Sri K Abbas vs Smt Vinoda
2021 Latest Caselaw 1126 Kant

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 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 18TH DAY OF JANUARY, 2021

                        BEFORE

     THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

              M.F.A.NO.789 OF 2019 (MV-D)

BETWEEN

SRI K ABBAS
S/O LATE PUTTU @ ABBUBAKKAR,
AGED ABOUT 47 YEARS,
R/AT KUDRADKA HOUSE,
TANNIRUPANTHA VILLAGE,
BELTHANGADY TALUK,
D.K.DISTRICT-574 214.
                                            ...APPELLANT
(BY SMT. SUMAKEDILAYA, ADVOCATE)

AND

1.    SMT VINODA
      AGED 41 YEARS,
      W/O LATE JAYARAM @ JAYARAM SHETTY.

2.    PRAJNA
      AGED 19 YEARS,
      D/O LATE JAYARAM @ JAYARAM SHETTY.

3.    SUSHMITHA
      AGED 16 YEARS,
      D/O LATE JAYARAM @ JAYARAM SHETTY.

4.    SUDEETH
      AGED 14 YEARS,
      S/O LATE JAYARAM @ JAYARAM SHETTY.

      SINCE RESPONDENT NO. 3 AND 4 ARE MINORS
      REPRESENTED BY THEIR MOTHER, NEXT FRIEND IST
      RESPONDENT.
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     RESPONDENT NOS 1 TO 4 ARE R/AT YEKKALA HOUSE,
     PUTTILA VILLAGE, BELTHANGADY TALUK DAKSHINA
     KANNADA DISTRICT-574214.

5.     THE MANAGER
       THE ORIENTAL INSURANCE CO LTD.,
       BRANCH OFFICE, KRISHNA PRASAD BUILDING MAIN ROAD,
       PUTTUR T.K-574 201.
                                              ...RESPONDENTS
(BY SRI. N.R. HARISH, ADVOCATE FOR R-1 TO R-4
  (R-3 TO R-4 ARE MINOES REPTD BY R-1)
  SRI. A. RAVISHANKAR, ADVOCATE FOR R-5)

      THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGEMENT AWARD DATED: 23.11.2019 PASSED IN
MVC NO. 99/2018 ON THE FILEOF THE V ADDITIONAL DISTRICT
AND SESSIONS JUDGE, MEMBER, ADDITIONAL M.A.C.T., D.K.,
MANGALURU, SITTING AT PUTTUR DAKSHINA KANNADA,
AWARDING COMPENSATION OF RS. 13,75,400/- WITH INTEREST AT
7% P.A., FROM THE DATE OF PETITION TILL THE DATE OF
REALIZATION AND ETC.

     THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:


                       JUDGMENT

This appeal by the claimants is directed against the

impugned judgment and award dated 23.11.2018 passed in

MVC No.99/2018 by the V Additional District and Sessions

Judge, Member, Additional M.A.C.T., D.K., Mangaluru sitting

at Puttur, Dakshina Kannada (for short "the Tribunal")

whereby the Tribunal awarded compensation in a sum of

Rs.13,75,400/- towards death of one Jayaram @ Jayaram

Shetty, who died in a fatal road traffic accident that occurred

on 19.07.2017. By the impugned judgment and award, the

trial Court absolved the Insurance Company of its liability to

pay compensation and directed the owner of the vehicle in

question to pay the compensation, who is before this Court by

way of the present appeal.

2. Heard learned counsel for the appellant, learned

counsel for the respondents and perused the material on

record.

3, Learned counsel for the appellant submits that due

to ill health, the appellant who was arrayed as respondent

No.1 before the Tribunal could not contact his counsel and

give him necessary instructions to file written statement and

contest the claim petition. It is submitted that the appellant

has a good defence to on merits and balance of convenience

is in favour of the appellant. The inability and omission on the

part of the appellant to file written statement and contest the

claim petition is due to bonafide reasons, unavoidable

circumstances and sufficient cause and it is therefore

submitted that if an opportunity is not granted to file written

statement and contest the claim petition on merits, the

appellant would be put to irreparable injury and hardship.

4. Per contra, learned counsel for respondents submits

that there is merit in the petition and the same is liable to be

dismissed.

5. After having heard learned counsel for the parties

and in the light of the specific contentions urged on behalf of

the appellant that despite engaging the services of the

counsel, the appellant could not contact him and give him

necessary instructions to contest the claim petition on account

of ill health of the appellant, I am of the considered opinion

that in the interest of justice, it is necessary to grant one more

opportunity to the appellant to contest the claim petition on

merits by remitting the matter back to the Tribunal for re-

consideration afresh by setting aside the impugned judgment

and award.

6. In the result, I pass the following:

ORDER

i. The Appeal is allowed.

ii. The impugned judgment and award dated

23.11.2018 passed in MVC No.99/2018 by the V

Additional District and Sessions Judge, Member,

Additional M.A.C.T., D.K., Mangaluru sitting at

Puttur, Dakshina Kannada, is hereby set aside.

iii. The matter is remitted back to the Tribunal for fresh

disposal in accordance with law.

iv. The parties undertake to appear before the Tribunal

on 08.02.2021 without awaiting further notice from

the Tribunal.

v. The appellant is directed to file Written

Statement/Statement of Objections on the next date

of hearing before the Tribunal.

vi. The Tribunal is directed to dispose of the claim

petition on merits as expeditiously as possible and

preferable within four months from 08.02.2021.

vii. Liberty is granted to the parties to lead

evidence/rebuttal evidence in support of their

contentions.

viii. The amount in deposit, if any, is directed to be

refunded to the appellant.

ix. Registry to send the Trial Court Records forthwith.

Sd/-

JUDGE

Bmc