IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF MAY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA NO. 4330 OF 2011 (MV) CONNECTED WITH MFA NO. 2949 OF 2011 (MV) MFA NO. 4330 OF 2011 : BETWEEN Sri H C Vasantha S/o Late Chennaiah Aged 44 years Near K.E.B office Ponnampet Virajpet Taluk-571201.
... Appellant (By Sri. N. Ravindranath Kamath - advocate) AND 1. Sri V.M. Thowfik S/o Abdul Rehaman Aged 27 years Lorry Driver Meenpet, Virajpet Post Kodagu District-571201.
2. Sri A. P. Gopalan S/o A.P. Ponnu Aged about 50 years Leaf Merchant Near Bus Stand Virajpet Kodagu District-571201.
3. The Manager Bajaj Allianz General Insurance Co. Ltd., GE Plaza, Yerwada Pune – 411006 Represented by its Branch and Policy Issuing Office At No. 363, Shri Hari Complex Seetha Vilas Road Mysore – 571001.
... Respondents (By Sri. Murugesh V. Charati – Advocate for R-2; Smt. H R Renuka, Advocate for R-3;
Notice to R-1 is dispensed with) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 16.12.2010 passed in MVC No. 165/2009 on the file of the Civil Judge (Sr. Division) and MACT at Virajpet, partly allowing the claim petition for compensation and seeking enhancement of compensation.
MFA NO. 2949 OF 2011: BETWEEN 1. A. P. Gopalan S/o A.P. Ponnu Age: 50 years Occ: Leaf Merchant Near Bus Stand Virajpet post.
2. Sri V.M. Thowfik S/o Abdul Rehaman Aged about 27 years Occ: Lorry Driver R/o. Meenpet, Virajpet Post Kodagu.
... Appellants (By Sri. M.V. Charati - Advocate) AND 1. Sri H C Vasantha S/o Late Chennaiah Age: 44 years Near K.E.B office Ponnampet Virajpet Taluk Kodagu District.
2. The Manager Bajaj Allianz General Insurance Co. Ltd., GE Plaza, Yerwada Pune – 411006 Represented by its Branch and Policy Issuing Office At No. 363, Shri Hari Complex Seetha Vilas Road Mysore.
... Respondents (By Sri N. Ravindranath Kamath – Advocate for R-1; Smt. H R Renuka – Advocate for R-2) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 16.12.2010 passed in MVC No. 165/2009 on the file of Civil Judge (Sr. Dn.,) and MACT, Virajpet, awarding a compensation of Rs. 1,68,103/- with interest @ 6% p.a. from the date of petition till realization.
These MFAs coming on for hearing, this day, the court delivered the following:
JUDGMENT Since the very same order passed by the Tribunal is under challenge in both the appeals by the claimant as well as the driver and owner of the offending vehicle, the same are taken up together and are disposed of by this common order.
2. Heard the learned counsel for appellants and respondents in both the appeals and perused the records.
3. MFA No.4330/2011 is filed by the appellant / claimant against the judgment rendered by the Civil Judge (Sr.Dn) & MACT, Virajpet in MVC No.165/2009 dated 16.12.2010 whereby the claim petition filed by the claimant / appellant was allowed in part granting compensation of Rs.1,68,103/- with the further condition that Respondents 1 and 2 (driver and owner of the offending vehicle) were jointly and severally liable to pay the compensation. The Insurance Company was totally exonerated of its liability to pay the compensation. This appeal is preferred by the claimant seeking enhancement of compensation awarded by the Tribunal.
4. The connected appeal in MFA No.2949/2011 is filed by the appellants 1 and 2 / owner and driver of the offending vehicle against the very same judgment rendered by the Civil Judge (Sr.Dn) & MACT, Virajpet in MVC No.165/2009 dated 16.12.2010 challenging the finding of the Tribunal fastening the liability on both of them jointly and severally to pay the compensation. The Insurance Company was totally exonerated of its liability to pay the compensation. This appeal is preferred by the appellants seeking to shift the liability on the Insurance Company to pay the compensation and further challenging the quantum of compensation awarded by the Tribunal.
