Karnataka High Court
Sri. Shankara vs Sri H.M.Mahesh on 9 September, 2024
-1-
NC: 2024:KHC:36618
MFA No.4741 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE T.G. SHIVASHANKARE GOWDA
MISCELLANEOUS FIRST APPEAL NO.4741/2015 (MV-I)
BETWEEN:
SRI. SHANKARA
S/O CHIKKAPUTTEGOWDA
AGED ABOUT 28 YEARS
R/AT. DODDAKANYA VILLAGE
JAYAPURA HOBLI, MYSORE TALUK
AND DISTRICT-570008.
...APPELLANT
(BY SRI. VEERABHADRA SWAMY H.P. ADV.,)
AND:
Digitally signed by 1. SRI. H.M. MAHESH
PRAJWAL A S/O MADANAIKA
Location: HIGH COURT AGED 29 YEARS
OF KARNATAKA
R/AT. HOSAKOTE VILLAGE
CHATRA HOBLI
NANJANGUD TALUK-571302.
2. SRI. MAHADEVANAIKA
S/O PUTTALINGANAIKA
AGED ABOUT 47 YEARS
R/AT D.O.78/A, ALATHUR VILLAGE
CHATRA HOBLI, NANJANGUD TALUK
MYSORE DISTRICT-571301.
3. ROYAL SUNDRAM ALLIANCE INSURANCE CO. LTD.
D.B. PLAZA, 3RD FLOOR
47, WHITES ROAD, CHEINNAI
TAMIL NADU, BRANCH AT MYSORE
BY ITS MANAGER.
...RESPONDENTS
(BY SRI. O. MAHESH, ADV., FOR R3
R1 & R2 SERVED)
-2-
NC: 2024:KHC:36618
MFA No.4741 of 2015
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:29.09.2014 PASSED IN MVC
NO.1276/2012 ON THE FILE OF THE PRINCIPAL JUDGE, COURT OF
SMALL CAUSES, MYSORE, IN CONCURRENT CHARGE OF ADDITIONAL
COURT OF SMALL CAUSES, MYSORE, AS A PRESIDING OFFICER,
MACT, MYSORE, 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 T.G. SHIVASHANKARE GOWDA
ORAL JUDGMENT
The petitioner is challenging the order of dismissal of his
claim petition filed under Section 166 of the Motor Vehicles Act,
1988.
2. For the sake of convenience, the parties shall be
referred to as per their status before the Tribunal.
3. The brief facts of the case are, on 19.06.2012 at
2.40 p.m., while the petitioner was traveling in an autorickshaw
bearing registration No.KA-09 B-6635, in front of R.V.Synthesis
Factory, Industrial Area, Nanjangud, the said autorickshaw met
with an accident. The petitioner fell down from the
autorickshaw, was treated at Government Hospital, Nanjangud,
at Chandrakala Hospital, Mysuru and then at ESI Hospital,
Mysuru. After discharge from the hospital, he has filed the
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complaint to the police and thereafter approached the Tribunal
for grant of compensation for Rs.8,08,000/-. Claim was
opposed by the respondent. The Tribunal, after taking the
evidence and hearing the parties, dismissed the claim petition.
Aggrieved by the same, the petitioner is before this Court.
4. Heard the arguments of Sri.Veerabhadra Swamy
H.P., learned counsel for the petitioner and Sri.O.Mahesh,
learned counsel for the Insurance Company.
5. It is contended by the learned counsel for the
petitioner that, the owner and driver of the autorickshaw in
question, in the written statement, admitted the occurrence of
the accident. The evidence was also let in before the Tribunal
on behalf of the owner of the vehicle who admitted the
occurrence of the accident but attributed that in a moving
vehicle the petitioner made an attempt to board the
autorickshaw, fell down and sustained injuries. Hence, the
genuineness of the accident cannot be doubted. Only on the
ground of non-production of wound certificate of Government
Hospital, Nanjangud, the Tribunal has dismissed the claim.
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Learned counsel for the petitioner sought for an opportunity to
lead further evidence to clarify the accident.
