Allowed

Smt Sudha v. Bajaj Allianz General Insurance Company Limited

Karnataka HC25 Jan 2022MFA/1182/2019

Case brief

AI extract

What is this about?

High Court allowed an appeal against the dismissal of a motor accident compensation claim. The Court remanded the matter to the Tribunal, permitting the filing of additional evidence to establish the involvement of the alleged motorcycle in the accident. An application under CPC Rule 27 was allowed.

What did the court decide?

Appeal allowed; Impugned judgment set aside; Matter remitted to Tribunal for reconsideration after admitting additional evidence; Application under CPC Order XLI Rule 27 allowed.

Smt Sudha Vs Bajaj Allianz General Insurance Company… — Motor Accident Claims | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 25^TH DAY OF JANUARY, 2022

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PRESENT

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THE HON'BLE MR. JUSTICE P.S. DINESH KUMAR

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AND

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THE HON’BLE MR. JUSTICE RAJENDRA BADAMIKAR

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M.F.A.No.1182/2019 (MV)

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BETWEEN:

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SMT.SUDHA WIFE OF MAHESWARAPPA @ MAHESH NOW AGED ABOUT 32 YEARS

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Ms.SINDHU M., DAUGHTER OF MAHESWARAPPA @ MAHESH NOW AGED ABOUT 15 YEARS SINCE MINOR IS REPRESENTED BY HER MOTHER AND NEXT FRIEND SMT.SUDHA APPELLANT NO.1.

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BOTH ARE R/AT SEEGEHALLI VIRGONAGAR, BANGALORE NORTH BANGALORE -560 049

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PERMANENT ADDRESS AT: VEERAPURA HOSUR VILLAGE BAGGALLI POST, AJJAMPURA HOBLI, TARIKERE TALUK, CHIKKAMAGALUR DISTRICT-577116. ..APPELLANTS (BY SRI.MANMOHAN D., ADVOCATE)

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AND:

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BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LIMITED, NO.1/2, GOLDEN HEIGHTS, 4^TH FLOOR, 59^TH `C’ CROSS, 4^TH M BLOCK, RAJAJINAGAR, BANGALORE -560 010 REP. BY ITS MANAGER

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SRI.SUNIL J. SON OF JAVAREGOWDA, MAJOR, R/AT: NEW NO.03, OLD NO.96/6, 2^ND CROSS, THIGALARAPALYA MAIN ROAD, KARIOBANAHALLI LAGGERE, BANGALORE-560 058. ..RESPONDENTS

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(BY SRI.A.N.KRISHNA SWAMY, ADVOCATE FOR R-1, NOTICE TO R-2 IS DISPENSED WITH VIDE ORDER DATED 20.07.2021)

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THIS APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED: 07.07.2018 PASSED IN MVC NO.5480/2016 ON THE FILE OF THE XIII ADDITIONAL JUDGE, COURT OF SMALL CAUSES AND MEMBER MACT, BENGALURU [SCCH-15], DISMISSING THE CLAIM PETITION FOR COMPENSATION.

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THIS APPEAL COMING ON FOR ADMISSION THIS DAY, RAJENDRA BADAMIKAR J., DELIVERED THE FOLLOWING:

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JUDGMENT

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Though the appeal is listed for admission, by consent of learned advocates appearing for the parties, it is taken up for final disposal.

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This appeal is filed by the appellants-claimants under Section 173(1) of Motor Vehicles Act challenging the Judgment and award passed by XIII Additional Judge, Court of Small causes and Member, MACT, Bengaluru, in MVC No.5480/2016 dated 07.07.2018 whereby the petition filed by the claimants/appellants herein under Section 166 of Motor Vehicles Act came to be dismissed.

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For the sake of convenience, parties herein are referred to as per their ranking before the Tribunal.

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The brief facts of the case are, on 22.06.2016 at about 8 p.m., the husband of the first petitioner-Mahesh was walking

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on the left side of the Karihobanahalli Road, Nelagatheranahalli Main Road, Bengaluru. A rider of motorcycle bearing registration No.KA-41-ED-8994 riding it in a rash and negligent manner, dashed against the victim causing grievous injuries on the head. Immediately he was shifted to NIMHANS hospital wherein he succumbed because of the injuries. It is the further case that deceased was hale and healthy and working as Mason and earning Rs.20,000/- per month. The petitioners are the widow

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and minor child and hence they filed claim petition under Section 166 of the Motor Vehicles Act.

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The respondent No.1-insurer has disputed the ownership and insurance and denied the other averments. It has also specifically contended that the motorcycle bearing registration No.KA-41-ED-8994 was not involved in the alleged accident and deceased Mahesh did not die on account of the involvement of the said motorcycle and has also taken other statutory defences and sought for dismissal of the claim petition.

