IN THE HIGH COURT OF KARNATAKA AT BANGALORE
(MEMORANDUM OF MISC. FIRST APPEAL UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988)
M.F.A. No. / 2007
IN THE COURT OF THE I ADDL. M.A.C.T. AT KARWAR
M.V.C. No. 00/2007
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
M.F.A. No. /2007(MV)
BETWEEN: Rank of the Parties
In the In the High MACT Court
ABCS/o XYZ
Age: 39 years, Occ: Govt. Servant
R/o Port quarters, Baithkol,
Karwar. Pin code- … Claimant Appellant
AND:
- ABC
Age: 27 years, Occ: Auto Driver
R/o Devaliwada,
Taluk: Asnoti
Dist: Karwar. … Respt – 1 Respt –1
- XYZ,
Major, Mutoridksha Owner,
PQR, Baad,
Wagalewada, Nandangadda,
Karwar. … Respt – 2 Respt – 2
- The Divisional Manager
United India Insurance Co. Ltd.
Divisional Office, Kaikini road,
Karwar. … Respt – 3 Respt – 3
- The Divisional Manager
United India Insurance Co. Ltd.
Karwar. … Respt – 5 Respt – 4
The Appellant begs to submit as follows.
- The address of the Appellant for the purpose of issuance of notices, processes etc., is as shown in the cause title and also that of his counsel M/s OPQ and Associates, Advocates, ‘CED, 150/7, Bangalore-80.
- The address of the respondents for the similar purposes is as shown in the cause title.
- Being aggrieved by the Judgment and award passed by the Court of the I Addl. MACT at Karwar, in M.V.C. No.00/2005 (hereinafter referred to as the impugned order) dismissing the claim petition filed by the appellant by its order-dated 19.09.2006, the above memorandum of appeal is filed on the following among other grounds.
FACTS OF THE CASE
- The appellant was the Claimant in M.V.C.No.00/2005, the respondent No. 1, 2, 3 and 4 were respondents on the file of the I Addl. MACT at Karwar. The parties are referred as arrived in the cause title hereinabove.
- The brief contentions of appellant in his claim petition were, on 22.02.2004 was riding scooter bearing No. KA-00/J-2998 along with his wife and children i.e., the claimants in M.V.C. No.00/2005 to 00/2005, and proceeding towards OTP from Baikthkel at about 9.00 AM the respondent No.1 who was driving Auto Rickshaw bearing No. KA-00/4951 came behind and while overtaking dashed the vehicle driven by the appellant in which process the appellant and his wife and children sustained injuries. The appellant became un-conscious and was taken to Civil Hospital Karwar, after examining the appellant the doctor opined that he has suffered Head injury and advised to take him to Mangalore and he was admitted in Mangalore Hospital for treatment. After having undergone treatment for two days he was advice to shift to Karwar Hospital for further treatment. In Karwar Hospital he was treated for about 15 days.
- The appellant had suffered injury on his left eyebrow, on his face and on the back of the head and also fracture of Mandible, which was very grievous in nature, he was operated for fracture Mandible. The appellant is in occupation as an accountant in Port Department and now to due to his injury he cannot work as he was working efficiently before the accident. Hence he claimed a compensation of Rs.1, 00,000/- for all the heads that is to be compensated (in evidence he has claimed Rs.1, 50,000/-).
- Though the notices were served on the respondent only respondent No.3 insurer of the Auto Rickshaw had filed his objections and contested the claim petition. The brief contents of the objection were the claim petition is not maintainable and contents of the claim petition are contrary to law and true facts. The respondent No.3 denied the age and nature of injuries suffered. Further set up the defence that, the appellant him self was negligent in driving the vehicle and while tried to overtake turned his vehicle to right side which caused the accident and denied the driver of Auto Rickshaw was at negligent. Thus sought dismissal of the claim petition filed by the appellant.
- The Claims tribunal framed four issues. The appellant examined him self as PW –1 and examined Doctor as PW – 2 and in all marked 44 documents to substantiate his claim. On behalf of respondent no evidence was lead but the Insurance Policy was marked as Ex.R–1. The claims tribunal partly allowed the claim petitions of the other claimants which were filed on the same cause of action and so far as M.V.C. No.00/2005 which pertains to the appellant claim petition, dismiss the claim petition by holding that the appellant himself was cause for the accident and was not entitled for any compensation. The claim petition filed by the wife and children were partly allowed. The dismissal of the claim petition of the appellant was contrary to the law and facts and the same is challenged by filing appeal before this court.
- It is submitted that the appellant has not filed any appeal or revision on the very Judgment and award passed in M.V.C. No.00/2005 dated 19/09/2006 either before this court or any other authority. The appeal before this court is maintainable Under Sec.173 (1) of the Motor Vehicle Act, 1988.
G R O U N D S
- The Judgment and award passed by the claims tribunal Karwar in M.V.C. No.00/2005, dismissing the claim petition of appellant was contrary to law and facts of the case and the same is liable to be set aside and consequently allow the claim petition and award the compensation the appellant is entitled under law.
