The Divisional Manager vs K.N Prakash S/O K N Narayanappa
2021 Latest Caselaw 2105 Kant

                            1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 3RD DAY OF JUNE, 2021

                         BEFORE

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

                 M.F.A.NO.2831/2013 (MV)
                           C/W.
                 M.F.A.NO.3901/2013 (MV)

IN M.F.A.NO.2831/2013 (MV):

BETWEEN:

THE DIVISIONAL MANAGER
UNITED INDIA INSURANCE COMPANY LIMITED,
DIVISIONAL OFFICE-VI
No.89/1, 2ND FLOOR, 11TH CROSS
MALLESWARAM, BENGALURU-560 003
REPRESENTED BY IT'S MANAGER
NOW REPRESENTED BY ITS
ADMINISTRATIVE OFFICER
SANDEEP KUMAR
REGIONAL OFFICE
KRISHI BHAVAN, HUDSON CIRCLE
BENGALURU-560 001
                                           ... APPELLANT

            (BY SRI L.SREEKANTA RAO, ADVOCATE)

AND:

1.     K.N. PRAKASH
       S/O K.N.NARAYANAPPA
       AGED ABOUT 52 YEARS
       KEMPALINGANAHALLI
       NELAMANGALA TALUK
       BENGALURU RURAL DISTRICT
                             2



2.    ESWARAPPA S/O. REVANNA
      AGE: MAJOR
      NO 12, 2ND A CROSS,
      PARIMALA NAGAR
      NANDINI LAYOUT
      BENGALURU-560 096

3.    THE BRANCH MANAGER
      ORIENTAL INSURANCE COMPANY LTD.,
      VP IV 1ST A CROSS, POLICE STATION ROAD
      I STAGE, PEENYA IND. ESTATE
      BENGALURU-560 058
      (INSURER OF QUALIS CAR BEARING
      REG.NO.KA-02-MH-1899)
                                          ... RESPONDENTS
        (BY SRI SHRIPAD V. SHASTRI, ADVOCATE FOR R1;
     VIDE ORDER DATED 22.03.2021, NOTICE TO R2 IS HELD
                         SUFFICIENT
                         R3-SERVED)

     THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 01.02.2013
PASSED IN MVC.NO.2587/2011 ON THE FILE OF THE VIII
ADDITIONAL SMALL CAUSES JUDGE, MEMBER, MACT, COURT OF
SMALL CAUSES, BENGALURU, AWARDING A COMPENSATION OF
Rs.75,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF
PETITION TILL DEPOSIT.

IN M.F.A.NO.3901/2013 (MV):

BETWEEN:

K.N.PRAKASH
S/O K.N.NARAYANAPPA
AGED ABOUT 52 YEARS
KEMPALINGANAHALLI
NELAMANGALA TALUK
BENGALURU RURAL DISTRICT.
                                           ... APPELLANT

           (BY SRI SHRIPAD V. SHASTRI, ADVOCATE)
                              3



AND:

1.     ESWARAPPA S/O. REVANNA
       No.12, 2ND A CROSS
       PARIMALA NAGAR
       NANDINI LAYOUT
       BENGALURU-560096

2.     THE DIVISIONAL MANAGER
       THE UNITED INDIA INSURANCE CO. LTD.,
       DIVISIONAL OFFICE-VI,
       No.89/1, 2ND FLOOR, 11TH CROSS
       SAMPIGE ROAD, MALLESWARAM
       BENGALURU-03.

3.     THE BRANCH MANAGER
       ORIENTAL INSURANCE CO. LTD.,
       VP IV 1ST A CROSS, POLICE STATION ROAD
       I STAGE, PEENYA IND. ESTATE
       BENGALURU-58
                                           ... RESPONDENTS

     (BY SRI K.KISHOR KUMAR REDDY, ADVOCATE FOR R2;
          VIDE ORDER DATED 14.08.2021 NOTICE TO
               R1 AND R3 IS DISPENSED WITH)


     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 01.02.2013
PASSED IN MVC.NO.2587/2011 ON THE FILE OF THE VIII
ADDITIONAL SMALL CAUSES JUDGE, MEMBER, MACT, COURT OF
SMALL CAUSES, BENGALURU, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.

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

Though the appeals are listed for admission today, with

the consent of learned counsel appearing for both the parties,

the same are taken up for final disposal.

2. These two appeals are filed by the Insurance

Company and the claimant, respectively challenging the

Judgment and Award passed in M.V.C.No.2587/2011 dated

01.02.2013 on the file of Motor Accident Claims Tribunal-V,

Court of Small Causes, Bengaluru City ('the Tribunal' for short),

questioning the quantum of compensation awarded by the

Tribunal and also the liability.

