IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THIS THE 10th DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL M.F.A. No.1952/2012 (MV) BETWEEN :
J.P. Mallikarjuna S/o Puttegowda Aged about 37 years Employee of Falcon Tyres, R/at 2nd Cross, Metagalli Main Road, Metagalli, Mysore.
(By Sri V. Srinivas, Advocate) AND :
1. Manjunatha S/o Eraguntappa Vayyarahalli Village Yaliyuru Post, Kottatthi Hobli, Mandya District.
2. Jayaram S/o Nanjegowda Aged about 34 years Kalaiahanalli Village Kottatthi Hobli, Mandya Taluk Mandya District.
… Appellant 3. The Oriental Insurance Co. Ltd., CBO No.3, 42/1, Chandra Complex, Kalidasa Road, V.V.Mohalla, Mysore.
4. Smt. Gowramma Muddanahalli, Hagalahalli Post Maddur Taluk Mandya District.
(Amended as per order dated 19.6.2017) … Respondents (By Sri M.S. Sriram, Advocate for R3;
R1-Notice dispensed with vide Court order dated 19.2.2014; R2-Served and unrepresented; R4-Notice held sufficient vide Court order dated 20.02.2017) This MFA is filed under Section 173(1) of the MV Act against the judgment and award dated 02.05.2009 passed in MVC No.583/2004 on the file of IV Addl. Civil Judge (Sr.Dn.) & MACT, Mysore, dismissing the claim petition for compensation This MFA coming on for admission this day, the Court delivered the following:-
J U D G M E N T The present appeal is preferred by the claimant assailing the judgment and award dated 2.5.2009 passed by the MACT, Mysore, in MVC.No.583/2004, by which the claim petition filed by the claimant-appellant herein came to be dismissed.
2. Though the matter is listed for admission, with the consent of both parties, it is heard finally.
3. The brief facts of the case are that on 5.7.2004 at about 10.00 p.m., when the claimant J.P.Mallikarjuna was proceeding towards Srirangapatna on his Hero Honda motorcycle bearing Regn.No.KA-09-EA-5315, a tractor and trailor bearing Regn.No.KA-09-M-2477 and KA-09-M-2478 came in a rash and negligent manner from the opposite direction and dashed against the motorcycle, as a result of which, claimant fell down and sustained injuries to his lips, neck and near right eye, right shoulder, right hand, right hand finger and other parts of the body. Immediately thereafter, he was shifted to Mission Hospital and was operated. He was inpatient from 5.7.2004 to 9.7.2004. Due to injuries, there is a disfiguration on his face. Due to accidental injuries, he cannot perform his routine work. He was working in Falcon Tyres and earning Rs.5,000/- per month. He has spent huge money for treatment. Hence, he filed a claim petition before the Tribunal seeking compensation of Rs.7,85,000/- with interest at 12% per annum.
4. In pursuance of the notice issued by the Tribunal, respondents 1 and 2, entered appearance and filed their objections denying the contents of the claim petition. Respondent No.3-Insurance Company filed its objections contending that the claim petition is not maintainable as the owner of the tractor and trailor, namely Gowramma has not been made a party to the proceedings and its liability is subject to the terms and conditions of the insurance policy.
5. In order to prove his case, the claimant has examined himself as PW.1 and produced the documents as per Exs.P1 to P10, whereas the Insurance Company has examined the Administrative Officer as RW.1 and produced the documents at Exs.R1 to R5. After framing necessary issues and after hearing the parties to lis, the Tribunal dismissed the claim petition. Assailing the said order, the appellant-claimant is before this Court in the present appeal.
6. It is the specific contention of the learned counsel for the claimant-appellant herein that though the claimant filed an application for impleading the insured Gowramma and the said application was allowed by the Tribunal on 29.11.2007, by ignoring the said fact and without noticing the same, the Tribunal has erred in dismissing the claim petition on the ground that the insured Gowramma has not been impleaded as a party to the claim petition. It is further contended that the impugned order is erroneous and is not sustainable in law. On these grounds, he prayed for allowing the appeal and prays that the matter may be remanded back to the Tribunal for fresh disposal of the matter in accordance with law.
7. Per contra, the learned counsel appearing for the Insurance Company-respondent No.3 herein has supported the impugned order and prayed for dismissal of the appeal.
8. As could be seen from the records, this Court by the order dated 12.6.2015 directed the Tribunal to get the causetitle amended and return the entire file to this Court. Accordingly, the Tribunal got amended the causetitle and has returned the entire file to this Court and thereafter the matter has been heard. As could be seen from the records, I.A.No.1/2013 was filed under Order I Rule 10(2) of CPC on 31.3.2005 to implead Smt.Gowramma as party to the proceedings and the same was allowed on 29.11.2007. Accordingly, the petition was amended on the same day. Subsequently, the amended petition came to be filed on 13.3.2008. Though the said application was allowed by the Tribunal, the Tribunal by ignoring the said aspect of the matter, has dismissed the claim petition on the ground that Gowramma has not been made a party to the petition and the Insurance Company cannot be held liable unless and until the insured is made liable. The said observation made by the Tribunal appears to be erroneous and it is not based upon the fact and the existing material on record. When already impleading application was filed and the same was allowed, the Tribunal ought to have proceeded with the matter on merits and quantify the compensation for which the claimant is entitled to. Instead of doing so, the Tribunal by applying short cut method has erroneously dismissed the claim petition without proper observation and consideration of the material on record. Under such circumstances, I feel it just and proper that the impugned order is not sustainable in law and the same is liable to set aside.
Accordingly, the appeal is allowed. The judgment and order dated 2.5.2009 passed by the MACT, Mysore, in MVC.No.583/2004 is set aside and the matter is remanded back to the jurisdictional Tribunal with a direction to dispose of the same after giving full opportunity to both the parties on merits and in accordance with law.
Since the matter is of the year 2004, claimant- appellant herein and the Insurance Company-respondent No.3 herein are directed to appear before the jurisdictional Tribunal on 13.11.2017 without there being any notice. The Tribunal is directed to issue notice to remaining parties and proceed further.
*ck/-
Sd/- JUDGE