Mahadevappa S/O Shivaraya ... vs K Mani S/O Gounder
2021 Latest Caselaw 5262 Kant

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         IN THE HIGH COURT OF KARNATAKA

                 KALABURAGI BENCH

  DATED THIS THE 02ND DAY OF DECEMBER, 2021

                       BEFORE

        THE HON'BLE MR.JUSTICE M.G.S.KAMAL

              MFA No.30700/2012 (MV)

BETWEEN:

01.    MAHADEVAPPA S/O SHIVARAYA BIRADAR
       AGE: 49 YEARS OCC: AGRICULTURE
       R/O: HATTAHALLI TQ: INDI
       NOW RESIDING AT SOLAPUR ROAD,
       BIJAPUR.

02.    SMT. SAROJANI W/OMAHADEVAPA BIRADAR
       AGE: 44 YEARS OCC: HOUSEHOLD WORK
       R/O:HATTAHALLI TQ: INDI
       NOW RESIDINTG AT SOLAPUR ROAD,
       BIJAPUR.

                                       ... APPELLANT

(BY SRI. BASAVARAJ R. MATH, ADVOCATE)

AND:


01.    K. MANI S/O GOUNDER
       AGE: 44 YEARS OCC: BUSINESS
       R/O: 22/1, 1ST CROSS, CHAMRAJPETH
       BANGALORE-18.
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02.   RELIANCE GENERAL INSURANCE COMPANY LTD.,
      NO.28, EAST WING, 5TH FLOOR,
      CENTENARY BUILDING
      M.G. ROAD, BANGALORE-01.
      BRANCH MANAGER, RELIANCE GENERAL INSURANCE
      CO.LTD.,


                                 ... RESPONDENTS


(BY SRI. RAHUL R. ASTURE, ADVOCATE FOR R2
NOTICE TO R1 IS DISPENSED WITH VIDE ORDER
DATED 18.08.2014.)




      THIS MISCELLANEOUS FIRST   APPEAL   IS    FILED

UNDER SECTION 173 (1) OF THE MOTOR VEHICLES ACT,

PRAYING TO CALL FOR RECORDS AND SET ASIDE THE

IMPUGNED JUDGMENT AND AWARD DATED 02.01.2012

PASSED BY THE MOTOR ACCIDENT CLAIMS TRIBUNAL

AND    FAST    TRACK   COURT-I/II,    BIJAPUR      IN

MVC.NO.1145/2008.



      THIS APPEAL COMING ON FOR ORDERS THIS DAY,

THE COURT DELIVERED THE FOLLOWING:-
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                        JUDGMENT

The present appeal is filed by the claimant aggrieved

by the common judgment and order passed by MACT, Fast

Track Court-I/II Bijapur (henceforth referred as 'Tribunal')

in MVC.No.775/2007 and MVC.No.1145/2008 (which is

subject of this case) dated 02.01.2012.

02. The brief facts leading upto filing of the present

appeal are that deceased - Siddanna was traveling as a

pillion rider with one Bhimashankar on motorcycle bearubg

Registration No.KA-28-K-2911 on 02.06.2007 at about

02.00 a.m. on N.H.No.13 near Talakli village and dashed

to a parked Truck bearing Reg.No.KA-01-B-6367 resulting

in grievous injuries and both succumbed to the injuries on

the spot.

03. Thereupon, the legal representatives of the

deceased - Bhimashankar has filed the claim petition in

MVC.No.775/2007.

04. The legal representatives of the deceased -

Siddanna have filed a claim petition under Section 163-A

of the M. V. Act in MVC.No.1145/2008 on the premise that

the deceased was earning Rs.3,000/- per month from his

business of STD and xerox centre. Due to untimely death

of the deceased in the accident on account of negligence

on the part of the deriver of the parked lorry, they are

subjected financial and mental distress. Hence, sought for

compensation.

05. Upon service of notice, the respondent No.1

the owner of the Truck remained absent and was placed

ex-parte. The respondent No.2 - insurance company

appeared through its advocate and filed written statement

contending that the offending Truck was not insured with

them. Further, denying the mode and manner of accident,

the age, occupation and income of the deceased -

Siddanna as on the date of the accident, sought for

dismissal of the claim petition.

06. The Tribunal based on the pleadings of the

parties, framed issues and recorded evidence. One

Sri. Mahadevappa - claimant No.1 - father of the deceased

has been examined as PW.2 in MVC.No.1145/2008 and got

exhibited six documents marked as Exs.P.1 to 6. On behalf

of the respondents no evidence was led.

