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1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF DECEMBER, 2018 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.55403/2018(GM-A/C) BETWEEN:
REGIONAL MANAGER N SHANMUGAM, THE NEW INDIA ASSURANCE CO. LTD., MOTOR THIRD PARTY HUB #9/2, MAHALAKSHMI CHAMBERS, II FLOOR, M. G. ROAD, BENGALURU-560 001. ... PETITIONER
(BY SRI A. N. KRISHNA SWAMY, ADVOCATE)
AND:
R. V. KRISHNA REDDY, S/O BALA REDDY AGED ABOUT 48 YEARS RESIDING AT #9-53-1 NEW DILISH NAGAR COLONY ROAD NO.2, VIKAS COLONY HYDERABAD-500004. ANDHRA PRADESH. REPRESENTED BY HIS WIFE NEXT FRIEND SMT. R. NAVEENA W/O SRI R. V. KRISHNA REDDY, AGED ABOUT 46 YEARS.
R. PARI S/O S K RAMASWAMY,
2 SRI VIJAYALAKSHMI MOTORS, CHOWDESHWARI TEMPLE STREET BATAWADI TUMKUR-572 101.
SMT. BHARATHI, AGE:MAJOR W/O MAHADEVA REDDY, NO.54, KHB COLONY, KENGERI UPANAGARA, BENGALURU-560 060. ... RESPONDENTS
(BY SRI M. B. CHANDRACHOODA, ADVOCATE FOR C/R1)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 01.12.2018 AS PASSED BY MACT, COURT HALL NO.3 BANGALORE IN MVC NO.7324/2009 AS PER ANNEXURE-P.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The Regional Manager, New India Assurance Company Limited, filed the present writ petition against the order dated 01.12.2018 rejecting the application filed by the petitioner under Order XXXII Rule 1 r/w Section 151 of Code of Civil Procedure and Sections 168
3 and 169 of the Motor Vehicles Act, with costs of `1,000/-, taking the evidence of respondent as closed and posted the matter for arguments.
I. Facts of the case
The first respondent filed claim petition under the provisions of Section 166 of the Motor Vehicles Act before the Motor Accident Claims Tribunal, Bengaluru, claiming compensation of `90 crores for the injuries sustained on account of the accident that occurred on 17.08.2009 while he was proceeding in a car bearing registration No.KA-41/M-193 from Bengaluru to Mysuru, raising various contentions. The respondents before the Tribunal filed objections and denied the averments made in the claim petition. The parties have lead their evidence and at that stage, the present petitioner/Insurance Company filed an application under Order XXXII Rule 1 r/w Section 151 of Code of Civil Procedure and Sections 168 and 169 of the Motor
4 Vehicles Act, seeking to discharge Smt. Naveena, wife of the petitioner before the Tribunal from acting as a next friend and to direct the petitioner to prosecute the claim petition, contending that, the claim petition was instituted on 01.09.2009, and on 18.03.2011, the wife of the petitioner by name Smt. Naveena sought permission of the Court to prosecute the claim as next friend of the petitioner alleging that the petitioner is not in a position to move about and take care of his interest. The evidence of Dr.Sharan Srinivas was also produced to justify the grant of such permission and the Tribunal granted the permission. The applicant had cross- examined the witness after getting them recalled. The evidence brought on record gives a definite indication that the petitioner has continued his contractor job even after occurrence of the accident. The income tax returns subsequent to the year of accident shows a clear picture about enormous income being earned by
5 the claimant by actively engaging himself in the contract job.
It is further case of the petitioner that, it has come in the evidence that the claimant is performing all acts as he was doing prior to the date of accident in managing contract work personally supervising various railway contract work being undertaken by him at different destinations and states. Therefore, the claimant is not suffering from any disability and he is normal human being for all practical purpose and he has appeared before the Court and has answered the questions posed by the Court and also advocate representing the respondent. The claimant has traveled to Bengaluru umpteen number of times from Hyderabad by bus, train and air, subsequent to 2010. Therefore, he is capable to prosecute the present case and hence, sought to allow the application.
6 II. Objections filed by the claimant to the application filed by the present petitioner
The said application was resisted by the first respondent herein/petitioner before the Tribunal by filing objections, contending that he is not capable of prosecuting the case, the doctor who examined the petitioner has issued the disability certificate holding that the petitioner is suffering 60% disability and unable to give evidence before the Court and sought for dismissal of the application.
The Tribunal, considering the application and objections, by the impugned order dated 01.12.2018, rejected the application. Hence the present writ petitin is filed for the relief sought for.
III. Arguments advanced by the learned counsel for the parties
I have heard the learned counsel for the parties to the lis.
Sri A.N.Krishna Swamy, learned counsel for the petitioner-insurance company contended with vehemence that the impugned order passed by the Tribunal rejecting the petitioner’s application is erroneous and contrary to the material on record. He further contended by virtue of the provisions of Section 168 of the Motor Vehicles Act, the Tribunal is expected to hold an inquiry as to the genuineness of entire claim, since complete materials including evidence of next friend to the effect that the injured is freely moving and managing all his contractual works and visits to various locations, the Tribunal has not considered various photographs and admissions made by the wife of the claimant to the effect that there exists no compelling circumstances to continue the next friend till the disposal of the case. The same is not considered by the Tribunal.
