Karnataka High Court

Sri Govinda Kharvi vs Sri. Tharanath on 22 October, 2024

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                                                      NC: 2024:KHC:42297
                                                    MFA No. 9621 of 2018




                   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                        DATED THIS THE 22ND DAY OF OCTOBER, 2024

                                        BEFORE
                            THE HON'BLE MR JUSTICE C M JOSHI
                 MISCELLANEOUS FIRST APPEAL NO. 9621 OF 2018 (MV-I)
                 BETWEEN:

                 SRI GOVINDA KHARVI,
                 S/O. LATE. VASU KHARVI,
                 AGED ABOUT 38 YEARS,
                 R/O. KAYANMANE, MADIKAL,
                 UPPUNDA VILLAGE,
                 KUNDAPURA TALUK-576 201.
                                                            ...APPELLANT
                 (BY SRI NAGARAJA H R, ADVOCATE)

                 AND:

                 1. SRI. THARANATH,
                    S/O. LATE SUNDAR DEVADIGA,
                    AGED ABOUT 38 YEARS,
Digitally           R/O. BIJAI MUSCEUM,
signed by           NODUMUTTU, MANGALORE-575 001.
NANDINI R
Location: High
Court of         2. THE NATIONAL INSURANCE
Karnataka           COMPANY LIMITED,
                    BRANCH OFFICE:
                    BHARATH BUILDING,
                    P.M. RAO ROAD,
                    MANGALORE-575 001.
                    REP. BY ITS BRANCH MANAGER.
                                                         ...RESPONDENTS
                 (BY SMT. MAMATHA.S SHANKAR, ADVOCATE FOR
                     SRI E.I SANMATH, ADVOCATE FOR R-2;
                     NOTICE TO R-1 IS SERVED & UNREPRESENTED)
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                                           NC: 2024:KHC:42297
                                         MFA No. 9621 of 2018




     THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 01/08/2018, PASSED IN MVC
NO.5/2015, ON THE FILE OF THE ADDITIONAL DISTRICT
JUDGE AND ADDITIONAL MACT, UDUPI, (SITTING AT
KUNDAPURA), 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 C M JOSHI


                     ORAL JUDGMENT

Being aggrieved by the dismissal of the petition in

MVC.No.5/2015 by the learned Additional District Judge

and MACT, Udupi (Sitting at Kundapura) dated

01.08.2018, the petitioner is before this Court.

2. The case of the petitioner is that on 24.02.2017

at about 07.00 pm, he was walking on the western side of

the mud portion of Shiroor-Kundapura Main Road and near

Yadthare Village, a Tata Sumo bearing No.KA-19-AB-9596

owned and driven by respondent No.1, came in rash and

negligent manner and dashed against the petitioner. As a

result, the petitioner sustained injuries and he was shifted

to the Hospital. On the next day i.e., on 25.02.2007, an

FIR was registered by the Police and the investigation was

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launched. Thereafter, he had filed a claim petition in MVC

No.474/2011 before the MACT, Udupi, which came to be

dismissed for non-prosecution on 04.10.2012. Thereafter,

the petitioner filed the present petition in the year 2015

claiming compensation.

3. The respondent No.2-Insurance Company

appeared before the Tribunal and resisted the petition,

whereas the respondent No.1-owner of the vehicle did not

appear despite service of notice. The respondent No.2-

Insurance Company contended that the petition is false

and frivolous and the compensation claimed is highly

exorbitant and imaginary. It was alleged that the driver of

the vehicle was not having a valid driving licence and an

earlier claim petition having been dismissed, the present

petition is not maintainable and as such, the petition is

liable to be dismissed.

4. On the basis of the above contentions, the

Tribunal framed appropriate issues. The petitioner was

examined as PW.1 and Exs.P1 to 6 were marked.

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5. After hearing both the sides, the Tribunal

answered issue No.1, which was to the effect as to

whether the accident had taken place on account of the

actionable negligence of the respondent No.1 in the

negative and dismissed the petition.

6. Being aggrieved by the same, the petitioner is

before this Court in appeal.

7. On issuance of notice, respondent No.2-

Insurance Company has appeared through its counsel. The

appellant has filed an application under Order XLI Rule 27

of CPC, seeking to produce the certified copy of the order

sheet in MVC.No.474/2011 in order to establish that the

said petition was not decided on merits but it was

dismissed for default.

