IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 09TH DAY OF JANUARY, 2019 PRESENT THE HON'BLE MR. JUSTICE L.NARAYANA SWAMY AND THE HON’BLE MR. JUSTICE ASHOK G NIJAGANNAVAR MFA No.5601/2016 (MV-D) BETWEEN:
1. Smt. Jayamma, W/o Gangadhar, Aged about 44 years.
2. Gangadhar, S/o Puttaiah, Aged about 52 years.
Both are residing at No.1/74/2, 2nd Road Main Road, Lakshminagara, Hegganahalli, Bengaluru – 560 091. ... Appellants (By Sri. Chandrashekara K.A., Advocate) AND:
The Managing Director, KSRTC, Sarige Bhavan, K.H. Road, Shanthinagar, Bengaluru – 560 027. ... Respondent (By Sri. D. Vijaya Kumar, Advocate) This MFA is filed under Section 173(1) of MV Act against the Judgment and Award dated 10.03.2016 passed in MVC No.4133/2014 on the file of the 22nd Additional Small Causes Judge & 20th ACMM & Member, MACT, Bengaluru dismissing the claim petition for compensation.
This MFA coming on for ‘ further Orders’ this day, Ashok G. Nijagannavar J., delivered the following:
J U D G M E N T This is a claimants appeal for modifying the judgment and award dated 10.03.2016.
2. The main grievance of the appellants/claimants is that the claim petition came to be dismissed on the ground that PW.1 was not present before the Court for the cross-examination and as such, the cross-examination of PW.1 was taken as nil. On the basis of this reasoning, the Court below has held that no value and weight can be attached to the evidence of PW.1.
3. According to the learned counsel for appellants, PW.1 was prevented from appearing before the Court due to ill-health and the ground for non-appearance is neither intentional nor deliberate one. The Tribunal has not taken into consideration the grounds urged for non-appearance and has taken the cross-examination of PW.1 as nil. Only on the reason that she has not subjected to cross-examination, the Tribunal has discarded evidence of PW.1 and has dismissed the claim petition which has resulted in injustice.
4. Considering the submission of the learned counsel for appellants, we are of the view that an opportunity may be given to PW.1 to appear before the Court for cross-examination. There are valid grounds for remanding this matter to the Tribunal to give an opportunity to the claimants.
5. Accordingly, we pass the following:
O R D E R 1. The order of the MACT dated 10.03.2016 in MVC No.4133/2014 is hereby set aside.
2. Matter is remanded back to the trial Court with a direction to record the cross-examination of PW.1.
3. Both the parties are directed to appear before the Tribunal on 05.02.2019, without awaiting any notice.
Sd/- JUDGE Sd/- JUDGE VBS