IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR.JUSTICE N.K.SUDHINDRARAO M.F.A. NO.11703/2012 C/W M.F.A. 10238/2013 (MV) IN M.F.A. NO.11703/2012 BETWEEN:
SAIDA @ SAYEEDA D/O LATE ABDUL SATTAR AGED ABOUT 46 YEARS R/AT NO. 58, 5TH CROSS, MARUTHINAGAR, 1ST MAIN ROAD MADIWALA BANGALORE-560 068 (BY SMT.BHUSHANI KUMAR,, ADVOCATE) AND:
1. SACHIN S/O. PETER LEUMOS MAJOR, R/AT 177/5, KURINIJU COLONY SHANTHI COLONY MAIN ROAD ANNANAGAR, CHENNAI- 560 040 TAMILNADU.
PRESENTLY RESIDINT AT: DF-52, D1 BLOCK ITTINA NEELA APARTMENT ELECTRONIC CITY BANGALORE- 560 100 … APPELLANT 2. SHOBANA NATARAJAN W/O NATARAJAN BLOCK NO. 3, FLAT NO. 10, ANANYA ASHOK APARTMENTS NO. 15, WARREN ROAD MYLAPORE, CHENNAI TAMILNADU- 600 004.
…RESPONDENTS (APPEAL AGAINST R-2 IS DISMISSED V/O DATED: 29.06.2015, R-1 IS SERVED AND UNREPRESENTED) THIS MFA FILED UNDER SECTION 173 (1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 01.08.2012 PASSED IN MVC NO.2904/2011 ON THE FILE OF THE 16TH ADDITIONAL JUDGE, MACT, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA 10238/2013 BETWEEN:
SACHIN S/O. PETER LEUMOS AGED ABOUT 33 YEARS R/AT DF-52, D1 BLOCK ITTINA NEELA APARTMENT ELECTRONIC CITY BANGALORE- 560 100 …APPELLANT (BY SRI.MADANGOUDA.M.PATIL, ADV. FOR M/S. LEX PIONEERS) AND:
1. SAIDA @ SAYEEDA D/O LATE ABDUL SATTAR AGED ABOUT 46 YEARS R/AT NO. 58, 5TH CROSS MARUTHINAGAR, 1ST MAIN ROAD MADIWALA BANGALORE-560 068 2. SHOBANA NATARAJAN W/O NATARAJAN BLOCK NO. 3, FLAT NO. 10, ANANYA ASHOK APARTMENTS NO. 15, WARREN ROAD MYLAPORE, CHENNAI TAMILNADU- 600 004 …RESPONDENTS (BY SRI. BHUSHANI KUMAR, ADV. FOR R-1 R-2 IS SERVED AND UNREPRESENTED) THIS MFA FILED UNDER SECTION 173 (1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 01.08.2012 PASSED IN MVC NO.2904/2011 ON THE FILE OF THE 16TH ADDITIONAL JUDGE, MACT, BANGALORE, AWARDING COMPENSATION OF RS.1,83,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL PAYMENT.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Though these matters are listed for admission, with the consent of learned counsel for both the parties, matters are taken up for final disposal.
2. These appeals are filed against the judgment and award dated 01.08.2012 passed in MVC No.2904/2011 on the file of the XVI Additional Judge, MACT., Bengaluru.
3. M.F.A. No.11703/2012 is filed by the claimant for enhancement of compensation. M.F.A. No.10238/2013 is filed by the owner to set aside the judgment and award dated 01.08.2012 passed in MVC No.2904/2011.
4. The accident in question was said to be dated 02.01.2011 at about 10.45 a.m. when the claimant walking on the side of the road at Maruthinagar, Madiwala Road, in front of City Clinic as she was proceeding towards her relative house. By that time a car bearing registration No.TN-07-AU-9392 driven by its driver at a very high speed in a rash and negligent manner and dashed against the claimant- appellant. Because of which, she sustained injuries in the form of fracture of left leg both bone and other injuries all over the body. She claims to have underwent treatment at Sri Venkateshwara Hospital, Bengaluru. She was also treated as inpatient. It is also stated that a criminal case came to be registered against the driver of the car for the offences punishable under Sections 229 and 337 of IPC in Crime No.6/2011. The 1st respondent is said to be the owner and the second respondent is the previous owner. The claimant has filed the appeal for compensation of Rs.4,00,000/-.
5. Learned Member considered the matter in respect of negligence, accident, entitlement of compensation with reference to disability and granted compensation under different heads as under:
Sl.No. Heads Amount (in Rs.) 1 Pain and suffering 25,000/-
Loss of earning capacity 2 (3,500x12x14x14%) 82,320/-
3 Food, conveyance and other expenses during treatment period 4 For medical expenses (including Ex.P.9 and P.11) 15,000/-
60,680/-
Total 1,83,000/-
6. Smt.Bhushani Kumar, learned counsel for the appellant – claimant in MFA No.11703/2012 submits that the Tribunal has not considered the compensation payable under the heads ‘loss of amenities in life’ and ‘future medical expenses’.
7. Sri Madangouda M. Patil, learned counsel for appellant in MFA No.10238/2013 would submit that there is no service of notice and no opportunity of hearing has been given to explain his stand what the principles of natural justice would demand. He also submits that notice was not served. However, Smt.Bhushani Kumar, learned counsel for claimant submits that notice was served but there was no representation for the owner of the vehicle who is respondent No.1.
8. Perused the records.
9. In the context and circumstances, learned Member should have given an opportunity to the owner- respondent No.1 in the absence of which the judgment appears to be incomplete. In the ends of natural justice, I find that the impugned judgment and award is liable to be set aside and the matter deserves to be remanded. In the circumstances, appeals deserve to be allowed.
10. Hence, the following ORDER M.F.A. No.10238/2013 filed by the respondent No.1 present R.C. owner is allowed. Consequently, M.F.A. No.11703/2012 is also allowed.
Matter is remanded to the Tribunal with a direction to give an opportunity to the owner of the vehicle who is the appellant in MFA No.10238/2013 and also give one more opportunity to the claimant as well to produce their oral or documentary evidence also to cross examine the witnesses already examined.
Since the claim petition is of the year 2011, the Tribunal shall endeavor to dispose of the claim petition expeditiously, however, not beyond the outer limit of six months from the date of first date of appearance.
In order to avoid the wastage of judicial time, the parties are hereby directed to appear before the Tribunal on 18.02.2019 at 11.00 AM. It is clarified and made clear that they will not be notified separately as the petitioner-claimant and the parties are present.
Sd/- JUDGE BS