Karnataka High Court
The Divisional Controller vs Smt. Yashodha on 10 April, 2023
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
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MFA No. 5/2020 c/w.
MFA No.3775/2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF APRIL, 2023
BEFORE
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
MISCELLANEOUS FIRST APPEAL NO. 5 OF 2020 (MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO.3775 OF 2021 (MV-I)
IN MFA NO.5/2020
BETWEEN:
THE DIVISIONAL CONTROLLER,
KSRTC, M.C. ROAD,
OPP. KEB MANDYA CITY,
(OWNER OF KSRTC BUS NO.KA-11-F-280)
NOW THROUGH CHIEF LAW OFFICER,
KSRTC BENGALURU.
...APPELLANT
(BY SRI. NAGARAJA K., ADVOCATE)
AND:
SMT. YASHODHA,
W/O. SRI. VEERABHADRE GOWDA,
AGED ABOUT 39 YEARS,
R/O. GULAGANAHALLI VILLAGE,
HERANDI HOBLI,
CHANNAPATNA TALUK,
RAMANAGARA DISTRICT.
...RESPONDENT
(BY SRI. RAJA L., ADVOCATE)
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THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.173(1) OF
MV ACT, AGAINST THE JUDGMENT AND AWARD DT.05.08.2019
PASSED IN MVC NO.853/2017 ON THE FILE OF THE I ADDITIONAL
SENIOR CIVIL JUDGE AND CJM, MANDYA, AWARDING
COMPENSTAION OF RS.4,68,000/- WITH INTEREST AT 6 PERCENT
P.A. FROM THE DATE OF PETITION TILL REALISATION.
IN MFA NO.3775/2021
BETWEEN:
SMT. YASHODHA,
W/O. VEERABHADRE GOWDA,
AGED ABOUT 41 YEARS,
R/O. GULAGANAHALLI VILLAGE,
C.H.PATNA TALUK,
RAMANAGARA DISTRICT.
...APPELLANT
(BY SRI. RAJA L., ADVOCATE)
AND:
THE DIVISIONAL CONTROLLER,
KSRTC, M.C. ROAD,
OPPOSITE TO KEB,
MANDYA CITY,
...RESPONDENT
(BY SRI. K. NAGARAJA, ADVOCATE)
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.173(1) OF
MV ACT, AGAINST THE JUDGMENT AND AWARD DT.05.08.2019
PASSED IN MVC NO.853/2017 ON THE FILE OF THE I ADDITIONAL
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SENIOR CIVIL JUDGE AND CJM, MANDYA, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THESE MISCELLANEOUS FIRST APPEALS HAVING BEEN
HEARD THROUGH PHYSICAL HEARING/VIDEO CONFERENCING
HEARING AND RESERVED ON 14.03.2023, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT, THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
COMMON JUDGMENT
The appellant in MFA No.3775/2021 who is the
respondent in MFA No.5/2020 had instituted a claim petition
against the respondent in MFA No.3775/2021 who is the
appellant in MFA No.5/2020 in MVC No.853/2017 in the Court
of I Additional Senior Civil Judge and CJM, Mandya (hereinafter
for brevity referred to as 'the Tribunal'). The said claim petition
was filed under Section 166 of Motor vehicle Act (hereinafter
for brevity referred to as 'M.V. Act') seeking compensation
from the respondent therein for the injuries said to have been
suffered by her in road traffic accident said to have been
occurred on 18.08.2015.
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2. The summary of the case of the claimant before the
Tribunal was that on the date 18.08.2015 when she was
traveling in a KSRTC Bus bearing registration No.KA-11/F-280
from Malavalli to Mandya, while she was alighting from the bus
at about 1.15 p.m. near Nanda Talkies bus stop, the driver of
the KSRTC bus, all of a sudden, in a rash and negligent
manner moved the bus forward. Due to which, she fell down
from the bus and sustained grievous injuries to her waist,
head and other parts of the body. She was taken to District
Hospital at Mandya where, she was treated as an inpatient for
more than 15 days and later even after her discharge from the
hospital also she was continued to be in medical treatment.
Claimant has stated that she has spent `50,000/- towards
medical expenses and required another `50,000/- towards
future medical expenses, as she has to undergo one more
surgery as advised by the Doctor. She has also stated that she
has spent `50,000/- towards food, diet, traveling and
attendant charges and other incidental expenses. She stated
that at the time of accident she was aged 37 years and was an
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agriculturist. She was getting an income of `10,000/- per
month. Entire family members were depending upon her
income. She has held respondent, being the owner cum
insurer of the offending bus, liable to pay compensation of a
sum of `15,00,000/- as per the claim petition.
