GOVINDASWAMY vs SRI. KANTESHA & Anr

Heard the learned counsel for the appellant and the learned counsel for the 2nd respondent-insurer, perused the records.

This appeal is by the injured-claimant, challenging the legality and correctness of the impugned Judgment dated 11.08.2014, passed by the

Senior Civil Judge and MACT., at Kadur, Chikmagalur district, made in M.V.C. No.151/2008, whereby, the learned trial Judge dismissed the

claim petition filed by the appellant herein, as not maintainable.

The facts of the case are that on 18.06.2006 at about 9.00 a.m, the injured-claimant being a pillion rider and deceased Sathish, the rider of the

motorcycle bearing registration No.KA-18/L-6650 were returning from Begur village and moving towards N.G. Halli, near Hailapura village, after

delivering the marriage invitation to the relatives of the petitioner. At that time, Tractor & Trailer No.P21002/GH000221, chassis No. QVTK

70604000541 came from opposite direction, driven in a rash and negligent manner by its driver, dashed against the motorcycle. Due to the said

accident, the rider of the motorcycle, namely, Sathish died at the spot and the petitioner-appellant herein sustained grievous injuries. Hence, the

petitioner-appellant filed claim petition under Section-166 of the IMV Act, 1989 and subsequently got amended the same under Section-163-A of

the IMV Act.

Shri. Showri. H.R., learned counsel for the appellant, drawing the attention of this Court to the Judgment rendered by the Division Bench of this

Court, in the case of Smt. Najmunnisa and others - vs- The Regional Office, Oriental Insurance Company Ltd., (2012 (4) Kar. L.J. 523 (DB)

submits that the findings arrived by the learned trial judge is not correct and prays for setting aside the same.

Smt. Harini Shivananda, learned counsel for the 2nd respondent-insurer fairly concedes that this matter requires to be remitted back to the trial

Court for fresh consideration.

It is just and appropriate to extract the relevant portion of the rulings rendered by the Division Bench of this Court in Najmunnisa''''s case

referred supra, which reads thus:

xxxx Even if the amendment application was allowed, the Tribunal was required to look into the income tax returns and other documentary

evidence produced by the claimants and based on the same, by rejecting the application filed under Section-163 of the MV Act, it was required to

consider the case of the claimants under Section-166 of MV Act. This Court also declined the request made by the learned Counsel for the

claimants to treat the petition filed as one under Section-166 of MV Act, and to grant compensation suitably. In our view, it is for the member of

the Tribunal to find out the claim lodged by the claimants and thereto decide whether it falls within the ambit of Section 166 of MV Act or not?.

Admittedly, it is the case of the claimants in at the deceased was getting an income of more than Rs.2,00,000/- per annum as on the date of the

accident. If it is so, it was for the Tribunal to consider his declared income as per the income tax returns and proceed with the matter. In the

circumstances, we are of the opinion that the Tribunal has committed a serious error in considering the application under Section 163 of MV Act,

when the income of the deceased was more than Rs.2,00,000/- per month.

In the case on hand, the learned trial Judge, formulated the following additional issue No.1 which reads thus:

Whether the petitioner proves that he has made out sufficient grounds and is entitled for compensation under Section- 163-A of IMV Act?"".

While answering the said additional issue No.1 in the negative, the learned judge of the trial Court held that the claim petition filed by the claimant-

appellant herein under Section-166 of the M.V. Act, as not maintainable.

In view of the legal principle enunciated by the Division Bench of this Court, in the case of Najmunnisa, referred supra, this Court is of the

considered view that the learned judge of the Trial Court was not justified in dismissing the claim petition as not maintainable. Hence, without

expressing any opinion on merits of the matter, it would be just and appropriate to set aside the impugned judgment and remand the matter for

fresh consideration.

Consequently, the appeal is allowed. The impugned judgment dated 11.08.2014 passed by the Senior Civil Judge & MACT., Kadur in

M.V.C.No.151/2008 is hereby set aside. The matter is remitted to the trial Court for fresh consideration, in accordance with law, keeping in view

the law laid down by the Division Bench of this Court, in the case of Najmunnissa referred supra, as expeditiously as possible, but not later than

the outer limit of three months from the date of receipt of certified copy of this judgment. Further, both the parties are directed to extend their co-

operation for expeditious disposal of the case and they are at liberty to adduce additional evidence, if any. All the contentions are kept open, to be

urged before the trial Court.

Office is directed to transmit the lower court records forthwith.