Karnataka High Court

The Divisional Manager vs Smt. Jayamma on 5 January, 2024

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                                                         NC: 2024:KHC:743
                                                   MFA No. 10838 of 2012




                  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                     DATED THIS THE 5TH DAY OF JANUARY, 2024

                                       BEFORE
                      THE HON'BLE MR JUSTICE C.M. POONACHA
              MISCELLANEOUS FIRST APPEAL NO. 10838 OF 2012 (MV)
             BETWEEN:

             1.    THE DIVISIONAL MANAGER
                   NATIONAL INSURANCE COMPANY LIMITED,
                   MANJUNATHESWARA COMPLEX,
                   POST BOX NO.112, HASSAN BY
                   NATIONAL INSURANCE CO. LTD
                   REGIONAL OFFICE, NO.144,
                   SUBHARAM COMPLEX, M.G. ROAD,
                   BANGALORE 560001
                   BY IT'S MANAGER
                                                              ...APPELLANT
             (BY SRI. O MAHESH., ADVOCATE)

             AND:

             1.    SMT. JAYAMMA
                   MAJOR, C/O LATE H.B. MANJEGOWDA,
                   VIJAYANAGARA LAYOUT,
Digitally
signed by          II STATE, HASSAN
BHARATHI S
Location:
HIGH COURT   2.    NARASAPPA
OF
KARNATAKA          AGED ABOUT 55 YEARS,
                   S/O. RAMAIAH, 4TH CROSS ROAD,
                   SHUBHAS NAGARA, ARASIKERE
                                                           ...RESPONDENTS
             (BY SRI. PRATHEEP K C.,ADVOCATE FOR R1
              R2 SERVED)

                  THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
             JUDGMENT AND AWARD DATED 3.2.2012        PASSED IN MVC
             NO.252/2007 ON THE FILE OF PRESIDING OFFICER, FAST TRACK
             COURT, HASSAN, AWARDING A COMPENSATION OF RS.2,86,000/-
             WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL THE
             DATE OF DEPOSIT.
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                                                               NC: 2024:KHC:743
                                                         MFA No. 10838 of 2012




     THIS APPEAL, COMING ON FOR DISMISSAL, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                                       JUDGMENT

The above appeal is filed by the insurer challenging the

judgment and award dated 3.2.2012 passed in

MVC.No.252/2011 by the Presiding Officer, Fast Track Court,

Hassan 1.

2. For the sake of convenience, the parties herein

are referred as per their rank before the Tribunal.

3. The relevant facts necessary for consideration of

the present appeal are that claiming compensation for the

injuries sustained in a road traffic accident, which is alleged

to have been occurred on 13.6.2001, one Sri Manjegowda2

filed a claim petition in MVC No.252/2010 before the Tribunal

arraying the owner and insurer of the motor cycle bearing

No.KA-13/R.1654 as respondents.

4. The insurer who is arrayed as respondent No.2

entered appearance and filed the counter statement. It is

Hereinafter referred to as the 'Tribunal'

Hereinafter referred to as the 'deceased claimant'

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relevant to note that the claim petition was filed on 6.2.2007

by deceased claimant claiming compensation for the injuries

sustained by him. Subsequently, in view of the fact that said

Sri Manjegowda died on 4.4.2007 vide order dated

10.7.2008 the wife of the deceased was permitted to come

on record as the legal representative of the deceased.

Thereafter, pursuant to the order dated 27.5.2010 wherein,

IA.6 for amendment was allowed. The insurer filed an

additional counter statement on 25.11.2010 wherein the

insurer has specifically taken a contention that the amended

claim petition is not maintainable having regard to the fact

that the original claimant - Manjegowda having died during

the pendency of the claim petition, the cause of action to

claim compensation also does not survive. It is also denied

that the death is attributable to the alleged injury suffered in

the accident and there is no connection between the death

and the injury alleged in the accident.

5. The wife of the deceased Manjegowda namely

Smt.Jayamma examined herself as PW.1 and examined 2

witnesses as PWs.2 and 3. Exs.P1 to P15 were marked in

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evidence. The policy of insurance was marked as Ex.R1.

