Karnataka High Court
Nagaraja vs G Uma Maheshwarappa on 18 February, 2013
Author: N.K.Patil
Bench: N.K. Patil
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 18TH DAY OF FEBRUARY, 2013,
: BEFORE :
THE HON'BLE MR. JUSTICE N.K. PATIL
M.F.A.NO.7361 OF 2009 (MV)
Between:
Nagaraja,
S/o. Dasappa,
Aged 36 years,
R/o. Ashoka Nagar Camp,
Near Nalkudre,
Channagiri Taluk,
Davanagere District.
... Appellant
(By Shri. Mahesh.R.Uppin, Advocate)
And:
1. G. Uma Maheshwarappa,
S/o. Late B.Gurubasappa,
Major,
R/o. Kalleshwara Nilaya,
No.815/62 & 63,
Shivakumaraswamy Badavane,
2nd Main, 4th Cross,
Davanagere-577 002.
2. The Manager,
Royal Sundaram Alliance Insurance Co., Ltd.,
Ranganatha Commercial Complex,
Shivamurthy Circle,
Kuvempu Road, Shimoga.
3. D. Ravi,
S/o. K.R. Dorairajan,
Major,
2
Manjushree Nilaya, I Main,
2nd Cross, I Stage,
Shivakumaraswamy Badavane,
Davanagere-577 002.
4. The Divisional Manager,
The New India Assurance Co., Ltd.,
Divisional Office, A.M.Arcade,
C.G. Hospital Road,
Davanagere-577 002.
... Respondents
(By Shri. O.Mahesh, Advocate for R2;
Notice to R3 dispensed with v/o. dated 09/08/2011;
R1 & R4 served)
****
This MFA is filed U/S 173(1) of MV Act, against the
Judgment and Award dated: 27/02/2009 passed in MVC No.
816/2008 on the file of the Principal Civil Judge(Sr.Dn),
Additional Motor Accident Claims Tribunal, Davangere,
partly allowing the claim petition for compensation and
seeking enhancement of compensation.
This MFA coming on for Hearing, this day, the Court
delivered the following:
JUDGMENT
This appeal by the claimant/appellant is directed against the impugned common judgment and award dated 27th February 2009, passed in MVC No.816/2008, by the Principal Civil Judge(Sr.Dn), Additional Motor Accident Claims Tribunal, Davangere, (for short, 'Tribunal' ), for enhancement of compensation 3 on the ground that, the compensation of `2,05,000/- with interest @ 7% p.a. awarded in favour of the claimant as against his claim for `7,98,000/-, is inadequate.
2. I have heard the learned counsel appearing for the claimant/appellant and learned counsel appearing for insurer.
3. Shri. Mahesh R. Uppin, learned counsel appearing for claimant/appellant submitted at the outset that, the Tribunal has grossly erred in passing the impugned common judgment and award, for the reason that the same is passed without affording reasonable opportunity of hearing to the appellant to lead oral and documentary evidence. To substantiate the said submission, he quipped to point out that the appellant has sustained grievous injuries, such as fracture of radius and ulna and head injury, resulting in hep proxic brain damage and he has undergone treatment as in-patient for nearly a month as per Exs.P35 and P36. If reasonable opportunity had been 4 afforded to the claimant/appellant, he would have substantiated his case regarding the nature of injuries sustained and also examined the Doctor regarding the percentage of disability suffered on account of injuries. Therefore, he submits that the impugned judgment and award passed by Tribunal insofar as the claimant herein is concerned, is liable to be set aside and the matter be remanded back to the Tribunal for reconsideration afresh, in accordance with law.
4. Per contra, Shri.O. Mahesh, learned counsel appearing for Insurer, after going through the impugned common judgment and award passed by Tribunal, submitted that, it is a fact that no opportunity as such has been afforded to the appellant to substantiate his case by leading oral and documentary evidence in pursuance of Exs.P35 and P36. Therefore, the impugned judgment and award passed by Tribunal, insofar as it relates to appellant herein, may be set aside and the matter be remanded back to the Tribunal for reconsideration afresh, in accordance with law. 5
5. After hearing the learned counsel appearing for both parties and after going through the impugned judgment and award passed by Tribunal, it can be seen that the occurrence of accident and the resultant injuries sustained by the appellant are not in dispute. It is also not in dispute that on account of the injuries sustained, the appellant took treatment as in-patient from 04-05-2008 to 31-05-2008 as per Exs.P35 and P36 and it also reveals that the appellant has sustained head injury hep proxic brain damage and also underwent an operation for fracture. After critical evaluation of the oral and documentary evidence available on file, it can be seen that it is a fact that the Tribunal has not afforded reasonable opportunity to the appellant to substantiate his claim for the accidental bodily injuries sustained. As per Exs.P35 and P36, the appellant has taken treatment as in-patient for nearly a month in SSIMS & RC Davangere. But, as rightly pointed out by the learned counsel appearing for appellant, there is no opportunity as such afforded by 6 Tribunal to adduce the oral and documentary evidence to substantiate the said claim made by him on account of the injuries sustained in the road traffic accident. Therefore, in view of non affording of reasonable opportunity to the appellant to lead oral and documentary evidence to substantiate his case that he is entitled for just and reasonable compensation for the bodily injuries sustained by him in the case, I am of the view that the impugned common judgment and award insofar as it relates to appellant herein, cannot be sustained and the same is liable to be set aside and the matter requires reconsideration by Tribunal, in accordance with law.
6. Therefore, in the light of the submission of the learned counsel appearing for both parties and also the discussion made above, without expressing any opinion on the merit or demerits of the case, I am of the view that interest of justice would be met, if the matter is remanded back to the Tribunal for reconsideration 7 afresh and permit the parties to lead additional oral and documentary evidence.
7. Having regard to the facts and circumstances of the case, as stated above, the appeal filed by the appellant is allowed.
The impugned common judgment and award dated 27th February 2009, passed in MVC No.816/2008, by the Principal Civil Judge(Sr.Dn), Additional Motor Accident Claims Tribunal, Davangere, only insofar as it relates to appellant herein, is hereby set aside;
Matter stands remitted back to the Tribunal to re-do the same afresh and decide the matter expeditiously, after affording reasonable opportunity of hearing to the parties, not later than six months from the date of receipt of a copy of this judgment;
Parties are permitted to file necessary application to adduce additional oral and documentary evidence, if any, within two 8 weeks from the date of receipt of a copy of this judgment;
In case such applications are filed by the parties, the Tribunal is directed to receive the same and pass appropriate orders in accordance with law, in compliance of the direction issued above.
Further, the parties are directed to appear before the jurisdictional Tribunal, either personally or through their counsel, on 04-03-2013, to enable them to collect the necessary dates of hearing;
All the grounds urged by the parties in this appeal are left open;
Office is directed to return the LCRs, if any, to the jurisdictional Tribunal, forthwith. Office to draw the award, accordingly.
SD/-
JUDGE BMV*