Karnataka High Court

Krishnappa @ Krishna vs K Doreswamy on 3 January, 2022

Bench: Ravi V Hosmani

         IN THE HIGH COURT OF KARNATAKA AT BENGALURU

            DATED THIS THE 3RD DAY OF JANUARY, 2022

                            BEFORE

          THE HON'BLE MR. JUSTICE RAVI V. HOSMANI

                  M.F.A.NO.9188 OF 2013 (MV)

BETWEEN:

KRISHNAPPA @ KRISHNA
S/O NAGANNA
AGED ABOUT 41 YEARS
SOMPURA VILLAGE, MADDUR TALUK
MANDYA DISTRICT-571 429.
                                                      ...APPELLANT

[BY SRI. G.V.CHANDRASHEKAR, SENIOR COUNSEL FOR
    Ms. APEKSHA ADVOCATE (PH)]

AND:

1.     K.DORESWAMY
       S/O LATE KRISHNAPPA
       AGED ABOUT 65 YEARS
       R/A NO.1-A, OPPOSITE SBM
       SUBRAMANYAPURA MAIN ROAD
       UTTARAHALLI, BANGALORE-560 061.
       (DRIVER CUM OWNER OF MARUTHI VAN
        NO.KA-51-MF-886)

2.     THE MANAGER
       ROYAL SUNDARAM ALLIANCE INSURANCE
       CO.LTD., SUNDARAM TOWERS
       NO.46, WHITES ROAD
       RAYAPPETTAH, CHENNAI-600 014.
       (INSURER OF MARUTHI VAN NO.KA-51-MF-886)

3.     CHANDRU
       S/O KENCHAPPA
                                    -2-


      AGED ABOUT 48 YEARS
      NO.6O, LELAVATHI EXTENSION
      MADDUR TOWN, MADDUR-571 429.
      (OWNER OF TVS XL SUPER MOPED
      NO.KA-11-S-9735)

4.    THE MANAGER
      RELIANCE GENERAL INSURANCE
      COMPANY LTD., V FLOOR
      CENTUARY BUILDING
      NO.2, M.G. ROAD
      BANGALORE-560 001.
      (INSURER OF TVS XL SUPER MOPED
      NO.KA-11-S-9735).
                                                    ...RESPONDENTS

(BY SRI. VASANTH V. NAIK, ADVOCATE FOR R1;
    SRI. O.MAHESH, ADVOCATE FOR R2 (V.C.) ;
    SRI. H.N.KESHAVA PRASHANTH, ADVOCATE FOR R4;
    R3 SERVED AND UNREPRESENTED)

     THIS M.F.A IS FILED UNDER SECTION 173(1) OF M.V.ACT
PRAYING AGAINST THE JUDGMENT AND AWARD DATED 01.03.2013
PASSED IN MVC NO.3/2010 ON THE FILE OF THE SENIOR CIVIL
JUDGE, MACT, MADDUR, DISMISSING THE CLAIM PETITION AS NOT
MAINTAINABLE.

    THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY,
COURT DELIVERED THE FOLLOWING:

                              JUDGMENT

Challenging judgment and award dated 01.03.2013, passed in

MVC No.3/2010 by Senior Civil Judge & MACT, (hereinafter referred to

as 'tribunal') Maddur, claimant is in appeal.

2. Brief facts as stated are that on 30.07.2009 when claimant

was proceeding as a pillion on TVS XL Moped bearing Reg.No.KA-11-S-

9735 on Bangalore - Mysore Road, a Maruti Van bearing registration

No.KA-51-MF-886 driven by its driven in rash and negligent manner

dashed against Moped causing injuries. Despite taking treatment,

claimant sustained permanent physical disability and loss of earning

capacity. Claiming compensation for the same, he filed claim petition

under Section 166 of the Motor Vehicles Act, 1988 against owner and

insurer of both vehicles.

3. Respondent No.1 - owner of van filed objections denying

liability to pay compensation and asserted that vehicle was insured

with 2nd respondent and policy was valid as on date of accident.

Respondent no.2 opposed claim petition on the ground that

there was no compliant filed against driver of Maruti van and there

was delay in filing complaint and therefore, it was not liable to pay

compensation.

Despite service of summons, respondents no.3 - owner of TVS

Moped did not participate and was placed ex-parte.

Respondent no.4 - insurer of TVS Moped filed objections stating

that vehicle was not insured with it. It also contended that accident did

not occur due to rash and negligent riding of rider of moped, but it was

due to negligence of driver of Maruti van.

4. Based on pleadings, tribunal framed following issues:

1. Whether petitioner proves that accident was solely due to rash and negligent driving of the driver of the offending vehicle and he sustained grievous injuries?

