Smt Lakshmi @ Lakshmamma Vs the Manager

THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT, 1988 AGAINST THE JUDGMENT AND AWARD DATED 27.08.2019 PASSED IN MVC NO.5310/2017 ON THE FILE OF THE VII ADDITIONAL SCJ AND ACMM, MEMBER, MACT-3, BENGALURU, DISMISSING THE CLAIM PETITION FOR COMPENSATION.

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HC-KAR

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THIS MISCELLANEOUS FIRST APPEAL IS COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE UMESH M ADIGA

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ORAL JUDGMENT

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This appeal is filed by the claimant being aggrieved by the judgment and award dated 27.08.2019 passed by the VII Additional Small Causes and ACMM, Member, MACT-3, Bengaluru (for short `Tribunal'), in MVC No.5310/2017 seeking enhancement of compensation.

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For the sake of convenience, the parties are

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referred to as per their ranking before the Tribunal.

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The brief facts of the case are that, on 20.07.2017, the claimant along with her husband was traveling in an autorickshaw bearing registration No.KA-05AE-0911, on the Kanakapura - Kumbalagudu road; near Agara Koli, the said autorickshaw met with an accident due to its rash and negligent driving. As a result, the claimant

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HC-KAR

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sustained grievous injuries. She took treatment as in-patient in the hospital. She has spent substantial amount towards medical expenses. Due to the injuries sustained in the accident, she has suffered permanent disability. With these reasons, prayed to award compensation of Rs.15,00,000/-.

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The respondent No.1 is the insurer and respondent No.2 is the owner of the offending motorcycle. Respondent No.2 remained ex parte before the Tribunal. Respondent No.1, in its written statement, denied the averments made in the claim petition and further contended that, as per the medical records, the accident occurred when a lorry hit the autorickshaw. These facts, according to the respondent, were suppressed by the claimant. The said auto rickshaw was not at all involved in the accident. With these reasons, prayed to dismiss the claim petition.

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From the rival contentions of the parties, the

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Tribunal framed necessary issues.

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HC-KAR

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The claimant to prove his case, examined three

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witnesses as PW-1 to PW-3 and marked 17 documents, as per Exs.P-1 to P-17. The respondent-Insurance Company has examined two witnesses as RW-1 and RW-2 and marked Exs.R.1 and R.2. After hearing the arguments, the Tribunal found that the appellant–claimant suppressed the real facts of accident. Medical records produced by the claimant indicate that the said autorickshaw was hit by a lorry and that it was a hit-and-run case. Although this fact was mentioned in the medical records, it was allegedly suppressed by the claimant. Therefore relying on the judgment of the Hon'ble Apex Court in the case of North West Karnataka Road Transport Corporation vs. Gourabhai and others¹ the Tribunal dismissed the claim petition answering issue No.1 in the negative. Since issue No.1 was answered in the Negative, the Tribunal did not calculate the amount of compensation, and claim petition was dismissed. The same is challenged in the present appeal.

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1 (2009) 15 SCC 165

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HC-KAR

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I have heard the arguments and perused the

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records.

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It was a consistent case of the claimant that accident occurred due to rash and negligent driving of autorickshaw by its driver. A criminal case was registered against the driver of the offending autorickshaw; charge sheet and its enclosures are placed on the record at Exs-P1 to P6. The charge sheet prima facie shows that accident occurred due to rash and negligent driving of autorickshaw by its driver. There is no reference regarding the involvement of the lorry. In the cross examination of PW-1, she has denied the suggestions of respondent No.1 that accident occurred due to negligence of driver of the lorry.

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Respondent examined RW-2- Investigating Officer and in his cross examination he has not supported the contentions of the respondent No.1 and has stated that he has not verified the medical records before filing the charge sheet against the driver of the autorikshaw. As rightly submitted by the learned counsel for the appellant, the

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HC-KAR

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involvement of the offending autorickshaw in the accident, claimant was travelling in the auto and she sustained injuries due to the said accident are not seriously in dispute.

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The claimant was a passenger in an autorickshaw and if the accident occurred due to involvement of both the vehicles, then the drivers of both vehicles were joint tortfeasors. It is pertinent to note that the charge sheet was not challenged either by the owner or the accused (driver of the auto rickshaw in question). It is nobody’s case that the autorickshaw was falsely implicated in order to claim compensation, despite not being involved in the accident. Under these circumstances, the mere fact that the precise manner in which the accident occurred was not properly reflected in the petition or in the evidence of PW-1, cannot be equated with a false implication of a vehicle solely for the purpose of claiming compensation . In view of these circumstances, it is necessary to interfere in the findings of the Tribunal on issue No.1.

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HC-KAR

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The learned counsel for both side submits that

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materials placed on record regarding the medical expenses etc. were not carefully considered by the Tribunal since the claim petition was dismissed. Hence, submits that matters may be remanded to the Tribunal for calculation of compensation amount. The learned advocate for the insurer seeks liberty to implead the alleged lorry involved in the accident to share its liability to pay compensation. The said submission is tenable.

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Accordingly, I pass the following:

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ORDER

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i. Appeal is allowed. ii. The impugned judgment and award passed in MVC.No.5310/2017 dated 27.08.2019 is set aside.

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iii. Liberty is given to the respondent No.1- insurer to implead the alleged owner and insurer of the lorry. In that event, the Tribunal shall consider the contributory negligence of both the joint - tortfeasors.

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HC-KAR

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iv. The Tribunal shall assess the amount of compensation for which claimant is entitled.

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v. To avoid further delay in disposal of the case, both the side parties shall appear before the Tribunal on 08.12.2025 without waiting for any notice from the Tribunal.

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Registry is directed to send back the trial Court records along with the copy of the judgment to the Tribunal, forthwith.

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Sd/-

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(UMESH M ADIGA) JUDGE

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AG List No.: 1 Sl No.: 13

Smt Lakshmi @ Lakshmamma v. the Manager

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Smt Lakshmi @ Lakshmamma v. the Manager

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