IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.6590 OF 2013 (MV) BETWEEN:
1. SMT. SREEMATI W/O. LATE R.P.BHAT KASHI, AGED ABOUT 62 YEARS 2. GOPINATH RAMACHANDRA S/O. LATE R.P.BHAT KASHI AGED ABOUT 32 YEARS BOTH ARE R/O 6TH CROSS, 4TH MAIN, VINOBANAGAR, WARD NO.34, SHIVAMOGGA-577201.
(BY SRI. SHRIPAD.V.SHASTRI, ADVOCATE) AND:
1. UNITED INDIA INSURANCE CO. LTD., MAIN BRANCH, SHIVAMOGGA-577201.
BY ITS MANAGER.
... APPELLANTS 2. G.P. YOGESH, S/O. LATE G.S.PUTTAGOWDA, AGED ABOUT 45 YEARS R/O H.K. JUNCTION, BHADRAVATHI TALUK-577301.
BY ITS MANAGER.
3. SHAKILA J.P.
W/O. N.CHANDRASHEKHARAIAH (LORRY OWNER), R/O H.No.149/2A, RAVINDRANAGAR, 6TH CROSS, SHIVAMOGGA-577201.
... RESPONDENTS (BY SRI. K.S.LAKSHMINARASAPPA, ADVOCATE FOR SRI. B.C.SEETHARAMA RAO, ADVOCATE FOR R1 R2 IS SERVED; R3 – SERVICE HELD SUFFICIENT V/O DATED 19/6/2017) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 12.2.2013 PASSED IN MVC NO.764/2011 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE, CJM, MACT-4, SHIVAMOGGA, DISMISSING THE CLAIM PETITION FOR COMPENSATION.
THIS MFA COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The claimants are in appeal under Section 173(1) of the Motor Vehicles Act, being aggrieved by the dismissal of the claim petition filed under Section 166 of the Motor Vehicles Act under the judgment and award dated 12/02/2013 in M.V.C.No.764/2011 on the file of the I Additional Senior Civil Judge & CJM & MACT-VI, Shivamogga.
2. The claimants are wife and son of one late R.P.Bhat Kashi, filed claim petition under Section 166 of the Motor Vehicles Act, claiming compensation for the death of R.P.Bhat Kashi in an alleged motor vehicle accident. It is stated that on 13-6-2011, when the deceased was walking near road leading to Vinobanagara, vehicle driven by its rider dashed to the deceased. Due to which, the deceased succumbed to the injuries on the next day of the accident, while undergoing treatment. The deceased was aged 71 years as on the date of accident and was drawing pension of Rs.20,000/- per month, being a retired employee of Indian Southern Railways.
3. On issuance of notice, respondent Nos.1 and 2 appeared before the Tribunal and filed separate written statement. Respondent No.1 in its statement contended that vehicle bearing No.KA-14/V-5624 is not involved in the accident and the death of the deceased was due to some other reason and the claimants have come up with false claim by implicating the above said vehicle in the accident. Respondent No.2 in his statement contended that there is no nexus between him and the alleged accident and he has never driven any vehicle in a rash and negligent manner. Subsequently, the claimants impleaded respondent No.3-owner of the vehicle and she has adopted the second respondent’s written statement.
4. Based on the pleadings, the Tribunal framed the following issues for its consideration:
1) Whether the petitioners prove that R.P.Bhat Kashi died in an accident that occurred due to rash and negligent driving of motor cycle bearing No.KA-14/V- 5624 by the 2nd respondent on 13.06.2011 at about 7.30 p.m. near Jail Compound, Vinobanagara, Shivamogga?
2) Whether the 1st respondent proves that the petition is bad for non-joinder of proper party i.e., owner of the vehicle bearing No.KA-14/V-5624?
3) Whether the petitioners are entitled for compensation? If yes, at what rate and from who?
4) What order or award?
5. The first claimant examined herself as PW-1 and also examined PWs-2 & 3, apart from marking 28 documents Exs.P-1 to P-28. Respondent No.1-insurer examined RW-1.
6. The Tribunal, on appreciation of the material placed on record, dismissed the claim petition, holding issue No.1 in the negative. Being aggrieved by the dismissal of the claim petition, the claimants are before this Court in this appeal.
7. Heard the learned counsel for the appellants and learned counsel for respondent No.1-Insurer. Perused the material placed on record including lower court records.
8. The appellants have filed I.A.No.1/2019 under Order 41 Rule 27 of CPC, seeking permission to examine investigation officer as PW-4. In the affidavit accompanying the application, it is stated that the Tribunal dismissed the claim petition on the ground of non- examination of investigation officer. Therefore, the appellants seek leave to lead evidence of investigation officer to prove their case and it is also stated that non- examination of investigation officer is not intentional. It is further stated that the examination of investigation officer as additional witness is very much necessary to determine the real question in dispute.
9. Learned counsel for the appellants would submit that on 13-6-2011 at about 7.30 p.m., the deceased was walking near road leading to Vinobanagara, vehicle driven by its rider dashed to the deceased. Due to which, he suffered grievous injuries and succumbed to the injuries next day of the accident. Respondent No.2 is the rider and respondent No.3 is the owner of the vehicle, said to have been involved in the alleged accident. The claimants have examined PWs-2 & 3, said to have been eye-witnesses to the accident. The Tribunal, on appreciation of the evidence and with the observation that the claimants have not chosen to examine the investigation officer who filed charge sheet against respondent No.2 rider of the vehicle in question and dismissed the claim petition.
10. Learned counsel for the respondent-insurer submits that the examination of investigation officer as PW-4 would not make any change in the final result of the claim petition. He further submits that the claimants have failed to prove the accident and the involvement of the vehicle in question. PW-1 is the wife of the deceased but the complaint was lodged by one Chandrashekhara who is said to be the PW-1’s brother. Both PW-1 and complainant have not witnessed the accident. PWs-2 & 3 are said to be the eye-witnesses to the accident, in their affidavits they have stated that some person came at high speed riding the vehicle and dashed to an aged pedestrian from behind, causing accident. They have further stated that the vehicle number was noted down. In the cross-examination PWs-2 & 3 were asked to state bus number in which they travelled to Shivamogga. The bus number in which PWs-2 & 3 travelled is of no relevance to the accident in question. The Tribunal at paragraph No.16 of its judgment has observed that the claimants have failed to examine investigation officer who filed charge sheet against respondent No.2 who is alleged to be the rider of the vehicle in question. In that circumstance, the appellants have filed an application-I.A.No.1/2019 seeking leave to examine investigation officer as PW-4. I am of the view that in the facts and circumstances of the case and in the interest of justice, the appellants are to be afforded with an opportunity to lead evidence of investigation officer as PW-4. I.A.No.1/2019 is allowed and consequently, the judgment and award dated 12/02/2013 in M.V.C.No.764/2011 on the file of the I Additional Senior Civil Judge & CJM & MACT-VI, Shivamogga, is set aside and the claim petition is remanded to the Tribunal to enable the claimants-appellants to examine investigation officer as PW-4 and to place on record any other additional documents or evidence. Thereafter, the Tribunal shall re-assess the material placed on record and pass the judgment and award in accordance with law.
Sd/- JUDGE SMJ