Karnataka High Court
The Manager vs Agassi Mario on 23 February, 2024
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
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NC: 2024:KHC:7695
MFA No. 2140 of 2020
C/W MFA No. 9013 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR
MISCELLANEOUS FIRST APPEAL NO.2140 OF 2020(MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO.9013 OF 2019(MV-I)
IN MFA NO.2140/2020
BETWEEN:
AGASSI MARIO,
S/O J. AROKIASWAMY,
AGED ABOUT 18 YEARS,
NO.338, 1ST CROSS,
SIDDAIAH PURANIK ROAD,
KUVEMPUNAGAR,
BANGALORE - 560 014.
...APPELLANT
(BY SRI. YOGESHA G.K., ADVOCATE)
Digitally signed AND:
by CHAITHRA P
Location: High
Court of 1. THE MANAGER,
Karnataka LIBERTY VIDEOCON GENERAL
INSURANCE CO.LTD.,
NO.1, ALYSSA, 1ST FLOOR,
REAR PORTION, OLD NO.28,
NEW NO.23, RICHMOND ROAD,
BANGALORE - 560 025.
2. SRI. AROKIA SWAMY J.,
S/O JAMES A.,
NO.338, 1ST CROSS,
KUVEMPUNAGAR,
JALAHALLI EAST,
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MFA No. 2140 of 2020
C/W MFA No. 9013 of 2019
BANGALORE - 560 014.
...RESPONDENTS
(BY SRI. O MAHESH, ADVOCATE FOR R1;
NOTICE TO R2 IS DISPENSED WITH
VIDE ORDER DATED 11.10.2022)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND
AWARD DATED 11.07.2019 PASSED IN MVC NO.502/2018 ON
THE FILE OF THE MEMBER, MACT, XVIII ADDITIONAL JUDGE,
COURT OF SMALL CAUSES, BENGALURU (SCCH-4), PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA NO.9013/2019
BETWEEN:
THE MANAGER,
LIBERTY VIDEOCON GENERAL
INSURANCE COMPANY LIMITED,
NO.1, ALYSSA, 1ST FLOOR,
REAR PORTION, OLD NO.28,
NEW NO.23, RICHMOND ROAD,
BANGALORE - 560 025.
BY ITS MANAGER.
...APPELLANT
(BY SRI. O MAHESH, ADVOCATE)
AND:
1. AGASSI MARIO,
AGE 18 YEAR,
S/O J. AROKIASWAMY,
AGED ABOUT 18 YEARS,
R/AT NO.338, 1ST CROSS,
SIDDAIAH PURANIK ROAD,
KUVEMPUNAGAR,
BANGALORE - 560 014.
2. AROKIA SWAMY J., MAJOR,
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MFA No. 2140 of 2020
C/W MFA No. 9013 of 2019
S/O JAMES A.,
RESIDING AT
NO.338, 1ST CROSS,
KUVEMPUNAGAR,
JALAHALLI EAST,
BANGALORE - 560 014.
...RESPONDENTS
(BY SRI. YOGESHA G.K., ADVOCATE FOR R1;
R2 IS SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND
AWARD DATED 11.07.2019 PASSED IN MVC NO.502/2018 ON
THE FILE OF THE MEMBER, MACT, XVIII ADDITIONAL JUDGE,
COURT OF SMALL CAUSES, BENGALURU CITY (SCCH-4),
AWARDING COMPENSATION OF RS.3,07,000/- WITH INTEREST
AT 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
THESE APPEALS, COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These appeals are preferred by the claimant and the
Insurance Company challenging the judgment and award
dated 11.07.2019 passed by Motor Vehicles Accident
Claims Tribunal, Bengaluru (for short 'the Tribunal') in
MVC No.502/2018. The appeal preferred by the claimant is
founded on the premise of inadequacy of compensation.
Hence, the claimant seeks enhancement of compensation.
Whereas, the appeal preferred by the Insurance Company
is on the ground of a false and frivolous case filed by the
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claimant and exorbitant compensation awarded without
taking into consideration the material placed on record.
2. Parties to the appeal shall be referred to as per
their status before the Tribunal.
3. Brief facts of the case are as under:
That on 14.12.2017 at about 21:30 hours, the
claimant, who is aged about 17 years, represented by his
natural guardian-mother, J.Mary Agnel A, was proceeding
on a motor cycle bearing registration No.KA-04-JL-1050 as
a pillion rider along with his father, when they came near
Kuvempunagar main road, behind Kariyamma temple,
rider of the motor cycle, who is the father of the claimant
rode the same in a rash and negligent manner and dashed
against the pedestrian, who was crossing the road. Due to
the impact of the accident, the claimant sustained
grievous injuries. He was immediately shifted to
Rajalakshmi Hospital, Bengaluru, wherein he was inpatient
for 5 days from 14.12.2017 to 18.12.2017. The claimant
spent more than Rs.2,00,000/- towards medical treatment
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and other incidental expenses. In view of the injuries
sustained in the accident, the claimant filed a claim
petition against the respondents i.e., respondent No.1-
Insurance Company and respondent No.2-owner of the
vehicle, who is none other than the father of the claimant
himself.