07. The Tribunal based on the pleadings and

evidence on record dismissed the claim petition filed by the

claimants on the premise that though it was asserted that

the deceased - Siddanna died in the accident, but in order

to substantiate the said contention the claimants have not

produced the P.M report of the deceased - Siddanna and

that the P.M. report is very essential document in order to

substantiate that the deceased died due to road traffic

accident. As such the Tribunal had dismissed the claim

petition.

08. Being aggrieved by the aforesaid judgment and

order the claimants are before this Court.

09. The learned counsel for the appellants -

claimants reiterating the grounds urged in the appeal

memorandum submitted that the Tribunal has grossly

erred in dismissing the claim petition merely for non-

production of P.M. report. He further submits that material

on record more particularly Ex.P.1 - complaint, Ex.P.2 -

spot panchanama, Ex.P.3 - inquest panchanama and

Ex.P.6 - FIR would establish the factum of accident. He

further submitted that the Tribunal had awarded the

compensation in respect of same matter which was carried

in MFA.No.30380/2012 settled in the Lok-Adalath. Under

the facts and circumstances of the case, he submits that

the Tribunal ought not have dismissed the petition. Hence,

sought for allowing the appeal.

10. The learned counsel for the appellants has filed

I.A.No.2/2021 under Order 41 Rule 27 of Code of Civil

Procedure seeking to produce the copy of death certificate

of the deceased - Siddanna, which has issued by the

Registrar of Birth and Death on 07.09.2007. In the

affidavit accompanying with the application sworn by the

father of the deceased - Siddappa, it is stated that he did

not produce the death certificate due to lack of knowledge

in legal procedure.

11. The learned counsel for the Insurance

Company opposes the production of said document onthe

ground of delay.

12. It is relevant at this juncture to refer the Rule -

232 of the Karnataka Motor Vehicles Rules, 1989 which

reads as under:-

"232. Application for compensation.- (1) Every application for compensation arising out of accident of the nature specified in sub-section (1) of Section 165, shall be made by a person specified in sub-section (1) of Section 166, to the Claims Tribunal having jurisdiction over the area in which the accident occurred shall be in Form KMV 63 and shall contain the particulars specified therein.

(2) Every such application shall be presented in duplicate to the Claims Tribunal either in person or [through an authorized agent or an advocate] and shall be signed by the applicant.

(3) There shall be appended to every such application the following documents:-

(a) Medical Certificate in Form KMV 64 or Post-mortem Report or Death Certificate, and

(b) First Information Report in respect of the accident.

[(4) x x x x x. ] (5) Notwithstanding anything contained in sub-rule (2) every application for a claim under Section 140, shall be filed before the Claims Tribunal in triplicate and shall be signed by the applicant and the following documents be appended to every such application namely:-

(a) Panchanama of the accident;

(b) First Information Report;

(c) Injury Certificate or in case of death, Post-mortem Report, and

(d) Certificate regarding ownership and Insurance particulars of vehicle involved in the accident from the Regional Transport Officer or the police authorities."

13. Though the claimants have produced FIR,

Complaint and Inquest Panchanama, but have not

produced the postmortem report or the death certificate

for lack of knowledge. In view of the aforesaid provision,

requiring production of P.M.report or the death certificate,

in the facts and circumstances of the case, it is just and

proper an opportunity be afforded to the claimant to

produce the said documents before the Tribunal.

14. Learned counsel for the insurance company

submits that no proper explanation is provided in the

application for non-production of said documents and also

for delay in production of the same. Be that as it may, the

Rule 232 refers to the various of the documents which are

required to be produced. One such document is in the form

of death certificate or P.M. report. In the instant case, FIR,

panchanama being the other documents required have

already been produced. Since the Tribunal has taken

serious exception for non-production of P.M. Report and in

view of the availability of provision for production of death

certificate, this Court is of the considered opinion that the

application to be allowed and an opportunity be afforded to

the claimant. In the facts and analysis, I.A.No.2/2021 is

allowed. Consequently, the following order.

ORDER

I. The MFA.No.30700/2012 is allowed.

II. The order of the Tribunal dated 02.01.2012

passed in MVC.No.1145/2008 is set-aside.

III. The original document being the death

certificate dated 07.09.2007 be sent to the

Tribunal.

IV. The matter is remitted to the Tribunal to

provide an opportunity to the claimants to

produce the death certificate of the deceased -

Siddanna which the Tribunal shall admit

subject to all exceptions in accordance with law

and the respondents shall be provided with

opportunity to lead rebuttal evidence.

V. After affording sufficient opportunity to the

parties the Tribunal shall dispose off the matter

afresh within a period of six months from the

date of receipt of certified copy of this

judgment.

VI. Since the parties are represented through their

counsel, they shall appear before the Tribunal

without expecting any further notice on

17/01/2022 and they shall co-operate in the

matter for early dispose of the matter.

Sd/-

JUDGE KJJ/mkm