Abhinay R. Runawal vs Malik

B.A. Patil, J.—This appeal was disposed of on 21-7-2015 by allowing the appeal. Thereafter, respondent No.1 herein filed a review petition in RP No.2000003/2016 and after issuance of notice to the respondents therein, the same was allowed by this Court on 14-3-2017 and the present appeal was restored to its original file and as such, today again the case has come up for the purpose of final disposal.

Heard the learned counsel appearing for the appellant and learned counsel appearing for respondent Nos. 1 and 2.

The present appeal is filed by the owner of the vehicle assailing the judgment and award dated 30-6-2011 passed in MVC No.2031/2009 by the MACT-II, Bijapur.

Brief facts which gave rise to this appeal are as under:

The claimant-Malik alleged to have sustained injuries when a JCB bearing registration No.KA-28/M-6964 came in a negligent manner while he was sitting in a layout and dashed against him. He filed a claim petition against the owner and insurer of the JCB. It was contested by the insurance company. The Tribunal on appreciation of the evidence placed on record while answering the issue on negligence reached a conclusion that the JCB in question has been falsely implicated. But, strangely, the Tribunal held that since the owner remained absent it is collusion between the owner of the JCB and the claimant to dupe the insurance company and hence, the Tribunal ordered the owner of the JCB to pay the award amount. Aggrieved by the liability fastened on the owner, this appeal is preferred.

The main grounds urged by the learned counsel for the appellant is that the liability which has been fixed on the owner of JCB is not in accordance with law as the said JCB was not involved in the alleged accident. He has also contended that there was no rash and negligent driving on the part of the said JCB. The Tribunal has not considered the said aspects and has wrongly assessed the facts and has passed the impugned judgment and award. As such, he prays for allowing the appeal.

Per contra, Sri. Raju S. Korahalli, learned counsel appearing for respondent No.1 submits that the Tribunal after assessing the evidence and material placed on record has rightly allowed the petition and has awarded just and reasonable compensation. He has also contended that there are no good grounds made out by the appellant and he has remained ex parte before the Tribunal and as such, now he cannot raise any such grounds before this Court so as to allow the appeal. On these grounds, he prays for dismissal of the appeal.

Learned counsel appearing for respondent No.2-insurance company submits that the said vehicle has not met with an accident and there was not rash and negligent act on the part of the driver of the said JCB and the insurance company is no liable to pay any compensation. On these grounds, he prays for dismissal of the appeal.

From the above submissions made by the learned counsel appearing for the parties, the only point arises for consideration in this appeal is,

"Whether the Tribunal is justified in fastening the liability on the owner of the JCB when the Tribunal reached a conclusion that the JCB was falsely implicated?"

Case of the claimant before the Tribunal is that while he was sitting in a layout, JCB came in a rash and negligent manner and dashed against him causing injuries. Whereas the insurance company has denied the very involvement of the JCB in the alleged accident. The appellant who has preferred this appeal has specifically contended that the said JCB is not involved in the alleged accident as such, he is not liable. Though Ex.P16-case sheet of Anand Hospital, Bijapur, has been produced to show that the claimant has sustained injuries but on going through the said records, it would indicate that the said injuries are as a result of fall from JCB. From Anand Hospital, he was taken to BLDE Hospital where he furnished the history as fall. Further, he was taken to Miraj Hospital where he gave history that he has sustained injuries on account of dash by the Jeep. The Tribunal on going through all these medical records issued by all the three hospitals has observed that the complaint was lodged on 18-9-2009 though the accident is said to have taken place on 10-9-2009 and has rightly come to the conclusion that the said JCB has been falsely implicated just to claim compensation. When the Tribunal has held that the JCB has been falsely implicated, the question of awarding compensation and fastening liability on the appellant does not arise at all. However, the Tribunal only on the ground that the appellant remained absent and has not participated in the proceeding could not have fastened the liability on the owner and it ought to have dismissed the claim petition. There is ample material to show that the said JCB has not involved in the accident and other medical records also indicate that he has given different version at different hospitals. Under such circumstances, the claim petition is liable to be dismissed.

Keeping in view the above facts and circumstances of the case, the judgment and award passed by the Tribunal requires to be set aside. Accordingly, I pass the following:

ORDER

The appeal is allowed. The judgment and award dated 30-6-2011 passed in MVC No.2031/2009 on the file of the MACT-II, Bijapur is hereby set aside and the claim petition is dismissed.

No costs.

The amount, if any in deposit before this Court is ordered to be transmitted to the Tribunal and the same be refunded to the owner of the vehicle.