2. Whether petitioner is entitled to get compensation? If so, to what amount and from whom?

3. What order or relief the petitioner is entitled?

5. In support of his claim, claimant examined himself as

PW.1 and two more witnesses. PW.2 was eye witness.

Dr. G.R.CHandrashekar was examined as C.W.1 (PW3) and

Casesheet was marked as Exhibit C.1. Exhibits P1 to P.8 were

marked. On behalf of respondents, four witnesses were

examined as RWs.1 to RW.4.

6. On consideration, tribunal held that claimants failed to

prove that accident occurred due to rash and negligent driving of

offending vehicle by its driver and dismissed claim petition

without answering issue no.2. Aggrieved by award, claimant is in

appeal.

7. At the outset, Shri. G.V.Chandrashekar, learned

Senior counsel appearing for Ms. `Apeksha, advocate for

appellant, submitted that tribunal committed grave error in not

framing proper issues and also in not answering all the issues.

It was submitted that as per contents of FIR - Ex.P.1, complaint

was given by owner of Maruti van, seven days after accident,

when claimant was under treatment in hospital. As per

complaint, accident occurred when TVS moped and Maruti Van

collided head-on. However, contents of ExP.3 - MV Inspector's

report would indicate otherwise. It mentioned moped as

sustaining damages to its front right shock absorber which was

bent and damaged, thereby ruling out possibility of head-on

collision. It was further submitted that owner of vehicle i.e,

complainant did not refer his vehicle for inspection by Motor

Vehicle Inspector, which would have fully revealed cause of

accident. As tribunal did not appreciate facts in proper

perspective and relying merely on result of police investigation,

proceeded to dismiss claim petition without answering issue

no.2. On above submission, learned Senior counsel sought

indulgence of this Court.

8. On the other hand, Sri. O. Mahesh, learned counsel for

respondent no.2 - insurer submitted that entire claim was

against owner and insurer of Maruti van, whereas documents

produced namely FIR, crime details form and charge-sheet -

Exhibits P1, P2 and Ex.P5 respectively would indicate negligence

against rider of moped. It was further submitted that insurer had

led evidence to substantiate that accident did not occur due to

rash and negligent driving of Maruti van. As claimant failed to

establish his case, tribunal had rightly dismissed claim petition

and sought for confirmation of award.

9. From the above submissions, occurrence of accident

involving Maruti van and TVS Moped, in which claimant

sustained injuries is not in dispute. Issuance of insurance policy

by respondent no.2 with regard to Maruti van and its validity as

on date of accident are also not in dispute. The tribunal

dismissed claim petition on the ground that there was failure to

establish negligence against driver of Maruti van. Claimant is in

appeal challenging said finding. Therefore, point that arises for

consideration in this appeal is:

"Whether non-framing proper issues for consideration and failure to answer all issues is sustainable?"

10. On a cursory glance, it is seen that while framing issue

no.1, tribunal has not mentioned registration number of

offending vehicle. Without identifying offending vehicle, claimant

was called upon to lead evidence. Admittedly, accident in

question involved two vehicles. Non-framing of proper issue

would be a substantial irregularity.

11. Apart from the above, tribunal has not answered issue

no.2, which would also be a material defect, in view of Rules

245, 246 and 249 of the Karnataka Motor Vehicles Rules, which

read as follows:

"245. Framing of issues.- After considering any written statement, the evidence of the witness examined and the result of any local inspection, the Claims Tribunal shall proceed to frame issues.

246. Determination of issues. - After framing the issues, the Claims Tribunal shall proceed to record evidence thereon which each party may desire to produce.

xxxx

249. Judgment and award of compensation.-

(1) The Claims Tribunal in passing orders shall record concisely in a judgment the findings on each of the issues framed and the reasons for such findings and make an award specifying the amount of compensation to be paid by the insurers and also person or persons to whom compensation shall be paid.

(2) Where compensation is awarded to two or more persons, the Claims Tribunal shall also specify the amount payable to each of them.

xxx xxx xxx

12. Therefore, without any more, impugned award is

liable to be set-aside and matter required to be remanded to

tribunal for fresh award after framing proper issues and after

giving adequate opportunity to parties to lead evidence thereon.

13. Since accident in this case occurred in the year 2009,

it would be appropriate to direct tribunal to dispose of the matter

as expeditiously as possible. Point for consideration is answered

in negative. Hence, I pass following:

ORDER

Appeal is allowed with costs.

Impugned award is set aside. Matter is remanded to tribunal for fresh consideration, from the stage of framing of proper issues.

Parties are directed to appear before tribunal on 14.02.2022 without awaiting fresh notice and obtain further orders. They are directed not to seek unnecessary adjournment. Tribunal is directed to expedite disposal in accordance with law. All contentions of both parties are kept open.