribunal answered issue No.1 against the

appellants/claimants and came to the conclusion that the

claimants had not adduced legal or acceptable evidence to

establish that the accident in question was on account of rash

and negligent driving of driver of the offending vehicle and

infact the accident had occurred due to rash and negligent act

of the deceased himself and consequently, proceeded to

dismiss the claim petition. Aggrieved by dismissal of the claim

petition, the appellants/claimants are before this Court by way

of present appeal.

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7. In addition to various contentions urged in the

memorandum of appeal and referring to the material on record,

learned counsel for the appellants/claimants submitted that the

Tribunal has failed to appreciate unimpeached, uncontroverted

and unchallenged pleadings and evidence adduced on behalf of

the claimants, which clearly establishes that the accident in

question was on account of rash and negligent driving of the

driver of offending vehicle and the impugned judgment and

award passed by the Tribunal based on misreading and

misinterpretation of the material on record is erroneous and

deserves to be set-aside. It is also submitted that since there

were two vehicles involved in the accident, the Tribunal has

failed to consider not only the aspect of contributory negligence

but also terms and conditions of insurance policy as also

documentary evidence, which were marked as Ex.P8, P13,

Ex.R2 and R3, which has resulted in erroneous conclusion.

Therefore, it is submitted that the impugned judgment and

award passed by the Tribunal deserves to be set-aside and

claim petition be allowed granting compensation in favour of

the claimants.

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8. Per contra, learned counsel for respondents

supports the impugned judgment and award and submits that

there is no merit in the appeal and same is liable to be

dismissed.

9. After having heard the learned counsel for the

parties, as rightly contended by the learned counsel for the

appellants/claimants except for discussing oral and

documentary evidence on record, the Tribunal has failed to

consider or appreciate the aspect of contributory negligence,

which would be relevant for adjudication of issue in controversy

between the parties. So also, the Tribunal has failed to

appreciate the terms and conditions of insurance policy of both

vehicles involved in the accident. It is also relevant to state

that the alleged documentary evidence produced by the

appellants at Ex.P1 to P13 have not been considered by the

Tribunal in their proper perspective and the impugned

judgment and award passed by the Tribunal is based on

surmises and conjectures warranting interference by this Court

in the present appeal.

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10. Under these circumstances, exercising powers

conferred under Section 107 of CPC read with Order XLI Rule

23A and Order XLI Rule 33 of CPC, in order to do substantial

justice, since the claim petition itself has been summarily

dismissed by the Tribunal, we deem it just and appropriate to

set-aside the impugned judgment and award and remit the

matter back to the Tribunal for reconsideration afresh in

accordance with law within a stipulated time.

11. For the foregoing reasons, we proceed to pass the

following:

ORDER

a) The appeal filed by claimants is allowed.

b) The impugned judgment and award of the Tribunal is hereby set-aside.

c) The matter is remitted back to the Tribunal for reconsideration afresh in accordance with law after affording reasonable opportunity to both the parties.

d) Parties are directed to appear before the Tribunal without waiting further notice on 28.08.2023.

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e) Liberty is reserved in favour of the parties to adduce additional oral and documentary evidence in support of their respective claims.

f) All rival contentions of the parties are kept open, since no opinion is expressed on the same.

g) The Tribunal is directed to dispose of the claim petition within a period of six months from 28.08.2023 in accordance with law.

Sd/-

JUDGE

Sd/-

JUDGE

JTR