Karnataka High Court

Shamanna And Anr vs R Sivagurunathan And Anr on 7 March, 2024

Author: H.T.Narendra Prasad

Bench: H.T.Narendra Prasad

                                              -1-
                                                NC: 2024:KHC-K:2043-DB
                                                    MFA No. 201922 of 2022




                              IN THE HIGH COURT OF KARNATAKA,

                                     KALABURAGI BENCH

                           DATED THIS THE 7TH DAY OF MARCH, 2024

                                          PRESENT

                        THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
                                              AND
                            THE HON'BLE MR. JUSTICE K V ARAVIND

                        MISCL. FIRST APPEAL NO. 201922 OF 2022 (MV-D)

                   BETWEEN:

                   1.   SHAMANNA,
                        S/O ANNAPPA MALHADE
                        AGE: 60 YEARS,
                        OCC NIL.

                   2.   KALAVATI,
                        W/O SHAMANNA MALHADE
                        AGE: 53 YEARS,
                        OCC: HOUSEHOLD,
                        BOTH R/O SHIRDADON
                        TQ INDI,
Digitally signed
by VARSHA N
RASALKAR
                        DIST VIJAYAPUR
Location: HIGH
COURT OF
KARNATAKA
                                                           ...APPELLANTS
                   (BY SRI. SANGANAGOUDA V BIRADAR, ADVOCATE)

                   AND:
                   1. R SIVAGURUNATHAN,
                      S/O S. RAMASAMY PILLAI,
                      AGE: 44 YEARS,
                      OCC:BUSINESS,
                      R/O 83/32, THOPPU VANIGAR VADAKKU STREET,
                      VADIVEES WARAM, NAGERCOLI,
                      TAMIL NADU - 629001
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                               NC: 2024:KHC-K:2043-DB
                                    MFA No. 201922 of 2022




2.   THE BRANCH MANAGER,
     NEW INDIA ASSURANCE CO.LTD,
     HANAMSHETTY BUILDING,
     GURUKUL ROAD,
     VIJAYAPUR - 586101.

                                             ...RESPONDENTS
(BY SRI. SUDARSHAN M FOR ADVOCATE R2;
   V/O Dated:06.03.2024 notice to R1 is dispensed with)


     THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT 1988, PRAYING TO ALLOW THE APPEAL
BY SETTING ASIDE THE IMPUGNED JUDGMENT AND AWARD
DATED 09.08.2021 PASSED BY THE LEARNED PRL. SENIOR
CIVIL JUDGE AND MACT-V, VIJAYAPUR, IN MVC NO.496/2017
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 EVIDENE OF
APPELLANT, IN THE INTEREST OF JUSTICE AND EQUITY.


     THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY,   H.T.NARENDRA    PRASAD  J.,  DELIVERED   THE
FOLLOWING:


                        JUDGMENT

This appeal under Section 173(1) of the Motor

Vehicles Act, 1988 (hereinafter referred to as 'the Act', for

short) has been filed by the appellants being aggrieved by

the judgment and award dated 09.08.2021 passed by the

Prl. Senior Civil Judge and MACT-V, Vijayapura, in MVC

496/2017.

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2. Facts giving rise to the filing of the appeal

briefly stated are that on 26.05.2016 at about 06:30 p.m.,

when the deceased Parashuram Malhade was proceeding

by walk on Chadachan-Pandharpur road, at that time, a

lorry bearing registration No.TN-74/AB-6238, which was

being driven in a rash and negligent manner, dashed

against the deceased. As a result of the aforesaid

accident, the deceased sustained grievous injuries and

succumbed to the injuries.

3. The appellants being the dependants of

deceased filed claim petition under Section 166 of the Act

seeking compensation for the death of the deceased along

with interest.

4. On service of summons, the respondent No.2

appeared through counsel and filed written statement

denying the averments made in the claim petition. The

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respondent No.1 did not appear before the Tribunal inspite

of service of notice and hence was placed ex-parte.

