M/S Oriental Insurance Company ... vs Sri H M Shivanna
2021 Latest Caselaw 2121 Kant

                             1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

            DATED THIS THE 4TH DAY OF JUNE, 2021

                          BEFORE

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

                  M.F.A.NO.5575/2013 (MV)

BETWEEN:

M/S. ORIENTAL INSURANCE COMPANY LIMITED
SRI YETHIRAJ MUTT BUILDING
NO.199, 2ND MAIN, SAMPIGE ROAD
MALLESHWARAM, BENGALURU
NOW REP BY ITS REGIONAL OFFICE
NO.44/45, LEO SHOPPING COMPLEX
RESIDENCY ROAD,
BENGALURU-560 025
REP. BY ITS AUTHORIZED SIGNATORY
                                            ... APPELLANT

             (BY SRI A.M.VENKATESH, ADVOCATE)

AND:

1.     SRI H.M. SHIVANNA
       S/O LATE MARIYAPPA
       AGED ABOUT 35 YEARS
       R/AT HAROHALLI TOWN
       MEGALA BEEDI
       KANAKAPURA TALUK
       BENGALURU (R) DISTRICT-562 117.

2.     SRI NANJUNDAPPA
       MAJOR
       S/O SHIVAIAH
       CHIKKAKUNTANAHALLI
                                 2



      KARENAHALLI POST
      BIDADI HOBLI
      RAMANAGARA TALUK
      BANGALORE (R) DISTRICT-562 109
      (OWNER OF MOTORCYCLE
      BEARING REG.NO.KA-42/E-9190)
                                                ... RESPONDENTS

         (VIDE OREDR DATED 10.08.2017, SERVICE OF
          NOTICE TO R1 AND R2 IS HELD SUFFICIENT)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 04.07.2013
PASSED IN MVC.NO.1750/2007 ON THE FILE OF THE IX
ADDITIONAL SMALL CAUSES JUDGE AND XXXIV ACMM,
MEMBER, MACT, COURT OF SMALL CAUSES, BENGALURU,
AWARDING A COMPENSATION OF RS.87,000/- WITH INTEREST
@ 6% P.A. FROM THE DATE OF PETITION TILL PAYMENT.

     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 by the Insurance Company challenging

the judgment and award passed in M.V.C.No.1750/2007 dated

04.04.2013 on the file of IX Additional Senior Civil Judge, Small

Cause Court at Bangalore questioning the fastening of liability on

the Insurance Company.

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

before the Tribunal has contended that on 14.02.2007 at about

5.45 p.m. was proceeding as pillion rider on motor cycle bearing

Registration No. KA-42-E-9190. The rider of the motor cycle

was riding the said motor cycle in rash and negligent manner

and when the motor cycle was proceeding on NH-209 road near

Devara Kaggalahalli due to over speed, the rider of the motor

cycle lost control over the vehicle and went off the road and

dashed against tamarind tree which was lying on the road. The

petitioner was thrown on the road due to the accident and

sustained severe injuries to his right leg and other parts of the

body. Immediately, he was taken to Sanjay Gandhi Hospital,

took treatment there for one day as inpatient and thereafter he

was shifted to Shekar Hospital, where he underwent operation.

It is his claim that on account of the injuries sustained, he has

suffered permanent disability.

3. In pursuance of the claim petition, notice was

ordered and respondent No.2-owner of the motor cycle remained

exparte and respondent No.1-Insurance Company appeared and

filed objection statement. In the objection statement, he denied

the contentions of the claimant and contended that accident

occurred due to fraud of petitioner himself and he was not the

pillion rider as contended, but he was riding the motor cycle in

question and as the accident occurred due to rash and negligent

riding, he cannot claim compensation. The petitioner in collusion

with the owner of the vehicle and police got registered the false

case against some other person showing the petitioner as pillion

rider and suffered injuries in the accident.

