Karnataka High Court
The Divisional Manager vs Sri.Md.Mahaboob @Shaik Md.Mahaboob ... on 6 June, 2024
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MFA No.201552 of 2015
C/W MFA.CROB No.200015 of 2016
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 6TH DAY OF JUNE, 2024
PRESENT
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
MISCL. FIRST APPEAL NO.201552 OF 2015 (MV-I)
C/W
MFA CROSS OBJ NO.200015 OF 2016 (MV-I)
IN M.F.A.NO.201552 OF 2015
BETWEEN:
THE DIVISIONAL MANAGER
THE ORIENTAL INSURANCE CO., LTD.,
DIVISIONAL OFFICE,
N.G. COMPLEX, 2ND FLOOR,
OPP. MINI VIDHANA SOUDHA,
Digitally signed by
BASALINGAPPA
KALABURAGI - 585 102.
SHIVARAJ
DHUTTARGAON
...APPELLANT
Location: HIGH (BY SRI. UDAY P.HONGUNTIKAR, ADVOCATE)
COURT OF
KARNATAKA
AND:
1. SRI.MD. MAHABOOB @ SHAIK
MD. MAHABOOB S/O YOUNUS ALI,
AGE: 27 YEARS,
OCC: QUALITY ENGINEER IN SIENNA
ECAD TECHNOLOGIES PVT., LTD.,
BANASHANKARI, 3RD STAGE,
BANGALORE, R/O: NOW RESIDING AT
MADINA COLONY,
KALABURAGI - 585 103.
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MFA No.201552 of 2015
C/W MFA.CROB No.200015 of 2016
2. SRI. MD. AKBAR S/O LAL AHAMED,
AGE: 31 YEARS,
OCC: DRIVER OF TWO WHEELER
HERO HONDA MOTOR CYCLE
BEARING REG.NO.KA-32/U-6898,
R/O: H.NO.11/2272, LALGERI,
BRAHAMPUR, KALABURAGI - 585 103.
...RESPONDENTS
(BY SRI. BASAVARAJ KAREDDY, ADVOCATE FOR R1;
SRI M.M.ALLUR AND
SRI VIDYADHAR B. HUGGI, ADVOCATES FOR R2)
THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT, PRAYING TO CALL FOR THE RECORDS
IN M.V.C. NO.1235/2012 ON THE FILE OF THE PRINCIPAL
SENIOR CIVIL JUDGE AND C.J.M., AT KALABURAGI DATED
02.06.2015 AND SET ASIDE THE JUDGMENT AND AWARD
DATED 02.06.2015 PASSED BY THE PRINCIPAL SENIOR CIVIL
JUDGE AND C.J.M., AT KALABURAGI BY ALLOWING THE
APPEAL, IN THE INTEREST OF JUSTICE AND EQUITY.
IN M.F.A.CROB.NO.200015 OF 2016
BETWEEN:
SRI.MD. MAHEBOOB @ SHAIKH MD.
MAHEBOOB S/O YOUNUS ALI,
AGE: 28 YEARS,
OCC: QUALITY ENGINEER IN SIENNA
ECAD TECHNOLOGIES PVT. LTD.,
BANASHANKARI, 3RD STAGE,
BANGALORE, NOW AT MADINA COLONY,
KALABURAGI.
...CROSS OBJECTOR
(BY SRI. BASAVARAJ KAREDDY, ADVOCATE)
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MFA No.201552 of 2015
C/W MFA.CROB No.200015 of 2016
AND:
1. THE DIVISIONAL MANAGER,
THE ORIENTAL INSURANCE CO., LTD.,
II-FLOOR, N.G. COMPLEX,
OPP: MINI VIDHANA SOUDHA,
KALABURAGI - 585 102.
2. MD. AKBAR S/O LAL AHMED,
AGE: 32 YEARS,
OCC: RIDER OF TWO WHEELER
HERO HONDA MOTOR CYCLE
BEARING REG.NO.KA-32/U-6898,
R/O: H.NO.11/2272, LALGERI,
BRAHAMPUR, KALABURAGI - 585 103.
...RESPONDENTS
(BY SRI. UDAY P. HONGUNTIKAR, ADVOCATE FOR R1;
SRI. M.M.ALLUR AND
SRI VIDYADHAR B. HUGGI, ADVOCATES FOR R2)
THIS MFA CROB., IS FILED UNDER ORDER 41 RULE 22
OF CODE OF CIVIL PROCEDURE, PRAYING TO MODIFY THE
IMPUGNED JUDGMENT AND AWARD DATED 02.06.2015
PASSED BY THE LEARNED PRINCIPAL SENIOR CIVIL JUDGE
AND M.A.C.T., KALABURAGI IN M.V.C.NO.1235/2012 AND
PASS AN ORDER FOR ENHANCEMENT OF COMPENSATION AS
DEEMED FIT BY THIS COURT UNDER THE FACTS AND
CIRCUMSTANCES OF THE CASE INCLUDING THE COSTS, IN
THE INTEREST OF JUSTICE AND EQUITY.
