Karnataka High Court
The Divisional Manager vs Kumar Roshan Jeet Sivadasan on 9 June, 2022
Bench: P.Krishna Bhat
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MFA No. 24412 of 2010
C/W MFA No. 24183 of 2010
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 09TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR JUSTICE P.KRISHNA BHAT
MFA NO. 24412 OF 2010 (MV-I)
C/W
MFA NO. 24183 OF 2010 (MV-I)
IN MFA NO.24412/2010
BETWEEN:
THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO.LTD.,DIVISIONAL
OFFICE,"SEETA SMRUTI" IIND FLOOR,MARUTI
GALLI,BELGAUM
...APPELLANT
(BY SRI. C V ANGADI, ADVOCATE)
AND:
1. KUMAR ROSHAN JEET SIVADASAN,
AGE: 30 YEARS, OCC: PVT.SERVICE, R/O.
H.NO.1040, KULAGI ROAD,DANDELITQ: HALYAL,
DIST: KARWAR
2. SRI. SANTOSH C.SARUER
AGE: MAJOR, OCC: BUSINESS,R/O. 14TH BLOCK,
NEAR DOUBLE BLDG.,DANDELI, TQ: HALYAL,
Digitally
signed by
DIST: KARWAR
(OWNER OF MOTOR CYCLE NO.KA-31/K-1854)
JAGADISH T
R
JAGADISH
Location:
TR HIGH
COURT OF
KARNATAKA,
DHARWAD
...RESPONDENTS
(R1 & R2-SERVED)
THIS MFA IS FILED U/SEC.173(1) OF MV ACT, 1988,
AGAISNT THE JUDGMENT AND AWARD DTD:04-03-2010
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MFA No. 24412 of 2010
C/W MFA No. 24183 of 2010
PASSED IN MVC.NO.402/2007 ON THE FILE OF THE I-ADDL.
CIVIL JUDGE(SR.DN) AND MEMBER, MACT, BELGUAM,
AWARDING THE COMPENSATION OF RS.96,850/-WITH
INTEREST AT THE RATE OF 9% P.A., FROM THE DATE OF
PETITION TILL REALISATION.
IN MFA NO.24183/2010
BETWEEN:
KUMAR ROSHAN JEET SIVADASAN
AGE ABOUT 30 YEARS, OCC:PRIVATE SECRETARY
R/O H.NO.1040, KULAGI ROAD,
DANDELI, TQ:HALYAL,
DIST:KARWAR.
...APPELLANT
(BY SRI. K ANANDKUMAR, ADVOCATE)
AND:
1. MR. SANTOSH C SARUER
AGE:MAJOR, OCC:DRIVER,
R/O 14TH BLOCK, NEAR DOUBLE BLDG,
DANDELI, TQ:HALYAL,
DIST:KARWAR.
2. THE DIVISIONAL MANAGER
UNITED INDIA INSURANCE CO. LTD.,
D.O MARUTI GALLI, BELGAUM.
....RESPONDENTS
(BY SRI.C.V. ANGADI, ADVOCATE FOR R2) (R1-SERVED)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF THE
MV ACT PRAYING TO ALLOW THE APPEAL AND CONSEQUENTLY
BE PLEASED TO MODIFY THE JUDGMENT AND AWARD DATED
4.3.2010 PASSED BY THE COURT OF I ADDL. CIVIL JUDGE
(SR.DN.) & MACT, BELGAUM IN MVC NO.402/2007 AND
ENHANCE THE COMPENSATION CLAIM IN THE CLAIM PETITION
IN THE INTEREST OF JUSTICE AND EQUITY.
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MFA No. 24412 of 2010
C/W MFA No. 24183 of 2010
THESE APPEALS COMING ON FOR FINAL HEARING, THIS
DAY, COURT DELIVERED THE FOLLOWING:
JUDGMENT
These appeals are at the instance of the Insurance
Company and the claimant calling in question the
correctness of the judgment and award dated 4.3.2010 in
MVC No.402/2007 by the learned I Addl. Civil Judge
(Sr.Dn.) & MACT, Belgaum (for short, 'MACT'). Grievance
of the Insurance Company is that the case of the claimant
that he had suffered injuries in a motor vehicle accident
involving the offending vehicle is totally false, whereas the
grievance of the claimant is that he was awarded lesser
compensation by the learned MACT.
2. Brief facts as projected in the claim petition are
that on 26.10.2006, while the claimant was standing by
the side of the road in Dandeli, rider of the motorcycle
bearing registration No.KA-31/K-1854 drove the same in a
rash and negligent manner in high speed and dashed
against the claimant resulting in serious injuries to him.
MFA No. 24412 of 2010
C/W MFA No. 24183 of 2010
3. The claim petition was resisted by both the
respondents before the learned MACT by filing their
separate statement of objections.
4. During the trial, the claimant examined himself
as PW1 and he examined one Doctor as PW2 and Exs.P1
to P16 were marked. The respondents did not examine
any witness but policy of insurance was marked as Ex.R1.
5. The learned MACT after hearing the learned
counsel on both sides and after perusing the material on
record allowed the claim petition in part awarding the
compensation of Rs.96,850/- with interest at 9% per
annum from the date of petition till realization of the
same.
6. The learned counsel appearing for the
Insurance Company in support of his appeal contended
before me that the case of the claimant was wholly false
and even the complaint regarding alleged accident was
lodged nearly two months after the alleged accident by
filing a private complaint before the jurisdictional Court.
