Karnataka High Court

Mohammed Affan vs Basappa S/O Yallappa Navalur on 16 January, 2024

Author: V.Srishananda

Bench: V.Srishananda

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                                                      NC: 2024:KHC-D:1058
                                                          MFA No. 100225 of 2015




                    IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                           DATED THIS THE 16TH DAY OF JANUARY, 2024

                                             BEFORE
                            THE HON'BLE MR JUSTICE V.SRISHANANDA
                        MISCELLANEOUS FIRST APPEAL NO.100225 OF 2015 (MV)

                   BETWEEN:
                   MOHAMMED AFFAN
                   S/O. MOHAMMED GOUSE AMARGOL,
                   AGE: 10 YEARS, OCC: STUDENT,
                   SINCE MINOR REPRESENTED BY HIS FATHER
                   MINOR GUARDIAN MOHAMMED GOUSE
                   S/O. NABISAB AMARGOL,
                   AGE: 49 YEARS, OCC: PRACTICING ADVOCATE,
                   R/O: MUKKERI ONI, GANESH PETH, HUBLI,
                   DIST: DHARWAD.
                                                                      ...APPELLANT
                   (BY SRI. VIJAY S.CHINIWAR, ADVOCATE)

                   AND:

                   1.    SRI. BASAPPA S/O. YALLAPPA NAVALUR,
                         AGE: 27 YEARS, OCC: BUSINESS And OWNER
                         OF TATA INDICA CAR,
                         R/O: HOUSE NO.162, KUMBAR ONI,
Digitally signed         NEAR MARUTI TEMPLE, KESHWAPUR,
by SAMREEN
AYUB                     HUBLI.
DESHNUR
Date:
2024.02.01
15:38:45           2.    THE DIVISIONAL MANAGER,
+0530
                         DIVISIONAL OFFICE,
                         NATIONAL INSURANCE COMPANY LIMITED,
                         KESHWAPUR, HUBLI.
                                                                  ...RESPONDENTS
                   (BY SRI. M.Y. KATAGI, ADVOCATE FOR R2;
                       R1 SERVED)

                         THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
                   SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD
                   DATED 17.10.2014 PASSED IN MVC NO.816/2013 ON THE FILE OF
                   THE PRINCIPAL SENIOR CIVIL JUDGE AND MEMBER ADDITIONAL
                   MOTOR ACCIDENT CLAIM TRIBUNAL, HUBLI, DISMISSING THE
                   PETITION FILED UNDER SECTION 166 OF MV ACT.
                                 -2-
                                      NC: 2024:KHC-D:1058
                                        MFA No. 100225 of 2015




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



                           JUDGMENT

Heard Shri. Vijay S. Chiniwar, learned counsel for the

appellant and Shri. M. Y. Katagi, learned counsel for respondent

No.2.

2. Unsuccessful claimant who is injured in a road

traffic accident occurred on 21.07.2012 at about 12.30 p.m., is

the appellant before this Court challenging the validity of the

judgment and award passed in MVC No.816/2013 dated

17.10.2014 on the file of Principal Senior Civil Judge and Addl.

MACT, Hubballi.

3. Facts in brief which are utmost necessary for

disposal of the present appeal are as under:

3.1. Claim petition came to be filed under Section 166 of

The Motor Vehicles Act, 1988 contending that the claimant

being the minor aged 09 years suffered in a road traffic

accident while attending the school in auto rickshaw bearing

registration No.KA-30/4544 on 21.07.2012 at about 12.30 p.m.

When the auto rickshaw has been stopped by the claimant in

order to attend nature call, a car bearing registration No.KA-

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25/8687 came in a rash and negligent manner and dashed

against the petitioner whereby he suffered injuries and was

shifted to Dr. Diwakar Hospital, Keshwapur, Hubballi and took

treatment.

4. In respect of those accidental injuries, he has filed a

claim petition.

5. After service of notice of the claim petition, first

respondent appeared through Shri. J. S. Kyatannavar, Advocate

and second respondent appeared through Shri. A. M. Shettar,

Advocate and filed their respective objections denying the very

involvement of car bearing registration No.KA-25/8687 and

sought for dismissal of the petition.

6. The Tribunal after raising necessary issues and

additional issues, considered the evidence placed on record by

the parties in cumulative manner and dismissed the claim

petition holding that involvement of the car in a road traffic

accident has not been established by the claimant by placing

cogent and convincing evidence on record.

7. Being aggrieved by the same, the claimant is before

this Court in this appeal.