5. On the basis of the pleadings of the parties, the

Claims Tribunal framed the issues and thereafter recorded

the evidence. The appellant No.1 in order to prove the

case, examined himself as PW-1 and examined two

witnesses as PW-2 and PW-3 and got marked documents

namely Ex.P-1 to Ex.P-9. On behalf of respondents, no

oral evidence was produced, but got marked a document

namely Ex.R1. The Claims Tribunal, by the impugned

judgment, inter alia, held that the petitioners have failed

to prove that their son Parashuram Malhade died due to

the injuries suffered in the road accident on account of

rash and negligent driving of driver of lorry bearing

Reg.No.TN-74/AB-6238 and dismissed the claim petition.

6. Being aggrieved by the same the present

appeal is filed.

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7. Sri. Sanganagouda.V.Biradar, learned counsel

for the appellants contended that Parashuram Malhade

died in a road traffic accident that occurred on 26.05.2016

due to the rash and negligent driving of the driver of the

lorry bearing Reg.No.TN-74/AB-6238. Immediately after

the accident, a complaint has been lodged and FIR has

been registered against the driver of the lorry. The police

have filed charge sheet against the driver of the lorry.

Therefore, it is very clear that Parashuram Malhade had

died in the road traffic accident due to the rash and

negligent driving of the driver of the lorry and the Tribunal

has erred in dismissing the claim petition.

8. Sri.M.Sudarshan, learned counsel for

respondent No.2 has contended that the offending vehicle

was not involved in the accident that occurred on

26.05.2016 and no documents have been produced to

prove that offending lorry was involved in the accident and

due to his rash and negligent driving of the driver of the

lorry has caused that accident. He further contended that

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injuries sustained by the deceased were due to his own

negligence, fell down and sustained injuries and died due

to those injuries that too after a month. Therefore, the

offending lorry was not involved in that accident. He

further contended that no documents have been produced

to prove that the deceased has suffered injuries and

succumbed in road traffic accident, due to rash and

negligent driving of the driver of the lorry. Therefore, the

Tribunal has rightly dismissed the claim petition.

9. Heard both parties, perused the judgment and

award and original records.

10. The case of the appellants is that on

26.05.2016 at about 06:30 p.m., when the deceased was

walking on the extreme left side of the Chadachan-

Pandhrpur road, at that time, one lorry bearing

Reg.No.TN-74/AB-6238 came in a high speed, rash and

negligent manner. As such, the driver lost control over the

lorry and dashed against the deceased, due to that

accident he sustained injuries and he succumbed to the

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injuries. To prove the case the appellant No.1 has

examined himself as PW-1 and two witnesses as PW-2 and

PW-3 and got marked documents as Ex.P-1 to P-9, which

are the medical records, inquest panchanama and charge

sheet. Except producing the charge sheet and medical

records, they have not produced complaint FIR and IMV

report to prove their case. However, learned counsel for

the appellants to prove the case seeks one more

opportunity to produce all the necessary documents before

the Tribunal.

11. In the peculiar facts and circumstances of the

case, since awarding compensation under Motor Vehicles

Act is a social beneficial scheme and in order to do the

justice to parties, no prejudice would cause to the other

side, if an opportunity is given to the appellants to

substantiate their claim before the Tribunal by producing

oral and documentary evidence. The respondent/insurance

company will have an opportunity to cross examine the

witness and it can also lead evidence to demonstrate the

NC: 2024:KHC-K:2043-DB

case of the appellants. Therefore, we are of the opinion

that one more opportunity could be given to the appellants

to prove their case. Accordingly, we pass the following:

ORDER

a. The appeal is allowed in part.

b. The judgment and award dated 09.08.2021

passed by the Prl. Senior Civil Judge and

MACT-V, Vijayapura, in MVC 496/2017 is set

aside. The matter is remitted to the

Tribunal with a direction to consider the

matter afresh, in accordance with law.

c. Both parties are at liberty to give evidence

and produce additional documents to prove

their case, if they desire so.

d. Having taken note of the age of the parents

of the deceased and claim petition is of the

year 2017, the Tribunal to make endeavor

to dispose of the claim petition

expeditiously.