MFA No. 24412 of 2010
C/W MFA No. 24183 of 2010
He further submitted that MLC register from the
Government Hospital, Dandeli was not produced before
the Tribunal, even though it is the case of the claimant
that he had taken treatment in the first instance in the
said hospital. He further contended that even the
compensation awarded by the learned MACT was
excessive inasmuch as treated doctor was not examined to
prove the physical disability of the claimant and for the
reasons urged by him, appeal is liable to be allowed and
the claim petition is liable to be dismissed.
7. Per contra, learned counsel appearing for the
claimant contended that the claimant could not take
treatment in the Government Hospital, Dandeli, as the
doctor was not available there and he had produced
Ex.P6-Discharge Summary to show that he had taken
treatment at Kshema Orthopedic & Trauma Centre, Hubli,
wherein history is also shown. He further submitted that
the claimant established by leading evidence that he has
suffered physical disability and therefore compensation
MFA No. 24412 of 2010
C/W MFA No. 24183 of 2010
awarded by the learned MACT is on the lower side and it is
required to be enhanced by allowing the appeal filed by
the claimant.
8. I have given my careful consideration to the
submissions made on both sides and I have perused the
records.
9. The claimant approached the learned MACT by
filing claim petition stating that he was standing by the
side of the road in Dandeli Town on 26.10.2006 at about 5
p.m. and at that time, rider of the offending motorcycle
drove the same in a rash and negligent manner and in
high speed and dashed against him resulting in grievous
injuries to him. In support of his case, he examined
himself as PW1 and Ex.P1 is a private complaint lodged by
him with regard to the alleged accident. As rightly
contended by the learned counsel for the Insurance
Company, even though Ex.P6 shows that the claimant had
suffered fracture of acromino clavicular dislocation right
shoulder grade-2, he did not file any police complaint
MFA No. 24412 of 2010
C/W MFA No. 24183 of 2010
nearly for a period of two months and it was only on
21.12.2006, he filed private complaint before the
jurisdictional Court as per Ex.P1. In Ex.P1, he has stated
that at the time of the accident, one Rohit Gurav and
Gautem Chirekhani were standing along with him and
evidently, they were eye-witnesses for the same.
However, he did not choose to examine them before the
learned MACT to establish the occurrence of the accident
as stated by him. In view of the specific contention taken
by the Insurance Company regarding the very occurrence
of the accident and the complaint filed by way of private
complaint before the jurisdictional Court after nearly two
months, it was incumbent upon the claimant to examine at
least one of the said two witnesses who were allegedly
present at the time of the accident. But no reason is
forthcoming as to why he did not or could not examine the
said eye-witnesses before the Court. Even though he has
stated that no doctor was available in the Government
Hospital, Dandeli, but he has stated in examination-in-
MFA No. 24412 of 2010
C/W MFA No. 24183 of 2010
chief that he had taken first aid there. Further, he has not
made any efforts to produce MLC register from the said
hospital. Insofar as Ex.P6 issued by a private hospital is
concerned, it is no doubt true that in the history column, it
is mentioned that he has suffered injuries in motorcycle
accident. However, it does not mention registration
number of the motorcycle involved in the accident.
Normally, one would not expect Wound Certificate or
Discharge Summary to contain in the history column the
registration number of a motorcycle involved in the
accident. However, in the peculiar facts and circumstances
of the case, especially in the background of the fact that
till after nearly two months of the accident, there was no
report available with the police regarding occurrence of the
accident and the alleged eye-witnesses have also not been
examined, if there was mention of the registration number
of the motorcycle involved in the accident in Ex.P6, it
would have given some indication that the said motorcycle
was actually involved in the accident in question.
MFA No. 24412 of 2010
C/W MFA No. 24183 of 2010
10. Learned counsel for the claimant drew my
attention to the fact that the rider of the motorcycle had
pleaded guilty before the Criminal Court where charge
sheet was filed. However, learned counsel for the
Insurance Company submitted that there was a collusion
between the rider of the offending motorcycle and the
claimant, therefore, much importance cannot placed on
the said circumstances. He pointed out that precisely
because of the same a belated private complaint came to
be filed by the claimant. Therefore, I find considerable
force in the said submission, particularly, in view of the
fact that apart from the rider pleading guilty before the
Criminal Court, there is absolutely no material to establish
the accident involving the offending motorcycle. As
pointed out earlier, eye-witnesses have not been
examined before the Tribunal and further the complaint
itself was filed nearly after two months when the claimant
who is a young person had suffered only fracture of
acromino clavicular dislocation of right shoulder grade-2.
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MFA No. 24412 of 2010
C/W MFA No. 24183 of 2010
11. On an entire appreciation of the material
evidence on record, I am of the view that the claimant has
failed in producing the credible evidence to establish the
fact that the accident resulting in injuries had taken place
involving the motorcycle bearing registration No.KA-31/K-
1854. Accordingly, appeal of the insurance company is
liable to be allowed and appeal of the claimant is liable to
be dismissed.
12. Hence, the following:
ORDER
a) Appeal in MFA No.24412/2010 filed
by the Insurer is allowed.
b) Appeal in MFA No.24183/2010 filed
by the claimant is dismissed.
Consequently, the claim petition is
dismissed.
c) The amount in deposit be refunded to
the appellant-Insurer forthwith.
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MFA No. 24412 of 2010
C/W MFA No. 24183 of 2010
d) Transmit the records to the learned
MACT forthwith.
e) No order as to costs.
Sd/-
JUDGE
JTR
