The Divisional Manager vs Babu S/O Annappa Harakari
2022 Latest Caselaw 7843 Kant

                                                 -1-
                                                              MFA No. 20321/2010




                               IN THE HIGH COURT OF KARNATAKA,
                                        DHARWAD BENCH

                             DATED THIS THE 01ST DAY OF JUNE, 2022
                                              BEFORE
                           THE HON'BLE MR JUSTICE KRISHNA S.DIXIT

                                  MFA NO. 20321 OF 2010 (MV-I)

                      BETWEEN:

                           THE DIVISIONAL MANAGER
                           THE ORIENTAL INSURANCE CO. LTD.,
                           DIVISIONAL OFFICE KIRLOSKAR ROAD, BELGAUM,
                           THROUGH REGIONAL MANAGER,
                           REGIONAL OFFICE, SUMANGALA COMPLEX, LAMINGTON
                           ROAD, HUBLI.
                                                                 ... APPELLANT
                      (BY SHRI S.K. KAYAKAMATH, ADVOCATE)

                      AND:

                      1.   BABU S/O. ANNAPPA HARAKARI,
                           age 52 years, OCC: COOLIE,
                           R/O: HINDALAGA, TQ. & DIST.: BELGAUM.

                      2.   TUKARAM B.SAROLKAR,
                           AGE MAJOR, OCC: BUSINESS,
                           R/O: SHIRAGAON, POST NAGANWADI,
                           TQ: CHANDAGAD, DIST: KOLHAPUR.
         Digitally
                                                               ... RESPONDENTS
         signed by
         VINAYAKA
         BV           (BY SHRI SANJAY S.KATAGERI, AMICUS CURIAE FOR R1 & R2)
VINAYAKA Location:
BV       DHARWAD
         Date:
         2022.06.04
         11:20:58
                            THIS MFA IS FILED U/S.173(1) OF THE M.V. ACT,
         +0530
                      AGAINST THE JUDGEMENT & AWARD DATED 10.08.2009,
                      PASSED IN MVC NO.903/2003, ON THE FILE OF THE PRESIDING
                      OFFICER, FAST TRACK COURT-I & MEMBER ADDITIONAL
                      M.A.C.T.,   BELGAUM.   AWARDING      COMPENSATION    OF
                      RS.83,680/- ALONG WITH INTEREST AT THE RATE OF 6% P.A.
                      FROM THE DATE OF PETITION TILL ITS DEPOSIT.

                            THIS APPEAL COMING ON FOR FINAL HEARING, THIS
                      DAY, THE COURT DELIVERED THE FOLLOWING:
                               -2-
                                              MFA No. 20321/2010




                           JUDGMENT

1. This insurer's appeal seeks to lay a challenge

to the Judgment & Award dated 10.08.2009 rendered by

the Additional MACT, Belagavi, whereby the claim in

MVC No.903/2003 having been favoured, a

compensation of Rs.83,680/- with interest at the rate of

6% p.a. has been awarded. The challenge is mainly on

the ground of liability.

2. The respondent/claimant having entered

appearance through the learned amicus curiae resists

the appeal making submission in justification of the

impugned Judgment & Award and the reasons on which

they have been structured. Per contra, the Panel Counsel

vehemently contends that the award is liable to be

voided not only on the ground of res judicata but also for

want of bonafide on the part of claimant.

3. The foundational facts:

(a) It is the case of claimant that on 08.02.1996 at

around 9:00 p.m. when he was about to get into the

Trolly of the offending Tractor, the accident in question

MFA No. 20321/2010

happened because of driver's negligence and as a result

he sustained grievous injuries. The claim petition was

resisted by the appellant - Insurer by filing the written

statement.

(b) To prove the claim, the claimant himself got

examined as PW1; the Medical Practitioner, who had

treated the claimant, namely Dr. S.R. Angadi was

examined as PW2; from the side of claimant, 8

documents came to be marked as per Exs.P1 to P8,

which inter alia comprised of Police Documents & Medical

Records. From the side of respondent, one Mr. H.R.

Ranganna, the Assistant Manger of the Insurer was

examined as RW1 and in his deposition, the Insurance

Policy confined to the Tractor in question (Trailer having

not been insured) was produced & marked as Ex.R1.

