Karnataka High Court
Kumar Aradhya vs H V Venkatesh Prasad on 31 March, 2022
Bench: Hanchate Sanjeevkumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF MARCH, 2022
BEFORE
THE HON'BLE Mr. JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO. 1171/2012 (MV)
BETWEEN:
KUMAR ARADHYA
S/O CHANDRA ARADHYA
AGED ABOUT 26 YEARS
RESIDING AT C/O SHANKARA ARADHYA
D NO.1341/1, SHIVARAMPET
VINOBHA ROAD
NORTH 4TH CROSS
MYSORE-570005.
... APPELLANT
(BY SRI. S.A.SABOOR, ADVOCATE )
AND:
1. H.V. VENKATESH PRASAD
MAJOR
S/O HONNEGOWDA
DOOR NO.2130, 8TH CROSS
K BLOCK, KUVEMPUNAGARA
MYSORE-570 023.
2. SYED USMAN
S/O SYED HUSSAIN
MAJOR
RESIDING AT DOOR NO.2038
M.H. ROAD, MANDI MOHALLA
MYSORE-570001.
2
3. THE ORIENTAL INSURANCE COMPANY LTD.,
BRANCH OFFICE PB NO.210
DOOR NO.618, CHAMARAJA DOUBLE ROAD
MYSORE-570002.
... RESPONDENTS
(BY SRI.ASHOK N PATIL, ADVOCATE FOR R3;
R1 & R2 SERVED)
THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED:
05.11.2011 PASSED IN MVC NO.1565/2010 ON THE FILE
OF THE V ADDITIONAL DISTRICT AND SESSIONS JUDGE,
MACT, MYSORE, DISMISSING THE CLAIM PETIITION FOR
COMPENSATION.
THIS M.F.A. COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed under Section-173(1) of the
Motor Vehicles Act, 1988, by the appellant-claimant,
challenging the judgment and award dated 05.11.2011,
passed in MVC No.1565/2010, on the file of Vth Additional
District and Sessions Judge, at Mysuru, thereby dismissing
the claim petition. Being aggrieved by the dismissal of
claim petition, the present appeal is preferred.
Brief facts:
2. It is stated that on 13.07.2006, at about 9.00
p.m., the appellant - claimant was on his way to Mysuru
from Suttur, on his vehicle namely, Hero Honda Passion
Plus bearing registration No.KA-09-EC-7791, riding the
motor cycle on the left side of the road. When he was near
Dandikere Cross, a Maruthi Car bearing registration No.KA-
04-M-9073 came from opposite side, driven by the first
respondent in a rash and negligent manner and dashed
against the motor cycle of the appellant. In the above said
accident, the appellant-claimant sustained grievous
injuries to his right thigh and he was treated in JSS
Hospital, Mysuru as inpatient.
3. Further, it is stated that prior to the accident,
the appellant-claimant was hale and healthy and he was
working at new Horizon Engineering Limited, Nanjagud
Industrial Area, Nanjangud, and was earning a sum of
Rs.6,000/- per month. After the accident, the appellant-
claimant is not able to do any work, as he has sustained
injury to his back bone and to his right thigh. The accident
was only due to the rash and negligent driving of the first
respondent - Maruthi Cab by its driver. The second
respondent is the owner and the third respondent is the
insurer of the same. The Mysuru South Police have
registered a case against the first respondent in
CR.No.194/2006 in respect of the above said incident.
4. The learned counsel for the appellant-claimant
submitted that he has filed I.A. No.1/2019 and
I.A.No.2/2019, for production of additional evidence by
invoking Order-41, Rule-27, read with Section-151 of CPC
and submitted that the document produced by way of
additional evidence proves that there is a factum of
accident. Therefore, prays to allow the appeal.