6. Per contra, learned counsel for the Insurance
Company has contended that the accident took place on
19.06.2012, whereas complaint was filed on 18.07.2012. In
the complaint, there is a specific mention that the petitioner
was travelling as passenger in a passenger autorickshaw
whereas the claim is made against the goods autorickshaw.
There is no explanation for belated filing of the complaint. The
petitioner has not produced any document for having taken any
treatment at Government hospital, Nanjangud and Chandrakala
hospital, Mysuru for 3 days. For the first time, he was admitted
at ESI Hospital, Mysuru on 20.06.2012, 3 days after the
accident. The Tribunal is right in doubting the veracity of the
accident and involvement of vehicle in question.
7. It is further contended that the vehicle in question
is a goods autorickshaw. The petitioner is an employee of ITC
factory, Nanjangud. There is no premium paid for a passenger
of goods autorickshaw and the Insurance Company has no
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liability to pay any compensation and order of dismissal of the
claim petition against the Insurance Company is proper.
8. I have given my anxious consideration to the
arguments addressed on behalf of both sides and also perused
the materials on record.
9. It is the specific case of the petitioner that, on
19.06.2012, while traveling in the autorickshaw, he fell down
and sustained injuries. He was treated at Government hospital,
Nanjanjud but no records from the said hospital is placed
before the Tribunal. Only the medical records pertaining to
ESI hospital is produced. The case sheet of ESI Hospital
produced vide Ex.P15 goes to explain as follows: "H/O RTA on
19.06.2012 near Nanjangud and taken treatment at Nanjangud
Government hospital, Chandrakala hospital, Mysuru." The
history further mentioned as "while traveling in a auto - TATA
Ace KA-09 B-6635." This information was furnished to the ESI
hospital at 4.20 p.m. on 22.06.2012. Between 19.06.2012 to
22.06.2012, the petitioner was treated in two other hospitals
and is required to explain what was the history furnished
therein.
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10. In the medical bills, the petitioner has produced the
OPD slips pertaining to Government hospital, Nanjangud dated
19.06.2012 and also the medicinal bills issued by Chandrakala
hospital on 22.06.2012. The Medical Officer from ESI hospital
is also examined before the Tribunal did not explain the history
of accident furnished by the petitioner at the time of admission.
The policy of insurance is available on record as per Ex.R3
which clearly points out that it is a package policy. The
schedule of premium do not point out any premium paid to the
passengers of the goods autorickshaw. The autorickshaw
seating capacity is two and even if the accident is accepted, the
petitioner being the employee of ITC Factory, was a gratuitous
passenger in the autorickshaw and his risk will not be covered.
The Tribunal is right in dismissing the claim against the
Insurance Company. At most, the petitioner can proceed
against the driver and owner of autorickshaw.
11. As the material on record clearly points out, the
petitioner is required to place the medical records pertaining to
the Government hospital, Nanjangud, Chandrakala hospital,
Mysuru and also examine the Investigating Officer for the
belated complaint. The petitioner is also required to clarify
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whether the vehicle involved in the accident was a passenger
autorickshaw or a goods autorickshaw. To clarify all these
aspects, it is a fit case for remand rather dismissing the appeal
on technicalities.
12. On perusal of the impugned judgment, the Tribunal
pointed out the technicalities and non-co-operation on the part
of the petitioner in assisting the Tribunal for effective
adjudication of the claim. The fault committed by the advocate
cannot cause hindrance to the person who sustained injuries in
a road accident in claiming the compensation. The owner and
driver of the vehicle are not contesting the claim. Under such
circumstances, it is a fit case for remand. In the result, the
following:
ORDER
i) Appeal is allowed in part.
ii) Order of dismissal of the claim petition against
respondent Nos.1 and 2 i.e. driver and owner of the
autorickshaw is hereby set aside.
iii) The order of dismissal of claim petition against the
Insurance Company is hereby confirmed.
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iv) The matter is remitted back to the Tribunal to the
stage of further evidence of the petitioner.
v) The Tribunal is requested to afford opportunity to
the petitioner to place further evidence and to
adjudicate the claim on merits in accordance with
law.
vi) Without further notice, the parties shall appear
before the Tribunal on 21.10.2024.
SD/-
(T.G. SHIVASHANKARE GOWDA)
JUDGE
RV
