Smt Sudha vs Bajaj Allianz General Insurance ...
2022 Latest Caselaw 1137 Kant

                            1


   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 25TH DAY OF JANUARY, 2022

                      PRESENT

     THE HON'BLE MR. JUSTICE P.S. DINESH KUMAR

                           AND

    THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

               M.F.A.No.1182/2019 (MV)

BETWEEN:

1. SMT.SUDHA
WIFE OF MAHESWARAPPA @ MAHESH
NOW AGED ABOUT 32 YEARS

2. Ms.SINDHU M.,
DAUGHTER OF MAHESWARAPPA @ MAHESH
NOW AGED ABOUT 15 YEARS
SINCE MINOR IS REPRESENTED BY
HER MOTHER AND NEXT FRIEND
SMT.SUDHA
APPELLANT NO.1.

BOTH ARE R/AT SEEGEHALLI
VIRGONAGAR,
BANGALORE NORTH
BANGALORE -560 049

PERMANENT ADDRESS AT:
VEERAPURA HOSUR VILLAGE
BAGGALLI POST,
AJJAMPURA HOBLI,
TARIKERE TALUK,
CHIKKAMAGALUR DISTRICT-577116.     ..APPELLANTS

(BY SRI.MANMOHAN D., ADVOCATE)
                               2


AND:

1. BAJAJ ALLIANZ GENERAL INSURANCE
COMPANY LIMITED,
NO.1/2, GOLDEN HEIGHTS,
4TH FLOOR, 59TH `C' CROSS,
4TH M BLOCK, RAJAJINAGAR,
BANGALORE -560 010
REP. BY ITS MANAGER

2. SRI.SUNIL J.
SON OF JAVAREGOWDA,
MAJOR,
R/AT: NEW NO.03,
OLD NO.96/6, 2ND CROSS,
THIGALARAPALYA MAIN ROAD,
KARIOBANAHALLI
LAGGERE,
BANGALORE-560 058.                        ..RESPONDENTS

(BY SRI.A.N.KRISHNA SWAMY, ADVOCATE FOR R-1,
NOTICE TO R-2 IS DISPENSED WITH VIDE ORDER DATED
20.07.2021)

     THIS APPEAL IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD
DATED: 07.07.2018 PASSED IN MVC NO.5480/2016 ON THE
FILE OF THE XIII ADDITIONAL JUDGE, COURT OF SMALL
CAUSES AND MEMBER MACT, BENGALURU [SCCH-15],
DISMISSING THE CLAIM PETITION FOR COMPENSATION.

    THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
RAJENDRA BADAMIKAR J., DELIVERED THE FOLLOWING:

                         JUDGMENT

Though the appeal is listed for admission, by consent of

learned advocates appearing for the parties, it is taken up for

final disposal.

2. This appeal is filed by the appellants-claimants under

Section 173(1) of Motor Vehicles Act challenging the Judgment

and award passed by XIII Additional Judge, Court of Small

causes and Member, MACT, Bengaluru, in MVC No.5480/2016

dated 07.07.2018 whereby the petition filed by the

claimants/appellants herein under Section 166 of Motor Vehicles

Act came to be dismissed.

3. For the sake of convenience, parties herein are referred

to as per their ranking before the Tribunal.

4. The brief facts of the case are, on 22.06.2016 at about

8 p.m., the husband of the first petitioner-Mahesh was walking

on the left side of the Karihobanahalli Road, Nelagatheranahalli

Main Road, Bengaluru. A rider of motorcycle bearing registration

No.KA-41-ED-8994 riding it in a rash and negligent manner,

dashed against the victim causing grievous injuries on the head.

Immediately he was shifted to NIMHANS hospital wherein he

succumbed because of the injuries. It is the further case that

deceased was hale and healthy and working as Mason and

earning Rs.20,000/- per month. The petitioners are the widow

and minor child and hence they filed claim petition under Section

166 of the Motor Vehicles Act.

5. The respondent No.1-insurer has disputed the

ownership and insurance and denied the other averments. It

has also specifically contended that the motorcycle bearing

registration No.KA-41-ED-8994 was not involved in the alleged

accident and deceased Mahesh did not die on account of the

involvement of the said motorcycle and has also taken other

statutory defences and sought for dismissal of the claim petition.

6. The Tribunal after appreciating the oral and

documentary evidence has come to a conclusion that the

claimants have failed to establish the involvement of the vehicle

bearing registration No.KA-41-ED-8994 in the accident and

hence dismissed the claim petition.

