Karnataka High Court
B Mohammed Ghouse vs Shivayogi on 5 August, 2024
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NC: 2024:KHC:30933
MFA No. 9473 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
MISCELLANEOUS FIRST APPEAL NO. 9473 OF 2013 (MV)
BETWEEN:
B MOHAMMED GHOUSE
S/O B BASHA SAB,
AGED ABOUT 32 YEARS,
R/O 1ST MAIN,9TH CROSS,
BHAGATSINGH NAGAR,
DAVANAGERE-577 001.
...APPELLANT
(BY SRI. HANUMANTHAPPA A.,ADVOCATE)
AND:
1. SHIVAYOGI
S/O MURIGENDRAPPA,
Digitally signed by
MAJOR,
PRAJWAL A
DRIVER OF CAR BEARING
Location: HIGH COURT
OF KARNATAKA REG NO KA-17-M-2500,
R/O NARAGANAHALLI VILLAGE,
DAVANAGERE TALUK-577 002.
2. NAGARAJ K N
S/O KALLESHAPPA C ,MAJOR,
PRESENT OWNER OF CAR BEARING
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NC: 2024:KHC:30933
MFA No. 9473 of 2013
REG.NO KA-17-M-2500,
R/O NARAGANAHALLI VILLAGE,
DAVANAGERE TALUK-577 002.
3. INOD KUMAR M S
S/O C K MADHAWAN,MAJOR
INSURED OWENER OF CAR
BEARING REG.NO.KA-17-M-2500,
R/O NEAR VINAYAKA NILAYAM,
COLLAGE ROAD,NITUVALLI,
DAVANGERE-577 002.
4. THE MANAGER
NEW INDIA ASSURANCE COMPANY,
LIMITED,BRANCH OFFICE,
TRIVANDRAM,KERALA,
REPRESENTED THROUGH ITS,
THE DIVISIONAL MANAGER,
DIVISIONAL OFFICE,
THE NEW INDIA ASSURANCE CO,LTD.,
VIDHYARTHI BHAVAN CIRCLE,
C G HOSPITAL ROAD,
DAVANGERE -577 001.
...RESPONDENTS
(BY SMT. PRATHIBHA K.M, ADVOCATE FOR R1 & R2;
SRI. M.P. SRIKANTH, ADVOCATE FOR R4;
VIDE ORDER DATED 05.08.2024 SERVICE OF NOTICE
TO R3 DISPENSED WITH)
THIS MFA IS FILED U/S 173(1) OF MV ACT 1988
AGAINST THE JUDGMENT AND AWARD DATED
30.7.2013 PASSED IN MVC NO.270/2011 ON THE FILE
OF THE PRINCIPAL SENIOR CIVIL JUDGE, MEMBER,
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NC: 2024:KHC:30933
MFA No. 9473 of 2013
MACT-4, DAVANGERE, PARTLY DISMISSING THE CLAIM
PETITION FOR COMPENSATION.
THIS APPEAL, COMING ON FOR HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS
UNDER:
CORAM: HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
ORAL JUDGMENT
In this appeal, the petitioner has challenged
the judgment and award dated 30.07.2013 in MVC
No.270/2011 passed by the Principal Senior Civil
Judge and Member, MACT IV, Davanagere [in short,
the 'Tribunal'].
2. For the sake of convenience, the rank of
the parties shall be referred to as per their status
before the Tribunal.
3. The brief facts of the case are, on
29.11.2010 at about 3.30pm, near Kaveramma
School, 4th Cross, K.B. Extension, Davanagere,
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while the petitioner was riding bullet bearing No.KA
17/EC/459, car bearing No.KA-17-M-2500 which
was going ahead of the motor cycle stopped all of a
sudden and the driver of the car opened the left
side of the door of the car, due to which the right
side handle of the bullet touched the left side door
of the car and the petitioner fell down and
sustained injuries. Immediately, he was taken to
City Central Hospital, Davanagere, on the very
day, Investigating Officer visited the hospital and
recorded his statement and registered a case in
Crime No.264/2010, post investigation, the driver
of the car was charge sheeted. After taking
treatment, the petitioner approached the Tribunal
for grant of compensation. The claim was opposed
by the Insurance Company. The Tribunal after
taking evidence and hearing both the parties
dismissed the claim petition. Aggrieved by the
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same, the petitioner has filed this appeal on various
grounds.
