Mr C Yaseer vs The National Insurance Co Ltd.,
2021 Latest Caselaw 1282 Kant

                         1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 21ST DAY OF JANUARY 2021

                      BEFORE

THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD

            MFA No.6915 OF 2013(MV)

BETWEEN:

MR. C YASEER
S/O C MOHAMMED
AGED ABOUT 37 YEARS
R/O CHENODOLY HOUSE
PANEMANGALORE PIN-574231.
BANTWAL TALUK.
                                    ... APPELLANT

(BY SRI.GURUPRASAD B.R., ADV. )

AND

1.    THE NATIONAL INSURANCE CO. LTD.,
      BRANCH OFFICE AT B.C.ROAD
      HAVING DIVISIONAL OFFICE AT
      BHARATH BUILDING, GHS ROAD,
      HAMPANAKATTA, MANGALORE-575001.

2.    MR. ABU SALI
      S/O LATE IDINABBA
      AGED 33 YEARS
      R/O GUDDEANGADI HOUSE
      PANEMANGALORE POST & VILLAGE
      BANTWAL TALUK PIN-574231
                                2



     PRESENTLY RESIDING AT
     FATHIMA MANZIL
     MUKKACHERI ULLALA
     MANGALORE-575004.
                                              ... RESPONDENTS

(BY SRI.B.R.DIWAKAR, ADV. FOR R1:
SRI. LINGARAJ, ADV. FOR R2:)

     THIS MFA IS FILED UNDER SECTION 173(1) OF
MV   ACT   AGAINST      THE JUDGMENT             AND AWARD
DATED:18.09.2012 PASSED IN MVC NO.1261/2010
ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL
JUDGE,     MEMBER,       MACT,          MANGALORE,        D.K.
AWARDING          A COMPENSATION OF RS.1,50,100/-
WITH INTEREST @ 6% P.A. ON RS.88,900/- FROM
THE DATE OF PETITION TILL REALIZATION.


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


                       JUDGMENT

This appeal under Section 173(1) of the Motor

Vehicles Act, 1988 (hereinafter referred to as 'the Act',

for short) has been filed by the owner of the offending

vehicle being aggrieved by the judgment dated

18.9.2012 passed by the Motor Accident Claims

Tribunal.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 11.4.2010, the claimant had

been to clinic situated at Aladka for consultation as his

wife was suffering from ill health, when he went to get

the tender coconut after consulting the doctor and

waiting on the mud portion to cross the road, at that

time, Maruthi Omni car bearing registration No.KA-19-

M-5458 being driven by its driver at a high speed and

in a rash and negligent manner, dashed to the

claimant. As a result of the aforesaid accident, the

claimant sustained grievous injuries and was

hospitalized.

3. The claimant filed a petition under Section

166 of the Act seeking compensation. It was pleaded

that he spent huge amount towards medical

expenses, conveyance, etc. It was further pleaded

that the accident occurred purely on account of the

rash and negligent driving of the offending vehicle by

its driver.

4. On service of notice, the respondent No.2

filed written statement in which the averments made

in the petition were denied. It was pleaded that the

petition itself is false and frivolous in the eye of law.

It was further pleaded that the owner of the car

colluding with the claimant is not contesting the case.

The car was not involved in the accident and police

records are concocted and said vehicle is fixed for

claiming compensation. The liability is subject to

terms and conditions of the policy. The age, avocation

and income of the claimant and the medical expenses

are denied. It was further pleaded that the quantum

of compensation claimed by the claimant is exorbitant.

Hence, he sought for dismissal of the petition.

The respondent No.1 did not appear before the

Tribunal inspite of service of notice and was placed

ex-parte.

5. On the basis of the pleadings of the parties,

the Claims Tribunal framed the issues and thereafter

recorded the evidence. The claimant himself was

examined as PW-1, Mr.Aboobacker as PW-2 and

Dr.Shahanavaz Manipady as PW-3 and got exhibited

documents namely Ex.P1 to Ex.P12. On behalf of the

respondents, no witness was examined and one

document got exhibited as Ex.R1. The Claims

Tribunal, by the impugned judgment, inter alia, held

that the accident took place on account of rash and

negligent driving of the offending vehicle by its driver,

as a result of which, the claimant sustained injuries.

The Tribunal further held that the claimant is entitled

to a compensation of Rs.150,100/- along with interest

at the rate of 6% p.a. and directed the owner of car to

deposit the compensation amount along with interest.

Being aggrieved, this appeal has been filed.

6. The learned counsel for the appellant-

owner of the offending vehicle has contended that the

even though the Tribunal has given a finding that the

offending vehicle bearing No.KA-19-5458 was not

involved in the accident, but it has wrongly fastened

the liability on the owner of the offending vehicle

contrary to the materials available on record. He

further contended that the appellant-owner was

served, he was unable to appear before the Tribunal

and hence he was placed exparte. Hence, he prays for

remanding the matter to the Tribunal for fresh

consideration.

7. The learned counsel for the Insurance

Company has contended the claimants have falsely

implicated the offending vehicle in the accident.

Hence, the Tribunal has rightly fastened the liability

on the owner of the offending.

8. Heard the learned counsel for the parties

and perused the records.

9. It is not in dispute that though the owner

of the offending vehicle was served, he was unable to

appear before the Tribunal and hence he was placed

exparte. The Tribunal on the basis of the materials

available on record has given a finding that the

offending vehicle is not involved in the accident. But

the liability is fastened on the owner of the offending

vehicle.

Since, the owner of the offending vehicle has not

appeared before the Tribunal, in order to give one

more opportunity to the appellant, the matter requires

to be remanded to the Tribunal for fresh

consideration.

10. Accordingly, the appeal is allowed. The

impugned judgment and award of the Tribunal is set

aside. The matter is remanded back to the Tribunal for

fresh consideration.

Since the accident is of the year 2010 and in the

interest of justice, the parties are directed to appear

before the Tribunal on 23.2.2021 without awaiting for

any further notice from the Tribunal.

The Tribunal is directed to dispose of the matter

in accordance with law within three months from the

date of appearance of the parties.

All the contentions are kept open.

The amount in deposit is ordered to be

transferred to the Tribunal.

Sd/-

JUDGE

DM