Karnataka High Court
Basha vs The Divisional Manager on 10 April, 2024
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NC: 2024:KHC:14718
MFA No. 4056 of 2018
C/W MFA.CROB No. 166 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE VENKATESH NAIK T
MISCELLANEOUS FIRST APPEAL NO. 4056 OF 2018 (MV-D)
C/W
MFA CROSS OBJECTION NO. 166 OF 2022 (MV-D)
IN MFA NO. 4056 OF 2018
BETWEEN:
THE DIVISIONAL MANAGER
CHOLAMANDALAM M S GIC LTD.
NO.135/5, 2ND FLOOR
15TH CROSS, J.P. NAGAR
BANGALORE-560 078.
...APPELLANT
(BY SRI. PRADEEP B., ADVOCATE)
AND:
1. BASHA
S/O LATE PEERSA
Digitally
signed by NOW AGED ABOUT 50 YEARS
SHAKAMBARI
Location:
HIGH COURT 2. SMT. AMEENA @ AMEENA BANU
OF
KARNATAKA W/O BASHA
NOW AGED ABOUT 41 YEARS
3. SMT. RIZWANA BANU
D/O BASHA
NOW AGED ABOUT 28 YEARS
4. TOUSEEF ASHA
S/O BASHA
NOW AGED ABOUT 27 YEARS
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MFA No. 4056 of 2018
C/W MFA.CROB No. 166 of 2022
5. KASHEEF PASHA
S/O BASHA
NOW AGED ABOUT 25 YEARS
6. MAST. SAIF ALI KHAN
S/O BASHA
AGED ABOUT 23 YEARS
ALL ARE R/AT: BELLAL NAGAR
INDRA COTTAGE
SATHANOOR ROAD CROSS
CHANNAPATNA TOWN
RAMANAGAR DISTRICT.
7. NOOR ULLA
S/O REHAMATH ULLA
R/AT: HULIYAR DURGA VILLAGE
KUNIGAL TALUK
TUMKUR DISTRICT-572 123.
...RESPONDENTS
(BY SRI.T.P. VIVEKANANDA ADV. FOR R1 TO R6.,
SRI.S.RAJU ADVOCATE,FOR R7)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 19.03.2018 PASSED IN MVC
NO.147/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE &
JMFC, ADDITIONAL MACT, CHANNAPATTANA, RAMANAGAR
DISTRICT, AWARDING COMPENSATION OF RS.9,77,200/-
WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL
THE DATE OF DEPOSIT.
IN MFA CROB NO. 166 OF 2022
BETWEEN:
1. BASHA
S/O LATE PEERSA
AGED ABOUT 54 YEARS
2. SMT. AMEENA @ AMEENA BANU
W/O. BASHA
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MFA No. 4056 of 2018
C/W MFA.CROB No. 166 of 2022
AGED ABOUT 50 YEARS
3. SMT. RIZWANA BANU
S/O BASHA,
AGED ABOUT 37 YEARS
4. TOUSEEF ASHA
S/O BASHA
AGED ABOUT 36 YEARS
5. KASHEEF PASHA
S/O BASHA
AGED ABOUT 34 YEARS
6. MAST. SAIF ALI KHAN
S/O BASHA
AGED ABOUT 32 YEARS
ALL ARE R/A: BELLA NAGAR,
INDRA COTTAGE, SATHANOOR ROAD CROSS
CHANNAPATNA TOWN
RAMANAGAR DISTRICT-562 159.
...CROSS OBJECTORS
(BY SRI. VIVEKANANDA.T.P., ADVOCATE 2 TO ADVOCATE 6
ADVOCATE 1 IS LRS)
AND:
1. THE DIVISIONAL MANAGER
CHOLAMANDALAM, M.S. GIC LTD,
NO.135/5, 2ND FLOOR,
15TH CROSS, J P NAGAR
BANGALORE-560 078.
2. NOOR ULLA
S/O REHAMATH ULLA
R/A HULIYUR DURGA VILLAGE,
KUNIGAL TALUK,
TUMKUR DISTRICT-572 123.
...RESPONDENTS
(BY SRI.PRADEEP B., ADVOCATE FOR R1
SRI.S. RAJU ADVOCATE FOR R2)
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MFA No. 4056 of 2018
C/W MFA.CROB No. 166 of 2022
THIS MFA CROB IS FILED U/O.41 RULE 22 R/W
SEC.173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD
DT.19.03.2018 PASSED IN MVC NO.147/2013 ON THE FILE OF
THE COURT OF SENIOR CIVIL JUDGE AND JMFC, ADDITIONAL
MACT, CHANNAPATTANA, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
THIS APPEAL AND CROSS OBJECTION COMING ON FOR
FINAL HEARING, THIS DAY THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
As these two appeals are arising out of a common
judgment and award of the Tribunal, they are heard
together and disposed of by this common judgment.
2. For the sake of convenience, the parties are
referred to as they are referred to in the claim petition
before the Tribunal.
3. MFA No.4056/2018 is filed by the insurer
seeking to set aside the judgment and award and to
remand the matter back to the Tribunal for fresh
consideration, where as, MFA.Crob No.166/2022 is filed by
the claimants for enhancement of compensation.
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4. As there is no dispute regarding the accident
which took place on 23.4.2013 at about 2.15 a.m. when
deceased Gulab was going near Sanjo Hospital at Mandya
for sale of mangoes in Mandya market in APPE PIAGGIO
GOODS AUTO bearing NO.KA-06-C-676, the driver of APPE
drove the same in high speed and rash and negligent
manner and on account of the same, the driver lost his
control over the vehicle and the vehicle turned turtle, due
to which, the deceased Gulab sustained grievous injuries.
