IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE S.R.KRISHNA KUMAR M.F.A.NO.7624 OF 2017(MV-I) BETWEEN NAGAMMA W/O LATE BOJEGOWDA AGED 51 YEARS R/AT BYRAPATNA VILLAGE MALUR HOBLI, CHANNAPATNA TALUK RAMANAGARA DISTRICT NOW R/AT HOUSE NO 1003, SIDDESHWARA NILAYA, 3RD CROSS, GANDHINAGARA, MANDYA CITY – 571 401.
(BY SRI.PRAMOD.R, ADVOCATE) AND 1. BHARATH.P S/O PRABHU B.C., MAJOR, R/AT NO. 4/1 ROBERT SON ROAD(TOWN) 2ND FLOOR, FRAZER TOWN BENGLAURU – 560 005.
2. THE BRANCH MANAGER THE ORIENTAL INSURANCE CO LTD., DO-2, OPPOSITE FIRE BRIGADE DARASWATHIPURAM, MYSURU – 571 408.
(BY SRI. P.S.JAGADISH FOR SRI. P.B. RAJU, ADVOCATES FOR R-2 R-1 SERVED) …APPELLANT …RESPONDENTS THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGIANST THE JUDGMENT AND AWARD DATED: 05.08.2017 PASSED IN MVC NO. 275/2017 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, MANDYA DISMISSING THE CLAIM PETITION FOR COMPESNATION AND ETC.
THIS APPEAL COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is directed against the impugned judgment and award dated 05.08.2017 passed in MVC No.275/2017 by the II Addl. Senior Civil Judge & JMFC, Mandya/MACT, dismissing the claim petition filed by the appellant.
2. The brief facts giving rise to the above appeal are as follows:
The appellant filed a claim petition inter alia contending that on 04.02.2017 when she was walking by the side of the road on the way to her hotel at about 7.15 a.m., on the side of Bengaluru-Mysuru road, a motor-cycle bearing Registration No.KA-04/JC-7283 belonging to Respondent No.1 came in a rash and negligent manner proceeding from Bengaluru towards Mysuru and chased the appellant causing accident, in which the appellant sustained grievous injuries. It was contended that on account of the injuries sustained by the appellant, she had to take treatment at several hospitals resulting in huge loss to the appellant who was aged about 50 years as on the date of the accident and carrying on milk vending business and running a hotel with an income of Rs.15,000/- p.m. Putting forth these contentions, the appellant filed a claim petition in the Court below.
3. The owner-Respondent No.1 having remained exparte, Respondent No.2-Insurance Company set aside the claim petition inter alia denying the various allegations and claim made by the claimant in addition to stating that the driver of the vehicle did not have a valid driving licence to ride a motor-cycle and consequently, the Insurance Company could not be held liable to pay compensation to the claimant.
4. On the basis of the aforesaid pleadings, the Tribunal formulated the following issues for consideration:
SL.
No. ISSUES ANSWER i Whether the petitioner proves that on 04.02.2017 at about 7.15 a.m when she was walking by the Bengaluru – Mysuru road towards a hotel a motor cycle bearing reg No. KA-04/JC-7283 being ridden in an actionalble rash and negligent manner?
ii Whether the petitioner is entitled to the compensation? If so, to what quantum and from which of the respondents?
In the negative In the negative iii What order or award? As per the final order for the following.
5. The appellant examined herself as P.W.1 and Exs.P.1 to 48 were marked. Exs.R.1 and R.2 were marked on behalf of the respondent with no oral evidence being adduced by the respondents.
6. While dealing with Issue No(i), the Tribunal came to the conclusion that the appellant had failed to prove the accident in question resulting in injuries to her caused by the said vehicle. In this context, the Tribunal noticed various discrepancies and inconsistencies in the pleadings and evidence adduced on behalf of the appellant and came to the conclusion that the appellant had not established that he had suffered injuries on account of the accident said to have taken place on 04.02.2017. Under these circumstances, the Tribunal answered Issue No(i) in the negative against the appellant. In so far as Issue No(ii) is concerned, the Tribunal came to the conclusion that having regard to the findings recorded by the Tribunal that the appellant had not proved the accident resulting in the injuries caused to her, the appellant was not entitled to any compensation from the respondents.
7. Learned counsel for the appellant submits that the Tribunal committed an error in not recording detailed findings on Issue No(ii) in as much as the Tribunal ought to have quantified the compensation to be awarded in favour of the appellant as held by this Court in M.SUBRAMANYA BHAT vs. GOVINDARAJ AND OTHERS (AIR 1979 KAR 114).
8. In so far as the impugned judgment and award passed by the Tribunal in respect of Issue No(i) is concerned, it is contended by the learned counsel for the appellant that the appellant intends to produce additional oral and documentary evidence which would conclusively establish that the appellant sustained injuries in the accident on account of rash and negligent driving of driver of the vehicle involved in the accident. It is therefore contended that if an opportunity is granted in favour of the appellant to adduce oral and documentary evidence in support of the claimant, the appellant would be in a position to establish the various claims put forth by her before the Tribunal.
9. Per contra, learned counsel for Respondent No.2- Insurance Company would support the impugned judgment and award.
10. I have given my careful consideration to the rival submissions and perused the material on record.
11. As rightly contended by the learned counsel for the appellant, the Tribunal committed an error in not giving detailed reasons and findings while dealing with Issue No(ii) by quantifying the compensation payable to the appellant as held by this Court in Subramanya Bhat’s case supra.
12. Under these circumstances, it is clear that the impugned judgment and award wherein the Tribunal has not quantified the amount of compensation payable to the appellant is liable to be set aside on this ground alone. In so far as the second contention urged on behalf of the appellant that if an opportunity is granted in favour of the appellant to adduce additional evidence in support of her claim is concerned, having regard to the material on record as well as the facts and circumstances of the case, I am of the opinion that interest of justice would be met if another opportunity is granted to the appellant to adduce both oral and documentary evidence by remitting the matter back to the Tribunal for fresh disposal.
13. In view of the aforesaid discussion, I pass the following order:
(i) Appeal is hereby allowed.
(ii) The impugned judgment and award dated 05.08.2017 passed in MVC No.275/2017 by the II Addl. Senior Civil Judge & JMFC, Mandya/MACT is hereby set aside.
(iii) The matter is remitted back to the Tribunal to decide the claim petition afresh after giving equal opportunity to both parties to adduce additional evidence in support of their respective claims.
(iv) Having regard to the fact that the claim petition is of the year 2017, the Tribunal is directed to dispose of the claim petition within a period of three months from 04.01.2020 on which day, both parties undertake to appear before the Tribunal without any further notice.
Learned counsels for the parties are directed to appear before the Tribunal on 04.01.2020 without any further notice.
L.C.Rs to be sent back to the Tribunal forthwith.
Sd/- JUDGE bnv