Karnataka High Court
E Raju vs Patric Richard on 2 April, 2024
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
-1-
NC: 2024:KHC:13446
MFA No. 6041 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF APRIL, 2024
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
MISCELLANEOUS FIRST APPEAL NO. 6041 OF 2013 (MV)
BETWEEN:
1. E.RAJU
S/O LATE ERAIAH,
AGED ABOUT 30 YEARS,
DRIVER, KARADIGODU VILLAGE,
SIDDAPUR,
KODAGU DISTRICT.
2. SMT. GRACY
OWNER, W/O JOSEPH SAM,
AGED ABOUT 55 YEARS,
NELLIHUDIKERI VILLAGE AND POST,
SOMWARPET TALUK,
KODAGU DISTRICT.
...APPELLANTS
(BY SRI. B.S.BASAVARAJU., ADVOCATE)
Digitally signed by AND:
THEJASKUMAR N
Location: HIGH
COURT OF 1. PATRIC RICHARD
KARNATAKA S/O M.A.DAS,
AGED ABOUT 47 YEARS,
MECHANIC, NALLUR ESTATE,
TATA COFFEE LTD., MATHIKAD,
SUNTIKOPPA, SOMWARPET TQ.,
KODAGU DISTRICT.
2. THE MANAGER,
BAJAJ ALLIANZ GENERAL,
INSURANCE COMPANY LIMITED,
363, SHRI HARI COMPLEX,
-2-
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MFA No. 6041 of 2013
SEETHA VILAS ROAD,
MYSORE-570 024.
...RESPONDENTS
(BY SRI. RAGHAVENDRA.S.V., ADVOCATE FOR
SRI. A.V.SRIHARI., ADVOCATE FOR R1;
SMT. H.R.RENUKA., ADVOCATE FOR R2)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988,
AGAINST THE JUDGMENT AND AWARD DATED:09.03.2012
PASSED IN MVC NO.231/2008 ON THE FILE OF THE AD-HOC
DISTRICT JUDGE AND PRESIDING OFFICER, FAST TRACK
COURT, KODAGU, MADIKERI.
THIS MISCELLANEOUS FIRST APPEAL IS COMING ON FOR
ADMISSION, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
Sri.B.S.Basavaraju., learned counsel for the appellants
and Sri.Raghavendra.S.V., learned counsel on behalf of
Sri.A.V.Srihari., for respondent No.1 have appeared in person.
2. For the sake of convenience, the parties are
referred to as per their status and rankings before the Tribunal.
3. The brief facts are these:
On the 25th day of April 2008 at about 10:45 pm., the
claimant was coming from Athur Village on Chettalli -
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Suntikoppa main road on his motorbike bearing Registration
No.KA-09-W-3903. At that time, a Mahindra and Mahindra
Commander Jeep bearing Registration No.KA-04-MNA-5422
came from the side of Suntikoppa towards Chettalli on the
wrong side on the extreme right side in a rash and negligent
manner and hit his motorbike. Due to the impact, the claimant
fell and sustained grievous injuries. He took treatment in
various hospitals from 26.04.2008 to 13.09.2008. Contending
that he is entitled for compensation, the claimant filed claim
petition.
In response to the notice, respondents appeared through
their counsel. Respondents 1 and 2 did not file statement of
objections. The third respondent filed statement of objections
denying the petition averments. Among other grounds it prayed
for dismissal of the claim petition.
Based on the above pleadings, the Tribunal framed
issues, parties led evidence and marked the documents. The
Tribunal vide Judgment dated:09.03.2012 partly allowed the
claim petition and dismissed the claim petition against
respondent No.3 Insurance company and directed respondents
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1 and 2 to pay the compensation. The driver and the owner of
the offending vehicle have assailed the Judgment of the
Tribunal in this appeal on several grounds as set-out in the
Memorandum of appeal.
4. Learned counsel for the appellants submits that an
application in I.A.No.4/2013 is filed under Order 41 Rule 27 R/
of CPC for production of additional document i.e., driving
license. Counsel submits that E.Raju - the driver of the
offending vehicle has sworn to an affidavit narrating the
reasons to allow the application. Counsel therefore, submits
that the reasons accorded in the affidavit may be taken note of
and the application may be allowed and the matter may be
remanded. Learned counsel placed reliance on the decision in
RUKMANI AND OTHERS VS. NEW INDIA ASSURANCE CO.
LIMITED AND OTHERS reported in 1999 ACJ 171.
Learned counsel for the Insurance Company justified the
Judgment of the Tribunal. Counsel submits that the application
may be dismissed and appropriate order may be passed.
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Heard, the contentions urged on behalf of the respective
parties and perused the appeal papers, the application and the
records with utmost care.
5. The following points would arise for consideration:
1. Whether the application for production of
additional document requires to be allowed and
the matter requires a remand.
2. Whether the Judgment of the Tribunal requires
interference.
6. The facts are sufficiently stated and do not require
reiteration. An attempt is made on behalf of the driver E.Raju
that he did not contest the claim petition and did not furnish
the driving license due to personal inconvenience.
Perused the application with utmost care. The driver
E.Raju has sworn to a declaration of facts in the form of an
affidavit and he has furnished the copy of the driving license.
Except for saying that due to personal inconvenience he did not
lead evidence and furnish the driving license, no sufficient
reasons are accorded to allow the application.
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Learned counsel for the appellant placing reliance on the
decision referred to supra contended that the Insurance
Company did not summon the driver and no records from the
Regional Transport Authority was produced. Hence, it is sought
to contend that the burden shifts on the Insurance Company.
The contention urged on behalf of the appellants cannot be
accepted. The reason is simple. A perusal of the order sheet of
the Tribunal reveals that the claim petition was filed on
03.12.2008. Notice was ordered on 05.12.2008 returnable by
16.01.2009. The order sheet dated:16.01.2009 depicts that the
notice to respondents 1, 2 and 3 was returned at the first
instance. Thereafter, it was served. The order sheet
dated:17.02.2009 further reveals that advocate by name
D.M.Keshava filed vakalath for respondents 1 and 2. Except
filing the vakalath, respondents 1 and 2 did not contest the
claim petition either by filing written statement/ statement of
objections or leading evidence. They did not even chose to
cross examine the claimants. The Tribunal disposed of the
petition on 09.03.2012. Hence, sufficient time was there for the
driver and the owner of the offending vehicle either to contest
the matter or to furnish the document as they sought to
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produce the same in this appeal. Nothing prevented either the
driver or the owner of the offending vehicle to furnish the
driving license before the Tribunal. Hence, the contention that
the Insurance Company did do the needful must necessarily
fail.
To conclude, I can say only this much that respondents 1
and 2 did not contest the claim petition, hence the question of
despite due diligence they could not produce the document also
does not arise.
On the merits of the case, it is noticed that the Tribunal
extenso referred to the material on record and determined the
compensation under different heads and directed the driver and
the owner i.e., respondents 1 and 2 to pay the compensation. I
find no reasons to interfere with the said findings.
Learned counsel for the appellants placed reliance on the
decision referred to supra, but I do not find that the law is in
doubt. Each decision turns on its own facts. The present case is
also tested in the light of the aforesaid decision.
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7. For the reasons stated above, the application is
liable to be rejected. Accordingly, I.A.No.4/2013 is rejected.
Resultantly, the Miscellaneous First Appeal is rejected.
The Registry concerned is directed to transmit the records
and the amount in deposit, if any to the Tribunal forthwith for
disbursement.
Sd/-
JUDGE
TKN