4. The claimant, in order to substantiate his claim, he

examined himself as P.W.1, the Doctors as P.Ws.2 and 4, owner

of the vehicle as P.W.3. and an eye witness as P.W.5 and got

marked the documents Exs.P1 to P9.

5. Per contra, the Insurance Company examined its

official as R.W.1 and got marked the document Ex.R1, copy of

the Accident Register Extract issued by R.M.O., Sanjay Gandhi

Hospital.

6. The Tribunal, after considering both oral and

documentary evidence placed on record, allowed the claim

petition granting compensation of Rs.87,000/- with interest at

6% per annum. Being aggrieved by the judgment and award,

the present appeal is filed by the Insurance Company.

7. The main contention urged in the appeal is that the

Tribunal failed to appreciate the facts of the case. Ex.R1 clearly

discloses that the Doctor, on statement made by the claimant

has recorded that claimant himself was riding the motor cycle,

dashed against the tamarind tree and sustained injuries. In

spite of the evidence of P.W.2, the Doctor, who entered the

history in Ex.R1 and deposed that the same is in his hand

writing, the Tribunal has not given any finding in respect of

Ex.R1, though referred the same in the judgment and award

regarding the evidence available on record. The counsel would

vehemently contend that P.W.3-Nanjundappa, who was said to

be the rider of the motor cycle at one breath says he was taken

to Sanjay Gandhi Hospital and when he was asked who took him

to the hospital and how many days he was treated in the

hospital, he says that he was not treated in the Sanjay Gandhi

Hospital at all. Further, he has not produced any wound

certificate to show that he was also injured in the accident.

However, it is important to note that he has not filed any claim

petition.

8. Learned counsel for the appellant-Insurance

Company would further contend that the Tribunal ought to have

noticed the fact that the motor cycle insured was also not

damaged and it was not inspected by IMV Inspector and IMV

report is also not produced disclosing any damages to the

vehicle which clearly indicates that he is a got up witness and

has given false evidence. The counsel also would vehemently

contend that P.W.2, the Doctor, who was R.M.O. at Sanjay

Gandhi Hospital at the time of accident was examined by the

claimant and in the cross-examination, he categorically admits

that the entries made in Ex.R1 is in his handwriting and in spite

of these answers elicited, the Tribunal failed to appreciate both

oral and documentary evidence placed on record. The counsel

also would contend that in Civil Appeal No.3171/2009 in the

case of North West Karnataka Rd. Transport Corp. vs.

Gourabai & Ors., the Apex Court held that, it is nothing but a

fraud, fraud and justice should not dwell together and prays this

Court to set aside the judgment and award.

9. This Court has issued notice to the respondent Nos.1

and 2 and in spite of service of notice to respondent Nos.1 and

2, they have not chosen to appear before this Court.

10. Having heard the learned counsel for the appellant

and also on perusal of the records, the points that arise for

consideration of this Court are:

(i) Whether the Tribunal has committed an error in fastening the liability on the Insurance Company and it requires interference of this Court?

(ii) What order?

Point No.(i)

11. Having heard the learned counsel for the appellant

and also on perusal of the records, it is the case of the claimant

that he was a pillion rider and accident has taken place on

account of negligence on the part of the rider of the motor cycle.

In order to substantiate his contention, he relied upon the

documents Exs.P1 to P4 i.e., copies of FIR and complaint,

mahazar, charge sheet and wound certificate. The claimant also

produced the case sheet of Sanjay Gandhi Hospital as Ex.P7. It

is not in dispute that immediately after the accident, he was

taken to Sanjay Gandhi Hospital. In the document Ex.P7-case

sheet of the Sanjay Gandhi Hospital, the injured name is

mentioned as Shivanna and wherein, in the progress sheet, it is

mentioned that history of road traffic accident, said to have

sustained injury while traveling in a two wheeler, hit to a tree,

fallen on road at around 5.20 p.m. The respondent has also

produced the document Ex.R1 through R.W.1, wherein similar

entries are made in the MLC register.