4. Heard the arguments of Sri
Hanumanthappa A, learned counsel for the
petitioner and Sri M.P. Srikanth, the learned
counsel for the insurer of the car.
5. It is contended by the learned counsel for
the petitioner that the accident is admitted and the
Tribunal, for erroneous reasons, dismissed the
claim petition. In the cross examination, the
Insurance company admitted that the accident had
taken place, but attributed negligence on the part
of the petitioner. The petitioner has clearly
stated in his evidence that due to the sudden
opening of the left side door of the car, the accident
has occurred. The Tribunal has not properly
appreciated the material on record and much apart
in view of the finding of the Tribunal, the petitioner
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is ready to adduce evidence by examining eye
witnesses to the accident and properly explain
before the Tribunal as to how the accident has
occurred.
6. Per contra, the learned counsel for the
Insurance Company has contended that the
specific allegation made in the petition that the
driver of the car has opened the front left door of
the car and was rash in driving the car. It is further
contended that the petitioner who is required to
overtake the car from the right side, instead has
gone to the left side and caused the accident on his
own. The Tribunal is right in dismissing the claim
petition and supported the impugned judgment.
7. I have given my anxious consideration to
the arguments addressed by the learned counsel for
both parties and perused the records.
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8. On a careful perusal of the records, it is
pertinent to note that on 29.11.2010, at 3.45pm,
the petitioner was admitted to City Central
Hospital, Davanagere with history of accident at
K.B.Extension, Davanagere. On the very day, the
Station House Officer visited the hospital and
recorded the statement of the petitioner at
10.25pm and registered the case in Crime
No.264/2010 against the driver of the Maruthi 800
Car bearing No.KA-17/M/2500. The allegations
made in the complaint point out that on 29.11.2010
at about 3.30pm while the petitioner was riding his
motor cycle at 4th Cross, K.B. Extension, a Maruthi
going ahead stopped all of a sudden and the driver
of the Car opened the front left door of the car, due
to which car door hit against the right handle of the
motor cycle, due to which the petitioner fell down
and sustained injuries. The spot mahazar and the
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sketch prepared by the Investigating Officer and
marked as Exhibits P2 and P3 explain the same.
9. In the impugned judgment, the Tribunal
has recorded that the accident is not proved. On
perusal of the cross examination of the petitioner
on behalf of the insurance company, there is
specific suggestion that the petitioner himself went
and hit against the stationed car. This explains that
the alleged accident is admitted, but only the
question is whether the petitioner is negligent or
the driver of the car has to be determined. The
Tribunal erroneously came to the conclusion that
the accident is not proved and dismissal of the
claim petition is not proper.
10. As rightly contended by the learned
counsel for the petitioner that there are eye
witnesses to the accident, it is they who shifted him
to the hospital and the charge sheet is also made
available indicating that there are eye witnesses to
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the accident. The petitioner is required to explain
how the accident had taken place so as to assess
whether there was full negligence or contributory
negligence on the part of the petitioner as well as
the driver of the car. The IMV Report point out the
damage to the front left door of the car and right
portion of the motor cycle. The question as to how
the driver has opened the front left door is to be
explained by the petitioner through eye witnesses.
Even the Tribunal has not assessed the
compensation and therefore instead of exercising
the same in appeal, it is a fit case for remand to the
Tribunal to consider these aspects. The Tribunal is
required to fix the liability having regard to the
validity of the Insurance policy and driving license
of the driver of the car as well as the petitioner.
Hence, the appeal merits consideration for remand.
In the result, the following:
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ORDER
[i] The appeal is allowed.
[ii] The impugned judgment and award dated
30.07.2013 in MVC No.270/2011 passed by
the Principal Senior Civil Judge and Member,
MACT IV, Davanagere is set aside.
[iii] The matter is remanded to the Tribunal to
the stage of further enquiry. The petitioner as
well as the Insurance Company is permitted
to lead additional evidence. The Tribunal
thereafter decide the claim petition in the light
of the observations made supra.
[iv] The parties shall, without further notice,
appear before the Tribunal on 30.08.2024.
SD/-
(T.G. SHIVASHANKARE GOWDA)
JUDGE
nv
