- 1 - NC: 2025:KHC-K:1839-DB MFA No. 202393 of 2018 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE 22ND DAY OF MARCH, 2025 PRESENT THE HON'BLE MR. JUSTICE K NATARAJAN AND THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL MISC. FIRST APPEAL NO.202393 OF 2018 (MV-I) BETWEEN: JOTEPPA @ JOTHI S/O MARUTHI, AGE: MAJOR, OCC: MASONARY, R/O: VILLAGE CHIDRI, TQ.BIDAR, DIST.BIDAR. …APPELLANT (BY SRI. SANDEEP VIJAYKUMAR, ADVOCATE) AND: 1. MD. MAMJAMIYAN S/O MOHAMMED SAB, AGE: MAJOR, OCC: BUSINESS, R/O: VILLAGE JAMISTANPUR TQ.BIDAR, BIDAR - 585401. (OWNER OF VEHICLE) 2. THE BRANCH MANAGER, NATIONAL INSURANCE COMPANY LTD., ADDRESS 1ST FLOOR, ANUPAMA COMPLEX, NEAR BASAWESHWARA CHOWK, GANDHI GUNJ ROAD, BIDAR - 585401. …RESPONDENTS (BY SRI. MANVENDRA REDDY, ADVOCATE FOR R2; NOTICE TO R-1 IS SERVED) Digitally signed by NIJAMUDDIN JAMKHANDI Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-K:1839-DB MFA No. 202393 of 2018 THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173 (1) OF MV ACT, PRAYING TO CALL FOR THE RECORDS IN MVC.NO.464/2014 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE AND ADDL. MACT AT BIDAR, TO MODIFY THE JUDGMENT AND AWARD DATED 04.07.2018 PASSED IN MVC.NO.464/2014 ON THE FILE OF THE COURT OF THE PRL. SENIOR CIVIL JUDGE AND ADDL. MACT, AT BIDAR AND ALLOW THIS APPEAL AND GRANT THE COMPENSATION OF Rs.16,00,000/- ONLY AS CLAIMED BY THE APPELLANT BEFORE THE TRIBUNAL AND ETC., THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE K NATARAJAN AND HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE K NATARAJAN) This appeal is filed by the appellant – claimant as against the judgment of dismissal of the claim petition in MVC.No.464/2014 dated 04.06.2018, passed by the Prl. Senior Civil Judge and Addl. MACT, Bidar. - 3 - NC: 2025:KHC-K:1839-DB MFA No. 202393 of 2018 02. Though, this matter is came up for admission, with consent of both the learned counsel for the parties, the matter is taken up for final disposal. 03. The case of the claimant before the Tribunal is that he has filed a claim petition under Section 166 of M. V. Act, for claiming compensation of Rs.16,00,000/- for the injuries sustained by him in the road traffic accident on 22.08.2005. It is alleged by him that when the claimant and his mother were proceeding by walk on Bidar to Kamthana road, near the Buthi Basawanna Temple, Chidri village, the driver of the Maxi-cab bearing Reg.No.KA-07-2631 came from opposite direction in a rash and negligent manner and dashed to the claimant. Due to which, he has sustained grievous injuries. He was shifted to Government Hospital, Bidar and took treatment. A criminal case was registered against the driver of the Maxi-cab. Due to the said accident, he has sustained fractures of the right knee, right leg and hip joint. He has treated as inpatient and spend more than Rs.2,00,000/- - 4 - NC: 2025:KHC-K:1839-DB MFA No. 202393 of 2018 towards medical expenses. Due to the injuries, he is suffering from disability. Hence, he claimed the compensation on various heads. 04. The respondent No.1 appeared and filed the written statement by denying the rash and negligent driving, age, occupation, income and disability of the claimant. It is contended that the claimant himself has crossed the road without taking care, due to which the accident occurred. Therefore, there is no negligence on the part of the driver the vehicle. Hence, prayed for dismissal of the petition filed by the claimant. 05. The respondent No.2 also taken the similar contentions, contending that the accident was took place on 22.08.2005, the petition was filed after 10 years of the accident. Therefore, the petition liable to be dismissed on the ground of limitation. It is also contended that previously there is a petition filed by the claimant, which was dismissed for non-prosecution without restoration of the previous petition, the fresh petition deserved to be dismissed. Hence, prayed for dismissal of the petition. - 5 - NC: 2025:KHC-K:1839-DB MFA No. 202393 of 2018 06. Based upon the pleadings, the Tribunal framed issues as under:- i) Whether the petitioner proves that on 22.08.2005 at about 09.00 hours when he was proceeding by walk near Buthi Basavanna Temple, Chidri village, then the driver of the Maxi-cab bearing Reg.No.KA- 07-2631 came from opposite side in a rash and negligent manner with high speed and dashed against him, consequently he sustained grievous injuries.? ii) Whether the second respondent proves that, the driver of the offending vehicle had no valid and effective driving license and thereby first respondent violated the terms and conditions of the insurance policy.? iii) Whether the second respondent proves that, the present petition is not maintainable.? iv) Whether the petitioner is entitled for compensation.? If so what is the quantum and from whom.? v) What order.? - 6 - NC: 2025:KHC-K:1839-DB MFA No. 202393 of 2018 07. The claimant himself got examined as PW.1 and doctor as PW.2 and marked documents as per Ex.P.1 to 9. On behalf or the respondents, no evidence is led either oral or documentary evidence. 