The Claim Manager vs Krishnagowda
2022 Latest Caselaw 12766 Kant

                                         MFA.5329/2015
                          1

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 3RD DAY OF NOVEMBER, 2022

                       BEFORE

 THE HON'BLE MR. JUSTICE T.G.SHIVASHANKARE GOWDA

             MFA NO.5329 OF 2015 (MV)

BETWEEN:

THE CLAIM MANAGER
H D F C ERGO GENERAL
INSURANCE COMPANY LIMITED
NO.110, H M JANIVA HOUSE
1ST FLOOR, KANNIGHAYM ROAD
BANGALORE-560002

BY

HDFC ERGO GENERAL
INSURANCE CO. LTD.
II FLLOR, NO. 25/1
BUILDING NO.2
SHANKARNARAYANA BUILDING
M.G. ROAD, BENGALURU-560 001
BY ITS MANAGER-CLAIMS-SOUTH              ...APPELLANT

(BY SRI O.MAHESH, ADVOCATE)

AND:

1 . KRISHNAGOWDA
    AGED 23 YEARS
    S/O JAYANNA
    R/AT BANDELAKKANAHALLI KOPPALU
    HALEBEEDU HOBLI
    HASSAN TALUK-573 201

     PRESENTLY R/O C/O MANJEGOWDA
     ANNAPOORNESHWARI NILAYA
     HOYSALA NAGARA
     HASSAN-573201.
                                             MFA.5329/2015
                           2

2 . ABHISHEK N.
    S/O LATE R.NARASIMHA
    NO.39, 11TH CROSS
    CUBBON PETE
    BANGALORE-560 002.                    ...RESPONDENTS


      THIS MFA FILED IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD DATED
17.01.2015 PASSED IN MVC NO.1650/2013 ON THE FILE OF
THE PRINCIPAL SENIOR CIVIL JUDGE, ADDITIONAL MACT,
HASSAN, AWARDING COMPENSATION OF Rs.1,64,000/- WITH
INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL
DEPOSIT.

     THIS MFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 28.10.2022 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:

                  JUDGMENT

The second respondent is the insurer before

the Tribunal is challenging the award dated 17th

January 2015 in M.V.C.No.1650/2013 in the instant

appeal.

2. The ranking of the parties will be referred to

as per their ranking before the Tribunal.

3. Heard the arguments of Sri.O.Mahesh,

learned counsel for the appellant.

MFA.5329/2015

4. Brief factual matrix is that, on 7.7.2013 at

about 8.00 a.m. when the petitioner was standing

near Basavanahally Bus Stop, Alur Taluk, a motor

cycle bearing registration No.KA-01/EE-5551 ridden

by its rider, in a rash and negligent manner dashed

against him causing injuries on left hand and right

leg resulting in fracture of right Tibia and Fibula.

The petitioner had taken treatment at Hemavathi

Hospital, Hassan. After the accident, the rider of the

offending motor cycle was prosecuted by Alur Police

in Crime No.226/2013.

5. The claim was opposed by the respondents

denying the accident, cause of the accident,

involvement of the vehicle in question. The first

respondent contended that the motor cycle was

covered with insurance, policy was in force and the

second respondent as insurer is liable to indemnify

him.

MFA.5329/2015

6. The second respondent has taken a specific

defence that the rider of the motor cycle did not

possess valid driving licence, there is a violation of

terms of the policy by the owner, and petition is bad

for non-joinder of the rider of the motor cycle.

7. After hearing both sides and on perusal of

the material available on record, the Tribunal has

allowed the claim in part awarding compensation of

Rs.1,64,000/- with 6% interest with a direction to

the second respondent/insurer to satisfy the same.

8. Grounds urged in this appeal are that the

complaint filed at 1.00 p.m. on the very day against

unknown rider. The petitioner very day stated to

Police that the complainant and the rider of the

motor cycle Hemachandra have shifted him to

Hemavathi Hospital, Hassan. But before the

Tribunal, he says not aware, who was the rider. In

the jeep of one Krishnegowda, the injured was

shifted to Hospital by complainant and rider. There is MFA.5329/2015

an unnatural conduct on the part of the petitioner in

identifying the rider of the motor cycle. It is also

contended that one Manjunath was using the insured

motor cycle, it was registered in the name of the first

respondent and it is this Manjuanth, who got

released the said motor cycle by obtaining the

General Power of Attorney from Abhishek/first

respondent. This Manjunath is involved in many

cases in providing vehicles and defrauding the

insurer by creating false claim. It has been traced

during the third party investigation and to this

extent, there was a complaint filed to the

Superintendent of Police, Hassan. Hence, the finding

of the Tribunal in not taking note of all these aspects

is perverse and claim needs to be dismissed.

9. It has been argued by Sri.O.Mahesh, learned

counsel for the appellant/insurer that the motor

cycle in question has been implicated as it belongs to

one Manjunath, though it stands in the name of the MFA.5329/2015

first respondent. Manjunath, as the GPA Holder, got

released the said motor cycle from the Alur Police by

offering surety to the said rider. It is he, who is

actively involved in fabricating the false records in

several cases and complaint was also filed to the

Superintendent of Police.

Learned counsel also taken me through the

evidence of the petitioner in the cross-examination

explaining the anomalies in the evidence and

submitted that evidence of petitioner cast cloud of

doubt, hence, it is fit case for allowing the appeal.

