IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13th DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL M.F.A. No.883/2013 (MV) BETWEEN:
Thirumalegowda S/o Thimmegowda Aged about 51 years R/o Y.Singenahally Village, Dandiganahally Hobli, Channarayapatna Taluk, Hassan District-573 201.
(By Sri Girish B. Baladare, Advocate) AND:
… Appellant 1. The Manager Universal Sampo General A-201, Crystal Plaza, Link Road, Andheri (West), Mumbai-400 058.
Represented by Bangalore Branch Office, Universal Sampo General Insurance Company Ltd., Allahabad Bank, Distribution Net, Work KVO Tower, 2nd Floor, 7/3 Old Madras Road, Kolar Road, Bangalore-560 010.
2. Sreenivasachari S/o Kalachari Aged about 31 years Lakshmi Narasimhaswamy Nilaya, House No.4, Opp. NGH School, Channarayapatna, Hassan District-573 201.
… Respondents (By Sri Ravi S. Samprathi, Advocate for R1; Sri Jagadeesh H.T., Advocate for R2) This MFA is filed under Section 173(1) of the MV Act against the judgment and award dated 22.06.2012 passed in MVC No.305/2011 on the file of the Presiding Officer, Fast Track Court, Channarayapatna, dismissing the claim petition for compensation.
This MFA coming on for Admission this day, the Court delivered the following:-
J U D G M E N T The present appeal has been preferred by the appellant–claimant being aggrieved by the judgment and award passed by the Fast Track Court, Channarayapatna in MVC No.305/2011 dated 22.06.2012.
2. Heard. Admit. With consent of learned counsel appearing for the parties, the matter is taken up for final disposal.
3. The brief facts leading to the case are that on 7.8.2009 at 11.00 a.m. petitioner Thirumalegowda and his son Prakash were going by walk on the left side of the B.M. Road towards State Bank of Mysore in Channarayapatna and at that time, a motorcycle bearing Registration No.KA.13 U-7414 came rashly and negligently and dashed against the petitioner-claimant, as a result of the same he had sustained grievous injuries and thereafter he had undergone treatment at Government Hospital, Channarayapatna. For having sustained grievous injuries, petitioner filed claim petition for claiming compensation.
4. On service of notice, respondents appeared, respondent No.1 has not filed any written statement, respondent No.2 filed his written statement by denying the contents of the petition. He further contended that the said vehicle has not been involved in the accident and as such he prayed for dismissal of the petition.
5. On the above pleadings the Tribunal framed the following issues:
1. Whether the petitioner proves that on 07.08.2009 at about 11.00 a.m. when he and his son were walking on the left side of B.M.Road, then at that time the rider of a Hero Honda Splendor Bike bearing No.KA-13-U-7414 came in a rash and negligent manner dashed against him and as a result of it he has sustained grievous injuries?
2. Whether the petitioner is entitled to the compensation? If yes, what amount and from whom?
3. What Order or Award?
6. After hearing the parties to the lis, the impugned judgment and award came to be passed where under the claim petition filed by the appellant-claimant came to be dismissed. Assailing the same, the appellant is before this Court.
7. The main grounds urged by the learned counsel for the appellant are that the Tribunal has grossly erred in dismissing the claim petition. He has further contended that in MVC No.18/2011 which was arising out of the same accident, has been tried by the Senior Civil Judge and MACT, Channarayapatna, wherein it has been held that the accident has taken place due to the rash and negligent act of the rider of the motorcycle and the petition came to be allowed and a compensation of Rs.68,000/- has been awarded. Under the said facts and circumstances, the Tribunal ought to have allowed the petition and it could have quantified the compensation which the appellant- claimant is entitled. He further contended that even the appellant-claimant has satisfactorily explained the delay in filing the complaint, however, the Tribunal has erroneously dismissed the petition. On these grounds he prayed for allowing the appeal by setting aside the impugned order and prays to remit back the case to dispose of in view of MVC No.18/2011.
8. Per contra, the learned counsel appearing on behalf of respondent No.1 vehemently argued and contended that the appellant-claimant has not proved the rash and negligent act of the rider of the motorcycle. After considering the same, the Tribunal has rightly dismissed the petition. However, he fairly conceded that, in MVC No.18/2011 which is arising out of the same accident, the Tribunal has allowed the petition and awarded the compensation of Rs.68,000/-. In view of the said fact, the matter may be remitted back to the trial Court to reconsider afresh and dispose of in accordance with law.
9. The only point which arises for consideration of this Court is that the additional document which has been produced under IA No.2/2013 along with certified copy of the judgment and award passed in MVC No.18/2011 has to be considered in view of the contention taken up by the learned counsel for the appellant.
10. As could be seen from the judgment and award passed in this case and in the case of MVC No.18/2011, they are arising out of the same accident and the vehicle involved is also one and the same.
11. Already when the learned Senior Civil Judge and MACT, Channarayapatna while answering issue No.1 has answered in the affirmative and has come to the conclusion that the accident has taken place due to the rash and negligent act of the rider of the motorcycle and has awarded compensation to the extent of Rs.68,000/- to the petitioner in MVC No.18/2011. Then under such circumstances, though the finding given by the learned Fast Track Court Judge, Channarayapatna, that the rash and negligence has not been proved, appears to be not correct. When we tried to assert whether any appeal has been preferred against the amount awarded in MVC No.18/2011, no material has been produced in this behalf. Under the above said facts and circumstances, I feel that in order to maintain the uniformity in making the decision and to maintain the balance, matter has to be remitted back to the jurisdictional Tribunal with a direction to pass appropriate order keeping in view the judgment and decree passed in MVC No.18/2011.
12. Keeping in view the above facts and circumstances, the appeal is allowed and the impugned judgment and award passed in MVC No.305/2011 is set aside and the matter is remitted back to the Tribunal with a direction to dispose of the case in accordance with law by keeping in view the above said observation.
However, since the matter is of the year 2011, the parties are directed to appear before the Tribunal without further notice on 15.11.2017.
Sd/- JUDGE *AP/-