3. In response to the notice respondent- KSRTC
appeared through its counsel and filed statement of objections
denying the allegations made by the petitioner. It contended
that the bus moved as per the instructions of the Conductor,
as such, there was no person nor the claimant has fallen down
from the bus. It also contended that the claimant might have
fallen from another bus or by herself and has filed false case
against the alleged offending bus only to make unlawful gain.
4. Based on the pleadings of the parties, the Tribunal
had framed the following issues for consideration:
ISSUES
1. Whether the petitioner proves that on 18.08.2015 at about
1.15 p.m. the petitioner was traveling in a KSRTC bus
bearing reg. no.KA-11/F-280 from Malavalli to Mandya being
driven by its driver in an actionable rash and negligent
manner. When bus was near Nanda talkies bus stop it
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stopped for alighting the passengers while the petitioner was
about to get down from the bus, at that time the driver of
the KSRTC bus drove the bus forward in a very rash and
negligent manner. On account of which the petitioner fell
down from the bus and sustained grievous injuries?
2. Whether the petitioner is entitled to the compensation if so
to what quantum and from which of the respondents?
3. What order?
5. Before the Tribunal, the petitioner got examined
herself as PW-1 and had examined her husband as PW-2, got
marked 49 documents from Exs.P.1 to P.49. One
Dr. Ravikumar was examined on commission as CW-1, 5
documents were got marked through this witness. On behalf of
the respondent, got examined its driver as RW-1.
6. After recording the evidence led before it and
hearing the arguments it answered issue No.1 in affirmative
and issue No.2 partly in affirmative and proceeded to pass
impugned judgment and order.
7. After hearing both sides and analysing the evidence
and the materials placed before it, the Tribunal has awarded
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the compensation under the following heads with the sum
shown against them:
Compensation heads Compensation
amount in `
Pain and suffering 50,000.00
Medical expenses 28,000.00
Loss of future earning 2,88,000.00
Loss during laid up period 32,000.00
Loss of amenities 10,000.00
Food, nourishment and conveyance 10,000.00
Future medical expenses 50.000.00
Total 4,68,000.00
8. The Tribunal awarded compensation of a sum of
`4,68,000/- with interest at 6% per annum thereupon, holding
the respondent liable to pay the said compensation amount
within two months from the date of order. Aggrieved by the
impugned judgment and order dated 05.08.2019 passed by
the Tribunal the respondent before the Tribunal has filed MFA
No.5/2020 seeking setting aside of the impugned judgment
and order and dismissing the claim petition. On the other
hand, claimant before the Tribunal has filed MFA
No.3775/2021 seeking enhancement of the compensation.
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9. The respondents herein are represented by their
learned counsel.
10. Though this matter was listed for admission,
however, at the request of learned counsel from the both side,
the matter was taken up for its final disposal. The Trial Court
records were called for and the same are placed before this
Court.
11. Heard the arguments from both side. Perused the
materials placed before this Court including the memorandum
of appeal, impugned judgment and also the Tribunal Court
records.
12. Learned counsel for the appellant in MFA No.5/2020
in his arguments submitted that there is delay of three days in
filing the complaint, further wound certificate at Ex.P.4 clearly
would go to show that claimant was examined only on
20.09.2015 by the Doctor, thus three weeks after the alleged
road traffic accident, the claimant has approached the Doctor.
This itself would go to show that the filing of the claim petition
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is purely an afterthought as such, to procure some document
with such an afterthought the claimant has approached the
Doctor a long after the occurrence of the alleged road traffic
accident. He further submitted that all the medical documents
produced by the claimant before the Tribunal were all prior to
the alleged road traffic accident dated 18.08.2015. Further,
the Tribunal without considering all these aspects and merely
being carried away by the charge sheet shown to have been
filed by the police against the driver of the KSRTC bus and
accepting the medical bills and subsequently created medical
records, has awarded the compensation as such impugned
judgment and order award deserves to be set aside.
13. Per contra, learned counsel for the respondent in
MFA No.5/2020 who is appellant in MFA No.3775/2021 in his
single sentence argument submitted that the claimant
deserves an enhanced compensation.
