Karnataka High Court
Manjunatha vs Nagaraja Kayakada on 10 June, 2021
Author: H.P.Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JUNE, 2021
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
M.F.A.NO.6306/2013 (MV)
BETWEEN:
MANJUNATHA
S/O DURGAPPA
AGED ABOUT 25 YEARS
DRIVER, R/O K.T.J. NAGARA,
15TH CROSS
DAVANAGERE-577001
... APPELLANT
(BY SRI SHASHIDHARA R., ADVOCATE)
AND:
1. NAGARAJA KAYAKADA
S/O JATYAPPA
AGE: MAJOR
R/O JOYISARAHARALAHALLI
RANEBENNUR TALUK
HAVERI DISTRICT-581115
DRIVER OF APE PASSENGER AUTO
BEARING NO.KA-27/A-2133.
2. MALLISHANTAPPA JATYAPPA KAYAKADA
AGE: MAJOR
R/O JOYISARAHARALAHALLI
RANEBENNUR TALUK
HAVERI DISTRICT-581115
PROPRIETOR OF APE PASSENGER AUTO
BEARING NO.KA-27/A-2133.
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3. THE MANAGER,
THE NEW INDIA ASSURANCE
COMPANY LTD.,
DIVISIONAL OFFICER, NO.289/12
2ND FLOOR, A.M. ARCHADE
C.G. HOSPITAL ROAD
DAVANAGERE-577002
4. KAREGOUDA
S/O SHIVANAGOUDA PATIL
AGE: MAJOR
R/O JOYISARAHARALAHALLI
RANEBENNUR TALUK
HAVERI DISTRICT-581115
5. DIVISIONAL MANAGER
CHOLAMANDALAM GENERAL
INSURANCE COMPANY,
15TH CROSS, NO.135/5
2ND FLOOR, J.P. NAGARA
BENGALUERU-560078
... RESPONDENTS
(R-1, R-2, R-4 ARE SERVED;
SRI A.M.VENKATESH, ADVOCATE FOR R-3;
SRI B.PRADEEP, ADVOCATE FOR R-5)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 18.08.2012
PASSED IN MVC.NO.450/2009 ON THE FILE OF THE
II ADDITIONAL DISTRICT AND SESSIONS JUDGE, DAVANAGERE,
HAVING CONCURRENT CHARGE OF I ADDITIONAL DISTRICT
JUDGE, MACT, DAVANAGERE, DISMISSING THE CLAIM PETITION
FOR COMPENSATION.
THIS MFA COMING ON FOR ADMISSION THROUGH
'VIDEO CONFERENCE' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
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JUDGMENT
This appeal is filed challenging the judgment and award
passed in M.V.C.No.450/2009 dated 18.08.2012 on the file of
the I Additional District Judge and MACT at Davanagere
questioning the dismissal of claim petition.
2. The claimant, in the claim petition has pleaded that
he was proceeding in the auto rickshaw bearing No.KA-27/A-255
and at that time, the offending vehicle bearing No.KA-27/A-
2133, ape passenger auto rickshaw came in a rash and negligent
manner and dashed against his auto rickshaw. As a result, he
has sustained grievous injuries and was immediately taken to
the hospital. It is his case that due to the accidental injuries, he
has suffered permanent disability.
3. While filing the claim petition, at the first instance,
the claimant arrayed the driver and owner of the vehicle bearing
No.KA-27/A-2133 as parties and subsequently, the other vehicle
owner and insurer was impleaded. The respective insurance
companies have filed the objection statement.
4. The Tribunal, while considering the case on hand has
found the discrepancy in mentioning the vehicle number in the
claim petition. On perusal of the document particularly, Ex.P1-
FIR and the statement recorded in the hospital, the claimant has
categorically mentioned that he was traveling in the auto
rickshaw bearing No.KA-27/A-2133 and this statement was
recorded in the hospital and the offending vehicle number is
mentioned as KA-27/A-255. The Tribunal while assessing the
evidence, has wrongly come to the conclusion that FIR and the
statement of the injured supports the contention of the
Insurance Company and the said finding given by the Tribunal is
erroneous. It appears that the claimant, while mentioning the
vehicle number in the claim petition, instead of mentioning the
vehicle number in which he was proceeding, he has mentioned
the vehicle number as KA-27/A-255 as the offending vehicle.
But the FIR and statement of the injured is very clear that he
was proceeding in the vehicle bearing No.KA-27/A-2133 and the
same has lost sight of the Tribunal and the Tribunal erroneously
dismissed the claimant petition stating that the claimant has not
proved the same. The Tribunal, in paragraph No.16 has made
observation with regard to non-amendment of claim petition and
also the pleadings.
5. Having taken note of the said fact, it is appropriate
to remand the matter to the Tribunal for fresh consideration and
the claimant is given opportunity to make corrections in the
claim petition with regard to mentioning of the vehicle number in
which he was traveling, which requires amendment of the
pleadings and evidence which has been led before the Tribunal
wherein, the petitioner has committed mistake in mentioning the
vehicle number. Therefore, merely because the claimant has
mentioned the wrong vehicle number in which he was traveling,
the same will not take away the case of the claimant. The Court
should not be too technical and substantive justice should be
done. Hence, the matter is to be remanded to the Tribunal for
consideration afresh by giving an opportunity to the respective
parties to adduce their evidence and allow the parties to amend
the pleadings and claim petition suitably and if necessary, to
amend the written statement.
6. In view of the discussions made above, I proceed to
pass the following:
ORDER
(i) The appeal is allowed.
(ii) The impugned judgment and award passed in
M.V.C.No.450/2009 dated 18.08.2012 on the
file of the I Additional District Judge and MACT
at Davanagere is set aside, the matter is
remanded to the Tribunal for considering the
matter afresh in view of the observation made
in the order.
(iii) The parties are directed to appear before the
Tribunal on 12.07.2021. The Tribunal is
directed to dispose of the matter within six
months, since the appeal is of the year 2009.
(iv) The respective counsels are directed to assist
the Tribunal for speedy disposal of the case
within the stipulated time.
(v) Registry is directed to transmit the TCR to the
concerned Tribunal forthwith.
Sd/-
JUDGE
ST