08. Upon the hearing of the arguments, the Tribunal answered the issue No.1 in the affirmative in favour of the claimant holding that the claimant had sustained injuries due to the rash and negligent driving of the driver of Maxi-cab. However, answered the issue Nos.2 to 4 in the negative as against the claimant and ultimately, dismissed the claim petition. Hence, the claimant is before this Court. 09. The learned counsel for the appellant - claimant has contented that though the Tribunal rightly held that the accident was occurred due to negligence of the driver of the Maxi-cab, but also calculated the compensation, for which the claimant is entitled for compensation, but dismissed the petition only on the ground of delay in filing - 7 - NC: 2025:KHC-K:1839-DB MFA No. 202393 of 2018 the petition, which is not correct. It is also contended that the respondents have not led any evidence, except the contention that the earlier petition was dismissed and it was not restored. Therefore, the judgment of the Tribunal required to be reversed. Hence, prayed for allowing the appeal. 10. Per contra, the learned counsel for the respondent No.2 seriously objected the appeal contending that there is inordinate delay of more than 10 years in filing the petition. The accident was occurred in the year 2005 and the claim petition was filed in the year 2014. There was more than 12 years delay. Apart from that the claimant has suppressed the earlier petition filed for compensation, which is dismissed for non-prosecution. Therefore, the Tribunal rightly considered the petition and on the delay it is dismissed. There is no ground for interfered in the considered judgment of the Tribunal. Hence, prayed for dismissal of the appeal. - 8 - NC: 2025:KHC-K:1839-DB MFA No. 202393 of 2018 11. Upon hearing the arguments and on perusal of the records, the point that arises for our consideration as under:- “Whether the judgment of the Tribunal dismissing the claim petition only on the ground of delay, is call for interference by this Court.?” 12. As regards to the accident, the injuries sustained by the claimant, with regard to issue No.1 is answered in favour of the claimant, the same was not dispute. The Exs.P.1 to 7 copes pf the FIR, complaint, spot panchanama, charge-sheet against the driver of the Maxi- cab, IMV report, wound certificate and disability certificate, goes to show that the accident was occurred due to rash and negligent driving of the driver of the Max-cab, due to which, the claimant sustained injuries. The evidence of PWs.1 and 2, coupled with Ex.P.6 to Ex.P.9, which clearly reveal that the claimant suffered the disability in the accident. The Tribunal has considered the income at Rs.3,000/- per month and disability also considered and - 9 - NC: 2025:KHC-K:1839-DB MFA No. 202393 of 2018 awarded compensation of Rs.1,83,600/- towards the loss of future income. Towards the pain and suffering, medical expenses, loss of income during the laid up period, loss of amenities, towards disfigurement and towards food and extra nourishment charges, conveyance charges and towards attendant charges, the Tribunal has also granted the compensation. Finally, the Tribunal has held that the claimant is entitled for Rs.3,22,600/- along with interest at the rate of 6% p.a. from the date of petition, till its realization. But in view of the issue No.3 that there is a delay in filing the petition, the Tribunal dismissed the petition. 13. The Tribunal while answering the issue No.3 regarding the delay in filing the petition has taken a view that previously the claimant has filed a claim petition in MVC.No.221/2005 on 13.09.2005. The said petition said to be dismissed for non-prosecution, as claimant’s counsel failed to appear and lead the evidence. However, the same was not mentioned by the claimant in his claim petition. - 10 - NC: 2025:KHC-K:1839-DB MFA No. 202393 of 2018 The only contention of the learned counsel for the respondent No.2 is that fact of first petition was suppressed and filing the second petition was in the year 2014, there is a delay of more than 12 to 13 years. The Tribunal rightly relied upon the judgment of the Hon’ble Supreme Court in the case of M/s. Purohit