3.1 On service of notice, respondent No.1-Insurance
Company filed written statement. However, respondent
No.2 despite appearance before the Court did not file any
written statement. Respondent No.1-Insurance Company
denied the averments made in the claim petition including
age, avocation, income, involvement of vehicle and
negligence attributed against the rider of the offending
vehicle. Hence, sought for dismissal of the claim petition.
3.2 On the basis of pleadings, the tribunal framed
relevant issues for consideration.
3.3 In order to substantiate issues and to establish
the case, mother of the claimant representing the claimant
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as natural guardian examined herself as PW.1 and Doctor
as PW.2 and got marked documents as Exs.P1 to P13. On
the other hand, respondents examined Chief Medical
Officer(CMO) as RW.1 and got marked document as Ex.R1.
3.4 On the basis of material evidence, both oral and
documentary and on hearing the submissions of learned
counsel for both parties, the tribunal awarded
compensation of Rs.3,07,000/- with interest @ 6% p.a.
from the date of petition till realisation and directed
respondent No.1-Insurance Company to pay the
compensation amount within 30 days from the date of the
order.
3.5 Being aggrieved by the said judgment and
award, the claimant is before this Court seeking
enhancement of compensation, whereas the respondent-
Insurance Company has questioned the very same
judgment and award as arbitrary and erroneous and seeks
to set aside the same, on the ground of false and frivolous
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case foisted by the claimant in collusion with his father-
respondent No.2.
4. It is the vehement contention of the learned
counsel for claimant that the tribunal has committed an
error in awarding reasonable compensation, ignoring the
evidence adduced by the parties with regard to assessing
the notional income and not applying the disability as
opined by PW.2-Doctor. On these grounds, he seeks to
enhance the compensation.
5. Per contra, Sri O.Mahesh, learned counsel for
Insurance Company vehemently contends that the case
put forth by the claimant is frivolous, false and concocted.
According to him, the claimant himself was riding the
motor cycle and due to the negligence of the pedestrian,
the accident occurred and there was no rash and negligent
riding by the rider of the motor cycle which is insured with
the Insurance Company. He also contends that the
claimant, who is a minor as on date of filing of the claim
petition had attained majority as on the date of adducing
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evidence. Therefore, nothing prevented the claimant from
stepping into the witness box to narrate the incident which
he had seen himself as an eye-witness, whereas the
mother, has stepped into the witness box and admitted
the fact that she has not seen the accident and was not an
eye-witness, so also the claimant has not examined the
other best witness to the incident i.e., father, who is
respondent no.2 and thereby suppressed material facts.
Hence, the judgment and award passed by the tribunal
requires to be set aside and the claim petition requires to
be dismissed.
6. Having heard learned counsel for claimant and
learned counsel for Insurance Company, the occurrence of
the accident and involvement of the vehicle are not in
much dispute in view of production of Exs.P1 to P7 which
are the police records. However, there is some force in the
submission put-forth by the learned counsel for Insurance
Company as to why the claimant did not present himself
for recording his evidence as he would have been the best
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witness to narrate the incident before the tribunal as to
what happened on that day. Without getting into the
aspect of the correct age, an opportunity now requires to
be given to the claimant to adduce his evidence because,
now he has attained majority, so also, the claimant has
not examined respondent No.2, who could have been the
best witness in his favour to narrate or corroborate the
evidence of claimant with regard to the occurrence of
accident and the events that unfolded on the fateful day,
so also, nothing prevented the Insurance Company from
examining respondent No.2 by summoning him as a
witness even though he has not been examined by the
claimant as a witness to elicit the incident before the
tribunal. All these aspects have not been done before the
tribunal. Hence, it would become difficult for this Court to
analyse the evidence, which is not before this Court. There
are certain gaps in the evidence due to non-examination
of these witnesses. Hence, without adverting to the merits
of the matter with regard to the injuries suffered, the
causation of the accident, rashness and negligence, this
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Court deems it appropriate to remand this matter back to
the jurisdictional tribunal for further evidence to be
conducted. The claimant can establish his case by
adducing any further evidence of himself or any other
witness including respondent No.2, so also liberty requires
to be given to the both respondents to examine any
further evidence and cross-examine the witness of the
claimant, if any.
7. Accordingly, I pass the following:
ORDER
i) MFA Nos.2140/2020 and 9013/2019 preferred by
the claimant and Insurance Company respectively
are allowed;
ii) The judgment and award dated 09.03.2021
passed by IV Additional District and Sessions
Judge, Hassan District (Sit at Channarayapatna) in
MVC.No.1840/2018 is hereby set aside;
iii) The matter is remanded back to the jurisdictional
tribunal for consideration afresh;
iv) An opportunity is provided to the claimant as well
as the Insurance Company to adduce their
evidence and cross-examine the witnesses;
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v) In view of the fact that both parties are before this
Court through their respective counsels, they shall
appear before the jurisdictional tribunal on
26.03.2024, without awaiting any further notice
either from this Court or from the tribunal;
vi) The amount in deposit made by the Insurance
Company shall be transmitted to the jurisdictional
tribunal which shall be kept in a Fixed Deposit in
any Nationalized Bank and the same shall be
subject to the out come of the judgment and
award of the tribunal.
vii) It is made clear that this Court has not expressed
any opinion on the merits of the matter.
viii) All contentions are kept open.
ix) The original records shall be transmitted to the
jurisdictional tribunal forthwith.
Sd/-
JUDGE
CPN
CT:SNN
