Karnataka High Court
Bhimashi Alias Bhimappa S/O Pradhani ... vs Yallappa S/O Laxman Marapur on 15 November, 2024
Author: H.T.Narendra Prasad
Bench: H.T.Narendra Prasad
-1-
NC: 2024:KHC-D:16743-DB
MFA No. 101684 of 2021
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 15TH DAY OF NOVEMBER, 2024
PRESENT
THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
MISCELLANEOUS FIRST APPEAL NO. 101684 OF 2021 (MV-I)
BETWEEN:
BHIMASHI @ BHIMAPPA S/O. PRADHANI NAVI,
AGE. 38 YEARS, OCC. BARBER, NOW NIL,
R/O. PAMALDINNI, TQ. GOKAK,
DIST. BELAGAVI 591306.
Digitally signed
...APPELLANT
by MANJANNA E (BY SRI. HARISH S. MAIGUR, ADVOCATE)
Location: HIGH
COURT OF
KARNATAKA
DHARWAD AND:
BENCH
Date: 2024.11.22
10:36:17 +0530
1. YALLAPPA S/O. LAXMAN MARAPUR,
AGE. MAJOR, OCC. BUSINESS, R/O. ITNAL,
TQ. RAIBAG, DIST. BELAGAVI 591235.
2. THE BRANCH MANAGER,
NATIONAL INSURANCE COMPANY LTD.,
OPPOSITE FOREST OFFICE,
BUS STAND ROAD, GOKAK-591307.
...RESPONDENTS
(BY SRI. S. S. JOSHI, ADV. FOR R2; NOTICE TO R1 SERVED)
THIS MFA IS FILED U/S.173 (1) OF MOTOR VEHICLES ACT,
AGAINST THE JUDGMENT AND AWARD DATED 26.10.2021 PASSED
IN MVC NO.530/2020 ON THE FILE OF THE XII ADDITIONAL
DISTRICT AND SESSIONS JUDGE, BELAGAVI, SITTING AT GOKAK,
REJECTING THE PETITION FILED UNDER SECTION 166 OF M.V. ACT.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
-2-
NC: 2024:KHC-D:16743-DB
MFA No. 101684 of 2021
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE VENKATESH NAIK T)
The appellant has filed this appeal under Section 173(1)
of the Motor Vehicles Act, 1988 [for short, 'the Act'],
challenging the judgment and award dated 26.10.2021 passed
by the XII Additional District Judge and M.A.C.T., Belagavi,
sitting at Gokak [for short, 'the Tribunal'] in M.V.C.
No.530/2020, whereby the Tribunal has rejected the petition
filed by the claimant.
2. For the sake of convenience, the parties are
referred to as per their rankings before the Tribunal.
3. Brief facts of the claimant's case before the Tribunal
are as under:
On 03.02.2020 at about 09:00 a.m., the claimant was
proceeding on the motorcycle bearing registration No.KA-27/E-
2356 from Pamaladinni towards Hallur village. At that time,
near Harugeri cross on said road, the driver of the tractor
bearing registration No.KA-23/TB-9846 attached with two
trailers laden with sugarcane driving the same negligently while
avoiding the humps suddenly took turn towards left side and
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dashed to his motorcycle. As a result, the claimant fell down
and sustained fracture to the tibia and fibula and he was shifted
to the Hospital for treatment.
4. Heard the learned counsel for the appellant -
claimant and the respondent - Insurance Company.
5. Learned counsel for the claimant contended that the
judgment and award passed by the Tribunal is contrary to law
and facts. The Tribunal has not considered Exs.P1 and P2, the
FIR and the complaint in a proper perspective which clearly
discloses that the accident taken place due to the rash and
negligent driving of the driver of the tractor bearing registration
No.KA-23/TB-9846 and trailer bearing Nos.KA-23/TB-9844-45.
The Investigating Officer has filed charge sheet against the
driver of the tractor and trailers which remains unchallenged
and this itself is sufficient to prove that the accident has taken
place solely due to the rash and negligent of the driver of the
tractor and trailers. The counsel further contended that the
Tribunal ought to have considered Ex.P9, the certified copy of
the order sheet in C.C. No.538/2020, wherein the jurisdictional
Magistrate taken cognizance for the offences punishable under
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Sections 279 and 338 of the IPC against the driver of the
tractor and trailer and the cognizance taken against the driver
is not challenged by the Insurance Company. But the Tribunal
without considering these aspects of the matter wrongly
observed that the appellant has contributed negligence to an
extent of 50% and has determined the compensation by
awarding total compensation of Rs.15,62,000/- and by
deducting 50% negligence on the part of the claimant and
ultimately rejected the petition without assigning any reasons.
On these grounds, the counsel prayed to allow the appeal.
6. Learned counsel for the respondent - Insurance
Company vehemently contended that in the cross-examination,
PW1 admitted that he was in speed and towards left side of the
tractor and was overtaking tractor from left side. Therefore,
overtaking from left side is wrong and it amounts to negligence
on the part of the claimant. Further, at the time of the accident,
the claimant was not possessing driving licence and hence, the
Tribunal came to the conclusion of claimant's negligence is at
50%. The learned counsel also contended that the Investigating
Officer is not examined before the Tribunal. On these grounds,
the counsel prayed to dismiss the appeal.
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7. On perusal of the materials available on record, the
only point that would arise for our consideration is:
"Whether the appellant has made out sufficient
grounds to allow the appeal?"
8. From the perusal of the material available on
record, the claimant in order to establish his claim, examined
himself as PW1 and in respect of his claim, he also got
examined the Doctor as PW2 and documents marked at Ex.P1
to P40. From the perusal of the findings of the Tribunal, the
Tribunal has not at all considered the oral and documentary
evidence on record and not disclosed about the contents of the
FIR, complaint, spot panchanama, MV report and charge sheet
materials to arrive on proper conclusion as to the negligence
aspect. Therefore, it is just and necessary to remand the
matter to the Tribunal for fresh consideration. Accordingly, we
are of the view that the matter requires to be remanded.
9. Accordingly, the point for consideration is answered
partly in the affirmative. In the result, we proceed to pass the
following:
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ORDER
a) The appeal is allowed. The judgment and award
dated 26.10.2021 passed by the XII Additional
District Judge and M.A.C.T., Belagavi, sitting at
Gokak in M.V.C. No.530/2020 is set aside and the
matter is remanded.
b) All contentions are left open.
c) Both the parties are directed to appear before the
concerned Tribunal on 16.12.2024 without any
further notice and are permitted to adduce their
additional evidence, if any.
d) The Tribunal shall not get influenced by any of the
observations made by this Court while deciding the
matter on merits and shall dispose of the matter as
expeditiously as possible.
e) The office is directed to transmit the records
forthwith.
Sd/-
(H.T.NARENDRA PRASAD)
JUDGE
Sd/-
(VENKATESH NAIK T)
JUDGE
RSH