12. The counsel appearing for the appellant also relies

upon the evidence of R.W.1 and also the evidence of P.W.4, the

Doctor. No doubt the R.W.1 is not an eye witness to the

accident and he gave the evidence on the basis of the document

Ex.R1, it is pertinent to note that the claimant has examined

P.W.2-Doctor, who has produced the original accident register,

which is marked as Ex.R1. In the cross-examination, he admits

that on the date of the admission of the patient, he was serving

in the hospital and Ex.R1 is in his handwriting. The patient had

come with his friend and he also admits that hospital authorities

did not know as to why patient has come to the hospital, until

the patient himself or the persons accompanying him gives the

information. The name of the patient is Shivanna and name of

the friend, who accompanied him is also Shivanna. Shivanna,

who accompanied the patient has stated about the history of the

accident and he has obtained his signature on the register. The

claimant also examined another Doctor as P.W.4-Prakashappa

and in his evidence, he says that he examined the patient by

name Shivanna, who came to Sanjay Gandhi Hospital with a

history of road traffic accident, he noticed the injuries and

conducted the surgery and assessed the disability. He was

subjected to cross-examination. In the cross-examination, he

admits that Ex.R1 is the true copy of the MLC issued by the

Sanjay Gandhi Hospital. He also admits that in the progress

sheet dated 14.02.2007, it is mentioned that petitioner was

travelling in a two wheeler, hit to a tree which had fallen on the

road. It is also elicited that he personally did not know how

claimant sustained injuries.

13. The claimant, in support of his contention, he

examined one witness, Sri Venkatachalappa as P.W.5. In his

evidence, he states that he is the eye witness to the accident.

In the cross-examination, he admits that, at the time of the

accident, he was proceeding as pedestrian, there was nobody

along with him and he lifted the injured Shivanna and

telephoned his brother about the accident. He also admits that

he sent Shivanna to the hospital in a car and he left the place.

He has not given any complaint and police have not recorded his

statement about the accident, but has shown the spot of the

accident, after eight days of the accident. He further admits that

Nanjunadappa, the owner of the vehicle and Shivanna were

known to him, even prior to the accident. He also admits in his

evidence that he has not stated that he intimated the brother of

Shivanna about the accident over telephone. He has not sent

Nanjundappa to the hospital, as he has suffered only simple

injuries. The police have recorded his statement as an eye

witness.

14. R.W.1, official witness of the Insurance Company in

her evidence says that claimant was proceeding as the rider of

the motor cycle and not a pillion rider. She was subjected to

cross-examination. She admits that she is not an eye witness to

the accident and also admits that she does not know, who had

admitted the petitioner to Sanjay Gandhi Hospital. A suggestion

was made that the petitioner was not riding the motor cycle and

he was a pillion rider and the said suggestion was denied.

15. The claimant, who examined himself as P.W.1

reiterates the averments made in the claim petition. He was

subjected to cross-examination. In his evidence, he says that

rider of the motor cycle also sustained simple injuries and he

was also shifted to Sanjay Gandhi Hospital for treatment. He

claims that accident took place on 14.02.2007 and the complaint

was given on the same day. But, he does not know, who has

lodged the complaint.

16. Having perused the evidence of P.W.1, he claims

that complaint was given on the same day. On perusal of Ex.P1,

it is seen that the complaint was given on 18.02.2007 and not

on the date of the accident. No doubt, in the complaint it is

mentioned that the petitioner was taken to the Sanjay Gandhi

Hospital immediately and thereafter to Shekar Hospital, there

was a delay in lodging the complaint. In the complaint, an

allegation is made that one Nanjundappa was riding the motor

cycle. First of all, there is a delay of 4 days in lodging the

complaint. However, the claimant contends that the complaint

was given on the very same day, which is contrary to his

evidence, who examined himself as P.W.1.