5. Factual matrix of the appeal is as under:
It is stated in the petition that on 30.05.2009 when the claimant was riding his motor cycle bearing Regn.No.KA-12-J-3384 and proceeding from Gonikoppa to Ponnampet side slowly and cautiously, when he reached near Ambedkar Bhavan in Jodibetti of Aruvathoklu village, all of a sudden the driver of the lorry bearing Regn.No.KA-12-A-973 had come in a rash and negligent manner from Ponnampet side and hit the motor cycle of the claimant. Due to the accident, the claimant fell down and sustained grievous injuries and was admitted to Government Hospital, Gonikoppa and thereafter shifted to JSS Hospital, Mysore and took treatment as an in-patient in the said hospital for 25 days and had spent a sum of Rs.3,00,000/- towards medical expenses. Prior to the accident, he was working in Hudikeri as Village Assistant and eking out his livelihood. As a result of the accident, he had become permanently disabled and hence had filed a claim petition before the Tribunal seeking compensation.
On service of notice, only Respondent No.1 – driver of the offending lorry appeared and filed objection denying the petition averments. He had denied that the said accident occurred due to the rash and negligence of the first respondent but however that the accident occurred due to the negligence of the claimant himself. Further, he had submitted that the offending lorry was insured with the 3rd respondent – Insurer and at the time of the accident, he held a valid driving licence. On these grounds, he prayed for dismissal of the petition against him.
However, Respondent No.2 – owner of the offending lorry as well as Respondent No.3 – Insurer did not file any objection and did not contest the petition.
The appellant examined himself as PW.1 and got examined another witness as PW.2 and in support of his case got marked documents at Exhibits P1 to P13. He also examined the concerned Doctor. However, the respondents did not adduce any evidence on their behalf.
Based upon the pleadings of the parties, the Tribunal framed issues and answering the issues in the affirmative passed the impugned judgment granting compensation of Rs.1,68,103/- to the claimant and fastening the liability on the driver as well as the owner of the offending lorry to pay the compensation. The Insurance Company was totally exonerated of the liability to pay the compensation. It is this judgment which is under challenge in these appeals.
6. The learned counsel for the appellant - claimant submits that Respondent No.3 herein – Insurance Company did not file any objection to the claim petition and also they did not venture to adduce any evidence or produce the Insurance Certificate relating to the offending vehicle.
7. When the driver of the offending vehicle had pleaded in his written statement that he had a valid driving licence and the offending lorry was duly insured with the Insurance Company, I find that the Tribunal has erred in fastening the liability on the driver and owner jointly. Moreover, the appellant – claimant as well as Respondents 2 and 3 in these appeals submit that the matters are required to be remitted back to the concerned Tribunal for a fresh consideration of the matter in view of the glaring irregularity.
8. In this appeal, learned counsel for appellant – claimant has filed I.A.No.1 of 2019 for production of additional documents in order to establish his case against the respondent – Insurance Company for seeking compensation. Further, I.A.No.2 of 2019 is also filed by the appellant seeking for amendment of the claim petition made therein seeking compensation from the respondents.
9. Learned counsel for Respondent No.2 submits that I.A.No.1 of 2019 and I.A.No.2 of 2019 shall be kept open and the same shall be considered by the MACT, in accordance with law after considering the objection to be filed to those applications.
Hence, I am of the view that I.A.Nos.1 and 2 of 2019 filed before this Court ought to be considered by the Tribunal for this purpose.
10. Learned counsel Smt. H.R. Renuka appearing for Insurance Company submits that the interest supposed to be accrued on the compensation awarded by the Tribunal is required to be payable by the owner of the offending lorry arraigned as Respondent No.2 in the claim petition.
In view of the contentions raised by the counsel for the parties, I am of the opinion that both these appeals do not require detailed consideration any further, since the matters are required to be remitted back to the MACT where the case in MVC.No.165/2009 was initiated. Hence, I proceed to pass the following:
O R D E R The appeals are hereby allowed and the impugned judgment and award dated 16.12.2010 in MVC No.165/2009 is hereby set aside. The matters are remitted back to the concerned MACT with a direction to dispose of the said petition afresh, by giving an opportunity to both the parties to adduce their evidence and also for production of documents.
I.A.Nos.1 and 2 /2019 filed by the appellant in these appeals are kept open and the same shall be considered by the concerned Presiding Officer, MACT by giving an opportunity to both the sides. Further, the MACT shall dispose of the case in MVC No.165/2009 within a period of five months from the date of receipt of a copy of this order, by giving an opportunity to both the parties afresh. The question as to who should pay the interest is also left open for consideration of the Tribunal.
Moreover, while passing the order, the Tribunal shall not be influenced by any observations made in this order .
Sd/- JUDGE KS