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8. Reiterating the grounds urged in the appeal

memorandum Shri. Viijay S. Chiniwar, learned counsel for the

appellant contended that the Tribunal has not considered the

material evidence on record, and it is very clear from the

complaint itself that the boy was travelling in the auto rickshaw

to attend the school, but when the auto rickshaw has been

stopped for the purpose of attending nature call of the boy, he

was hit by a car bearing registration No.KA-25/8687 and

suffered the injuries.

9. He also pointed out mere discrepancy in mentioning

few of the accidental injuries before the doctor, itself has been

blown out of proportion by the learned Trial Judge in the

Tribunal and sought for allowing the appeal.

10. Per contra, Shri. M. Y. Katagi, learned counsel for

respondent No.2-Insurance Company for car bearing

registration No.KA-25/8687, contended that the Tribunal has

rightly considered the material evidence placed on record

especially the history narrated by the father of the claimant

when he had first taken the claimant to the hospital who met

with an accident, the Tribunal has rightly rejected the claim

petition and sought for dismissal of the appeal.

NC: 2024:KHC-D:1058

11. In view of the rival contentions of the parties, this

Court perused the material on record meticulously.

12. On such perusal of material on record, it is seen

that Ex.P.2 a complaint, it has been specifically mentioned that

the boy was travelling in a auto rickshaw and got down from

the auto rickshaw for attending nature call and at that juncture

a car bearing registration No.KA-25/8687 came in a rash and

negligent manner from Banashankari Layout and hit the boy-

claimant.

13. It is pertinent to note that the said complaint came

to be lodged on 22.07.2012 itself. As such, hardly was any

scope for implicating the car only with an intention to claim the

compensation from the Insurance Company.

14. However, there is some force in the argument put

forth on behalf of the Insurance Company inasmuch as while

narrating the history the father of the injured has stated before

the doctor that he has suffered the accidental injuries while

travelling in the auto rickshaw.

15. In an anxiety, the father might have stated before

the doctor while narrating the history that the boy was

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travelling in the auto rickshaw and suffered to injuries. That

itself should not create any doubt about involvement of the car.

16. Further, the charge sheet is filed against the driver

of the car. Driver of car has not challenged the charge sheet.

17. It is also pertinent to note that after receipt of the

complaint, the Investigating Officer has conducted detail

investigation inter-alia seized the car and filed the charge sheet

against the driver of the car. Charge sheet is not challenged by

the driver of the car. The owner has got released the vehicle

from the custody of the police by executing necessary

indemnity bond. If at all the car itself is not involved in the

accident as is contended by the Insurance Company, what

made the owner of the car to got released the car from interim

custody of the police by executing indemnity bond is a question

that remains unanswered.

18. If at all, if the car is not yet all involved as stated

by the Insurance Company, the owner had an opportunity to

approach the Court with necessary petition and then obtain

interim custody of the car.

19. Having not taken such steps, it cannot be

permissible for the Tribunal to take a view only from the

NC: 2024:KHC-D:1058

material evidence placed on record (history before doctor) and

hold that a car has been falsely implicated in the accident.

20. The said approach of the Tribunal is thus incorrect

and requires interference by this Court in this appeal.

21. Having said so, there are material evidence placed

on record are sufficient enough to establish that the minor boy

has suffered injuries in a road traffic accident while travelling in

a auto rickshaw bearing registration No.KA-30/4544 and got

down from the auto rickshaw to attend nature call and hit by a

car bearing registration No.KA-25/8687.

22. The next question that has to be decided by this

Court is only with regard to the quantum of compensation.

23. Admittedly, as per the complaint the boy is aged 8

years.

24. Applying the principles of law enunciated in the

case of Master Mallikarjun vs. Divisional Manager, the

National Insurance Company Limited and another, reported in

AIR 2014 SC 736, a sum of Rs.1,35,000/- can be awarded as

global compensation for the accidental sustained by him.

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25. Therefore, a claim petition needs to be allowed by

grating a sum of Rs.1,35,000/- with interest at the rate of 6%

per annum from the date of petition till its realization.

26. Hence, the following order is passed:

ORDER

(i) Appeal is allowed.

(ii) Impugned judgment and award passed in

MVC No.816/2013 dated 17.10.2014 on the file of

Principal Senior Civil Judge and Addl. MACT,

Hubballi, is hereby dismissed.

(iii) The claimant is entitled global

compensation in a sum of Rs.1,35,000/- with

interest at the rate of 6 percent from the date of

petition till its realization.