IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR MISCELLANEOUS FIRST APPEAL NO.7304 OF 2013 (CPC) BETWEEN:
H B Nagaraju Aged about 53 years S/o late Bheemaiah Honnudike Village Gulur Hobli Tumakuru Taluk & District-572 227. …Appellant (By Sri. G M Sharathkumar, Advocate for Sri M Vinaya Keerthy - Advocate) AND:
1. Umesh Aged about 32 years S/o Chikkahanumaiah Honnudike Village Gulur Hobli Tumakuru Taluk & District-572 227.
2. ICICI Lombard General Insurance Co Ltd., II Floor , Prestige Corriche Near ICICI tOWERS #62/1, Richmond Road Bengaluru – 560 025. …Respondents (By Sri Pradeep – Advocate for R2 Absent; Notice served on R1) This Miscellaneous First Appeal is filed under Order 43 rule 1(d) of CPC, against the order dated 20.05.2013 passed on Misc.7/2012 on the file of the Additional Senior Civil Judge and CJM, Tumkur, dismissing the petition filed under Order IX Rule 13 of CPC.
This appeal coming on for Admission this day, the Court delivered the following:
JUDGMENT This appeal is preferred for setting aside the order dated 20.5.2013 in Misc.No.7/2012 passed by the Additional Senior Civil Judge & CJM, Tumkur and restore MVC No.1418/2007 on the file of the Additional Civil Judge (Sr.Dn.) and CJM, Tumkur.
2. The facts briefly stated are that petitioner is the registered owner of the tractor-trailer bearing registration No.KA-06-TA-3463-3464. The respondent No.1-claimant who is said to have suffered injuries while traveling in tractor- trailer had filed Motor Vehicle Claim Petition No.1418/2007. Immediately, after the accident, he had approached the Manager of the Insurance Company who is the insurer of the vehicle namely the respondent No.2. On his assurance that Company will look after the matter, petitioner remained absent and did not defend his case in Motor Vehicle Claim Petition filed by the injured. The Claim Petition was disposed off by awarding compensation of Rs.76,602/- (Rupees Seventy six thousand six hundred and two only) along with interest @ 6% p.a. directing the petitioner herein (respondent No.1 in MVC petition) to deposit the said amount.
3. The petitioner filed Miscellaneous Case No.7/2012 under Order IX Rule 13 of CPC for setting aside the impugned order dated 22.2.2010 in MVC No.1418/2007.
4. It is an admitted fact that the respondent No.1 who was agriculture labourer had suffered injuries while traveling in the tractor-trailer to carryout the agriculture operations.
5. The petitioner got examined in the said case as PW1 and the documents were marked as per Ex.P1 to Ex.P12.
On hearing both parties, the Miscellaneous No.7/2012 was rejected. Being aggrieved by the impugned order passed in Misc. No.7/2012, the petitioner has filed the present appeal.
6. The main contention of the petitioner viz., the registered owner of the tractor-trailer is that immediately after the accident, he was suffering from health problems and he had approached the Manager of the respondent No.2- Insurance Company who is the insurer of tractor-trailer to enquire about the MVC case and sought guidance, but the Manager of the said Insurance Company assured that he will look after the matter. Hence, the petitioner was under the impression that there was no need for him to appear in the court proceedings as the Insurance Company will do the needful. On account of assurance given by the Manager of respondent No.2-Insurance Company and also on account of health problems, the petitioner did not participate in the Court proceedings in MVC No.1418/2007. But these contentions were not considered by the Court below in Misc. No.7/2012.
7. Learned counsel for the respondent No.2- Insurance Company has submitted that there are no valid grounds to interfere with the impugned order as the petitioner was not at all diligent in participating in the proceedings in MVC No.1418/2007. The grounds stated by the petitioner that because of the assurance given by the Manager of the Insurance Company the petitioner remained absent is not correct. Thus, the appeal deserves to be dismissed.
8. It is pertinent to note that the petitioner had taken a policy in respect of tractor-trailer which was valid as on the date of accident. The grounds made out by the petitioner are that on account of the health problems and on the assurance given by the Manager of the respondent No.2- Insurance Company, he had not appeared and defended his case in MVC No.1418/2007. The said reasons assigned for his non- appearance in MVC Case do not appear to be false or concocted. The petitioner has produced medical records, which were marked as Ex.P3 to Ex.P12. These documents goes to show the petitioner was suffering from health problems. It is quite common that whenever the accident takes place, the vehicle owner try to approach the Insurance Company as they are the insurers of the vehicle and there is every possibility of assurance being given by the officials of the respondent No.2-Insurance Company that they will look after the matter if the policy is in force. The petitioner having the valid policy for his vehicle might not have anticipated technicalities and other problems. There is every chance or likelihood that the petitioner might have remained absent under the bonafide belief that the Insurance Company has to pay the compensation. The petitioner approached the Court for setting aside the award passed against him. But the material evidence is not considered in the right perspective by the Court below.
9. On reappreication of oral and documentary evidence, this Court is of the view that there are valid grounds to set aside the impugned order dated 20.5.2013 in Misc. No.7/2012 passed by the Additional Senior Civil Judge & CJM, Tumkur and to restore MVC Petition for giving opportunity to the petitioner to defend his case.
10. Accordingly, the appeal is allowed. The impugned order dated 20.5.2013 in Misc.No.7/2012 passed by the Additional Senior Civil Judge & CJM, Tumkur is set aside and MVC No.1418/2007 on the file of Additional Civil Judge (Sr. Dn.) and CJM, Tumkur is restored to its original side.
Sd/- JUDGE SSD