THIS MFA AND MFA CROB., COMING ON FOR HEARING,
THIS DAY, ASHOK S. KINAGI J., DELIVERED THE
FOLLOWING:
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MFA No.201552 of 2015
C/W MFA.CROB No.200015 of 2016
JUDGMENT
This appeal and cross-objection are arising out of the
judgment and award dated 02.06.2015 passed in MVC
No.1235/2012 by the Principal Senior Civil Judge and CJM
at Kalaburagi (for short hereinafter referred to as 'the
Tribunal').
2. The Insurance Company has filed the appeal in
MFA No.201552/2015 and the claimant has filed the cross-
objection in MFA.CROB.No.200015/2016.
3. For the sake of convenience, parties are
referred to as per their ranking before the Tribunal. The
appellant is respondent No.2, respondent No.1 is the
petitioner and respondent No.2 is respondent No.1.
4. Facts giving rise to filing of this appeal and
cross-objection are that, on 07.07.2012 at about 2.00
p.m., the petitioner was traveling as a pillion rider in a
Hero Honda Motor Cycle bearing registration No.KA-32/U-
6898 and he was proceeding to Jewargi from Gulbarga
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C/W MFA.CROB No.200015 of 2016
with his friend Md. Akbar who was riding the above said
motorcycle. When they were near Nadi Sinoor on National
Highway No.218, the rider of the motorcycle rode the
same in a high speed and in a negligent manner. At that
time, rear wheel tyre of the motorcycle was burst. Due to
which, the petitioner fell down resulting in grievous
injuries. He was admitted to Basaveshwar Hospital,
Gulbarga and on the same day, he was discharged from
the said hospital and he was admitted to Ganga Hospital,
Solapur, for further treatment. He took treatment as
inpatient from 07.07.2012 to 04.08.2012 and he
underwent surgeries. He again hospitalized for 128 days
for taking treatment. It is contended that the accident has
occurred due to rash and negligent riding of the rider of
the motorcycle. It is stated in the claim petition that the
petitioner has suffered permanent disability and he cannot
do day-to-day work. Hence, the petitioner filed claim
petition under Section 166 of the Motor Vehicles Act, 1988
seeking compensation on account of the grievous injuries
sustained by him in the road traffic accident.
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C/W MFA.CROB No.200015 of 2016
5. In response to the service of notice, respondent
No.1 appeared and filed written statement denying the
averments made in the claim petition. It is contended that
the accident has occurred due to rash and negligent riding
of the rider of the motorcycle. It is further contended that
the said motorcycle involved in the accident is insured with
respondent No.2 and the policy was in force as on the date
of the accident. Hence, it is contended that if the Tribunal
comes to the conclusion that the accident has occurred
due to rash and negligent riding of the rider of the
motorcycle, respondent No.2 is liable to pay the
compensation amount. On these grounds, prays to
dismiss the claim petition.
6. Respondent No.2 filed written statement
denying the averments made in the claim petition and
contended that the petitioner has sustained injuries not by
falling from the bike, but, due to self-fall of the petitioner.
It is further contended that as per the wound certificate,
the petitioner himself was admitted to the hospital by his
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relatives and friends. It is also contended that the alleged
accident took place on 07.07.2012, but, the complaint was
lodged on 19.08.2012. There is delay of 41 days in lodging
the complaint. The complaint itself is a created one and
an afterthought. On these grounds, prays to dismiss the
claim petition.
7. The Tribunal, on the basis of the pleadings of
the parties, framed the issues and recorded the evidence.
8. In order to establish the case, petitioner
examined himself as PW.1 and examined the doctor as
PW.2 and got marked 20 documents as Exs.P1 to P20. On
the other hand, the Administrative Officer of respondent
No.2 was examined as RW.1 and examined Dr.Sharath
Kulkarni, who has issued Ex.P6 as RW.2 and got marked
one document as Ex.R1.
9. The Tribunal after recording the evidence,
hearing on both side and on assessment of oral and
documentary evidence on record, allowed the claim
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petition in part with cost and awarded compensation of
Rs.25,89,000/- by deducting interim compensation paid, if
any, with interest at the rate of 6% per annum from the
date of petition till the date of deposit with the Tribunal.
The Tribunal also held that respondent No.2/insurer is
liable to pay the compensation amount and as such,
directed to deposit the award amount with interest within
three months from the date of award.
10. Respondent No.2 being aggrieved by the
judgment and award passed in MVC No.1235/2012 filed
the appeal challenging the liability as well as quantum of
compensation and the petitioner has filed the cross-
objection seeking enhancement of compensation.
11. Heard learned counsel for respondent No.2 and
learned counsel for the petitioner.