8. Learned counsel appearing for the appellant

would submit that MVC.No.474/2011 was not decided on

merits and therefore, the second petition by the petitioner

is maintainable. He submits that when the claim for

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compensation is not decided on merits, there is no bar for

filing the second petition on the same cause of action. It is

submitted that the petitioner is a resident of Kundapura

but the earlier petition was filed in Udupi and therefore, he

could not prosecute his case and as such, the petition

came to be dismissed for non-prosecution. He further

submits that the petitioner had sustained the injuries as

depicted in the Wound Certificate at Ex.P3 and he was a

Fisherman aged about 28 years as on the date of the

accident and as such, an adequate and appropriate

compensation be awarded to him.

9. Per contra, learned counsel appearing for

respondent No.2-Insurance Company contend that the

petitioner could have very well maintained a petition under

Order IX of CPC for restoration of MVC.No.474/2011. It is

relevant to observe that the above contention of

respondent No.2 is not sustainable in law since there is no

bar to file a fresh petition (unless there is any issue of

limitation), seeking compensation when such claim was

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not decided on merits. The cause of action to claim

compensation would remain intact till such compensation

is paid and therefore, this argument cannot be accepted.

In the light of the above, to ascertain that the earlier

petition was dismissed for non-prosecution, the IA filed

under Order XLI Rule 27 is allowed.

10. Learned counsel for respondent No.2 submit

that the petitioner has not produced the discharge

summery and such other medical records that would be

relevant for assessing the compensation. This submission

is in respect of the merits of the case and the same is to

be assessed by this Court.

11. A perusal of the FIR and complaint which are at

Ex.P1 would show that the complaint was lodged by one

Keshava Kharvi and it is stated that on 24.02.2007, when

he was returning from Shiroor, he found that at about

07.00 pm, at Tata Sumo had dashed against the petitioner

and the Tata Sumo driver did not stop after the accident.

However, he had noted the vehicle number and has

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mentioned the same in the complaint. It is also stated that

he shifted the injured/petitioner to Anjali Hospital at

Byndoor and thereafter, he was further taken to Chinmayi

Hospital, Kundapura and as such, he lodged the complaint

on the next day of incident. The said complaint was

registered by the Police and an investigation was launched

and the spot mahazar at Ex.P2 would disclose that the

accident was due to use of the motor vehicle of

respondent No.1 and insured by respondent No.2. Ex.P3-

Wound Certificate would establish that the petitioner had

sustained the following injuries:

i) Subdural hematoma in frontal region with cerebral edema

ii) Laceration on the right parietal area measuring 4 X 1 cm

iii) Laceration over the chin measuring 4 X 1 cm

iv) Laceration over the occipital area measuring 3 X 1 cm

v) Abrasion over the abdomen

vi) Laceration over the dorsum of left hand with division of extensor tendons

vii) Laceration on the left forearm

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viii) Laceration on the left index finger

ix) Laceration on the base of left thumb

x) Laceration over the upper part of left leg

In the opinion of the Medical Officer, the injury No.1

and 6 were grievous injuries and others are simple

injuries.

12. In the testimony of PW.1, the petitioner states

that he was inpatient from 24.02.2007 to 07.03.2007. In

the cross-examination, initially he states that the accident

occurred due to his fault and in the next sentence he

states that the accident was not due to his fault. It is this

testimony of PW.1 which was one of the reason for

dismissal of the petition. Since the FIR clearly show that

the vehicle had dashed against the petitioner from behind,

it is difficult to accept the stray sentence in the cross-

examination that it was due to the fault of the petitioner

himself. Under these circumstances, in the absence of any

other medical evidence to show any disability, it would be

just and proper to award a global compensation of

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Rs.60,000/- to the petitioner, which is inclusive of medical

expenses as per Ex.P5, which is to the tune of

Rs.10,042/-. Hence, the appeal deserves to be allowed in

part. Consequently, the following:

ORDER

The appeal is allowed in part and the

impugned judgment passed by the Tribunal is

set aside.

The petitioner/appellant is entitled for a

global compensation of Rs.60,000/- along with

interest at the rate of 6% per annum from the

date of petition, till the date of payment.