IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 8TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ M.F.A. NO. 8466 OF 2012 (MV) BETWEEN:
SRI P NAGARAJA S/O H PARAMESHWARAPPA AGED ABOUT 23 YEARS STUDENT R/O BHOCHENAHALLY DEVAPURA POST HOSADURGA TALUK CHITRADURGA DISTRICT (BY SRI. HARISH N R, FOR SRI. B M SIDAPPA, ADVOCATES) AND 1. SRI NAVEEN KUMAR S/O M NAGARAJU, MAJOR RIDER AND OWNER OF MOTOR CYCLE NO. CKH-4452 NO.384, 4TH CROSS, 7TH BLOCK WEST, JAYANAGAR BANGALORE 2. THE BRANCH MANAGER ORIENTAL INSURANCE CO.LTD BRANCH OFFICE, NO. 12/2 MISSION ROAD, NEAR SUBBAIAH CIRCLE, BANGALORE-560027 … APPELLANT … RESPONDENTS (BY SRI. A N KRISHNASWAMY, ADVOCATE FOR R2 R1 NOTICE THROUGH PAPER PUBLICATION ACCEPTED) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 27.04.2012 IN M.V.C NO. 159/2008 ON THE FILE OF THE ITINERARY SENIOR CIVIL JUDGE & MACT, HOSADURGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
J U D G M E N T This appeal is preferred by the injured claimant assailing the judgment and award dated 27.04.2012 passed by the Court of Itinerary Senior Civil Judge and MACT, Hosadurga in MVC No. 159/2008, wherein the Tribunal awarded a compensation of Rs.60,000/- with interest at the rate of 6% per annum and directed the respondent No.1/owner to deposit the award amount thereby absolving the Insurance Company from paying the compensation amount.
2. I have heard the learned counsel for the appellant and the learned counsel appearing for respondent No.2/insurance company.
3. The case of the claimant is that on 26.11.2002 at about 2.20 pm while he was proceeding in front of Peacock Hotel on Presidency Road, Bengaluru by walk, at that time a motorcyclist came by riding his motorcycle bearing Registration No. CKH-4452 in a rash and negligent manner and dashed against the appellant. As a result of which, he fell down and sustained grievous injuries such as fracture of shaft left femur bone and other injuries. He was shifted to Mallya Hospital, wherein he took treatment as inpatient from 26.11.2002 to 06.12.2002.
4. The Tribunal considering the evidence and material on record, awarded a total compensation of Rs.60,000/- with interest at the rate of 6% per annum from the date of petition till its deposit. The Tribunal however fastened the liability on the owner of the vehicle on the ground that the insurance policy or the particulars of the policy of the offending motorcycle was not produced.
5. The contention of the learned counsel for the appellant is that there was a valid Insurance Policy issued to the vehicle in question and the insurance company has also not filed any objections and not disputed the existence of the Insurance Policy. He would submit that the Insurance Company may be held liable to pay the compensation.
6. The learned counsel for the appellant has filed I.A.No.1/2018 for production of additional documents such as the Intimation Letter issued by the Ashoknagar Police with regard to the accident. He would submit that in the said Intimation Letter/notice, the Policy number and duration of Policy has been mentioned. Accordingly, he seeks permission to produce the said documents.
7. The learned counsel appearing for the respondent No.2-Insurance Company vehemently opposed the submission of the learned counsel for the appellant. He would contend that the appellant has to establish his case before the Tribunal by placing cogent evidence and therefore, he submits that in the event of production of any additional evidence/documents, the insurer may be given sufficient opportunity to counter the same.
8. The tribunal has fastened the liability on the insured only on the ground that the insurance policy or the particulars thereof was not produced. In view of the additional documents produced by the learned counsel for the appellant and considering the rival submissions and also in the facts and circumstances of the case, I deem it proper to remit the matter to the Tribunal for giving one more opportunity to the appellant to establish his case. The respondent - Insurer is also directed to ascertain the particulars of the insurance policy which may be furnished by the appellant and to verify with regard to the existence of the policy as on the date of the accident.
9. Accordingly, I pass the following order:
The appeal is allowed in part. The judgment and award dated 27.04.2012 passed in M.V.C NO. 159/2008 on the file of Itinerary Senior Civil Judge & MACT, Hosadurga is set aside. The matter is remitted back to the Tribunal for permitting the appellant-claimant to adduce additional evidence. The Tribunal shall give both the parties sufficient opportunity to lead additional evidence, if they are so advised and dispose off the matter in accordance with law, as expeditiously as possible.
The evidence already on record shall be in-tact.
The parties are directed to appear before the Tribunal on 08.04.2019.
IA No.1/2018 is accordingly disposed off.
Sd/- JUDGE Bsv