Thus, he was shifted to District Hospital, Mandya for
treatment and later, he was shifted to Rajeev Gandhi
Institute of Chest Disease Hospital, Bengaluru and he died
on the same day.
5. The learned counsel for the appellant in MFA
No.4056/2018 contended that, the Tribunal has not
accorded any opportunity to the appellant/Insurer to
cross-examine the claimant, PW1. He submitted that the
liability of the insurance company is disputed. If
opportunity is granted to file written statement and cross-
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examine PW1, then it would not cause injustice to the
claimant. Hence, prayed to remand the matter.
6. The learned counsel for the
claimants/respondent in MFA 4056/2018 and appellants in
MFA.Crob 166/2022 submits that the Tribunal has
accorded fair and reasonable opportunities, but, the
Insurance Company has not filed written statement in
time. Therefore, the Tribunal has rightly proceeded to
pass the judgment and award. Hence, he prayed to
dismiss the appeal filed by the insurer.
7. Perused the judgment and award and also the
order sheet of the case.
8. The claim petition was filed in the year 2013.
Before the tribunal, notice was served upon the Insurance
Company, however, it failed to file written statement in
time. Therefore, the Tribunal proceeded to dispose the
matter ex parte. Thus, the Insurance Company filed Misc.
Petition No.31/2015 before the same Court and the
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concerned Court allowed the petition and set aside the ex
parte order passed by it and thus, permitted the Insurance
Company to contest the matter by filing the written
statement. Accordingly, the matter was restored on
30.11.2017 with a direction to the Insurance Company to
appear before the Tribunal. Though the tribunal granted
several adjournments on 22.12.2017, 16.01.2018,
20.02.2018, 06.3.2018 and 08.3.2018, the Insurance
Company did not file any written statement, however, on
13.3.2018 the Insurance Company had filed an application
under Order 18 Rule 17 CPC to recall PW.1 and an
application under Section 151 CPC to recall the stage of
the case, as the matter was adjourned for final arguments.
However, the Tribunal without assigning any reasons,
adjourned the matter on 19.3.2018 for judgment and on
the same day, the Tribunal has passed the judgment. It
shows that, the Tribunal has not accorded an opportunity
to the Insurance company to put forth its defence as the
Insurance Company has disputed its liability.
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9. Therefore, the counsel for Cross objector prays to
remand the matter for fresh consideration, by according
opportunity to the Insurance Company to put forth its
defence.
10. In view of the submissions made, the following
points essentially arise for determination in this case:
"As to whether the Insurance Company
has made out sufficient grounds to remand
the matter?"
11. The learned counsel for Insurance Company has
taken contention that the Tribunal ought to have given the
opportunity to the Insurance Company to cross examine
claimant and to adduce evidence on its side.
12. As per order 41 Rule 23A of CPC the Appellate
Court may remand a case where it consider necessary to
do so in the interest of justice.
13. A conjoint reading of Rules 23, 23A and 24 of
Order XLI brings forth the scope as also contours of the
powers of remand that when the available evidence is
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in sufficient to dispose of the matter, the proper course for
an Appellate Court is to follow the mandate of Rule 24 of
Order XLI CPC and to determine the suit finally. It is only
in such cases where the decree or award in challenge is
reversed in appeal and a re-trial is considered necessary
that the Appellate Court shall adopt the course of
remanding the case. It remains trite that order of remand
is not to be passed in a routine manner because an
unwarranted order of remand merely elongates the life of
the litigation without serving the cause of justice. An order
of remand only on the ground that the points touching the
appreciation of evidence were not dealt with by the Trial
Court may be considered it. There could, of course, be
several eventualities which may justify an order of remand
or where remand would be rather necessary depending on
the facts and the given set of circumstances of a case.
14. In the present case, it clearly establishes that the
Insurance Company has not at all cross-examined the
claimants and it has not tender its evidence in support of
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its defence. The order sheet maintained by the Tribunal
clearly transpires that on the day of filing of an application
for recall of witness, the Tribunal failed to consider it, but,
proceeded to pass the judgment, without assigning any
valid reasons. If the matter is not remanded, the
Insurance Company would suffer great loss, on the other
hand, if the matter is remanded, the claimants would not
suffer anything. At the most, the payment of
compensation would be postponed for a couple of months,
if they succeeds.
15. Therefore, it is just and necessary to set aside
the judgment and award passed by the Tribunal and the
matter requires to be remand to the Tribunal for fresh
consideration. Accordingly, the Court proceed to pass the
following:
ORDER
i) MFA No. 4056/2018 is allowed.
ii) The judgment and award dated
19.03.2018 passed in MVC No.147/2013 is
set aside and matter is remanded back to
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the Tribunal with a direction to the
Tribunal to dispose of the matter as
expeditiously as possible considering the
age of the litigation subject to the
condition that appellant-Insurance
Company deposits a sum of Rs.10,000/-
(Ten thousand only) payable to the
claimants towards cost of this litigation.
(iii) Appellant-Insurance Company and
the claimants are directed to appear before
the Tribunal on 10.06.2024 without waiting
for any notice.
(iv) Registry is directed to send the
trial Court records along with annexures to
the Tribunal within two weeks.
(v) The amount deposited by the
appellant - Insurance Company be
transmitted to the Tribunal.
(vi) The Tribunal, soon after
appearance of the parties and on receipt of
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records, proceed to dispose of the matter
in accordance with law as expeditiously as
possible.
Sd/-
JUDGE
PSJ