7. Being aggrieved by the Judgment of dismissal of

claim petition, claimants have filed this appeal.

8. We have heard the learned Advocates appearing for

the appellants as well as respondent No.1-insurer.

9. The learned Advocate for appellants has also filed

I.A.2/2019 under Order XLI Rule 27 read with Section 151 of

CPC seeking production of additional evidence.

10. Learned counsel for appellants would contend that

the trial court has failed to appreciate the oral and documentary

evidence in proper perspective. He would also contend that the

Tribunal has given erroneous finding regarding delay in lodging

the complaint and failed to appreciate that the accident has

occurred in the night and complaint has been lodged by the

brother of the deceased by next day morning. He would also

contend that the evidence of PW-2 supports the case of the

claimants but the Tribunal has given undue importance to the

documents produced by the respondent and to counter the

same, he has now produced certain material documents to show

that immediately after the accident, the rider of the motorcycle

also fell on the ground and then he had quarreled with the

persons gathered there and a complaint was lodged against him

in this regard. Hence, he would contend that all these material

documents are relevant and hence, he seeks for remand of the

matter.

11. Per contra, learned Advocate for respondent No.1

would contend that the evidence on record prima facie

establishes that the history given was that the patient was found

on the road and in the complaint there is no reference of the

vehicle number. Hence, he would contend that there is no

material and Tribunal has rightly rejected the claim. He would

also contend that he has no objection for remanding the matter

by allowing the I.A.2/2019 filed under Order XLI Rule 27 of CPC

by giving opportunity to both the parties to lead further evidence

to prove the case. As such, he would seek for passing

appropriate order.

12. Having heard the arguments and perusing the

records, it is specific case of the appellants that vehicle bearing

registration No.KA-41-ED-8994 was involved in the accident.

Respondent No.2 is the owner of the said vehicle and he has

remained exparte. The records pertaining to NIMHANS hospital

disclose that the history was given as found lying on the road

with injuries and it is specifically alleged that exact history was

not known as patient was found lying on the road unconscious.

Unfortunately deceased sustained head injury and he was not in

a position to lodge any complaint. Now on the basis of this

endorsement of NIMHANS hospital in the records maintained by

NIMHANS wherein deceased was admitted, Tribunal has come to

a conclusion that claimants have failed to establish involvement

of the offending vehicle in the accident.

13. However, now claimants intend to produce certain

documents along with I.A.2/2019 filed under Order XLI Rule 27

of CPC wherein they wanted to produce a notice issued under

Section 133 of Motor Vehicles Act, reply given to it, statement of

the material witnesses recorded by the Investigating officer and

complaint filed by one Manu on next day, who claims to be an

eyewitness alleging that the respondent No.2 herein had caused

the accident by his Pulsar Bike 220 by knocking down the

deceased and when the same was questioned, he assaulted the

persons who questioned him in this regard. As such, a complaint

was lodged against the said person i.e., respondent No.2-Sunil.

However, this document does not refer the name of respondent

No.2. However, there is specific allegation that pulsar bike 220

caused the accident and he has also relied on notice issued

under Section 133 of Motor Vehicles Act and statements of other

witnesses recorded immediately by the investigating officer.

14. Hence, considering the rival submissions made by

both the advocates, in our considered opinion, it is just and

proper to remand the matter by giving an opportunity to both

the petitioners and respondents to substantiate their contention

regarding involvement of the offending vehicle in the accident by

leading cogent evidence by allowing I.A.2/2019 filed under Order

XLI Rule 27 of CPC for production of documents.

Accordingly, we proceed to pass the following:

ORDER

i) Appeal is allowed.

ii) Judgment dated 07.07.2018 passed in MVC No.5480/2016 by XIII Additional Judge, Court of Small Causes, Member, MACT, Bengaluru, is set aside. Matter is remitted to the Tribunal with a direction to give opportunity to both the parties to lead further evidence on the documents sought to be produced and then pass appropriate orders.

Considering that the case is of the year 2016, the Tribunal is directed to dispose of the matter within six months from the date of receipt of the records.

I.A.2/2019 filed under Order XLI Rule 27 read with Section 151 of CPC stands allowed.

All the contentions are left open.

The registry is directed to send back the records to the Tribunal along with documents sought to be produced under I.A.2/2019 filed under Order XLI Rule 27 of CPC to enable the claimants/appellants to tender their evidence before the Tribunal on these documents.

Sd/-

JUDGE

Sd/-

JUDGE

SBN