IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE N. K. SUDHINDRARAO M.F.A. No.41 of 2019 (MV) BETWEEN:
1. SMT.LAKSHMAMMA W/O LATE KEMPEGOWDA AGED ABOUT 47 YEARS 2. K.K.MADHU S/O.LATE KEMPEGOWDA AGED ABOUT 33 YEARS 3. K.K.RAMESH S/O.LATE KEMPEGOWDA AGED ABOUT 29 YEARS ALL APPELLANTS ARE R/O. K.B.HAL VILLAGE & POST LAKYA HOBLI CHIKKAMAGALURU TALUK & DISTRICT.
…APPELLANTS (BY SRI.GIRISH B.BALADARE, ADV.,) AND:
1. THE BRANCH MANAGER NATIONAL INSURANCE CO., LTD., BRANCH OFFICE YASHORAM CHAMBERS, R.G.ROAD, CHIKKAMAGALURU CITY & DISTRICT – 577 101.
2. D.M.RAJU S/O.MARIGOWDA AGED ABOUT 52 YEARS R/O.DEVARAHALLI VILLAGE LAKYA POST & HOBLI CHIKKAMAGALURU TALUK & DISTRICT – 577 101.
…RESPONDENTS (BY SRI.B.C.SEETHARAMA RAO, ADV., FOR R-1, R-2 – SERVED - UNREPRESENTED) THIS MFA IS FILED U/S 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED: 28.08.2018 PASSED IN MVC NO.526/2017, ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CHIEF JUDICIAL MAGISTRATE AND MEMBER, MACT, CHIKKAMAGALURU, DISMISSING THE CLAIM PETITION FOR COMPENSATION.
THIS MFA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Though the matter is listed for admission, with the consent of learned counsel for both parties, it is taken up for final hearing and disposal.
2. The appeal is directed against the judgment and award passed in MVC.NO.526/2017 dated 28.08.2018 by the learned Principal Senior Civil Judge and CJM, Member, MACT, Chikkamagaluru, wherein the claim petition stood dismissed.
3. In order to avoid confusion and overlapping, the parties are referred to, as per their ranking before the Court below.
4. The case pertains to a road accident that occurred on 14.02.2017, at about 8.00 p.m., when the deceased Kempegowda had gone to the shop by walk and after purchasing, he proceeded on the extreme left side of Halebeedu – Javgal road, K.B.Hal village, Lakya Hobli, Chikkamagaluru taluk. At that time, the rider and owner of the motorcycle bearing registration No.KA- 18-X-1461, drove the said vehicle in a rash and negligent manner in high speed and dashed to the deceased, which resulted in death of Kempegowda on 15.02.2017, at 6.30 a.m. Petitioners being wife and children of the deceased filed the claim petition which came to be dismissed. Against which, petitioners filed this appeal.
5. The brief point that would arise for consideration is that, the deceased Kempegowda had meted untimely death by the injuries sustained in the road traffic accident. The driver of the offending vehicle was not having valid and proper driving license and the name of the person against whom the case was registered, was deleted and altogether the name of different person, Sri D.M. Raju came to be inserted, since the accused in FIR is mentioned as Rudregowda, who had no proper license.
6. Learned counsel for appellants would submit that the learned Member of the Tribunal failed to appreciate the facts and circumstances of the case, the provisions of the law and has dismissed the claim petition, which calls for interference by this Court.
7. Learned counsel for respondent No.1 would submit that the Tribunal has given a right and proper findings and the appeal is liable to be rejected.
8. It is further case of the learned counsel for respondent No.1 – insurance company that deliberately as a negative tactics the name of D.M. Raju came to be shown while filing final report. The learned Member of the Tribunal has relied upon the same and rejected the claim petition.
9. In the circumstances of the case, the FIR is registered under Section 155 of M.V.Act on the basis of the FIR received by the police.
10. The final report / charge sheet is filed on completion of the investigation of the case under Section 173(2) of Cr.P.C., on which cognizance of the offence, is decided under Section 190 of Cr.P.C.
11. In the circumstances, it is the investigation which is supposed to be the basis, as it has to be relied as against FIR. I do not find that the Tribunal was right in giving a finding in the matter, more particularly, when it is based on the FIR. The finding of the Tribunal on the said aspect is liable to be set aside.
12. It is also seen that the assessment of compensation despite the liability is not done. In the circumstances, it is just and proper to set aside the judgment and award of the learned Tribunal and remand the matter for fresh consideration.
13. Accordingly, the appeal is allowed. The impugned judgment and award is set aside. The matter is remanded to the Tribunal, for reconsideration afresh. The Tribunal is directed to take into consideration the other aspects of entitlement of compensation to the dependents, after giving opportunity to lead evidence and to file further statement and dispose of the matter on merits.
In order to avoid the wastage of judicial time, parties are directed to appear before the Tribunal on 21.12.2019 and they shall not be served with separate notice by the Tribunal.
The learned Member shall endeavour to dispose of the matter afresh as expeditiously as possible.
Sd/- JUDGE nvj