IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 26TH DAY OF MARCH, 2019 BEFORE:
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL NO.8294 OF 2016 [MV] BETWEEN MRS. HANUMAKKA, W/O. C.T.RANGASWAMY, AGED ABOUT 67 YEARS, R/AT 11-1, 15TH CROSS, S.R.NAGAR, SHIVAJINGAR, BANGALORE-560 027. ... APPELLANT [BY SMT. BHANU H.M., ADVOCATE FOR SRI. M.R. KUMARASWAMY, ADVOCATE] AND 1. MR. KANDAN, S/O. KATH VARAN, NO.126, C/O. S.RAMESH, KANNAPPA BUILDING, CHIKKA DEVASANDRA, K.R. PURAM, BANGALORE-560 036.
2. IFFCO-TOKIO GENERAL INSURANCE CO. LTD., KSCMF BUILDING, 3RD FLOOR, BLOCK NO.8, CUNNINGHHAM ROAD, BANGALORE-560 052. ... RESPONDENTS [BY SRI. S.V.HEGDE MULKHAND, ADVOCATE FOR R2.
NOTICE TO R1 IS DISPENSED WITH VIDE COURT ORDER DATED 10.11.2017] * * * THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 29.02.2016 PASSED IN MVC NO.1740/2014 ON THE FILE OF THE XXII ADDITIONAL SMALL CAUSES JUDGE & XX ACMM AND MEMBER MACT., BENGALURU (SCCH-24), DISMISSING THE CLAIM PETITION FOR COMPENSATION.
THIS MFA COMING ON FOR ADMISSION, THIS DAY THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is filed by the claimant, assailing the Judgment and Award dated 29.02.2016 passed by the Court of XXII Additional Small Causes Judge and XX Additional C.M.M. and MACT., Bengaluru, in MVC No.1740/2014, whereby the claim petition filed by the appellant under Section 166 of the Motor Vehicles Act came to be dismissed.
2. I have heard the learned counsel appearing for the appellant and the learned counsel appearing for respondent No.2/Insurance Company.
3. The appellant filed the claim petition before the Tribunal, seeking a total compensation of Rs.10,00,000/- for the injuries sustained by her in a road traffic accident. The case of the appellant is that on 02.03.2014 at about 6.30 a.m., when she was crossing the road in front of Pallavi Theatre, Bengaluru, at that time, a motorcycle bearing reg. No.KA-53/ED-728 ridden by its rider in a rash and negligent manner dashed against her. Due to which, she fell down and sustained grievous injuries.
Before the Tribunal, the appellant got herself examined as P.W.1 and examined the doctor as P.W.2. Exs.P1 to 19 were marked in evidence on behalf of the appellant. The respondent/Insurance Company got examined R.Ws.1 to 3 and Exs.R1 to 5 were marked in evidence.
The owner of the offending motorcycle was arrayed as respondent No.1 before the Tribunal. Since the appellant did not take steps to serve notice on respondent No.1, the Tribunal dismissed the claim petition. The Tribunal has observed that the liability if any is primarily on the R.C. owner to pay compensation and since the petition against the R.C. owner is dismissed and in the absence of R.C. owner, the liability cannot be fastened against the insurer. Hence, on those grounds, the petition was dismissed as not maintainable.
4. The learned counsel for the appellant would submit that in view of dismissal of the claim petition a great injustice has been caused to the appellant. She would submit that an opportunity may be given to the appellant to take steps against the R.C. owner of the vehicle and therefore, she prays to remit the matter to the Tribunal for consideration of her claim petition afresh.
5. The learned counsel appearing for the Insurance Company contends that the claim petition has been dismissed as not maintainable for not taking steps against the R.C. owner in spite of granting sufficient opportunity and if the matter is remitted back, then the insurer has to pay interest for the period of delay in case the claimant succeeds in the petition and the said delay is solely on account of the lapse on the part of the appellant and therefore, he seeks to dismiss the appeal.
6. The claim petition is filed by the injured, seeking compensation for the injuries sustained by her in a road traffic accident. The appellant/claimant has examined herself as P.W.1 and she has also examined one doctor as P.W.2. Exs.P1 to 19 have been marked in evidence on behalf of the appellant. However, the claim petition came to be dismissed only on the ground that the appellant/claimant has failed to take steps as against respondent No.1 i.e., R.C. owner of the offending vehicle.
7. The Motor Vehicles Act is a beneficiary legislation.
If a genuine claim is not honoured, then the claimant will be put to hardship and the same will lead to miscarriage of justice. It is no doubt true that sufficient time was granted to the claimant to take steps to serve notice on the insured. However, in the present case, the evidence has been led by both, the claimant as well as the respondent/Insurance Company. The claim petition was dismissed only on the ground that the owner of the vehicle was not served as no steps were taken. In that view of the matter, it is just and proper to remit the matter to the Tribunal for giving one more opportunity to the appellant to take steps in respect of the R.C. owner of the vehicle i.e., respondent No.2 before the Tribunal. It is also relevant to see that on account of the lapse on the part of the claimant, the petition was dismissed. Hence, it is made clear that the claimant will not be entitled for any interest for the period from the date of Judgment of the Tribunal till the date of this remand order. Accordingly, I pass the following:
ORDER The appeal is allowed in part.
The Judgment and Award dated 29.02.2016 passed by the Court of XXII Additional Small Causes Judge and XX Additional C.M.M. and MACT., Bengaluru, in MVC No.1740/2014, is hereby set aside. The matter is remitted back to the Tribunal with a direction to give an opportunity to the appellant to take steps in respect of respondent No.1/owner of the motorcycle bearing reg. No.KA-53/ED-728.
The evidence already on record shall remain intact. The Tribunal shall proceed in accordance with law by permitting both the parties to lead further evidence, if they choose to do so. All the contentions of the parties are left open.
The parties are directed to appear before the Tribunal on 26.04.2019. The office is directed to send back the LCR forthwith.
Sd/- JUDGE.
Ksm*