Karnataka High Court

The Divisional Manager vs S.Vijay on 2 July, 2021

Author: H.P.Sandesh

                            1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 2ND DAY OF JULY, 2021

                         BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

                 M.F.A.NO.1593/2013 (MV)

BETWEEN:

THE DIVISIONAL MANAGER
UNITE INDIA INSURANCE CO LTD.,
P.B.NO.88, II FLOOR,
RUB BUILING, A.A.CIRCLE,
B.H.ROAD, SHIVAMOGGA,
REPRESENTED BY ITS
DIVISIONAL MANAGER,
                                             ... APPELLANT

            (BY SRI P.S.JAGADISH, ADVOCATE FOR
                  SRI P.B.RAJU, ADVOCATE)
AND:

1.     S.VIJAY
       S/O SHEKARAPPA.M,
       AGED ABOUT 36 YEARS,
       MARKETING REPRESENTATIVE,
       R/O SHARAVATHINAGAR,
       SHIVAMOGGA.

2.     S.RAJENDRAPPA
       S/O SHESHA NAIKA,
       AGED ABOUT 34 YEARS,
       DRIVER OF HERO HONDA
       REG.NO.KA-14/U-3464,
       R/O. NEAR DROUPADAMMA CIRCLE,
       GOPALA, SHIVAMOGGA
                                 2



3.    Y.K.SURYANARAYANA
      S/O KRISHNASWAMY Y.R.,
      OWNER OF HERO HONDA,
      BEARING REG. NO.KA-14/U-3464,
      C/O. "NAMMA NADU" NEWS PAPER,
      N.T.ROAD, SHIVAMOGGA.                   ... RESPONDENTS

          (BY SRI NANDA KISHORE J., ADVOCATE R1;
       R3 IS SERVED; NOTICE TO R2 IS DISPENSED WITH
               VIDE ORDER DATED 30.07.2015)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 03.11.2012
PASSED IN MVC.NO.308/2008 ON THE FILE OF THE PRINCIPAL
SENIOR CIVIL JUDGE, MACT, SHIVAMOGGA, AWARDING A
COMPENSATION OF Rs.85,000/- WITH INTEREST @ 6% P.A.
FROM THE DATE OF PETITION TILL DEPOSIT.

     THIS MFA COMING ON FOR ADMISSION THROUGH
'VIDEO CONFERENCE' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
                  JUDGMENT

Though the appeal is listed for admission, with the consent

of learned counsel for both the parties, the appeal is taken up for

final disposal.

This appeal is filed challenging the judgment and award

passed in M.V.C.No.308/2008 dated 03.11.2012 on the file of

the Principal Senior Civil Judge and M.A.C.T. at Shivamogga

questioning the awarding of compensation of Rs.85,000/- with

interest at 6% per annum on the ground that the offending

vehicle was not involved in the accident and it is a case of self-

fall, after hitting the stray dog.

2. The factual matrix of the case is that the claimant

met with an accident on 30.04.2008 at about 4.30 p.m. near

Kalabhairaveshwara Temple, Sharavathinagar, Shivamogga and

sustained injuries due to the actionable negligence on the part of

the Hero Honda bike bearing No.KA-14/U-3464.

3. The claimant, in order to substantiate his contention,

examined himself as P.W.1 and got marked the documents as

Exs.P1 to P37. On the other hand, the respondents examined

three witnesses as R.Ws.1 to 3. R.W.1 is the Doctor, who made

the entry in the MLC extract, R.W.2 is the Investigating Officer,

who conducted the investigation and R.W.3 is the official witness

of the Insurance Company and relied upon the documents

Exs.R1 and R2.

4. The main contention of the appellant-Insurance

Company is that it is a case of motor cycle rider himself hitting

the stray dog and as a result, motor cycle skidded and he has

sustained injuries and the said fact has not been considered by

the Tribunal, in spite of the fact that the witnesses have been

examined and proved the same. Hence, it requires interference

of this Court.

5. This Court has issued notice to the claimant and the

claimant has appeared through counsel. The learned counsel for

the claimant has repeatedly not appeared before this Court and

hence, considering the material available on record and after

having heard the arguments of learned counsel for the appellant-

Insurance Company, the points that arise for consideration of

this Court are:

(i) Whether the Tribunal has committed an error in awarding compensation ignoring the documents particularly, Ex.P6 and Ex.R1 and not considering the evidence of R.Ws.1 and 3 and it requires interference of this Court?

(ii) What order?

Point No.(i)

6. Having considered the material on record, in the oral

evidence of P.W.1, it is his case that on account of negligence on

the part of the offending vehicle, he has sustained injury. In the

cross-examination, he admits that accident has taken place at

4.30 p.m. and immediately, he was taken to hospital at 5.54

p.m. in terms of Ex.P6 and contents of Ex.P6 are correct.

However, he claims that he lost conscious and he cannot say the

information given by the attendant, who took him to the

hospital. In the cross-examination, he also admits that in

respect of the motor cycle, he has paid the premium only in

respect of third party.

7. R.W.1, the Doctor in his evidence categorically

admits that he himself made the entries in respect of Ex.R1-MLC

categorically deposes that on the instructions of the claimant

himself, he noted the contents of Ex.R1. On perusal of Ex.R1, it

is clear that history is given as RTA while going by motorbike, it

skidded after hitting the stray dog at Aragoppa at about 4.30

p.m. on 30.04.2008. No doubt, it is mentioned in Ex.R1 also

that one Mahendra took him to hospital, on perusal of Ex.R1, it

is clear that patient is having conscious and TPR is also normal.

Hence, the very explanation given by P.W.1 that person, who

took the injured might have given the history cannot be

accepted. The evidence of R.W.1, the Doctor is specific that he

made the entries in the MLC on the information given by the

claimant himself. When such being the case, the Tribunal ought

to have considered Ex.R1 and also the evidence of R.W.1. The

Investigating Officer, who has been examined before the Court

categorically admits that he has not collected the MLC, while

filing the charge-sheet. R.W.3 also reiterates that it is a case of

fraud and the claimant falsely implicated the offending vehicle.

When the evidence of R.W.1 and the document Ex.R1 is very

clear that the injuries which have been sustained by the claimant

is on account of hitting the stray dog and motorcycle skidded

and he has sustained the injuries is only an after thought and

the vehicle has been falsely implicated and case has been

registered.

8. It is also important to note that the accident has

taken place on 30.04.2008 at 4.30 p.m. and the injured was

taken to the hospital at 5.54 p.m. and immediately, the

statement was given by the injured before the R.W.1 and spot

mahazar was conducted on 15.05.2001 i.e., almost after 15 days

of the accident. It is also important to note that complaint was

given on 14.05.2008 at 10.45 p.m. almost after 15 days of the

accident and this aspect has also not been considered by the

Tribunal and committed an error in allowing the claim petition,

ignoring the evidence of R.W.1, Ex.R1 and other material on

record. Hence, it is nothing but a case of fraud implicating the

offending vehicle to make wrongful gain and fraud and justice

should not dwell together. Therefore, it is a fit case to set aside

the judgment and award passed by the Tribunal on the ground

that vehicle has been falsely implicated in the case, in order to

make wrongful gain by the claimant and the claim petition itself

is liable to be dismissed.

Point No.(ii)

9. In view of the discussions made above, I proceed to

pass the following:

ORDER

(i) The appeal is allowed. The impugned judgment and award passed in M.V.C.No.308/2008 dated

03.11.2012 on the file of the Principal Senior Civil Judge and M.A.C.T. at Shivamogga is hereby set aside and consequently, the claim petition is dismissed.