The Tribunal by its judgment and award dated 3.2.2012

allowed the claim petition and directed the owner and insurer

to jointly and severally pay the said Smt.Jayamma a sum of

Rs.2,86,000/- together with interest at 6% pa. Being

aggrieved, the present appeal is filed by the insurer.

6. Learned counsel for the appellant-insurer

vehemently contended that consequent to the death of the

original claimant Sri Manjegowda and pursuant to the

amendment made, the Tribunal has not appreciated the

relevant facts or recorded any finding as to whether the

death of the deceased was caused due to the injuries

sustained in the accident. It is further submitted that even

the issues are not re-casted consequent to the death of the

original claimant. It is further submitted that there is no

nexus between the death of the original claimant and the

injuries caused in the alleged accident.

7. Per contra, learned counsel for the first

respondent - wife of original claimant submits that the

injuries as are forthcoming from Ex.P4 clearly demonstrates

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that the original claimant had suffered injury to the spine.

That it is also forthcoming from the evidence of the doctors

PWs.2 and 3 wherein, in detail the nature of treatment that

has been taken by the original claimant has been placed on

record and hence it is clear that the death has occurred due

to the injuries sustained in the accident in question. Hence,

he seeks for dismissal of the above appeal.

8. The submissions made by both the learned

counsel have been considered and the material on record

including the records of the Tribunal has been perused. The

question that arises for consideration is, Whether the

judgment and award passed by the Tribunal is liable to be

interfered with?

9. It is forthcoming from the records of the Tribunal

that consequent to the claim petition having been filed on

6.2.2007, the insurer who was arrayed as respondent No.2

entered appearance before the Tribunal and filed its

statement of objections which has been taken on record vide

order dated 28.12.2007. Thereafter, issues have been

framed on 30.4.2008 and the matter was posted for

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evidence. Subsequently, IA.No.5 is filed under Order 22

Rule 3 CPC, IA No.6 under Order 22 Rule 9 CPC and IA.No.7

under Section 5 of the Limitation Act was filed on 30.4.2008

which was allowed on 10.7.2008 wherein, the wife of the

original Claimant namely, Smt Jayamma has come on record

as the legal representative of the deceased claimant.

Thereafter, on 2.4.2009 IA.6 was filed under Order 6 Rule 17

of the CPC, which was allowed on 27.5.2010.

10. It is further forthcoming from para 4 of the

judgment of the Tribunal that issues that have been framed

were the issues that were framed vide order dated

30.4.2008 which are extracted herein below for ready

reference:

"1. Whether the petitioner proves that the alleged accident was caused due to the rash and negligent driving of the motor cycle bearing No.KA- 13/R.1654 by its rider and he sustained injuries alleged?

2. Whether the petitioner is entitle for compensation? Is o what is the just and reasonable compensation to be awarded and who is liable to pay the same?

3. To what order?

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11. It is clear from the aforementioned that

consequent to the legal representative of the original

claimant coming on record and consequent to the application

for amendment being allowed, even the issues have not be

re-casted.

12. Further, it is forthcoming from the reasoning of

the Tribunal as set out at para 10 of the judgment that the

aspect as to whether the death of the original claimant

occurred as a result of the injuries sustained in the accident

in question has not even been referred to and there is no

finding given with regard to the said aspect of the matter.

13. In view of the aforementioned, it is absolutely

clear that the Tribunal has not considered the matter having

regard to the specific objections raised by the insurer. In

that view of the matter, it just and proper that the judgment

and award be set aside and the matter be remanded to the

Tribunal to enable the Tribunal to re-cast the issues and

conduct further proceedings in accordance with law.

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14. Hence, the question framed for consideration is

answered in the affirmative.

15. In view of the fact that the accident is of the year

2006 and the claim petition is pending since 2007, it is just

and proper that a time frame be specified for expeditious

disposal of the matter.

16. Hence, the following order is passed:

ORDER

i) The above appeal is allowed;

ii) The judgment and award dated 3.2.2012 passed

in MVC.No.252/2011 by the Presiding Officer,

Fast Track Court, Hassan, is set aside and the

matter is remanded to the Tribunal;