IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO MISCELLANEOUS FIRST APPEAL NO.4069/2015 (MV) BETWEEN RAMESHA S/O SRI NANJUDAIAH, AGED ABOUT 50 YEARS, RESIDING AT NO. 80, 1 FLOOR, (SUDHA INSTITUTE OF COMMERCE BUILDING) EX-SERVICE MEN COLONY, R T NAGAR, BENGALURU 560032 ... APPELLANT (BY SRI K.N. DAYALU, ADVOCATE) AND 1. SRI QAISAR AHMED S/O MOHHIYUDDIN PASHA MAJOR, RESIDING AT NO.4, 1ST CROSS, EX-SERVICEMEN COLONY, DINNUR MAIN ROAD, R T NAGAR POST, BENGALURU 560032 2. THE MANAGER THE ORIENTAL INSURANCE COMPANY LTD (421700) DO VII BANAGALORE NO.1 SHANKAR HOUSE, 3RD FLOOR, RMV EXTENSION, MATHIKERE CIRCLE, BENGALURU 560080 (BY SRI LAKSHMINARASAPPA, FOR ... RESPONDENTS SRI B.C. SEETHARAMA RAO, ADVOCATE FOR R2; SRI N. SAVANUR, ADVOCATE FOR R1) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:01.01.2015 PASSED IN MVC NO.1399/2013 ON THE FILE OF THE JUDGE, COURT OF SMALL CAUSES, XXVI ACMM, MACT, BANGALORE, DISMISSING THE CLAIM PETITION FOR COMPENSATION.
THIS APPEAL COMING FOR ADMISSION ON THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is directed against the judgment and award dated 01.01.2015 passed in MVC No.1399/2013 on the file of the Court of Small Causes and XXVI ACMM (SCCH-09) Bengaluru (for short ‘the Tribunal’).
2. The proceedings came to be initiated because of the accident that occurred on 01.10.2012 at about 9.30 p.m. when the appellant and his wife after getting down from the bus were going to their house, near house No.100, P & T Colony, at R.T. Nagar, Bangalore, a two wheeler bearing Registration No.KA-04/EX-4824 was ridden in rash and negligent manner and dashed against the appellant, due to which he fell down and sustained injuries, he was hospitalized, took treatment as inpatient and he was permanently disabled due to those injuries sustained by him. It was case of the appellant that the respondents being owner and insurer of the two-wheeler are jointly and severally liable to pay the compensation. The learned Member was accommodated with oral evidence of PW1 and RW1 to RW3 and documentary evidence of Exs.P1 to P14 and Exs.R1 to R4.
3. The learned Member of the Tribunal dismissed the claim petition holding that the date of accident as stated is 01.10.2012 and the complaint is said to have been lodged on 06.11.2012. There is delay of 49 days in lodging the complaint. This has been considered by the learned Member in his judgment. Further at Para No.14 of the judgment the learned Member has discussed that there is dispute regarding occurrence of the accident and also there is dispute about the appellant sustaining injuries due to the accident. There is delay of about 49 days in registering the F.I.R.
4. I have heard the learned counsel appearing for both the parties and perused the oral and documentary evidence available on record.
5. The IMV Report, Spot Mahazar, Wound Certificate and Medical Certificate speak regarding the occurrence of the accident on 01.10.2012. It is stated that the injuries is fracture of right calcaneum. The percentage of disability is not mentioned. The learned Member has gone hyper technically regarding the occurrence of the accident and the injuries sustained by the appellant. In the context and circumstances it is revealed that the appellant suffered injuries and the complaint was lodged later. However, there was no material to suggest that the accident did not occurred.
6. The contextual reading of evidence of RW1 examined on behalf of the Insurance Company does not specifically speak about the occurrence of the alleged accident. In the circumstance it is an error committed by the learned Member to give an universal finding regarding occurrence of accident and he was not just in holding that there is no nexus between the accident and the injuries suffered by the appellant. It is not supported by the independent material. I find that the learned Member has further observed in Para No.16 of the judgment that the delay of 49 days in lodging the complaint creates doubt in the mind of this Tribunal to entertain the claim petition and the criminal case is considered to be a collusive one. Virtually the learned Member has gone in the style of passing an order of discharging a criminal case. Amount of compensation is not quantified. Considering the oral and documentary evidence I find that it is just and proper to direct the Tribunal to re-hear the matter afresh on the aspects of negligence, injuries, disability and entitlement of compensation.
7. In the circumstances, the impugned judgment and award dated 01.01.2015 in MVC No.1399/2013 passed by the Tribunal is incomplete, hence it is set aside and the matter is remanded to the Tribunal for fresh consideration according to law within a period of four months from the date of receipt of a copy of this judgment.
Office to return the file to the concerned Tribunal.
Sd/- JUDGE Sbs*