3. The factual matrix of the case is that the claim

petition was filed by the owner of the Qualis Car bearing

registration No.KA-02/MH-1899, claiming for the damages

caused to his Qualis Car, which met with an accident on

28.04.2011 at 11:00 p.m, by the offending vehicle Eicher Lorry

bearing registration No.KA-04/2156, which dashed against the

Qualis Car, as a result, the Car was damaged.

4. The Insurance Company filed the detailed objections

statement contending that the driver of the vehicle was not

having a valid driving license as on the date of the accident and

the same was obtained subsequent to the accident.

5. The claimant, in order to substantiate his case he

examined himself as P.W.1 and also examined the other two

witnesses as P.Ws.2 and 3 and got marked the documents

Exs.P1 to P17. On the other hand, the respondents have

examined two witnesses as RWs.1 and 2 and got marked the

documents as Exs.R1 to R3.

6. The Tribunal, after considering both oral and

documentary evidence available on record, allowed the claim

petition of the claimant in part granting compensation of

Rs.75,000/- with 6% interest per annum from the date of

petition till the date of deposit in Court. Being aggrieved by the

Judgment and Award of the Tribunal both Insurance Company

and claimant have preferred these two appeals, respectively.

7. The Tribunal after considering the material on record

came to the conclusion that the Insurance Company has not

proved the fact that as on the date of the accident, the driver of

the vehicle was not having the driving license by examining the

author of the document-Ex.R2. Apart from that, the reason was

given that the police have not filed any charge sheet against the

driver that he did not possess any valid driving license. The

Tribunal also did not accept the case of the claimant with regard

to the claim made in respect of the damages. However, awarded

a compensation of Rs.75,000/- in coming to the conclusion that

the documents which have been placed before the Court and

also the evidence of PWs.2 and 3 cannot be accepted and

awarded an amount of Rs.75,000/- as against the claim made by

the claimant and disbelieved the claimant with regard to the

evidence of P.W.3 that he was received the total sum of

Rs.4,50,341/- under Ex.P10. He has admitted that he has not

mentioned his KST and CST number in Ex.P10. When he was

questioned whether he had any independent power to issue any

computerized receipt for having received the money, he has

answered that he do not issue computerized receipt he only

issue manual receipt. Hence, the evidence of P.W.3 also not

accepted.

8. With regard to claiming Rs.5 Lakhs which spent for

repair and came to a conclusion that the evidence and the

documents of the petitioner goes to show that the petitioner in

collusion with PWs.2 and 3 were created Exs.P9 to 12 to gain

more compensation. However, considering the vehicle involved

in the accident and the same was 7 years old and Ex.P14 reveals

that the vehicle was of the year 2004 model and the petitioner

was purchased the vehicle in the year 2007 from its earlier

owner. As on the date of the accident the vehicle was 7 years

old. Even if the second hand vehicle i.e., Qualis in good condition

of the year 2004 model was purchased, the market value itself

will not be more than Rs.3 to 4 Lakhs. The petitioner cannot get

repaired or renewed the entire vehicle other than the accidental

damages under the guise of the accident. Taking note of the

damages, the Tribunal has awarded a global compensation of

Rs.75,000/- including non-usage of the vehicle during the

repaired period. Hence, these two appeals are filed before this

Court by the Insurance Company as well as the claimant.

9. The main contention of the Insurance Company in

the appeal is that Ex.R2 is clear that there was a clerical mistake

in mentioning the period of renewal of the driving license and

when the document-Ex.R2 is specific, the Tribunal ought to have

accepted the same and committed an error in not accepting the

same in coming to the conclusion that the same has not been

proved and there was no charge sheet filed against the driver

that he was not having the driving license. Hence, it requires

interference of this Court.

10. The learned counsel for the appellant in MFA

No.3901/2013 would vehemently contend that the Tribunal

failed to consider the evidence of PWs.1 to 3 and the vehicle was

got repaired and PWs.1 and 3 have categorically deposed before

the Court that the vehicle was subjected to repair and got

repaired and before repairing also they have obtained the 'loss

assessment report'. Hence, it requires re-appreciation of

material available on record, particularly, Exs.P5-IMV report and

P13-photographs, which have been produced before the Court.

The learned counsel for the appellant would vehemently contend

that Ex.P13 would indicate to the extent of damage caused to

the vehicle and the same is substantiated by producing Exs.P5-

IMV report and Ex.P13-photographs.

11. Having heard the arguments of learned counsel for

respective parties and on perusal of the grounds urged in both

the appeals and the materials available on record, the points

that would arise for consideration of this Court are:

(1) Whether the Tribunal has committed an error in coming to the conclusion that Ex.R2 has not been proved and committed an error in fastening the liability on the Insurance Company?

