M/S. Icici Lombard General ... vs Srujan P Naik
2021 Latest Caselaw 2108 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.1748/2013 (MV)

BETWEEN:

M/s. ICICI LOMBARD GENERAL
INSURANCE COMPANY LIMITED
PRAJAPRAGATHI BUILDING
B.H.ROAD, TUMAKURU
NOW REPRESENTED BY
M/s. ICICI LOMBARD GENERAL
INSURANCE COMPANY LIMITED
NO.89, 2ND FLOOR, S.V.R. COMPLEX
HOSUR MAIN ROAD, MADIWALA
BENGALURU-560 068
REPRESENTED BY ITS MANAGER - LEGAL
                                            ... APPELLANT

             (BY SRI A.M.VENKATESH, ADVOCATE)
AND:

1.     SRUJAN P. NAIK
       S/O PRAKASH NAIK
       AGED ABOUT 5 YEARS
       MINOR, REPRESENTED BY NATURAL
       GUARDIAN AND FATHER - PRAKASH NAIK
       RESPONDENT NO.1 HEREIN
       S/O SHIVANAYA NAIKA
       AGED ABOUT 29 YEARS
       WORKING AS TEACHER
       OPS I.D. HALLI, R/O.HOSAKERE
       MEDIGESI HOBLI
       MADHUGIRI TALUK.
                                 2



2.   MANJUNATHA
     S/o. KANIME RANGAIAH
     AGED ABOUT 43 YEARS
     LIC AGENT, R/o. HOSAKERE
     MEDIGESI HOBLI
     MADHUGIRI TALUK
     (OWNER OF HERO HONDA MOTORCYCLE
     BEARING REG NO.KA-06/EE-8225)
                                               ... RESPONDENTS

          (R2-SERVED; VIDE ORDER DATED 05.06.2017
              NOTICE TO R1 IS HELD SUFFICIENT)

     THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 19.11.2012
PASSED IN MVC.NO.70/2011 ON THE FILE OF THE ADDITIONAL
SENIOR CIVIL JUDGE, MACT-XIII, MADHUGIRI, AWARDING
COMPENSATION OF Rs.10,000/- WITH INTEREST @ 6% P.A.
FROM THE DATE OF PETITION TILL REALIZATION.

     THIS M.F.A. COMING ON FOR ADMISSION THROUGH
'VIDEO CONFERENCE' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:

                          JUDGMENT

Though this appeal is listed for admission today, with the

consent of learned counsel appearing for the appellant/Insurance

Company, the same is taken up for final disposal.

2. Heard learned counsel appearing for the

appellant/Insurance Company.

3. This appeal is filed by the appellant/Insurance

Company challenging the Judgment and Award dated

19.11.2012 passed in M.V.C.No.70/2011 by the Additional

Senior Civil Judge and MACT., XIII at Madhugiri ('the Tribunal'

for short).

4. The factual matrix of the case is that the injured

minor boy met with an accident on 16.02.2011 at about 2:45

p.m, when he was proceeding along with his father and another

Anjinappa on Rantavalalu road from Hosakere to reach their

house. At that time the rider of the Hero Honda Super Splendor

bearing registration No.KA-06-EE-8225 was said to have been

driven in high speed, in a rash and negligent manner and dashed

the minor boy causing RTA, whereby the minor boy fell down

and sustained grievous injuries.

5. This claim petition was opposed by the Insurance

Company contending that it is a case of false implication and it is

a self-fall and no such accident was taken place.

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

himself examined the father as P.W.1 and also examined one

Jayanna as P.W.2 and got marked the documents as Exs.P1 to

P12. The respondent examined one witness as RW.1 and got

marked the documents as Exs.R1 to R6.

7. The Tribunal, after considering both oral and

documentary evidence available on record, not accepted the

contention of the Insurance Company and allowed the claim

petition by awarding compensation of Rs.10,000/- with 6%

interest per annum from the date of petition till its realization.

Being aggrieved by the Judgment and Award of the Tribunal, the

present appeal is filed by the Insurance Company before this

Court.

8. The learned counsel for the appellant/Insurance

Company would vehemently contend that the injured was taken

to the hospital on the date of the accident itself on 16.02.2011.

In Ex.R4 , it is specifically mentioned that it is a case of self-fall

and the history given by the attender on 08.03.2011. On perusal

of the history in the document-Ex.R4, the date is mentioned as

08.03.2011. The document-Ex.R4 is contrary to the statement

made before the hospital on 16.02.2011, wherein, it is

mentioned that the history was 'self-fall', but in the bottom of

the document, it is mentioned the history was given by the

attender on 08.03.2011. In order to prove the document-Ex.R4

except examining RW.1, the official of the Insurance Company,

none of the witness from the hospital has been examined. The

author of the document-Ex.R4 has not been examined. The fact

that the case of the claimant is that when the minor boy was

proceeding along with his father, the accident was taken place.

But, in the very document-Ex.R4, it is mentioned that the patient

attender was given the history of RTA. When the father was with

the injured, generally, the father will take the injured to the

hospital, no where, it is mentioned that who gave the history,

what is mentioned on 16.02.2011 and on 08.03.2011 are

contrary to each other. Hence, the Tribunal has rightly not

accepted the document Ex.R4. Except Ex.R4, no other document

is placed before the Court. In the absence of proving of

document-Ex.R4, the very contention of the Insurance Company

that the history is 'self-fall' cannot be accepted.

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

following:

ORDER

(i) The appeal is dismissed.

(ii) The amount in deposit, if any, is ordered to be transmitted to the concerned Tribunal, forthwith.

Sd/-

JUDGE

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