Raju Mahadev Metri vs Sri Nijaling Tammanna Badake
2021 Latest Caselaw 3317 Kant

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          IN THE HIGH COURT OF KARNATAKA,
                   DHARWAD BENCH

      DATED THIS THE 13TH DAY OF SEPTEMBER 2021

                         BEFORE

       THE HON'BLE MR. JUSTICE V. SRISHANANDA

               M.F.A. NO.20333/2010 (MV)

BETWEEN

RAJU MAHADEV METRI
AGED ABOUT 27 YEARS,
R/O MALLAT KHODI, BADACHI, TQ ATHANI
DIST BELGAUM.
                                               ...APPELLANT
(BY SRI. SANTOSH B. MANE, ADV.)

AND

1.    SRI NIJALING TAMMANNA BADAKE
      A/P KOHALLI, TQ ATHANI, DIST BELGAUM

2.    THE MANAGER
      THE NATIONAL INSURANCE CO.LTD
      SIDDESHWAR CROSS ROAD BIJAPUR
                                             ...RESPONDENTS
(BY SRI.M.K.SOUDAGAR, ADV. FOR R2,
R1 SERVED)

     THIS MFA FILED U/S.173(1) OF THE M.V.ACT, AGAINST THE
JUDGEMENT AND AWARD DATED: 07-09-2009, PASSED IN MVC
NO.1722/2004, ON THE FILE OF THE PRESIDING OFFICER, FAST
TRACK COURT, ATHANI, DISMISSING THE PETITION U/S. 166 OF
THE M.V.ACT.

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

Sri.Santosh B. Mane and Sri.M.K.Soudagar are

present.

2. Heard on I.A. No.1/2021.

3. I.A. No.1/2021 is filed under Order 41 Rules

27 and 28 of CPC to permit the claimant to examine the

owner of the offending vehicle.

4. The application is orally opposed by

Sri.M.K.Soudagar.

5. The present appeal is filed challenging the

validity of the judgment and award passed in MVC

No.1722/2004 on the file of the Addl. MACT, Athani dated

07.09.2009.

6. The brief facts of the case are as under:

7. A claim petition came to be filed under Section

166 of the Motor Vehicles Act contending that on

17.02.2004 at about 10.30 p.m. rider of the motorcycle

bearing No.KA-23/R-6167 came from Athani side in a

rash and negligent manner and dashed against the

claimant Raju Metri, who was then shifted to Government

Hospital, Athani and then to Miraj for better treatment at

Dr.Shash Hospital and there was a delay in lodging the

complaint which has been explained.

8. The claim petition was resisted by filing

written statement. The Tribunal raised necessary issues

and after trial recorded a finding that the claimant failed

to prove that he sustained accidental injuries involving

the motorcycle bearing No.KA-23/R-6167 and dismissed

the claim petition.

9. During the course of arguments, Sri.Santosh

B. Mane, learned counsel vehemently contended that the

claim petition came to be dismissed on the ground that

the claimant is unable to prove the accident involving the

motorcycle, whereas the owner of the motorcycle himself

has pleaded guilty before the Court and there is a charge

sheet filed against the rider of the motorcycle and

therefore, he wants to examine the owner of the

motorcycle as additional evidence and thus sought for

allowing I.A. No.1/2021, consequently allow the appeal

and remand the matter for fresh consideration in

accordance with law.

10. Sri.M.K.Soudgar, learned counsel invited the

attention of this Court to paragraph No.16 of the

impugned judgment, wherein the learned Judge in the

Tribunal after raising seven suspicious circumstances,

recorded a categorical finding that the accident as is

propounded by the claimant stands not proved and

therefore, sought for dismissal of I.A. No.1/2021 and also

the appeal.

11. In view of the rival contentions of the parties,

the following points that would arise for consideration

are:

"1. Whether the claimant has made out a case for allowing I.A. No.1/2021 to lead additional evidence?

2. If so, whether the appeal is to be allowed and the matter is to be remitted to the Tribunal for fresh consideration in accordance with law?"

12. I.A. No.1/2021 is filed under Order 41 Rules

27 and 28 of CPC for leading additional evidence. Same is

supported by the affidavit of the appellant. In the

affidavit, it is contended that the appellant is a rustic

villager and did not understand the intricacies of law.

13. Sri.Santosh B. Mane has contended that the

Motor Accident Claims Tribunal is not a Civil Court and

strict rules of evidence is not applicable before the

Tribunal and Tribunal ought to have considered the case

of the claimant in a liberal manner. More so, when there

is no contra pleading made by the Insurance Company

denying the accident and the material available on record

clearly indicate that the motorcycle bearing No.KA-23/R-

6167 was involved in the accident and therefore, sought

for allowing the additional evidence for examination of

owner of the motorcycle.

14. The said submission made on behalf of

Sri.Santosh B. Mane appears to be reasonable in view of

the fact that there is no pleading in the written statement

by the Insurance Company denying the accident involving

the motorcycle bearing No.KA-23/R-6167. Accordingly, a

case is made out by the claimants to lead additional

evidence on record by examining the owner of the

motorcycle in question. The Insurance Company would

not be put to any serious prejudice inasmuch as it can

always have an opportunity to cross-examine the

additional witness.

15. However, for the delayed period from 2010 to

till today in the event, claimant succeeds in getting the

claim petition allowed against the Insurance Company,

cannot be lost sight off. In which case, the interest

payable by the Insurance Company from 20.01.2010 till

today be denied to the claimant. Accordingly, a case is

made out to allow I.A. No.1/2021. Hence, point No.1 is

answered in the affirmative, consequently point No.2 is

also answered in the affirmative and following order is

passed

ORDER

I.A. No.1/2021 is allowed. Consequently, the appeal

is also allowed.

The impugned judgment and award is hereby set

aside.

The matter is remitted to the Tribunal for fresh

consideration in accordance with law.

The claimant is at liberty to place additional

evidence and Insurance Company has got every right to

cross-examine the additional witnesses and also lead

additional evidence if need be.

Office is directed to send the copy of this order

alongwith Trial Court records forthwith.

Parties shall appear before the Tribunal on

04.10.2021 positively.

Having regard to the age of the claim petition, the

Tribunal shall bestow its best attention to dispose of the

matter before end of February 2022.

Sd/-

JUDGE Rsh Ct: svp