- The claims tribunal has committed a serious error in rejecting the claim petition, by holding that claimant himself was negligent in causing the accident and was not entitled for any compensation by relying on the Ex.P-1 FIR. Ex.P-3 Char sheet, Ex.P-4 Motor Vehicle Inspection Report, without considering the fact that the criminal case No. 00/2004 filed by the Karwar police against the appellant at the instance of the respondent No.1 herein Under Sec.279 & 337 IPC on the file of the JMFC (II court Karwar) came to be dismissed on merits acquitting the appellant by holding that the prosecution was failed to prove that there was any rash and negligent driving by the appellant herein. In contrary the JMFC Court as give a categorical finding that the respondent No.1 had driven Auto Rickshaw in rash and negligent manner and while overtaking his Auto had caused the accident. Further it is submitted that the respondent No.1 Auto driver who was prosecuted subsequently on the complaint filed by the appellant has pleaded guilty admitting the rash and negligent driving and causing the accident. Hence the rejection of claim petition is liable to be set aside and consequently the claim petition is to be allowed and the appellant to be paid compensation in accordance with law.
- In so far as the compensation claimed by the appellant herein, the appellant as suffered cut on the left eyebrow, contusion behind the head and disfiguration of face and further fracture of Ramus/Coronid process of Mandible on right side. The appellant has under gone surgery of Mandible, three stainless steel plates and three screws are fitted in the jaw and the same is remaining permanently. Due to this surgery the face has become disfiguration. Hence under the head of pain and suffering the appellant is entitle for Rs.1,00,000/-.
- The appellant was in-patient in AJ Hospital Mangalore from 22.02.2004 to 01.03.2004 and spent medical bills around Rs.30,000/- and before the tribunal had produced Rs.26,064/- for having paid the medical bills. Further he has spent Rs.16,000/- as traveling expenses to get treatment, for which he has produced the receipts. Thus under this head the appellant is entitled for the amount spent by him.
- The appellant is also entitle for loss of salary during the period of treatment and bed rest. The appellant has produced the salary certificate Ex.P-43, showing the salary of Rs.10,263/- per month was received. Thus the appellant is entitled for loss of salary during the period of treatment and bed rest.
- The appellant is also entitled for loss of amenities. The appellant has examined doctor as PW-2, who has deposed that this stainless steel plates with the screws will be there permanently and the petitioner not to under take any activities that may put abnormal strain on the jaws. Thus the petitioner through out his life has to suffer. Hence under this head the appellant is entitled for compensation.
- Viewing from any angle in the fact and circumstance of the case the impugned order passed by the claims tribunal is liable to be set aside, consequently the claim petition filed by the appellant is liable to be allowed and fixing the satisfaction of the award on the respondents herein.
VALUATION
The appellant had filed an application under section 166 of the M.V. Act, 1988, claiming compensation Rs.1,00,000/- (He has deposed that he is entitle for Rs.1,0,000). The claims Tribunal by its judgment and awarded dismiss the claim petition. Hence the Appellant has now filed appeal, for allowing the claim petition claiming the compensation of Rs.2,50,000/-. Hence minimum Court Fee of Rs.15/- is paid on this appeal memo under Schedule 3(iii) (i) (a) of the K.C.F. Act. As the amount is below three lakhs, the appeal lies to the Single Judge of this Hon’ble Court.
PRAYER
WHEREFORE, the Appellant prays that this Hon’ble Court be pleased to allow this appeal and set aside the judgment and award dated 19.10.2006 passed by the I Addl. MACT at Karwar, in M.V.C. No.00/2005; dismissing the claim petition, consequently allow the claim petition and direct the respondent herein to satisfy the award in the interest of justice and equity.
Bangalore ADVOCATE FOR THE APPELLANT
Dated:
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
M.F.A. No. /2007 (MV)
Between
ABC …APPELLANT
And:
XYZ
And others …RESPONDENTS
S Y N O P S I S
|
Sl. No. |
Date |
Particulars |
|
1. |
19.10.2006 |
A Copy of the Judgement and award passed by the I Addl. MACT at Karwar in M.V.C. No.66/2005. |
BRIEF FACTS OF THE CASE
The Appellant herein has filed the above Miscellaneous First Appeal aggrieved by the impugned Judgement and award dated 19.10.2006, passed by the I Addl. MACT at Karwar in M.V.C. No.00/2005 dismissing the claim petitioner, without looking in to the materials/documents produced by the appellant herein. Hence, this Miscellaneous First Appeal.
BANGALORE
DATE ADVOCATE FOR APPELLANT.
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
M.F.A. No. /2007 (MV)
Between
ABC …APPELLANT
And
XYZ
And others …RESPONDENTS
I N D E X
Sl.No. Description Pag
- Synopsis
- Misc. First Appeal under Section 173(1)
MV Act, 1988.
- A copy of the Judgement and award dated
19.10.2006.
- Vakalath.
BANGALORE
DATE ADVOCATE FOR APPELLANT.