4. The MACT after adverting to the pleadings of

the parties and after weighing the evidentiary material

borne out by the record has entered the subject

Judgment & Award that are put in challenge by the

Insurance Company. Having heard the learned counsel

MFA No. 20321/2010

for the parties and having perused the appeal papers

and the original LCR, this Court is inclined to grant

indulgence in the matter for the following reasons:

(a) The version of the claimant that he was a third

party and he suffered injury because of the vehicular

accident in question, occasioned by the negligent driving

of the offending Tractor & Trailer is bit difficult to accept

for more than one reason: firstly, the claimant had

presented a claim petition before the Commissioner for

Workmans' Compensation earlier vide WCA/SR-

144/1996, a copy whereof is at Ex.R2 that was marked

in the deposition of the claimant on confrontation. In the

said petition, he had described himself as an employee

of the offending Tractor and claimed compensation

contending that he suffered injuries out of and during

the course of employment. This was resisted by the

Insurer by filing the objections specifically controverting

the same. The claimant had entered the witness box and

deposed. However, no documents were produced from

his side to prima facie establish the vinculam juris of

'employer - employee' nor as to happening of the

MFA No. 20321/2010

accident in question. In view of that the claim petition

came to be rejected by the Commissioner for Workmans'

Compensation vide order dated 22.12.1999. This is not

put in challenge by the claimant. The Apex Court in the

case of STATE OF PUNJAB & OTHERS VS. GURDEV

SINGH AND ASHOK KUMAR, AIR 1992 SC 111 has

held that rightly or wrongly if an order is passed, even

without jurisdiction it will have legal consequences,

unless it is set at naught by a challenge constituted in

accordance with law. Therefore, the claim petition before

the MACT was barred by general doctrine of res judicata.

(b) The reliance of learned counsel appearing for the

Claimant on the decision of Kerala High Court in

GUGULOTH SWARUPA AND OTHERS VS. ANDHRA

PRADESH STATE ROAD TRANSPORT CORPORATION

AND OTHERS, 2007 ACJ 2222, that the claim before

the MACT was not barred by res judicata does not come

to his rescue. The matter in the said ruling went more on

the factual side and the proposition as canvassed at the

Bar here, does not in so many words emerge from the

MFA No. 20321/2010

fact matrix. The contention of the learned Amicus Curiae

appearing for the claimant that issue as to the

maintainability of the second petition at the hands of the

MACT was treated as a Preliminary Issue and the same

was answered in favour of the claimant, vide order dated

03.06.2008 i.e., on issue No.3 and therefore, no

challenge having been laid to that, the appeal is not

maintainable is bit difficult to countenance. It has been

held by several High Courts in the Country that any

order made during the pendency of the main matter can

be a subject matter of challenge simply by way of a

ground in the appeal laying a challenge to the

termination of the main proceedings. This is consistent

with what has been enacted under the provisions of

Order 43 Rule 1A of CPC, 1908 as introduced by 1976

amendment. It is more so when it is not shown that the

said order was otherwise appealable under the

provisions of 1988 Act.

(c) The conduct of the claimant in not disclosing the

'lost legal battle', which he had fought before the

MFA No. 20321/2010

Commissioner for Workmans' Compensation, when he

came before the MACT in a separate claim petition. This

conduct disentitles him to the grant of any compensation

even assuming that the doctrine of res judicata is not

otherwise invocable in claim petitions of the kind. It has

long been settled position of law that the Courts and

Tribunals decline to grant redressal to the grievance, if

the conduct of the litigants is culpable, subject to all just

exceptions, into which the argued case of the claimant

does not fit. An argument to the contrary would amount

to placing premium on the culpable conduct of the

litigants and sanctifying the illegality. Therefore, such

argument cannot be sustained.

(d) Learned counsel appearing for the claimant

vehemently contended that the provisions enacted in the

M.V. Act, 1988, for granting compensation to the injured

are a welfare legislation and therefore, the Court should

not see the conduct of the claimant, but whether the

accident in question happened and the claimant had

sustained injuries as asserted by him in the claim

MFA No. 20321/2010

petition, is bit difficult to countenance. The very fact that

he had taken up the pleadings before the Commissioner

for Workmans' Compensation putting forth a specific

case that he was an employee and the owner of the

Tractor was the employer; that was not established,

need not be repeated. Absolutely no explanation is

offered by the claimant as to why he had taken up such

a stand before the Commissioner, much in variance with

the one pleaded before the MACT; some explanation was

owed from the side of claimant. This having not been

done, the version of the claimant generates a genuine

doubt and therefore, working on the preponderance of

probability, his argued case cannot be accepted as true

& correct.

In the above circumstances, this appeal succeeds;

the impugned Judgment & Award are set at naught. The

amount deposited by the appellant-insurer in the

Registry shall be refunded to him immediately.

This Court places on record it's appreciation for the

valuable service rendered by the learned Amicus Curiae

MFA No. 20321/2010

Mr. Sanjay S.Katageri and his gracious decline to receive

any fees for this case. A copy of this order shall be

furnished to the learned Amicus Curiae.

Costs made easy.

Sd/-

JUDGE

Vnp*