17. It is also important to note that the claimant, who

examined himself as P.W.1 claims that he does not know, who

had lodged the complaint, but the complaint discloses that he

himself had lodged the complaint. The evidence of P.W.5, the

eye witness to the accident is also contrary to the evidence of

P.W.1. P.W.5, in his cross-examination says that he was

proceeding alone as a pedestrian and he lifted the injured

Shivanna and telephoned his brother about the accident. He

also claims that Nanjundappa, who was riding the motor cycle

lost the control and dashed against the tamarind tree. In order

to prove the fact that the said Nanjundappa also sustained

injuries, no document is placed before the Tribunal and the said

Nanjundappa also not produced any document before the

Tribunal. The evidence of P.W.5, eye witness to the accident

does not inspire the confidence of the Court that the said

Nanjundappa was at the spot, though he says that he lifted the

injured Shivanna and telephoned his brother about the accident.

There is no material before the Tribunal for having taken the

injured and the said Nanjundappa for treatment at Sanjay

Gandhi Hospital. Apart from that, the evidence of P.W.1 and

P.W.5 is contradictory to the evidence of P.Ws.2 and 4. P.W.2,

who made the entry in Ex.R1 categorically admit that the same

is in his handwriting. Both P.Ws.2 and 4, the Doctors in their

evidence speak with regard to the entry made in Ex.R1. It is

important to note that on perusal of the case sheet marked as

Ex.P7 and copy of the accident register extract marked as Ex.R1,

similar entries are found in both the documents which came into

existence immediately after the accident speaks about the truth.

When such being the material available before the Court, the

Tribunal ought to have considered both oral and documentary

evidence placed on record. It is rightly pointed out by the

learned counsel for the appellant that Tribunal has not given any

finding with regard to the evidence available on record

particularly, the evidence of P.Ws.1 to 5 with regard to entry

available at Ex.P7 and Ex.R1.

18. It is important to note that the author of the

document, Ex.R1 has been examined by the claimant himself

and the Doctors, who have given the treatment also have been

examined and the truth has been elicited from the mouth of

P.Ws.2 and 4. Though P.W.5 is an eye witness to the accident,

his evidence cannot be accepted and his evidence does not

inspire the confidence of this Court. I have already pointed out

that there was delay in lodging the complaint for about 4 days.

Ex.P7 and Ex.R1 are clear that while riding the motor cycle, the

claimant himself has hit the tamarind tree and the evidence has

emerged during the course of trial before the Tribunal

particularly, the evidence of P.Ws.1 and 5, which is contradictory

to each other and P.Ws.2 and 4, the Doctors' evidence support

the case of the Insurance Company. Hence, it is clear that it is

nothing but twisting of the manner in which the accident took

place claiming that the injured was a pillion rider.

19. I have already pointed out that the complaint was

given 4 days after the accident is an after thought and the

documents Ex.P7 and Ex.R1 indicates that the claimant himself

went and hit the tamarind tree. Hence, it is nothing but a case

of fraud and fraud and justice should not dwell together. The

medical records are against the claimant and the claimant

himself is a tortfeasor. Hence, there is a force in the contention

of the learned counsel for the Insurance Company that the

Tribunal has failed to consider the material available on record,

even though the same is sufficient to come to a conclusion that

the claimant himself is a tortfeasor and committed an error in

awarding compensation. The material placed before the Court

does not inspire the confidence of the Court to arrive at a

conclusion that the claimant is a pillion rider as contended in the

claim petition. Hence, it requires interference of this Court and

the finding of the Tribunal that the claimant was a pillion rider

and sustained injuries and entitled for compensation is against

the records.

Point No.(ii)

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

pass the following:

ORDER

(i) The appeal is allowed. The judgment and award passed in M.V.C.No.1750/2007 dated 04.04.2013 on the file of IX Additional Senior Civil Judge, Small Cause Court at Bangalore is set aside and consequently, the claim petition is dismissed.

(ii) The amount in deposit made by the Insurance Company before this Court is ordered to be refunded to the Insurance Company on proper identification.

(iii) The Registry is directed to transmit the TCR to the concerned Tribunal forthwith.

Sd/-

JUDGE

ST