(2) Whether the Tribunal has committed an error in not accepting the evidence of PWs.1 to 3 and committed an error in awarding global compensation of Rs.75,000/- and whether it requires an interference of this Court?

(3) What order?

Point No.(i):

12. Having heard the arguments of respective counsel

and also on perusal of the records and also the material available

on record, no doubt, the Insurance Company has got marked the

document-Ex.R2, wherein a mention is made that there was a

typographical error in mentioning the date of the renewal of the

driving license. It is rightly observed by the Tribunal that in

order to prove the document-Ex.R2, the author has not been

summoned and examined before the Court. Mere marking of

document-Ex.R2 is not enough and the Insurance Company has

to examine the author whether the driver was having a valid

driving license as on date of the accident or not. Mere taking of

defense is also not enough and the same has to be substantiated

by placing both oral and documentary evidence and the same

has not been done.

13. The Tribunal also while considering the material

available on record came to a conclusion that Ex.R2 has not

been proved, apart from that the police have not filed any

charge sheet against the driver that he was not having driving

license. Hence, I do not find any error committed by the Tribunal

in coming to the conclusion that the Insurance Company has not

proved that he was not having the driving license as on the date

of the accident. Hence, I answered the point No.(i) as 'negative'.

Point Nos.(ii) & (iii):

14. The very contention of the learned counsel for the

appellant/Insurance Company that the Tribunal has committed

an error in not accepting the evidence of PWs.2 and 3 and also

the Tribunal has committed an error in not considering Ex.P5,

Ex.P9 to P12 and also Ex.P13. The Tribunal while considering

the damages is concerned in detail discussed in paragraph No.18

of the judgment and taken note of the evidence available before

the Court, particularly, the evidence of PWs.2 and 3, who claim

that they have repaired the vehicle and in order to substantiate

the contention of the claimant as well as the credibility of the

evidence of P.W.2 in detail discussed by the Tribunal which has

been narrated in para 8 of this order. The material placed before

the Tribunal with regard to the repair is concerned, has not been

accepted by the Tribunal and the Tribunal has taken note of the

damages caused to the vehicle Ex.P5. However, failed to take

note of Ex.P13, which also discloses the damages caused to the

vehicle, particularly, the front portion of the vehicle. Even

though the Tribunal has not accepted the evidence of PWs.2 and

3 and their evidence were not credible and also the evidence of

P.W.3 since the loss of assessment was done after lapse of 10

months ought to have taken note of the damages caused to the

vehicle considering Ex.P13.

15. It is not in dispute with regard to Exs.P5 and P13.

Ex.P5 indicates the damages caused to the vehicle. When such

being the case, the assessment made by the Tribunal in coming

to the conclusion that the claimant is entitled for a global

compensation of Rs.75,000/- including the non-usage of vehicle

during the repair period appears to be on lower side. I have

already pointed out that the Tribunal has not taken note of

Ex.P13-photographs, which have been produced and only

referred Ex.P5. When such being the case, it is appropriate to

interfere with the order of the Tribunal with regard to enhancing

of damages, particularly, taking note of Ex.P13 and Ex.P5 and

also not assessed the loss of the vehicle which was in the garage

for the repair for non-using of the vehicle. Hence, in the

absence of the particular evidence with regard to the non-usage

of the vehicle during the repair period and spent an amount

towards 'Conveyance' also, it requires to be enhanced. Hence,

instead of Rs.75,000/- the same is to be enhanced to

Rs.1,25,000/- keeping in view the documents particularly Ex.P5

and Ex.P13.

16. In view of the discussions made above, I pass the

following:

ORDER

(i) The appeal filed by the Insurance Company in MFA No.2831/2013 is dismissed.

(ii) The appeal filed by the claimant in MFA No.3901/2013 is allowed in part.

(iii) The Judgment and Award passed in M.V.C.No.2587/2011 dated 01.02.2013 on the file of Motor Accident Claims Tribunal-V, Court of Small Causes, Bengaluru City, is modified granting compensation of Rs.1,25,000/- as against Rs.75,000/- with interest at 6% per annum from the date of the petition till to the date of deposit.

(iv) The respondent No.2/Insurance Company is directed to deposit the amount within six weeks from the date of receipt of copy of this order.

      (v)       The Registry is directed to transmit the
                records       to    the     concerned     Tribunal,
                forthwith.

(vi) The amount in deposit, if any, deposited by the insurance company is ordered to be transmitted to the concerned Tribunal, forthwith.

Sd/-

JUDGE

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