10. I gave my anxious consideration to the

submission made by the learned counsel for the

appellant and perused the evidence placed before

the Tribunal.

11. It is pertinent to note that the petitioner

was taken to Hemavathi Hospital, Hassan, at 10.00

a.m. on 7.7.2013 by one Chandrashekar, who is his MFA.5329/2015

relative. Ex.P8 is the statement of petitioner on

7.7.2013 before Police on the very day. Recitals of

Ex.P8 indicate that one Hemachandra was the rider

of the motor cycle, who helped the complainant to

shift him to Hemavathi Hospital. Ex.P2/complaint is

against unknown rider. Inspite of petitioner and the

complainant knew the rider, why it was not informed

to Police immediately. The petitioner in his affidavit

evidence before the Tribunal did not mention who

was the rider of the motor cycle. The petitioner

admits in the cross-examination the jeep belonging

to his relative Krishnegowda, in which he was

brought to the hospital. This aspect is suppressed to

the Police, and for which there is no explanation.

12. RW-1/Jayashekar is the Officer of the

Insurance Company, who has spoken to regarding

the involvement of Manjunath in as many as 10

cases pertains to their Insurance Company in fixing

the vehicles, providing riders, getting the vehicles MFA.5329/2015

released and also offering surety to the rider of the

vehicles. In this regard, complaint was filed to the

Superintendent of Police as per Ex.R3. He also

produced the investigation report of their Company

as per Ex.R2 wherein it is specifically alleged that

one Manjunath, son of Sannegowda, had got the

vehicle released from the Police Station as per the

indemnity bond available in the Police Station. He

has given bail to the rider and this Manjunath has

not co-operated during the investigation prompting

the appellant to file complaint alleging fraud played

in planting the motor cycle and also installing the

rider.

13. It is pertinent to note from the recitals of

Ex.R3 that it is this Manjunath, who was providing

the vehicles, riders and planting to facilitate the

injured persons. On perusal of Ex.R3 it is specifically

mentioned that he has provided vehicles in eight

cases, out of which, six cases pertain to Alur Police MFA.5329/2015

Station only, in this regard investigation is under

progress. The evidence of RW-1 during the course of

cross-examination did not deny anything about these

allegations except formal denial of other aspects.

14. On a careful evaluation of the evidence, it

is very clear that the petitioner was shifted to

Hemavathi Hospital in the jeep of relative of the

petitioner Krishnegowda, at that time, the rider had

accompanied them, but the complaint is filed against

an unknown person.

15. Interestingly, the motor cycle in question

has been released from the Police custody by

Manjunath, s/o Sannegowda and he has also offered

surety to the rider. If the allegations made against

Manjunath and the investigation report at Ex.R2 and

complaint filed at Ex.R3 did stand in support of the

cross-examination of the petitioner on behalf of the

Insurance Company. The evidence on record did MFA.5329/2015

point out the nexus between accident and

Manjunath.

16. Hence, taking into consideration the totality

of the case, in the background of the allegation of

fraud played by Manjunath in fixing the motor cycle,

I am persuaded by the argument addressed in

support of the Insurance Company. Hence, the case

of fraud of this nature cannot be supported with by

confirming the award of the Tribunal.

17. On a careful perusal of the impugned

judgment, it is noticed that the Tribunal did not take

note of all these aspects, simply processed that

there was an accident, mechanically assessed the

compensation and as such, the judgment and award

of the Tribunal is erroneous.

18. The Co-ordinate Bench of this court in

M.F.A.No.1113/2010 c/w M.F.A.No.3256/2010 (MV)

DD 19.01.2015 in identical circumstances allowed MFA.5329/2015

the appeal of the Insurance Company and dismissed

the claim of the petitioner for enhancement and

remanded the matter to the Tribunal for fresh

consideration in the light of the aspects regarding

doubtful accident.

19. Here in this case, the Tribunal did not

consider any of the aspects raised by the Insurance

Company, did not discuss anything about the

valuable evidence placed by the Insurance Company

or any finding is recorded why the Tribunal is not

accepting the evidence of the insurer. When the

serious allegation of fraud was brought before the

Tribunal, it shall not be ignored. The Tribunal shall

invoke its power under Section 165 of the Indian

Evidence Act, 1872 and Section 311 of Cr.P.C., to

secure the records from the concerned. After such

examination if the allegation is found incorrect, it can

proceed to pass award in favour of the petitioner.

Hence, matter needs reconsideration by the Tribunal MFA.5329/2015

itself and as such, the appeal needs to be allowed in

this regard.

In the result, I pass the following;

ORDER

(i) The appeal is allowed.

(ii) The judgment and award dated 17.01.2015

passed in M.V.C.No.1650/2013 by the Principal

Senior Civil Judge and Addl. MACT., Hassan, is

hereby set aside and the matter is remanded back to

the Tribunal for consideration of the evidence of the

respondents regarding fraud played by the

petitioner, in the light of the observation made

supra, with a direction to permit both parties to

adduce additional evidence/rebuttal evidence, if any.

Without further notice, the parties to the

proceedings shall appear before the Tribunal on

12.12.2022 at 11.00 a.m. MFA.5329/2015

Registry is directed to transmit the records to

the Tribunal forthwith.

Any statutory deposit, if made by the appellant,

shall be returned to the appellant.

Sd/-

JUDGE

KNM/-