and another vs. Khatoonbee and another in Civil Appeal No.2555/2017, wherein the Hon’ble Supreme Court dismissed the claim petition, which was upheld as the claim petition was filed after 28 years of the accident. However, in the present case, it is not in dispute that the claimant has filed a claim petition in the year 2005 itself in MVC.No.221/2005, but the same was dismissed just 03 years prior to the filing of the fresh petition. Of course, the claimant ought to have intimated the Court, the learned counsel who has appeared for the claimant ought to have brought notice of the Court that the previous petition was dismissed and there will be no res-judicate applies, as it was not decided on merits. - 11 - NC: 2025:KHC-K:1839-DB MFA No. 202393 of 2018 14. That apart, of course the learned counsel for the respondent No.2 has rightly contended that the claimant could have filed an application for restoration or recalling the judgment of dismissal, however he has filed a fresh petition without mentioning the earlier petition. 15. Considering the facts and circumstances of the case especially the wound certificate and disability certificate of the claimant where he has sustained injuries and the charge-sheet is also filed and the compensation is also assessed by the Tribunal, but only on the ground of delay, the petition came to be dismissed, this Court is of the view that there is a fault on the part of the claimant and his counsel for not bringing the notice of the Court. 16. We are also aware that the claimant or the plaintiff who comes to the Court should come with clean hands, he/she should not suppress the facts before the Court, which leads to dismiss the petition or the suit. However, this petition is a claim petition filed under the Motor Vehicles Act, where the injured or the legal heirs of - 12 - NC: 2025:KHC-K:1839-DB MFA No. 202393 of 2018 the deceased person approached the Court or Tribunal for compensation for sustaining the injury and also death of a person, who maintain the family. Such being the case, the Court required to take a reasonable view, as it is social legislature, we are of the pinion that there is some mistake on the part of the claimant and his counsel, but the claimant should not be punished by way of dismissing the claim petition, even though the compensation assessed by the Tribunal. Hence, we are of the opinion that though the Tribunal rightly assessed the compensation, but dismissing of the petition, only on the ground of delay, is required to be set-aside. 17. As this is a special case, we are of the considered opinion that the delay requires to be condoned and for the delayed period the claimant is not entitled for any compensation between the year 2005 to 2014. However, the claimant is entitled for the compensation only from the year 2014 till the date of its realization. The award of compensation assessed by the Tribunal for Rs.3,22,600/- is hereby upheld. - 13 - NC: 2025:KHC-K:1839-DB MFA No. 202393 of 2018 18. Though, the learned counsel for the respondent No.2 contended that quantum of compensation is on the higher side. But looking to the documents, photographs and Ex.P.6 and 7, we are of the opinion that the compensation awarded by the Tribunal is just and proper. 19. As regards to the liability, the insurance company is not disputed in issuance of policy for the vehicle in question. Therefore, the respondent No.2 is liable to pay the compensation to the claimant. Accordingly, the point raised for consideration, is answered in the affirmative. Hence, the following; O R D E R i) The appeal is allowed. ii) The judgment and award passed by the Prl. Senior Civil Judge and Addl. MACT, at Bidar, in MVC.No.464/2014 dated 04.07.2018, dismissing the petition on the ground of delay, is hereby set-aside. iii) The appellant - claimant is entitled for compensation of Rs.3,22,600/- which shall carry interest at the rate of 6% per annum from the date of petition i.e.,10.11.2014 till its realization. - 14 - NC: 2025:KHC-K:1839-DB MFA No. 202393 of 2018 iv) The respondent No.2 – insurance company shall deposit the compensation amount within a period of 06 weeks from the date of receipt of copy of this judgment, before the Tribunal. v) Out of the compensation, 50% of the amount is directed to be deposited in Fixed Deposit in any nationalized bank for a period of five years in the name of the claimant and remaining 50% of the amount shall be released to the claimant, on proper identification. Registry is directed to send back the Trial Court records forthwith. Sd/- (K NATARAJAN) JUDGE Sd/- (VIJAYKUMAR A. PATIL) JUDGE KJJ List No.: 1 Sl No.: 26 CT:SI