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The Tribunal after appreciating the oral and documentary evidence has come to a conclusion that the claimants have failed to establish the involvement of the vehicle bearing registration No.KA-41-ED-8994 in the accident and hence dismissed the claim petition.

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Being aggrieved by the Judgment of dismissal of claim petition, claimants have filed this appeal.

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We have heard the learned Advocates appearing for the appellants as well as respondent No.1-insurer.

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The learned Advocate for appellants has also filed I.A.2/2019 under Order XLI Rule 27 read with Section 151 of CPC seeking production of additional evidence.

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Learned counsel for appellants would contend that the trial court has failed to appreciate the oral and documentary evidence in proper perspective. He would also contend that the Tribunal has given erroneous finding regarding delay in lodging the complaint and failed to appreciate that the accident has occurred in the night and complaint has been lodged by the brother of the deceased by next day morning. He would also contend that the evidence of PW-2 supports the case of the claimants but the Tribunal has given undue importance to the documents produced by the respondent and to counter the same, he has now produced certain material documents to show that immediately after the accident, the rider of the motorcycle also fell on the ground and then he had quarreled with the persons gathered there and a complaint was lodged against him in this regard. Hence, he would contend that all these material documents are relevant and hence, he seeks for remand of the matter.

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Per contra, learned Advocate for respondent No.1 would contend that the evidence on record prima facie establishes that the history given was that the patient was found on the road and in the complaint there is no reference of the vehicle number. Hence, he would contend that there is no material and Tribunal has rightly rejected the claim. He would also contend that he has no objection for remanding the matter by allowing the I.A.2/2019 filed under Order XLI Rule 27 of CPC by giving opportunity to both the parties to lead further evidence to prove the case. As such, he would seek for passing appropriate order.

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Having heard the arguments and perusing the records, it is specific case of the appellants that vehicle bearing registration No.KA-41-ED-8994 was involved in the accident. Respondent No.2 is the owner of the said vehicle and he has remained exparte. The records pertaining to NIMHANS hospital disclose that the history was given as found lying on the road with injuries and it is specifically alleged that exact history was not known as patient was found lying on the road unconscious. Unfortunately deceased sustained head injury and he was not in a position to lodge any complaint. Now on the basis of this

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endorsement of NIMHANS hospital in the records maintained by NIMHANS wherein deceased was admitted, Tribunal has come to a conclusion that claimants have failed to establish involvement of the offending vehicle in the accident.

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However, now claimants intend to produce certain documents along with I.A.2/2019 filed under Order XLI Rule 27 of CPC wherein they wanted to produce a notice issued under Section 133 of Motor Vehicles Act, reply given to it, statement of the material witnesses recorded by the Investigating officer and complaint filed by one Manu on next day, who claims to be an eyewitness alleging that the respondent No.2 herein had caused the accident by his Pulsar Bike 220 by knocking down the deceased and when the same was questioned, he assaulted the persons who questioned him in this regard. As such, a complaint was lodged against the said person i.e., respondent No.2-Sunil. However, this document does not refer the name of respondent No.2. However, there is specific allegation that pulsar bike 220 caused the accident and he has also relied on notice issued under Section 133 of Motor Vehicles Act and statements of other witnesses recorded immediately by the investigating officer.

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Hence, considering the rival submissions made by both the advocates, in our considered opinion, it is just and proper to remand the matter by giving an opportunity to both the petitioners and respondents to substantiate their contention regarding involvement of the offending vehicle in the accident by leading cogent evidence by allowing I.A.2/2019 filed under Order XLI Rule 27 of CPC for production of documents.

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Accordingly, we proceed to pass the following:

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ORDER

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i) Appeal is allowed .

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ii) Judgment dated 07.07.2018 passed in MVC No.5480/2016 by XIII Additional Judge, Court of Small Causes, Member, MACT, Bengaluru, is set aside. Matter is remitted to the Tribunal with a direction to give opportunity to both the parties to lead further evidence on the documents sought to be produced and then pass appropriate orders.

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Considering that the case is of the year 2016, the Tribunal is directed to dispose of the matter within six months from the date of receipt of the records.

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I.A.2/2019 filed under Order XLI Rule 27 read with Section 151 of CPC stands allowed.

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All the contentions are left open.

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The registry is directed to send back the records to the Tribunal along with documents sought to be produced under I.A.2/2019 filed under Order XLI Rule 27 of CPC to enable the claimants/appellants to tender their evidence before the Tribunal on these documents.

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Sd/JUDGE

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Sd/-

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SBN

Smt Sudha v. Bajaj Allianz General Insurance Company Limited

Case brief

What is this about?

What did the court decide?

Smt Sudha v. Bajaj Allianz General Insurance Company Limited

Case brief

What is this about?

What did the court decide?

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