IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE B.M. SHYAM PRASAD MISCELLANEOUS FIRST APPEAL NO. 2552 OF 2012 (MV) BETWEEN:
SATHISH @ SATHISH CHANDRA AGED ABOUT 35 YEARS SON OF BASAPPA RESIDING AT MAGERE VILLAGE YESLUR HOBLI, SAKALESHPURA TALUK.
NOW RESIDING AT HEMAVATHI NAGAR NEAR SHIVALINGESHWARA KALAYANA MANTAP, NO.808. HASSAN DISTRICT.
(BY SRI. KAVITHA H. C, ADVOCATE) AND:
1. RAMASWAMY G. T, MAJOR, OWNER OF CANTER LORRY BEARING REG.NO.KA-05-D-2260 RESIDING AT NO.1629, 3RD ‘A’ CROSS J.P.NAGAR, 7TH B MAIN BENGALURU DISTRICT.
2. THE BRANCH MANAGER ... APPELLANT THE NEW INDIA ASSURANCE COMPANY LIMITED., CHANDANA COMPLEX HARSHA MAHAL ROAD HASSAN. ... RESPONDENTS (BY SRI. M. NARAYANAPPA ADVOCATE FOR R-2 SRI. T. H. NARAYANA, ADVOCATE FOR R1) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 24.11.2011 PASSED IN MVC NO.1818 OF 2009 ON THE FILE OF THE ADDITIONAL DISTRICT JUDGE, MEMBER MACT, HASSAN, DISMISSING THE CLAIM PETITION FOR COMPENSATION.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The claimant is in appeal as his claim petition in MVC No.1818/2009 before the Additional District Judge and MACT-II, Hassan is rejected on the ground that the appellant – claimant has not established the accident to succeed in the claim petition. The Tribunal considered that the doctor, who treated the appellant, has stated in his evidence that the patient met with an accident on 18.6.2009 at around 11.50 pm and was brought to the hospital on 18.6.2009 itself. However, there are discrepancies as regards the date of accident in the wound certificate (Ex.P.6) and the accident intimation Memo (Ex.P.2). In these two exhibits, the date of accident is overwritten to indicate the date of accident as 19.6.2009, though initially recorded as 17.6.2009. The claim petition is rejected for these reasons.
2. The learned counsel for the appellant - claimant contended that the claimant was injured while he was riding on the pillion of motor cycle driven by Arun when the offending vehicle, a Canter Lorry, dashed against the motor cycle. The claimant suffered multiple injuries to the lower limb, and he also suffered head and facial injuries, but the driver of the motor-cycle, Arun died on the spot. The claim petition filed by Arun is allowed in MVC No.1/2010 on the file of the Senior Civil Judge and MACT, Belur by the judgment dated 8.8.2011.
3. Further, the learned counsel also tried to rely upon the case sheets maintained by Sri Chamarajendra Hospital to argue that there cannot be any doubt that the claimant was injured in the road accident while riding on the pillion of Arun. He asserted that the evidence of the PW.2, the doctor from Sri Chamarajendra Hospital, substantiates that the appellant was indeed so injured. The Tribunal has erred in failing to consider these circumstances while dismissing the petition.
4. On the other hand, the learned counsel for the Insurance Company submitted that no reliance can be placed on the case sheet of Sri Chamarajendra Hospital, Hassan as it is not marked in evidence. Further, the judgment and award dated 8.8.2011 in MVC No.1 of 2010 being prior to the impugned judgment was not placed before the Tribunal. The appellant, therefore, cannot take advantage of these two documents.
4., On considering the rival submissions, and on perusal of the records, including the case sheet from Sri Chamarajendra Hospital (which is not marked, but is part of the Tribunal’s record), Wound Certificate and Accident Intimation Memo referred to above, this Court is of the considered opinion that the impugned judgment and award should be set aside and the matter remanded back to the Tribunal for reconsideration so that there is complete opportunity for the claimant to establish his case placing reliance upon the case sheet issued by the Chamarajendra Hospital, Hassan and the judgment and award in MVC NO.1 of 2010 on the file of the Senior Civil Judge and JMFC, Belur. This would sub-serve the interests of justice. Therefore, the following order:
The appeal is allowed in part. The impugned judgment is set aside and the matter is remitted back to the Tribunal for reconsideration of the appellant- claimant’s petition on all grounds with sufficient opportunity to both the parties to lead further evidence, if any. The parties shall appear before the Additional District Judge and MACT-II, Hassan on 25.3.2019, without further notice of hearing.
SD/- JUDGE nv