IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF APRIL 2019 BEFORE THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV M.F.A. No.4614/2010 (MV) C/W M.F.A. CROB. NO.124/2010 (MV) M.F.A. No.4614/2010 Between:
The Oriental Insurance Co. Ltd., Branch Office, Opp: KPTCL, M.C. Road, Mandya, Represented by Regional Office, No.44/45, Leo Shopping Complex, Residency Road, Bangalore – 560 025, By its Duly Constituted Attorney.
... Appellant (By Sri C.R. Ravishankar, Advocate) And:
1. Smt. Geetha, Aged 40 years, W/o Sri Nagaraju, R/at Thaggahalli Village, Kothathi Hobli, Mandya Taluk.
2. Sri C. Nagaraj, Major, S/o Sri Chikkanage Gowda, R/at Kebbahalli Village, Mandya Taluk. ... Respondents (By Sri M.Y. Srinivasan, Advocate for R-1; R-2 Served and Unrepresented) This MFA is filed under Section 173(1) of MV Act, against the judgment and award dated 02.05.2009 passed in MVC No.645/2004 on the file of the Additional Civil Judge (Sr. Dn.) and CJM and MACT, Mandya, awarding a compensation of Rs.25,000/- with interest @ 7.5% p.a. from the date of petition till realization.
M.F.A. Crob. No.124/2010 Between:
Smt. Geetha, W/o Sri Nagaraju, Aged about 40 years, R/o Thaggahalli Village, Kothahti Hobli, Mandya Taluk. … Cross Objector (By Sri M.Y. Srinivasan, Advocate) And:
1. C. Nagaraju, S/o Chikkanagegowda, Major, R/o Kebbahalli Village, Mandya Taluk.
2. The Manager, The Oriental Insurance Co. Ltd., Branch Office, Opp. KPTCL, M.C. Road, Mandya. … Respondents (By Sri C.R. Ravishankar, Advocate for R-2;
Notice to R-1 is dispensed with v/o dated 25.10.2017) This MFA Crob is filed under Order 41 Rule 22 of CPC, against the judgment and award dated 02.05.2009 passed in MVC No.645/2004 on the file of the Additional Civil Judge (Sr. Dn.) and CJM, MACT, Mandya, partly allowing the claim petition for compensation and seeking enhancement of compensation.
These M.F.A. and M.F.A. CROB. coming on for hearing, this day, the Court delivered the following:
JUDGMENT The insurer has filed an appeal challenging the judgment and award whereby global compensation was awarded for the injuries caused to the petitioner due to the accident with liability to be borne by the insurer, while the claimant has filed her Cross Objection seeking enhancement of compensation.
2. The parties are referred to by their ranks before the Trial Court.
3. The petitioner has lodged a claim with respect to the accident said to have occurred on 21.3.2002 at about 2.30 p.m. at Bellur Circle in front of Pillappa’s shop in Mandya Taluk. It comes out from the facts that the petitioner was pillion rider of a Hero Honda motor cycle bearing Registration No.KA-11/J-
453. The said motor cycle was being ridden by the petitioner’s husband who is the owner. It is stated that the said motor cycle dashed against the scooter in which the petitioner and her husband were riding. It is further stated that subsequently treatment was taken at the clinic at Mandya and she had spent more than Rs.10,000/- for medical treatment. It is claimed that the petitioner was earning Rs.4,000/- per month as an agriculturist and was deriving income through milk vending. Statement of objections to the said claim petition came to be filed by the insurer as well as owner of the motor cycle. The Tribunal by its order dated 2.5.2009 has allowed the petition in part and awarded compensation of Rs.25,000/- payable with interest at 7.5 % p.a. from the date of the petition. Liability was required to be borne by the insurer.
4. Learned counsel for the Insurance Company points out that the accident is said to have occurred on 21.3.2002 at 2.30 p.m. However, FIR was lodged only on 21.10.2002. It is further pointed out that the Motor Vehicle Accidents Report marked as Ex.P.3 has also been prepared on 25.10.2002 and at column No.7 an endorsement is made as follows:
“No visible damages are found at the time of my inspection”.
It is further stated that the wound certificate at Ex.P.4 is dated 17.2.2003 as per the entry found at the top right of the said document while at the bottom of the same document, the date is shown as 7.2.2002. It is pointed out that the above contradictions throw doubt even as regards the occurrence of the accident.
5. The counsel for the appellant states that the contents of wound certificate reveals that the claimant had suffered a fracture in the accident. It is improbable to accept the explanation that treatment was taken in the hospital at Mandya only on 27.3.2002 though the accident is said to have occurred on 21.03.2002. There is no evidence of any treatment between 21.03.2002 to 27.03.2002 which raises many questions. The counsel for the insurer states that the Tribunal has mechanically, without application of mind, taken that the evidence is not rebutted and allowed the claim petition which is not sustainable. The petitioner however would contend that there has been no effective cross-examination of the petitioner to put forth the defence that is now sought to be raised by the insurer and that in the absence of any other material on record supporting the defence of the insurer, the finding by the Tribunal cannot be found fault with.
6. Heard counsel on both sides.
7. The point that arise for consideration is, “Whether the order of the Tribunal is to be sustained?”
8. It is to be noted that the Tribunal has passed the award without addressing and dealing with the question as regards occurrence of accident which needs to be addressed irrespective of the defence taken by the respondents. The occurrence of accident is an essential requirement that needs to be determined which could be described to be a condition precedent for allowing of a claim petition. Any suspicion and doubts in connection with the occurrence of the accident ought to be dispelled by the claimant whether such defence is taken by the respondent or not.
9. It is settled principle that even where the matter is proceeded with exparte the Courts are required to record jurisdictional findings. In the instant case, the doubts with respect to the accident arise from the fact that the FIR came to be registered only on 21.10.2002 though the accident itself has occurred on 21.3.2002. The wound certificate has certain contradictions as regards the date of issue. The explanation as regards having taken treatment between 21.3.2002 and 27.3.2002 is not backed by any evidence on record. No doctor has been examined as regards the wound certificate at Ex.P.4. The delayed lodging of the FIR also raised certain doubts that ought to have been clarified as rightly contended by the insurer. Without commenting on the merits of the matter as regards the occurrence of the accident, it would be appropriate to remand the matter back to the Tribunal reserving liberty to both the sides to lead additional evidence oral and documentary and subject the witnesses, who have already lead in evidence to cross-examination so as to dispel certain doubts that have arisen as regards the very occurrence of the accident.
10. The Tribunal while recording a finding as regards the occurrence of the accident has observed that the evidence is not uncontroverted and unchallenged but a perusal of the judgment would reveal that there has been no due application of mind and the judgment has been written in a very casual manner. Hence the order of the Tribunal dated 2.5.2009 is set aside. The matter is remanded back to the Tribunal for fresh consideration of the matter both on the question of quantum and liability. The parties are at liberty to lead fresh evidence documentary as well as oral and cross-examine the witness afresh. The evidence on record including the documents marked as exhibits would remain as evidence on record. The parties are directed to appear without further notice before the Tribunal on 3.5.2019.
11. In view of the setting aside of the order of the Tribunal, the cross objection filed by the claimant seeking enhancement does not survive for consideration.
12. Accordingly, the appeal and the cross objections are disposed of.
The statutory deposit made by the insurer is directed to be refunded to the appellant – Insurance Company.
All contentions of both the parties are kept open.
Sd/- JUDGE RS/* ct:mhp