5. On the other hand, the learned counsel for the
respondent No.3 - insurance company submitted that as
per MLC, Exhibit-P11, it is stated that the history of the
incident is fall from bike due to skid and it is not
mentioned that a Maruthi Car is involved in the accident
and Maruthi Car has dashed the motor cycle of the
appellant-claimant. Therefore, the Tribunal raised a doubt
and accordingly rightly dismissed the claim petition and
also submitted that there is a delay of 15 days in lodging
the complaint. Therefore, there could have been every
chances of manipulation and false implication of the
maruthi car, in is claim petition and it is rightly appreciated
by the Tribunal. Accordingly, the Tribunal has rightly
dismissed the claim petition, which needs not interference.
Hence, he prays to dismiss the appeal.
6. Further, submitted that as per the Motor
Vehicle Inspection Report, at Exhibit-P5, the Inspector has
opined that there are no physical damages found either, on
the Motor Cycle or on the Maruthi Car. Therefore, the very
factum of accident is suspected one and accordingly
dismissed the claim petition. Therefore, prays to dismiss
the appeal.
7. The appellant-claimant has filed two
Interlocutory Applications in I.A. No.1/2019 and
I.A.No.2/2019, for production of additional evidence by
invoking Order-41, Rule-27, read with Section-151 of CPC.
Vide these two applications, the appellant claimant has
produced many documents, while considering these
documents, this Court is of the view that these documents
cannot be considered on its merits only by seeking
documents, as it involves examination of author of the
documents. One of the documents produced as additional
evidence is the Wound Certificate produced by the Hospital
at Mysuru, which disclosed that there was an accident on
13.07.2006, between a Maruthi car and a motor cycle as
above stated.
8. At the same time, the learned counsel for
respondent No.3 places reliance on MLC Extract, Exhibit-
P11 wherein it is stated that there was a fall from Motor
cycle due to skid. Therefore, there are two versions found
on the medical records. Therefore, in this regard only by
producing the documents in this appeal, it cannot be
decided the factum of the accident, whether it was
occurred or not. Therefore, as per the power vested under
Order-41, Rule-23A of CPC, the case is needed to be
remanded to the Tribunal for fresh consideration, by taking
into consideration the documents that are produced by
way of additional evidence in this appeal.
9. Therefore, the appeal is remanded to the
Tribunal for fresh consideration in accordance with law and
to consider the documentary evidence produced by way of
additional evidence in this appeal.
10. Both parties are reserved liberty to lead oral
evidence documentary evidence in the proceedings. The
Tribunal is directed that after considering the oral and
documents to be produced by way of additional evidence
and shall consider the case on its merits, without being
influenced by the judgment and award rendered previously
by the Tribunal or any other observations made by this
Court as above discussed.
11. The learned counsel for respondent No.3 -
insurance company submitted that the appeal is filed in the
year 2012 and the application for additional evidence is
filed in the year 2019, if now the case is remanded on the
basis of I.A. No.1/2019 and 2/2019 for production of
additional evidence, therefore respondent No.3 -
Insurance company is not entitled to pay interest for the
period from 2012 to 2019 in case the claim petition
succeeds.
12. For the aforesaid reasons, the judgment and
award passed by the Tribunal is liable to be set-aside and
accordingly set-aside. Hence, I proceed to pass the
following order:
ORDER
i. The appeal is in MFA is allowed, along with
I.A.Nos.1 and 2/2019.
ii. The judgment and award dated 05.11.2011,
passed in MVC No.1565/2010, on the file of Vth
Additional District and Sessions Judge, at
Mysuru is hereby set-aside.
iii. The matter is remanded to the Tribunal for
fresh consideration in accordance with law as
discussed above.
iv. If the appellant - claimant succeeds in the
claim petition then, he is not entitled interest
from respondent No.3-insurance company for
the period from 2012 to 2019.
v. Registry is directed to return the Trial Court
records along with IA.No.1/2019 and
IA.No.2/2019 to the Tribunal, along with
certified copy of the order passed by this Court
forthwith without any delay.
vi. Since the matter is of the year 2012, the
appellant-claimant and the respondents shall
appear before the Tribunal on 21.04.2022
without awaiting formal Notice in this regard.
Sd/-
JUDGE
JJ