14. In support of her claim petition claimant
Smt. Yashoda got herself got examined as PW-1 before the
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Tribunal. In her examination-in-chief in the form of an affidavit
evidence she reiterated the contention taken up by her in her
claim petition. She stated that on the date of alleged accident
i.e., on 18.08.2015 because of her personal work in order to
go to Mandya she was traveling in KSRTC bus bearing
registration No.KA-11-F-280 from Malavalli to Mandya. She
had purchased a ticket for her travel. The bus which left
Malavalli in the afternoon came in front of Government
Hospital, Mandya where the Nanda Talkies was situated. The
bus stopped near the said Nanda Talkies at about 1:15 p.m.,
while she was attempting to get down from the bus, driver all
of a sudden drove the bus with his negligence, due to which,
she has fallen down on the road and became unconscious.
When she regained conscious she was in Government Hospital
at Mandya. She stated with respect to road traffic accident,
her husband has lodged a complaint with the Traffic Police at
Mandya in Crime No.123/2015. She specifically alleged that
accident in question has occurred due to rash and negligent
driving of KSRTC bus bearing registration No.KA-11/F-280 by
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its driver. In support of her contention she got produced and
marked Exs. P.1 to P.49, which interalia which includes the
copies of the complaint, FIR, Mahazar, Seizure Mahazar, IMV
report, wound certificate, charge sheet, certified copy of the
order sheet and certified copy of evidence of PW-1 in C. C. No.
2124 / 2015.
15. In her cross - examination, denial suggestions were
made to her which she has not admitted as true. It was also
suggested to witness that she has filed a false case against the
respondent. One Sri. Veerabhadre Gowda, husband of PW - 1
was examined as PW - 2. The said witness has stated that PW - 1
is his wife. On the date of accident i.e., 18.08.2015 in the
afternoon, he received a phone call informing him about the road
traffic accident, immediately, he came to the Government
Hospital at Mandya and enquired his wife who was under
treatment there. He came to know that while she was alighting
from K.S.R.T.C bus the driver of the bus moved the vehicle
negligently due to which, she fell down and sustained injuries. In
that regard, he lodged a complaint before the traffic police
Mandya in Crime No. 123/2015 and has been stated that the said
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case is still pending before the competent Magistrate Court.
He too was subjected to detailed cross - examination from the
respondent side. However, he has denied the denial
suggestions made to him in his cross - examination.
16. On behalf of the respondent before the Tribunal, the
Driver of the alleged offending bus was examined as RW - 1.
The said witness in his evidence though, has stated that on the
date of accident he was the driver of the alleged offending bus,
was specifically stated that complainant has given false
information against him and has lodged a false case. He has
stated that though no alleged accident has taken place,
however, the claimant has falsely stated that she fell from the
K.S.R.T.C. bus being driven by him ( RW - 1 ). He specifically
stated that no accident as alleged by the claimant has taken
place. In his cross - examination it was suggested to the
witness that claimant was traveling as a passenger in the bus,
however, the witness has not admitted the said suggestion but
pleaded his ignorance. It was also suggested to the witness
that the claimant has produced the
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bus ticket to show that she was traveling in the bus at the
time of accident. Even to that the witness has stated that he
does not know that she has produced the bus ticket.
17. In the light of the above pleadings and evidence of
the parties to the claim petition, the primary question that
arises is whether the claimant has proved as she was traveling
in the KSRTC bus bearing registration No.KA-11/F-280 on the
date and time mentioned by in her claim petition. Unless she
proves that she was traveling in the bus as a passenger, her
further evidence about the occurrence of road traffic accident
and she sustaining any injury due to the alleged rash and
negligent driving of bus by its driver becomes very suspicious
to believe.
18. The evidence of both claimant, as well as PW-1 and
her husband - PW-2, was that immediately after accident the
injured claimant was taken to District Hospital, Mandya and
was admitted there. According to PW-1 she was inpatient in
the said hospital for about 10 days and thereafter she
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continued her treatment in a private hospital at
Channapattana and from there to KIMS Hospital at Bengaluru.
PW-2 the husband of the claimant has even stated further that
on 18.08.2015 after coming to know through phone that his
wife has met with an accident, he visited Government Hospital
at Mandya and saw his wife (claimant) taking treatment there
and enquired from her the details of the accident.
