Smt Nagamma vs Sri Anil @ Javaregowda
2021 Latest Caselaw 994 Kant

                         1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 16TH DAY OF JANUARY 2021

                      BEFORE

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

            MFA No.7472 OF 2014(MV)

BETWEEN:

1.    SMT. NAGAMMA
      W/O LATE KALEGOWDA
      AGED ABOUT 46 YEARS.

2.    SRI. PUTTASWAMY D.K,
      S/O LATE KALEGOWDA
      AGED ABOUT 25 YEARS.

3.    SRI. D. K. UMESH
      S/O LATE KALEGOWDA
      AGED ABOUT 24 YEARS.

      ALL ARE RESIDING AT
      MARIGUDIBEEDI, KOTE
      CHANNARAYAPATNA TOWN-573116.
                               ... APPELLANTS

(BY SRI.VENKATESH R BHAGAT, ADV. )

AND

1.    SRI. ANIL @ JAVAREGOWDA
      S/O KEMPEGOWDA
      R/AT DODDATHEREALLI VILLAGE
                            2



       KIKKERI HOBLI
       K.R.PETE TALUK
       MANDYA DISTRICT-571 426.

2.     SRI. DUSHANTH C.O.
       S/O UNLIYAMURTHY
       NO.916, 5TH STAGE
       2ND CROSS, M.C. LAYOUT
       VIJAYANAGAR, BANGALORE-560 040.
                                ... RESPONDENTS

(BY SRI.C.KANTHARAJU, ADV. FOR R1)

       THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD DATED
20.09.2014 PASSED IN MVC NO.2108/2011 ON THE
FILE    OF   THE    SENIOR     CIVIL   JUDGE,     MACT,
CHANNARAYAPATNA, PARTLY ALLOWING THE CLAIM
PETITION     FOR    COMPENSATION        AND     SEEKING
ENHANCEMENT OF COMPENSTION.


       THIS MFA COMING ON FOR ORDERS 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 claimants being

aggrieved by the judgment dated 20.9.2014 passed

by the Motor Accident Claims Tribunal.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 31.5.2011 the deceased

Kalegowda was proceeding as pillion rider on

motorcycle bearing registration No.KA-02-EM-1947

near Girish College, at that time, the rider of the said

motorcycle rode the same in a rash and negligent and

as a result, he fell down and sustained grievous

injuries and succumbed to the injuries.

3. The claimants filed a petition under Section

166 of the Act seeking compensation. On service of

summons, the respondent No.1 appeared through

counsel and filed written statement in which the

averments made in the petition were denied. The

respondent No.2 did not appear inspite of service of

notice and was placed ex-parte.

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

the Claims Tribunal framed the issues and thereafter

recorded the evidence. The claimants, in order to

prove their case, examined claimant No.1 as PW-1

and another witness as PW-2 and got exhibited

documents namely Ex.P1 to Ex.P16. On behalf of

respondents, one witness was examined as RW-1 and

produce document. The Claims Tribunal, by the

impugned judgment, inter alia, held that the accident

took place on account of rash and negligent riding of

the offending vehicle by its rider, as a result of which,

the deceased sustained injuries and succumbed to the

injuries. The Tribunal further held that the claimants

are entitled to a compensation of Rs.7,34,000/- along

with interest at the rate of 6% p.a. and directed the

owner of the motorcycle to deposit the compensation

amount along with interest. Being aggrieved, this

appeal has been filed.

5. The learned counsel for the appellants-

claimants has contended that the claimants have not

made the Insurance Company as party before the

Tribunal and no policy was produced and marked

before the Tribunal. Hence, the Tribunal has fastened

the liability on the owner of the offending vehicle.

They further contend that during the pendency of this

appeal, the claimants found that the offending vehicle

was insured and policy was in force and hence filed

application for producing the insurance policy by way

of additional document. Even before this Court, the

Insurance Company is not made as party. Therefore,

he prays for remanding the matter to the Tribunal for

fresh consideration.

6. Heard the learned counsel for the parties

and perused the records.

7. From the perusal of the impugned

judgment and award of the Tribunal, it is clear that

the claimants have not made the Insurance Company

as party to the claim petition and insurance policy has

not been produced and marked. During the pendency

of this appeal, the appellants have filed application

seeking production of insurance policy by way of

additional documents on the ground that the offending

motorcycle was insured and policy was in force as on

the date of the accident.

8. Today vide separate order, the application

filed by the appellants for production of additional

document i.e., copy of insurance policy is allowed and

the same is taken on record.

9. In view of allowing the application for

production of additional documents, and since the

Insurance Company is not made as party either before

the Tribunal or before this court, and in the interest of

justice, the matters 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.

The Tribunal is directed to dispose of the matter

in accordance with law after giving opportunities to

the parties within six months from the date of

appearance of the parties.

Parties are permitted to implead the Insurance

Company in the claim petition before the Tribunal.

All the contentions are kept open.

Sd/-

JUDGE

DM