Karnataka High Court
Bhimappa @ Bhevappa vs Muttappa And Anr on 6 July, 2023
Bench: H.T.Narendra Prasad
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MFA No. 200934 of 2018
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 6TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
MISCL. FIRST APPEAL NO. 200934 OF 2018 (MV-I)
BETWEEN:
BHIMAPPA @ BHEVAPPA
S/O MARIBA KHARAT,
AGE : 35 YEARS, OCC: AGRICULTURE & COOLIE,
R/O KALABURKI, TQ: B.BAGEWADI,
NOW RESIDING AT JAL NAGAR, VIJAYAPURA.
...APPELLANT
(BY SRI SANGANAGOUDA V.BIRADAR, ADVOCATE)
AND:
1. MUTTAPPA S/O VITTHAL BISANAL,
AGED ABOUT 43 YEARS, OCC: BUSINESS,
R/O KALABURKI, TQ: B.BAGEWADI,
DIST: VIJAYAPUR-586101.
Digitally signed
by SACHIN
(OWNER OF CAR BEARING NO.KA-28-C-0207)
Location: HIGH
COURT OF
KARNATAKA
2. THE BRANCH MANAGER
NATIONAL INSURANCE CO. LTD,
HERALAGI BUILDING, BEHIND S.S TEMPLE,
VIJAYAPUR-586101.
(Policy No.25331031140150008995
Valid from 15.05.2014 to 14.05.2015)
...RESPONDENTS
(BY SRI SUDARSHAN M.ADVOCATE FOR R2;
NOTICE TO R1 SERVED)
This MFA is FILED under Section 173(1) OF Motor
Vehicles Act, PRAYING THAT THIS HON BLE COURT MAY BE
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MFA No. 200934 of 2018
PLEASED TO ALLOW THE APPEAL BY SETTING ASIDE THE
IMPUGNED JUDGMNET AND AWARD DATED 22.01.2018
PASSED BY THE LEARNED IV ADDL.DIST.JUDGE AND MACT-
XIII, VIJAYAPUR IN MVC NO.860/2015 AND PASS REASONABLE
AWARD. ALTERNATIVELY THE HON BLE COURT MAY KINDLY BE
PLEASED TO REMAND THE MATTER TO THE LEARNED
TRIBUNAL FOR A FRESH TRIAL PROVIDING OPPORTUNITY TO
LEAD THE FURTHER EVIDENCE OF APPELLANT, IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. This appeal is filed by the claimant challenging
the judgment and award dated 22.01.2018 passed by the
MACT, Vijayapur in MVC No.860/2015 whereby the claim
petition filed by the claimant has been rejected.
2. The case of the claimant that on 12.03.2015 at
about 10.00 a.m. when he was returning to Kalagurki from
Malaghan on a motorcycle bearing Reg.No.KA-28-U-5269
as a pillion rider along with his friend, who was riding the
said motorcycle in a slow and caution on the extreme left
side of the road nearby Kalagurki Hatti School, at that
time the driver of the car bearing Reg.No.KA-28/C-0207
came from opposite direction in a rash and negligent
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MFA No. 200934 of 2018
manner and dashed to the motorcycle, due to which the
claimant fell down and sustained injuries. Immediately,
the petitioner was shifted to Tanga Multi Specialty and
Trauma Center, Vijayapura for treatment where he took
the treatment and underwent operation.
3. The claimant filed a petition under Section 166
of the Act seeking compensation of `11,00,000/- with
interest.
4. On service of notice, the respondents 1 and 2
appeared through counsel filed their separate written
statements and have denied the averments made in the
claim petition.
5. On the basis of the pleadings of the parties, the
Claims Tribunal framed the issues and thereafter recorded
the evidence. The claimant himself was examined as PW-1
and Dr.Rahul was examined as PW-2 and got exhibited
documents namely Ex.P1 to Ex.P.11. On behalf of the
respondents, respondents have not examined any witness
but got marked the Insurance Policy as Ex.R1.
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MFA No. 200934 of 2018
6. The Claims Tribunal, by the impugned
judgment, on the basis of the oral and documentary
evidence, has answered Issue No.1 in the negative and
issues No.2 and 3 as do not do not survive for
consideration by dismissing the claim petition. Being
aggrieved, the present appeal has been filed.
7. Sri Sanganagouda V.Biradar, learned counsel
appearing for the claimant has contended that the
accident was due to rash and negligent driving of the car
bearing Reg.No.KA-28-C-0207. The police immediately
after the complaint registered an FIR and after
investigation filed charge sheet. The Tribunal without
considering this aspect of the matter error in dismissing
the claim petition.
8. He further contended that it is not in dispute
the involvement of the car in the accident just because the
IMV report shows that there is no damages to the said
vehicle, the Tribunal has wrongly come to the conclusion
that the car has not involved in the accident. This finding
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MFA No. 200934 of 2018
of the Tribunal is contrary to the material available on
record. He further contended that the Tribunal has not
assessed the compensation, therefore he sought for
allowing the appeal.
9. Per contra, Sri Sudarshan M, learned counsel
appearing for Insurance Company has contended that the
claimant has suffered injury due to rash and negligent
riding of the motorcycle not due to rash and negligent
driving of the car. Even though the FIR has been filed
against the driver of the Car and charge-sheet has been
filed by going through the IMV report, Ex.P.4 the Tribunal
has rightly held that the car was not involved in the
accident and rightly dismissed the claim petition. Hence,
he sought for dismissal of the appeal.
10. Heard the learned counsel for the parties and
perused the judgment and award and the original records.
11. The case of the claimant is that on 12.03.2015
at about 10.00 a.m. when he was returning to Kalagurki
from Malaghan on a motorcycle bearing Reg.No.KA-28-U-
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MFA No. 200934 of 2018
5269 as a pillion rider along with his friend Mayappa who
was riding the motorcycle, at that time the driver of the
car bearing Reg.No.KA-28-C-0207 came from opposite
direction in a rash and negligent manner, dashed against
the motorcycle, due to impact the claimant fell down and
sustained severe injuries. Immediately after the accident
complaint has been lodged against the driver of the car.
The police have filed the charge-sheet against the driver of
the car as per Ex.P.6. The Tribunal failed to consider the
evidence of PW.1 and the documents produced by the
claimant and also the parties have not been examined i.e.,
rider of the motorcycle and the driver of the car as they
are the important witnesses to the accident.
12. Under the circumstances, I am of the opinion
that the matter requires to be remitted back to the
Tribunal for fresh consideration. Accordingly, the appeal is
allowed.
13. The judgment and award passed by the
Tribunal is set-aside.
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14. The matter is remitted back to the Tribunal with
a direction to re-consider the matter afresh after by giving
an opportunity to both the parties to adduce their
evidence and to produce necessary documents.
15. It is made clear that the Tribunal has to decide
the matter without influencing any observation made in
this order.
16. Both the parties are directed to appear before
the Tribunal on 10.08.2023, without any further notice and
also directed to cooperate for early disposal.
17. The Tribunal is directed to dispose the claim
petition within a period of six months from the date of
appearance of the parties.
Sd/-
JUDGE
SN