Thus, according to PW-1 and PW-2, immediately after her
accident, the claimant was taken to District Hospital, Mandya
and was admitted there as an inpatient. Therefore, there
ought to be necessarily some medical records to show that on
18.08.2015 itself the claimant was brought to District Hospital,
Mandya with the history of road traffic accident and she was
admitted there as an inpatient. However, none of the medical
records, produced by the claimant which includes, four out
patient slips from Exs.P.10 to P.13, wound certificate at
Ex.P.6, discharge summary at Ex.P.28 mentions that the
claimant was admitted at District Hospital, Mandya on
18.08.2015. On the contrary, the wound certificate at Ex.P.6
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though shows that claimant visited the District Hospital with the
history of fall from bus but such a visit to hospital was not on the
date of accident i.e., 18.08.2015 but it was on 10.09.2015 at
3:15 p.m. Among the four outpatient slips the three slips at
Exs.P.10, P.12 and P.13 are of very prior in dates i.e., of the
year 2014, 2015 and 2017 which have got no connection with
the road traffic accident said to have occurred on a later date
i.e., on 18.08.2015. The other OPD slip at Ex.P.11 appears to be
tampered in its date from 10.08.2015 to 20.08.2015 however,
the said document nowhere mentions about the road traffic
accident and the injuries said to have been sustained by the
patient (claimant) in the road traffic accident said to have taken
place on 18.08.2015.
Even according to the claimant (PW-1) immediately, after
the accident she was shifted to District Hospital, Mandya and she
was treated as inpatient for ten days. If that were to be the case,
she cannot go to Sri. Mathrushree Orthopadic & Trauma Centre
which is shown to have issued the OPD slip at Ex.P.11
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and taken treatment on 20.08.2015 which is within three days
of the occurrence of the alleged road traffic accident.
19. Lastly, discharge summary said to have issued by
the MIMS (generally called as District Hospital, Mandya) also
shows that claimant was admitted as inpatient only on
10.09.2015 and was discharged from hospital on 19.09.2015.
Thus, there is no medical record to show that on 18.08.2015
itself she was admitted to District Hospital, Mandya and was
inpatient there for a period of ten days. PW-2 the husband of
claimant has stated that after coming to know about his wife
sustaining injury and admitted to hospital he has lodged police
complaint before the police. The copy of the said complaint
was marked for the claimant side at Ex.P.2 which the witness
has identified as given by him. Even in the said complaint also
the complainant (PW-2) has stated that immediately after the
accident his wife Yashoda (claimant) was taken to District
Hospital, Mandya and she was under treatment there. Had that
been the truth, definitely they should be having some medical
records to show that claimant Smt. Yashoda was taken to
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District Hospital, Mandya and was admitted there on alleged
date of accident i.e., 18.08.2015 itself. Admittedly, no
documents in that regard has been produced from the
claimant side.
20. The Doctor by name Dr. Ravikumar is said to be a
resident Doctor at MIMS, Mandya was examined on
commission as CW-1 the said witness in his evidence though
has stated that on 18.08.2015 the claimant had come to their
hospital but stated that she was admitted as inpatient.
However, no documents to the effect that claimant was
admitted as inpatient on 18.08.2015 itself, has been produced
even by said witness also. The admission card produced and
marked at Ex.C.1 also shows the date of admission as
10.09.2015 only. The medical history sheet generally called as
case sheet which is at Ex.C.5, its first page does not show the
date of admission or examination of the patient. The only date
that can be found in the said document is 22/09 (2015).
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Had really the claimant sustained injury in the road traffic
accident and had taken to District Hospital, Mandya for her
treatment, the hospital authorities could have registered a
Medico Legal Case and informed the police. Admittedly, there is
no history of any Medico Legal Case in the instant case.
21. Therefore, there is nothing on record to show that on
18.08.2015 claimant Smt. Yashoda has sustained injuries in a
road traffic accident and as such she was admitted to District
Hospital at Mandya.
Secondly, the claimant as PW-1 in her cross-examination
has specifically stated that she had purchased a ticket for her
travel in the bus at the time of accident and that she has
produced the said bus ticket before the Tribunal in the matter.
Furthermore, in the cross-examination of RW-1 also a suggestion
was made to the witness suggesting that claimant had purchased
a ticket for her travel in the bus and that she has produced the
said ticket in the proceedings. The witness expressed his ignorance
about the same. Had really the claimant purchased a ticket and
traveled in the bus and also produced the said ticket before
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the Tribunal, then definitely the said travel ticket should have
been necessarily marked as exhibit and confronted to RW-1.
However, no such ticket has been marked as an exhibit in the
matter.
It is nobody's case that because of the alleged accident
the claimant has lost her ticket. On the other hand, even
according to claimant the alleged accident was of such a
nature that she falling down from the footboard of the bus
while alighting from the bus. In such a process, had really the
claimant been traveling in the bus by purchasing the ticket for
the alleged journey, there was no chances or possibility of she
losing the said ticket in the incident and it should have been
found with her. It is not even her case that when she was
alleged to have fallen down from the bus and become
unconscious she lost some of her belongings including bus
ticket. When no such contention is taken up by the claimant,
on the contrary, she herself has stated that she has produced
her traveling ticket before the Tribunal in the case and a
suggestion to that effect also made to RW-1 in his cross-
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examination, then, it was very much necessary of getting the
travel ticket marked as exhibit to prove that she was a
passenger in the alleged bus at the time of alleged
accident.These aspects makes the case of claimant that she
was traveling in the bus on 18.08.2015 very doubtful and not
safe to believe.
