Mr Vasappa @ Vasudev vs Mr Athaf N Patel
2022 Latest Caselaw 10244 Kant

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 4TH DAY OF JULY, 2022

                        BEFORE

  THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

            M.F.A.NO.4628 OF 2014 (MV-I)

BETWEEN:

MR VASAPPA @ VASUDEV,
S/O. YAMANAPPA @ YAMANAPPA,
AGED ABOUT 22 YEARS,
R/AT HAVALAKODA HOUSE,
CHINCHANAKATTE POST,
BADAMI TALUK,
BAGALKOTE DISTRICT.
PIN-587101.                                    ...APPELLANT

(BY SRI RAVISHANKAR SHASTRY G, ADV.)

AND:
  1. MR ATHAF N PATEL,
     S/O (NOT KNOWN),
     AGED ABOUT 38 YEARS,
     R/AT 45-18, BEGHAR VASAHATT,
     BANDAR HOSPITALAJAY,
     JAYASINGAPUR DISTRICT,
     KOLLAPUR,
     MAHARASTRA
     PIN-416002.

  2. SHRIRAM GENERAL INSURANCE CO. LTD.,
     RIICO INDUSTRIAL AREA,
     SITAPURA, JAIPUR,
     RAJASTAN REPRESENTED BY
     ITS MANAGER
     PIN-8020222.                     ...RESPONDENTS

(BY SRI O MAHESH, ADV. FOR R2, R1 IS SERVED)
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      THIS MFA IS FILED U/S 173 (1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 26.2.2014 PASSED IN MVC
NO.961/2012 ON THE FILE OF THE II ADDITIONAL SENIOR
CIVIL JUDGE, MACT, MANGALORE, D.K., DISMISSING THE
CLAIM PETITION FOR COMPENSATION
     THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:-

                          JUDGMENT

This appeal is filed by the claimant challenging the

judgment and award dated 26.02.2014 in MVC

No.961/2012 passed by the II Additional Senior Civil Judge

and MACT, Mangalore, D.K. dismissing his claim petition on

the ground that the accident is not proved.

2. For the sake of convenience, parties are

referred as per their rank before the Tribunal.

3. Heard learned advocate for the appellant and

learned advocate for respondent No.2/insurance company.

Though notice is served on respondent No.1, he is

unrepresented.

4. Brief facts as per the claim averments are:

The accident took place on 03.03.2012 at 12.15 p.m.

when the claimant was building compound wall at

Somayaji Ceramics Factory, Baikampady, Mangalore. The

driver of the lorry drove the lorry bearing Reg No.MH-09-

Q-7071 in a rash and negligent manner and dashed to the

godown wall of Somayaji Ceramics, which is situated

towards the southern side of Pilot paints factory, as a

result of which the godown wall was completely damaged

and the claimant who was constructing godown wall fell

down and sustained grievous injuries including fractures.

The claimant took treatment an in-patient and later filed

claim petition seeking compensation.

5. The insurance company has disputed the

occurrence of the accident and the owner of the lorry

remained exparte. The claimant in order to substantiate

his claim produced three pages of the charge sheet

alongwith FIR, Motor Vehicle Accident report and the spot

mahazar. The Tribunal has refused to accept the version

of the claimant on the ground that only three pages of the

charge sheet are produced and not complete charge sheet

papers to substantiate the claim. The Tribunal has

doubted the authenticity of Ex.P3 wound certificate issued

by the doctor, however, the author of the said document

has not been examined. On the basis of the aforesaid

reasons, the Tribunal has also concluded that other

persons who were present at the time of occurrence of the

accident were not injured. Merely because other persons

who were present at the place of accident are not injured,

the Tribunal could not have concluded that claimant's case

is unacceptable. Since, the witnesses shown in the charge

sheet and their statements which are forthcoming in the

charge sheet have not been produced, the Tribunal could

not have dismissed the petition. Instead the Tribunal could

have directed the petitioner to produce the documents

pertaining to the charge sheet, but the said exercise is not

done. The Tribunal has found it appropriate to dismiss the

petition.

6. Learned counsel for the appellant would submit

that opportunities have been granted to the petitioner to

produce all the documents relating to the charge sheet and

also to examine the witnesses to the accident. However,

learned counsel seeks for another opportunity to establish

the claimant's case before the Tribunal.

7. This Court has perused the records and also

cross-examination addressed to the claimant and doctor

examined on behalf of the claimant. While going through

the reasons assigned by the Tribunal, it is forthcoming that

the petition is dismissed more for technical reasons.

Under the circumstance, this Court is of the view that the

impugned judgment and award be set-aside and

opportunity be granted to the claimant to lead evidence in

support of his case and it is open to the insurer to contest

the claim of the claimant.

8. With all these observations, the impugned

judgment and award is set-aside and the matter is

remanded to the Tribunal for afresh trial in accordance

with law where the claimant and respondents be permitted

to lead fresh evidence in support of their case. It is made

clear that this Court has not expressed anything on the

merits of the case. Since the matter is of the year 2012,

the Tribunal shall give priority to dispose of the case. The

parties shall appear before the Tribunal on 21.07.2022

without awaiting any fresh notice from the Tribunal.

9. Hence, the following :-

ORDER

(i) Appeal is allowed and remanded. The impugned

judgment and award dated:26.02.2014 passed by the II

Additional Senior Civil Judge and MACT, Mangalore, D.K. in MVC

No.961/2012 is set-aside and the matter is remanded to the

Tribunal to decide the case afresh after affording opportunities

to the parties to lead evidence.

(ii) The parties shall appear before the Tribunal on

21.07.2022 without awaiting for any fresh notice from the

Tribunal.

(iii) Registry to send back the records forthwith.

Sd/-

JUDGE

HD