12. Learned counsel for respondent No.2 submits
that respondent No.2 has taken specific defence in the
written statement that the petitioner has not fallen from
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the bike and it is self-fall. He contended that there is delay
of 41 days in lodging the complaint and the said aspect
was not considered by the Tribunal. Even for fastening the
liability on the Insurance Company, the Tribunal has not
assigned any reason in the impugned judgment. He also
submits that in order to disprove the contents of Ex.P6,
respondent No.2 examined the Doctor as RW.2, but the
Tribunal has not considered the evidence of RW.2. He
submits that the Tribunal while passing the impugned
judgment has not applied its mind. On these grounds, he
prays to allow the appeal and to dismiss the cross-
objection filed by the petitioner.
13. Per contra, learned counsel for the petitioner
submits that the petitioner has fallen from the bike and
sustained injuries. Initially, the petitioner was admitted to
Basaveshwara Hospital, Kalaburagi. Thereafter, he was
shifted to Ganga Hospital, Solapur for higher treatment.
He submits that he was admitted in the hospital initially,
for 27 days and later, he again took treatment in the
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hospital as inpatient for another 26 days. As the petitioner
was admitted in the hospital, he could not lodge the
complaint within the time and the petitioner has explained
the delay in lodging the complaint. He submits that the
accident has occurred due to rash and negligent riding of
the rider of the motorcycle and the charge sheet is filed
against the rider of the motorcycle. Hence, he submits
that in order to establish the negligence on the part of the
rider of the motorcycle, the petitioner has produced copy
of the charge sheet. The Tribunal was justified in
fastening the liability jointly and severally. On these
grounds, he prays to allow the cross-objection filed by the
petitioner and to dismiss the appeal filed by respondent
No.2.
14. We have perused the records and considered
the submissions of the learned counsel for the parties.
15. The point that arises for our consideration is
liability and quantum.
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16. Insofar as liability: It is the case of the
petitioner that the petitioner was a pillion rider and one
Md. Akbar was riding the motorcycle bearing registration
No.KA-32/U-6898. The accident has occurred due to rash
and negligent riding of the rider of the motorcycle i.e., Md.
Akbar and the petitioner has fallen down from the
motorcycle and sustained grievous injuries. In order to
establish that the accident has occurred due to rash and
negligent riding of the rider of the motorcycle, the
petitioner has produced Ex.P1 which is the certified copy
of FIR and Ex.P3 which is the certified copy of the charge
sheet. But, respondent No.2 has taken defence in the
written statement that the petitioner has not fallen from
the bike, but it is self-fall. Though the petitioner has
produced Ex.P6 to establish that the petitioner has
sustained injuries in the road traffic accident, to disprove
the contents of Ex.P6, respondent No.2 has examined the
Author of Ex.P6 i.e., RW.2.
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17. We have perused the judgment passed by the
Tribunal. The Tribunal has not recorded any finding to
come to a conclusion in regard to fastening of liability on
respondent No.2. Further, respondent No.2 has denied
the very accident itself. The Tribunal has not recorded any
finding on the said issue and proceeded to pass the
impugned judgment. Further, the Tribunal has also not
considered the evidence of RW.2 in the impugned
judgment. Hence, the Tribunal has not applied its mind
and not considered the material placed on record. Thus,
the impugned judgment and award passed by the Tribunal
deserves to be set aside and the matter requires re-
consideration by the Tribunal.
18. As we have already observed that the Tribunal
has not considered the material on record, we are not
expressing any opinion in regard to the quantum of
compensation.
19. Accordingly, we proceed to pass the following:
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ORDER
i. The appeal filed by the Insurance
Company in MFA No.201552/2015 is
allowed. The cross-objection filed by the
petitioner in MFA.CROB.No.200015/2016 is
dismissed.
ii. The judgment and award dated
02.06.2015 in MVC No.1235/2012 passed
by the Principal Senior Civil Judge and CJM
at Kalaburagi, is set aside.
iii. The claim petition in MVC No.1235/2012 is
restored on to the file of Principal Civil
Judge and CJM, Kalaburagi. The Tribunal
is requested to provide opportunity to the
parties to adduce further evidence and
after recording further evidence, the
Tribunal is requested to dispose of the
claim petition in accordance with law, after
assigning reasons insofar as liability and
quantum of compensation.
iv. Parties are directed to appear before the
Tribunal on 29.07.2024.
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v.` As the claim petition is of the year 2012,
the Tribunal is requested to dispose of the
claim petition as expeditiously as possible.
vi. We make it clear that we have not made
any adjudication on merits in issue.
vii. The Tribunal is requested to dispose of the
claim petition without being influenced by
the observations made in this judgment.
viii. All the contentions of the parties are kept
open.
The amount in deposit be transmitted to the Tribunal
forthwith.
Sd/-
JUDGE
Sd/-
JUDGE
NB
Ct;Vk