23. When the complaint to the police is shown to have been
given on 21.08.2015 no doubt, there is delay of 3 days from
the date of alleged road traffic accident in lodging the
complaint. The complainant who is the husband of the
claimant has stated that because he was involved in getting
medical treatment to his wife the delay has been caused in
lodging the complaint. Stating that investigation has been
conducted upon the said complaint, the police have filed a
charge sheet against driver of the alleged offending bus who is
RW-1, for the offences punishable under Sections 279, 337
and 338 of IPC and Section 187 of MV Act. However, there is
nothing on record to show as to how the said case ended, that is
for the reason that the accused in the said charge sheet who was
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examined as RW-1 in this matter before the Tribunal has
categorically denied of occurring any road traffic accident of
the bus of which he was the driver on 18.08.2015.
Even though, a certified copy of the order sheet and the
evidence of complainant therein (PW-2 herein), in the said
criminal case in C.C.No.2124/2015 in the Court of Principal
Civil Judge and JMFC, Mandya later shown to have been
continued in the Court of I Additional Senior Civil Judge & CJM
Mandya is produced however, both of them are incomplete.
Even the alleged deposition of complainant therein is also
incomplete, as such, it cannot be made out as how the
criminal case was ended. Though finding given in a criminal
case for the alleged offences punishable under Sections 279,
337, 338 of IPC may not be a deciding factor to decide rash
and negligent driving of alleged offending vehicle in a motor
accident claim petition under Section 166 of M.V. act,
however, in the instant case, in view of the lot of discrepancies
in the case of the claimant before the Tribunal and strong
defence taken up by the respondents before the
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Tribunal, the end result in the criminal case, pertaining to the
road traffic accident in question, could have been of some
relevance in deciding the claim petition of the claimant before
the Tribunal filed under Section 166 of M.V. Act. Therefore,
even as last resort also there is nothing on record to believe
that on the date 18.08.2015 claimant Smt. Yashoda was
traveling as a paid passenger in the KSRTC bus bearing
registration No.KA-11/F-280 and also to believe that a mishap
which she has called as road traffic accident occurred on the
said date while claimant was alleged to be alighting from the
bus resulting in she sustaining injuries.
However, the Tribunal without noticing the specific
defence and contention taken up by the respondents before it
and also without noticing the major and the material
discrepancies in the case of the claimant, has in a routine
manner accepted the contention of the PW-1 and PW-2 made
in their examination-in-chief and accepted police documents
Exs.P.1 to P.7 which led it to give a finding answering issue
no.1 framed by it in affirmative. Since the said finding given
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by the Tribunal in issue no.1 in affirmative, having established
to be erroneous, the second issue framed by it need not have
to be analised inview of the first issue being answered in the
negative. Resultantly, the second issue is also required to be
answered in negative, holding that petitioner is not entitled to
the compensation from the respondent before the Tribunal.
Thus, the impugned judgment and award deserves to be
interfered with.
24. In view of the finding to the fact that the claimant
before the Tribunal has failed to establish the alleged road
traffic accident and alleged rash and negligent driving of the
bus by its alleged driver, since she becomes not entitled for
any compensation towards alleged injury said to have been
suffered by her, the question of revisiting her claim and
contention in MFA No.3775/2021 wherein, she has sought for
enhancement of quantum of compensation does not arise.
Accordingly, I proceed to pass the following order:
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ORDER
(i) MFA No.5/2020 filed by the KSRTC stands allowed.
(ii) The MFA No.3775/2021 filed by the claimant is dismissed as devoid of merits.
(iii) The judgment and award dated 05.08.2019 passed by the I Additional Senior Civil Judge and CJM, Mandya in MVC No.853/2017 stands set aside.
(iv) The claim petition of the claimant in the said MVC 853/2017 stands dismissed as devoid of merits.
(v) There is no order as to costs.
(vi) Registry to draw modified award.
The amount, if any deposited by the appellant in MFA No.5/2020 be refunded to the appellant after the period of appeal/petition and if no appeal is filed.
The Registry to transmit a copy of this judgment to the concerned Tribunal along with its records without delay.
Sd/-
JUDGE BVK: List No.: 1 Sl No.: 43