Rajashekarayya vs The National Insurance Company Limited

Anand Byrareddy, J.—Heard the learned Counsel for the appellant. It is to be noticed that the appellant''s claim for compensation was summarily rejected by the Tribunal holding that there was a doubt as to whether the appellant was injured in an accident as a result of a fall from a bullock cart or, as claimed by him as a result of a fall from a motor cycle, on which he was said to be riding pillion. The Tribunal has come to the conclusion that the injured was admitted to a hospital by one A.V. Swamy with a history of a fall from a bullock cart, at 10 a.m. on 15.4.2007. While it was sought to be urged by the appellant that he had been admitted to the hospital after a fall from a motor cycle. The Tribunal has held that it was a clear case aimed at seeking compensation on a false claim and has summarily rejected the claim petition. On an appeal before this court, this court had also affirmed the judgment of the Tribunal. However, a review petition was filed in RP 2051/2009 wherein the following order was passed:-

ORDER

This review petition u/s 114, C.P.C. is filed to review the judgment dated 11.11.2008 passed in M.F.A. No. 30182/08 (MV). The matter is posted for admission after notice to the respondents who are duly served, but not represented. Hence, the petition is admitted and taken up for final hearing.

Learned Counsel for the review petitioner, Sri Basavaraj R Math submits the appeal was filed questioning the judgment and award of the Tribunal dated 19.6.2008 in MVC No. 450/07 by which the claim petition of the appellant was rejected on the ground that nexus was not established between the injuries suffered by the claimant and the accident in question. He submits that on 11.11.2008, when he argued the matter before this court, he was not aware that in the collateral proceedings pending before the District Consumer Disputes Redressal Forum, Raichur, in Complaint No. DCFR. 90/2007, the same issue was being considered on serious contest between the parties, namely, L.Rs. of the rider of the motor cycle by name Rudraswamy and the insurer of the vehicle, which complaint came to be allowed, directing the insurance company to pay the amount of compensation in terms of the policy. He submits that the finding establishes that the petitioner who was one of the victims in the same road accident, was also entitled for the relief of compensation on the basis that he had suffered injuries in the motor accident. He submits, as he was not aware of the said proceedings, he could not bring to the notice of this court that the dispute raised by the insurance company before the Tribunal was already decided by the competent forum on 11.9.2008. Due to non-availability of the certified copy of the order, he did not produce it, nor brought those facts to the notice of the court, and he argued the matter on the basis of the records available and hence, could not satisfy the court.

Learned Counsel requests that the judgment in question be reviewed and the petitioner-appellant be given an opportunity to re-urge the grounds in his favour.

Having heard the learned counsel, I have examined the order passed in DCFR 90/07 dated 11.9.2008, copy of which is made available. It shows that one Smt. Gangamma and Vishwanath filed the complaint before the Forum seeking a direction to National Insurance Company Limited insurer to pay the assured sum of Rs. 1,00,000/- as also an equal sum for deficiency of service. They based their claim on the following set of facts:

a) On 15.4.2007, Rudraswamy along with one Rajashekarayya @ Shekarayya Swamy were proceeding on a motor cycle bearing No. KA-36/Q-7729; when they reached a spot within the limits of Kallur at 11.00 a.m. some cattle crossed the road due to which Rudraswamy lost control and hit against the stone guard. Consequent to the impact so generated, Rudraswamy suffered injuries which proved fatal, while Rajashekarayya suffered grievous injuries.

b) The insurer declined to honour their claim on the ground that the death of Rudraswamy was not in a motor vehicle accident.

c) The Forum allowed the parties to lead evidence and relevant documentary evidence which comprised charge sheet, post mortem report as also statement of witnesses, and held that the death of Rudraswamy was established. It was also proved that he was in possession of permanent driving licence and hence, relating his death to the accident in question, the claim was allowed.

I am satisfied that the petitioner is the victim in the same accident and was the pillion rider with deceased Rudraswamy and his claim should have been considered on the basis of undisputed facts, or on the basis of the finding of the Forum which has reached finality. However, as the claimant-petitioner did not make available the order referred to above, either before the Tribunal or before this court, merely on the basis of Ex. P7-wound certificate, it was held that sufferance of injuries by him was a result of fall from the bullock cart and not from the motorcycle. Thus, the claim was rejected.

In view of the fact that the Consumer Forum had already decided this issue and the insurance company has not questioned the same, the petitioner herein would be entitled to maintain the petition and it has to be considered on merits. In this view of the matter, the judgment dated 11.11.2008 passed in MFA 30182/08 is reviewed and recalled. MFA 30182/08 is restored to file and is directed to be posted for admission before the appropriate bench. The review petition is accordingly allowed.

In view of the categorical finding by a co-ordinate bench, as above, allowing the review petition holding that the appellant was a victim of an accident, where he was a pillion rider on a motor cycle and that it should be considered on that basis, it would be necessary to address the appellant''s claim particularly as regards his disability and loss of earning capacity and other heads of claim. In view of the Tribunal not having addressed the same and in the further circumstance that this court having already held that the claim of the appellant as to having fallen from a motor cycle to be accepted, it would be necessary for the Tribunal to reconsider the material evidence tendered by the appellant and to arrive at its findings as regards his claim for compensation.

Accordingly, the matter is remanded to the tribunal for a fresh consideration of the evidence and to address the claim for compensation. Since the accident was of the year 2007 and since several years have elapsed, it would be in the interest of justice that the consideration of the claim petition be expedited. Therefore, the tribunal is directed to address the case of the appellant expeditiously, in any event, to hear and pass a judgment within a period of four months from the date of receipt of a certified copy of this judgment.