Sri. Rathnakara vs Smt. Meenakshi
2021 Latest Caselaw 3799 Kant

                          1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 10TH DAY OF NOVEMBER 2021

                       BEFORE

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

               MFA No.5360 OF 2016 (MV)

BETWEEN:

SRI. RATHNAKARA
S/O MANJAPPA
AGED ABOUT 39 YEARS
R/O KANNURU VILLAGE
SAGAR TLAUK
SHIMOGA DISTRICT.

                                          ...APPELLANT

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

AND

1.     SMT. MEENAKSHI
       W/O DINESH
       AGED ABOUT 41 YEARS
       OCC: COOLIE & HOUSEHOLD WORK
       R/AT HALHOLE VILLAGE
       KASABA HOBLI
       SHIMOGA TALUK-577 412.

2.     UMESH
       S/O GADLAPPA
       AGED ABOUT 34 YEARS
       R/AT KANTHANI SHIKARIPURA
       VILLAGE SAGAR TALUK
       SHIMOGA DISTRICT-577401.
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3.   THE ORIENTAL INSURANCE COMPANY LTD.,
     DIVISIONAL OFFICE
     VISHHNU PRAKASH
     COURT ROAD
     UDUPI-576101.

                                              ...RESPONDENTS

(BY SRI.IJARI NAGARAJA, ADV. FOR
    SRI. LOKESHA K.N. ADV. FOR R1:
    SRI. J.ARUN, ADV. FOR R2:
    SRI. A.N.KRISNASWAMY, ADV FOR R3)


      THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED:30.9.2010 PASSED
IN MVC NO.419/2005 ON THE FILE OF THE II ADDITIONAL
SENIOR CIVIL JUDGE, ADDITIONAL MACT, SHIVAMOGGA,
AWARDING A COMPENSATION OF RS.3,13,310/-WITH
INTEREST @ 6% P.A FROM THE DATE OF THE PETITION
TILL THE COMPLETE REALIZATION.


     THIS MFA, COMING ON FOR ORDERS, THIS DAY,
THIS 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

30.09.2010 passed by the Motor Accident Claims

Tribunal, Shimoga in MVC No.419/2005.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 07.05.2005 at about 08.00

A.M., the claimant was returning from her brother's

house at Yadehalli Village, Anandapura, Sagar Taluk

and she was waiting for bus at Yadehalli Circle. At

that time, one Mahaganapathi came and stopped the

bus bearing registration No.KA.20/7721 at that place.

The claimant thought that the said bus was going to

Shimoga and accordingly, she went to the door of the

bus and at that point of time, the driver of the said

bus came in a high speed and stopped the bus at the

bus stop and the claimant put in her front foot board,

but she fell down and sustained grievous injuries and

was hospitalized.

3. The claimant filed a petition under Section

166 of the Act seeking compensation. It was pleaded

that she 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 respondents did

not appear before the Tribunal and were 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 herself was

examined as PW-1 and Dr. Narayana Panji was

examined as PW-2 and got exhibited documents

namely Ex.P.1 to Ex.P.220. 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.3,13,310/- along with interest at

the rate of 6% p.a. and directed the owner of the

offending vehicle to deposit the compensation amount

along with interest. Being aggrieved, this appeal has

been filed.

6. The learned counsel for the owner of the

offending vehicle has contended that the offending

vehicle was covered with valid insurance policy. Before

the Tribunal, the claimant has not impleaded the

insurer of the offending vehicle as a party. Since the

Tribunal has passed an ex-parte judgment and award,

the owner was not in a position to bring it to the

notice of the Tribunal.

He further contended that he has filed

I.A.No.2/2016 before this Court under Order XLI Rule

27 of the CPC producing the additional document i.e.

insurance policy stating that as on the date of the

accident, the offending vehicle was covered with

insurance policy and the insurer has to indemnify the

insured. Hence, he sought for allowing the appeal.

7. On the other hand, the learned counsel for

the Insurance Company has contended that the

insurer has been made as a party for the first time

before this Court and it is not made as a party before

the Tribunal and there is no opportunity for the

Insurance Company to defend its case. He further

contended that even the insured is a party before the

Tribunal and he has been served with notice but he

has not brought to the notice of the Tribunal that the

offending vehicle was covered with valid insurance

policy. Therefore, the Insurance Company is not liable

to pay any interest for the delay caused. Hence, he

sought for dismissal of the appeal.

8. Learned counsel for the claimant has

defended the judgment and award passed by the

Tribunal.

9. Heard the learned counsel for the parties

and perused the judgment and award.

10. The owner and driver of the offending

vehicle have been made as parties before the

Tribunal. Even though the notices were served on

them, they did not appear before the Tribunal. Hence,

they have been placed ex-parte. Neither the owner

and driver of the offending vehicle nor claimant have

brought to the notice to the Tribunal regarding the

fact that the offending vehicle was covered with valid

insurance policy. The insurer has been made as a

party for the first time before this Court by the

appellant and also filed an application under Order XLI

Rule 27 of CPC for production of additional document

to show that the offending vehicle is covered with

valid insurance policy. Since there is no opportunity

given to the Insurance Company to defend its case,

under this circumstance, the matter requires to be

remitted back to the Tribunal for fresh consideration

only in respect of liability is concerned. In respect of

negligence, involvement of vehicle in the accident and

also in respect of quantum, the judgment and award

passed by the Tribunal is confirmed.

11. In the result, the appeal is allowed in

part. The judgment of the Claims Tribunal is set

aside only to the extent of liability. In respect of

negligence, involvement of vehicle in the accident and

also the quantum, the judgment and award passed by

the Tribunal is confirmed.

The matter is remitted back to the Tribunal for

fresh consideration in accordance with law only in

respect of considering the liability after giving

opportunity to both the parties to adduce additional

evidence.

All the contentions of the parties are left open.

The liberty is reserved to the Insurance

Company to raise payment of interest for the delayed

period. If such an issue is raised, the Tribunal is

directed to consider the same after giving opportunity

to both the parties.

Since the accident is of the year 2005, the

parties are directed to be appeared before the

Tribunal on 09.12.2021 without any further notice.

The Tribunal is directed to dispose of the matter

within three months from the date of appearance of

the parties.

The amount in deposit before this Court shall be

transmitted to the Tribunal.

The Tribunal is also directed to keep the entire

award amount in Fixed Deposit in any Nationalized

Bank.

In view of the disposal of the appeal,

I.A.Nos.2/2016, 2/2019 and 3/2019 do not survive for

consideration. The same are disposed of.

Sd/-

JUDGE

HA/-