Sri G Mahesh vs The Divisional Manager
2023 Latest Caselaw 212 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 4TH DAY OF JANUARY, 2023

                        BEFORE

      THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

     MISCELLANEOUS FIRST APPEAL NO.123 OF 2013 (MV)

BETWEEN:
SRI G.MAHESH
S/O.GOVINDA RAJU
AGED ABOUT 21 YEARS
R/AT NO.445, JANATHA COLONY
BANNERGHATTA, JIGANI HOBLI
ANEKAL TALUK - 562 104
BENGALURU DISTRICT                      ... APPELLANT

(BY SRI G.A.VISWANATHA REDDY, ADVOCATE)

AND:
1.     THE DIVISIONAL MANAGER
       BAJAJ GENERAL INSURANCE CO. LTD.
       NO.77, TBR COMPLEX
       ADJACENT TO JAIN COLLEGE
       NEW MISSION ROAD
       BENGALURU - 560 068

2.     SMT.R.RADHA
       W/O.T.RAVICHANDRA
       AGED ABOUT 32 YEARS
       R/AT NO.5, SIRUR PARK ROAD
       MALLESHWARAM
       SHESHADRIPURAM ROAD
       BENGALURU - 560 003             ... RESPONDENTS

(BY SRI P.B. RAJU, ADVOCATE FOR R-1;
    R-2 IS SERVED)
                          ---
     THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF MOTOR VEHICLES ACT
PRAYING TO SET ASIDE THE JUDGMENT AND AWARD
DATED 04.10.2012 PASSED BY VI ADDITIONAL JUDGE AND
                              -2-



MACT, BENGALURU CITY (SCCH-2) IN MVC NO.9101/2010
AND ETC.

     THIS APPEAL COMING ON FOR HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:


                         JUDGMENT

This appeal is preferred by the claimant being

aggrieved by the judgment and award dated 04.10.2012

passed by VI Additional Judge and MACT, Bengaluru City

(SCCH-2) (for short 'the tribunal') in MVC.No.9101/2010.

This appeal is founded on the premise that the tribunal has

dismissed the claim petition and has committed an illegality

and perversity without considering the material on record.

2. Parties to the appeal shall be referred to as per

their status before the tribunal.

3. Brief facts of the case is as under:

On 02.09.2010 at about 9.00 a.m. the claimant was

stated to be traveling on a motor cycle bearing registration

No.KA-51-Q-3890 as a pillion rider and when the rider and

the claimant came near Jelli Mission, Bengaluru-

Bannerghatta road, a Scorpio bearing registration No.KA-

04-ME-9342 came from Bengaluru in a rash and negligent

manner so as to endanger human life, dashed against the

motor cycle, in which the claimant was a pillion rider. Due

to which, the claimant sustained injuries to his body.

Immediately, he was shifted to the Hospital, wherein he

was treated as an inpatient and underwent surgery. It is

stated that he was working as a Plumber and earning a sum

of Rs.6,000/- per month and he was also studying PUC in

Layola evening college. Subsequent to the occurrence of

accident, the case came to be registered against the driver

of Scorpio in Cr.No.396/2010 for the offences punishable

under Sections 279 and 338 of IPC.

3.1. Respondent No.1-Insurance Company appeared

and filed statement of objections whereas respondent No.2-

owner of the offending vehicle remained absent and was

placed ex parte. The Insurance Company denied the claim

petition inter alia contending that the accident did not occur

due to the negligence of the driver of the scorpio vehicle

and denied all other contentions raised by the claimant in

the claim petition and sought for dismissal of the claim

petition.

3.2. Based on the pleadings, the tribunal framed

relevant issues for consideration. In order to substantiate

the issues and establish the case, the claimant got

examined himself as PW.1 and the Doctor as PW.2 and got

marked the documents as Exs.P1 to P13, whereas

respondent No.1-Insurance Company examined its Senior

Executive as RW.1 and got marked the documents as

Exs.R1 to R4.

3.3. The tribunal being unsatisfied and unconvinced

with the material evidence both oral and documentary and

the arguments addressed by both learned counsel, has

dismissed the claim petition.

3.4. The main grounds for dismissal of the claim

petition by the tribunal is for two reasons, one is that the

claimant has not examined the best evidence i.e. the rider

of the motor cycle and that there is certain contradictions

with regard to the statement made by the claimant that he

was a pedestrian in the Police records as well as in the

medical records. Apart from this, nothing else is

forthcoming in the impugned judgment and award for

dismissal of the claim petition. Even if it is taken that the

rider of the motor cycle has not been examined, that alone

would not discredit the statement or evidence put-forth by

the claimant and there is no mandatory requirement for

adducing evidence of the rider as if the claimant is able to

prove by material evidence both oral and documentary that

he had sustained injuries and the offending vehicle was

involved in a road traffic accident in a public way and is

entitled to claim compensation. The second aspect that

there was contradiction by the claimant himself as to

whether he was a pedestrian or pillion rider, which has not

been clearly established and the same cannot be a negative

aspect to discredit the claimant from seeking compensation

thereby dismissing the claim petition without adjudicating

the merits of the matter. Admittedly, FIR and charge sheet

has been laid against the driver of Scorpio and the crime is

registered for the offences punishable under Sections 279

and 338 of IPC. In fact, it is also submitted that the

criminal proceedings has been ended as the accused therein

i.e. the driver of Scorpio has pleaded guilty and paid the

fine. Therefore, the occurrence of accident and the

involvement of vehicle are not seriously in dispute. The

question revolves as to what is the compensation that

requires to be awarded. However, the tribunal has

dismissed the petition without adverting to the issue of

compensation and the injuries sustained or disabilities

encountered by the claimant.

4. Having heard the learned counsel for claimant and

learned counsel for respondent No.1, the points that would

arise for consideration are that -

"(i) Whether the tribunal is justified in dismissing the claim petition?

(ii) What order?"

5. I am in agreement with the contentions put-forth

by the learned counsel for claimant that the tribunal has

committed an error in not appreciating the material

evidence placed on record including the Police records and

medical records and the fact of laying of charge sheet and

pleadment of the guilty by the driver of Scorpio. Therefore,

this matter requires fresh consideration by the tribunal with

regard to quantum of compensation and liability.

6. With regard to involvement of vehicle and

occurrence of accident, the same is established and proved

by production of Police records. Therefore, the tribunal

need not delve into these aspects. While considering the

claim petition to be decided afresh, the tribunal shall delve

only upon the issue of quantum of compensation and

liability.

7. In view of the fact that the accident having

occurred on 02.09.2010, I deem it appropriate that the

matter will have to be decided within a stipulated time

frame to consider the issue raised by this Court.

Accordingly, I deem it appropriate that the matter requires

to be remanded for fresh consideration. Hence, I pass the

following:

ORDER

i) The appeal is allowed;

ii) The judgment and award dated 04.10.2012 passed

by VI Additional Judge and MACT, Bengaluru City,

in MVC.No.9101/2010, is set aside;

iii) The matter is remanded back to the tribunal for

fresh consideration to decide the matter on the

issue of quantum of compensation and liability;

iv) The same shall be decided by the tribunal within a

period of four (04) months from the date of receipt

of a copy of this order;

v) Parties to the proceedings along with their

respective counsel shall appear before the

jurisdictional tribunal on 02.02.2023, without

awaiting any further notice either from the tribunal

or this Court.

vi) Registry is directed to transmit the original records

to the jurisdictional tribunal forthwith.

Sd/-

JUDGE

LB