8 8. He further contended that the Tribunal failed to notice the contents and averments made in Annexure-A and certificate of Dr.Sharavan Srinivas and his depositions, the same would indicate that non- application of mind while passing the impugned order. He would further contend that in order to determine the just compensation, the presence of the claimant is necessary. When the claimant is capable of doing his own business, he can very well prosecute, instead of his wife acting as next friend. Therefore, he sought to quash the impugned order passed by Tribunal by allowing the writ petition.
Per contra, Sri M.B.Chandrachooda, learned counsel for the respondent No.1/claimant sought to justify the impugned order passed by the Tribunal and contended that the matter is of the year 2009. The wife/next friend of the claimant has already been examined, cross-examined and evidence of the opposite
9 side is also over. At the instance of the present petitioner/insurer, the claimant was brought before the Court on 16.07.2018 and the Court as well as the learned counsel for the insurer posed some questions to the claimant. The Tribunal has categorically recorded that the claimant stammers to talk and he deposed that he does not remember the accident and treatment taken, he cannot turn back and front and cannot write. The Tribunal further observed that the claimant stammers and take long time to speak sentence. He also contended that the at the instance of the present petitioner, the Director of Medical Board was summoned, examined and cross-examined. Therefore, the impugned order is just and proper and sought for dismissal of the writ petition.
10 IV. The point for determination 10. In view of the rival contentions urged by the learned counsel for the parties, the only point that arises for consideration is:-
“Whether the petitioner has made out a case to interfere with the impugned order passed by the Tribunal rejecting the application filed by the petitioner herein under Order XXXII Rule 1 r/w Section 151 of Code of Civil Procedure and Sections 168 and 169 of the Motor Vehicles Act, in the facts and circumstances of the case?”
V. Consideration
I have given my anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record, carefully.
It is the specific case of the claimant that on account of the accident that occurred on 17.08.2009, he
11 sustained head and other injuries. Therefore, he filed a claim petition under Section 166 of the Motor Vehicles Act before the MACT, Bengaluru, claiming compensation of `90 crores, raising various contentions. It is also not in dispute that the respondent-insurer filed objections and the matter was proceeded with the evidence of both the parties. After completion of evidence of both sides, an application came to be filed by the insurer to discharge the wife of the claimant from acting as next friend on the ground that the claimant is capable of prosecuting the case by himself. It is the specific case of the claimant that at the instance of the insurer- present petitioner, the claimant was summoned to the Court on 16.07.2018, claimant was not in a position to answer the Court queries as well as questions posed by the learned counsel for the insurer. It is also the case of the claimant that at the instance of the insurer, the Director of Medical Board was summoned, examined and cross examined.
The Tribunal, considering the entire material on record, recorded a finding that, as many as six witnesses from the side of petitioner have been examined. The respondents have also led evidence and even though during the course of respondents’ evidence, respondent No.1 had filed similar application and later on he got it dismissed as not pressed and when the petitioner was present before the Court, in the presence of counsel for the parties and an official of the insurer, the Tribunal posed some questions to the claimant and he stammered to talk and submitted that he does not remember the accident and treatment taken and he cannot turn back and front and cannot write. The Tribunal further observed that the claimant stammers and takes long time to speak sentence. It is further recorded that when the case is at the fag end, the fourth respondent has filed the application stating that respondent Nos.1 and 4 are the same insurance
13 companies and fourth respondent was very much present before the Court and posed questions to the petitioner and he has also led evidence and the Medical Board has also issued certificate regarding the disability of the petitioner and the Director of Medical Board was summoned by the fourth respondent for cross- examination and he was examined who has stated that the petitioner has suffered 60% disability and he may not have any improvement. Moreover, the claimant has suffered head injuries. The applicant has not given any grounds or reasons why they want to discharge the petitioner’s next friend but it is only contention that the claimant is hale and healthy and nowhere in the evidence of the Doctor it is elicited that petitioner is hale and healthy. The respondent also summoned the record keeper of NIMHANS and almost all the witnesses have been examined and cross-examined. At that stage, the application is filed and the applicant has not at all made out any ground for allowing the application.
The Tribunal, further recorded a finding that the petitioner answered the questioned posed to him and has stated that he is getting giddiness and he does not remember the date of the accident and wife of the petitioner has also stated that the claimant is doing his work slowly and even the respondents have been given ample time to lead evidence. Therefore, the Tribunal rejected the application and also recorded a finding that number of records have been placed the Court, however it has to be decided after full-fledged Trial. With this finding, the Tribunal rejected the application. For the reasons stated supra, the point raised in the present writ petition has to be answered in the negative holding that the petitioner has not made out any case to interfere with the impugned order passed by the Tribunal.
15 VI. CONCLUSION:
In view of the above, the petitioner has not made out any ground to interfere with the impugned order in exercise of powers under Articles 226 and 227 of the Constitution of India. Accordingly, writ petition is dismissed.
However, it is clear from the material on record that the evidence of the respondents/ petitioner herein has been taken as closed and the matter is posted for arguments. It is well settled that no person can be deprived to lead evidence. In view of the above, the petitioner herein is permitted to lead evidence, if any, on the next date of hearing and it is open for the claimant to cross-examine on that day. The petitioner shall not drag the matter further, since the matter is of the year 2009.
Any observations made by the Tribunal, while rejecting the application shall not come in the way of
16 either of the parties to establish their independent rights and the Tribunal shall proceed, strictly in accordance with law.
Ordered accordingly.
Sd/-
JUDGE
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