IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO M.F.A.No.1465/2010 (MV) BETWEEN:
A MANJUNATHA SHETTY S/O RAMA SHETTY AGED 34 YEARS R/O ‘NAVANEETHA NILAYA’ BADANEHITHLU VILLAGE THIRTHAHALLI TALUK SHIMOGA DISTRICT.
(BY SRI G LAKSHMEESH RAO, ADVOCATE) AND:
1. A BHAGAVAN S/O RAMASHETTY AGED ABOUT 37 YEARS R/O NAVANEETHA NILAYA BADANEHITHLU VILLAGE THIRTHAHALLI TALUK SHIMOGA DISTRICT.
2. PRAKASH SHETTY S/O SHANKARA SHETTY AGED 35 YEARS R/O BEJJUVALLI VILLAGE THIRTHAHALLI TALUK SHIMOGA DISTRICT.
..APPELLANT 3. THE ORIENTAL INSURANCE COMPANY LIMITED VINAYAKA COMPLEX GARDEN AREA SHIMOGA – 577 201 BY ITS BRANCH MANAGER.
..RESPONDENTS (BY SRI B S UMESH, ADVOCATE FOR R-3, R-1 IS SERVED, NOTICE TO R-2 IS DISPENSED WITH V/O DATED:06.01.2015) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:08.10.2009 PASSED IN MVC No.216/2005 ON THE FILE OF I ADDITIONAL CIVIL JUDGE (SR.DN) AND ADDITIONAL MACT, SHIMOGA, DISMISSING THE CLAIM PETITION FOR COMPENSATION.
THIS MFA COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Appeal is directed against the Judgment and award dated 08.10.2009 passed in MVC No.216/2005 by the I Additional Civil Judge (Sr.Dn) and Additional MACT, Shivamogga.
2. The proceedings came to be initiated because of the accident dated 13.05.2004 at about 1.45 P.M.
when the petitioner was traveling on a Hero Honda Motorcycle bearing registration No.KA-14-4351 as a pillion rider from Thirthahalli to Balehonnur, that was driven by second respondent. Because of the rash and negligent driving accident happened and due to sudden cross of the motorcycle without applying brake, petitioner fell down and sustained injuries all over the body and he had to get admitted in hospital as inpatient on 14.05.2004. Rest is that he was drawing salary of Rs.7,000/- per month working as a bus agent.
3. Petitioner filed petition claiming compensation of Rs.2,20,000/-. After service of notice, respondent No.1 appeared but did not file objections, respondent No.2 did not appear and placed exparte and respondent No.3-insurance company appeared through its advocate and filed objections. Petitioner in support of his claim examined himself as PW-1 and got marked Exhibits P-1 to P-61 and on the other hand respondent No.3 examined RW-1 and got marked Exhibits R-1 and R-2. Learned Member after hearing dismissed the claim petition and operative portion is as under:
“The petition filed by the petitioner under Sec.166 of Motor Vehicles Act is dismissed.
Parties to bear their own costs.”
4. Learned Member focused his attention that the petitioner has not explained the delay in filing the complaint as date of accident is said to be 13.05.2004 and complaint is filed on 25.07.2004.
5. Sri G.Lakshmeesh Rao, learned counsel for appellant would submit that learned Member erred in relevant areas and concluded in dismissing the petition.
6. Sri B S Umesh, learned counsel for respondent- insurance company would submit that things speak by themselves and the very conduct of claimant in not filing the case immediately at next opportunity creates strong doubt. Further the brother of the petitioner who had sought compensation regarding damage of the vehicle is tight lipped regarding mode of accident when he claimed compensation for the damage sustained to the vehicle.
7. Another important factor is that learned Member dismissed the petition holding that the petitioner is not entitled for compensation on the ground of delay of nearly 2½ months. It is also to be noted irrespective of the result, the compensation amount is not quantified may be that insurance company is not liable in the opinion of the learned Judge but quantification of the amount was invariably necessary. Further it is seen that when the history of injuries was given before the doctor while petitioner was admitted he has stated regarding RTA register Exhibit P-61. Here is a case that rested on the disposal of the main matter.
8. Learned Member erred concluding at disentitlement of the petitioner and no necessity of compensation. In the circumstances the Tribunal should have taken up the matter in a proper aspect apart from considering the technical aspects and also should have quantified the eligible compensation. In the circumstances, I find that the Judgment and award dated 08.10.2009 passed in MVC No.216/2005 by I Additional Civil Judge (Sr.Dn) and Additional MACT, Shivamogga, is not complete and it is liable to be set aside and the matter deserves to be remanded to the Tribunal to dispose of the matter afresh.
Hence, appeal is allowed and remanded to Tribunal to dispose of the matter afresh on merits and giving opportunity to both the parties to adduce evidence.
In order to avoid wastage of judicial time the parties are hereby directed to appear before the Tribunal on 05.03.2019 and no further notice would be served.
Considering the date of accident, the learned Member shall dispose of the matter within two months from the date of appearance of the parties.
Sd/- JUDGE SBN