The Regional Manager vs Master Tharun C Gowda
2022 Latest Caselaw 12953 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 10TH DAY OF NOVEMBER, 2022

                         BEFORE

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

                 M.F.A.NO.5197/2014 (MV-I)

BETWEEN:

THE REGIONAL MANAGER
UNITED INDIA INSURANCE COMPANY LIMITED,
REGIONAL OFFICE,
NO.5 AND 6TH FLOOR,
KRUSHIBHAVAN HUDSON CIRCLE,
NRUPATHUNGA ROAD,
BEHIND CMM ROAD
BENGALURU-560 001                            ... APPELLANT

        (BY SRI O.MAHESH, ADVOCATE [THROUGH VC])

AND:

1.     MASTER THARUN C. GOWDA
       AGED ABOUT 12 YEARS, MINOR
       S/O CHANDRASHEKAR

       SINCE MINOR, REPRESENTED BY
       FATHER AND NATURAL GUARDIAN
       CHANDRASHEKAR
       S/O CHIKKA THANGEGOWDA,
       AGED 43 YEARS
       R/AT ABALAVADI VILLAGE
       KOPPA HOBLI, MADDUR TALUK
       MANDYA DISTRICT-571 401

       NOW R/AT NO.8, 2ND CROSS
       VRUSHABHAVATHINAGAR
       KAMAKSHIPALYA, BENGALURU-560 079.
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2.   SRI AMBALAL M. PATEL
     M/S. KAVERI TRADERS
     MANIPAL ROAD, KUNJI BETTU
     UDUPI DISTRICT-576101.

3.   SRI MURGADAS @ RAMADASU
     NO.30/A, 2ND CROSS
     KRISHNANANDA NAGAR,
     NANDINI LAYOUT,
     BENGALURU-560 096.                        ... RESPONDENTS

     (BY SRI P.S.KAILASH SHANKAR, ADVOCATE FOR R1;
        SRI K.PRASANNA SHETTY, ADVOCATE FOR R2;
                      R3 IS SERVED)


     THIS M.F.A., IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 01.04.2014
PASSED IN MVC NO.224/2011 ON THE FILE OF THE 11TH
ADDITIONAL JUDGE, MACT, COURT OF SMALL CAUSES,
BENGALURU, AWARDING A COMPENSATION OF RS.1,45,630/-
WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL
THE DATE OF REALIZATION.

     THIS M.F.A., COMING ON FOR FINAL HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                           JUDGMENT

Heard the learned counsel appearing for the appellant-

Insurance Company, the learned counsel appearing for

respondent No.1 and the learned counsel appearing for

respondent No.2.

2. This appeal is filed challenging the judgment and

award dated 01.04.2014 passed in M.V.C.No.224/2011 on the

file of Small Causes, Bengaluru City (SCCH-12) ['the Tribunal' for

short].

3. The parties are referred to as per their original

rankings before the Tribunal to avoid confusion and for the

convenience of the Court.

4. The factual matrix of the case of the claimant before

the Tribunal is that a student, who is aged about 8 years, met

with an accident. On 26.12.2010 at about 2:30 p.m, the

petitioner after carefully observing the traffic movements was a

pedestrian on the extreme left side on Koppa to Hosagavi road,

Abalavadi Village, in front of the house of the petitioner, the

driver of Tata Ace 207 Tempo bearing registration No.KA-02-A-

9301, came from Hosagavi road side in a rash and negligent

manner, dashed against him, as a result, he had sustained

injuries. Immediately he was shifted to Vikram Hospital at

Mandya, wherein, after the first aid treatment he was referred to

Vikram Jeeva Hospital at Mysuru, wherein, he took treatment as

an inpatient.

5. The claimant in order to substantiate his contention,

he examined through his natural guardian-father as P.W.1, and

examined another witness as P.W.2 and also examined the

Doctor as P.W.3 and got marked the documents as Exs.P1 to

P17. On the other hand, the respondents have examined three

witnesses as R.Ws.1 to 3 and got marked the documents as

Ex.R1 to R7.

6. The Tribunal after considering both oral and

documentary evidence placed on record, allowed the claim

petition in part and fastened the liability on the Insurance

Company. Hence, the present appeal is filed by the appellant -

Insurance Company.

7. The main contention of the learned counsel

appearing for the appellant - Insurance Company in his

arguments is that, the driver was not having the valid driving

license and the driving license, which was marked, is a fake

driving license. Exs.R1 to R6, which are marked through RW.2,

clearly discloses that the documents were fake documents. It is

also the contention that Exs.R1 to R6 clearly establishes that the

driving license produced at Ex.R7 by the Insured was fake and

the burden was on him to prove the same; the same has not

been done. Instead of that, the Tribunal has committed an error

that the RTO has not been examined. Hence, it requires an

interference of this Court.

8. Per contra, the learned counsel appearing for the

respondents would submit that Ex.R7 is the original driving

license. The Tribunal rightly disbelieved the case of the

respondents since they have not proved the same by examining

the author of the document. The learned counsel also would

submit that Ex.R3, which is produced before the Court discloses

in respect of A.S. Nataranjan and the driver of the vehicle is only

A. Natarajan. Hence, an endorsement-Ex.R3 was given. Ex.R3

will not come to the aid of the respondents.

9. Having heard the respective counsel and on perusal

of the material available on record, the respondents mainly rely

upon the documents - Exs.R4 to R7. On perusal of the

endorsement issued by the Davanagere Assistant RTO Officer

dated 22.08.2012 discloses that they have examined FDL

No.5829/08-09 and the candidate name is A.S.Nataranjan and

no such license was issued. But on perusal of Ex.R7, it is clear

that the applicant is one Sri A. Natarajan and not Sri

A.S.Nataranjan. On perusal of Ex.R7, it is valid from 21.07.2008

to 20.07.2028. In the endorsement - Ex.R3, they have verified

the document in respect of A.S.Nataranjan not 'A. Natarajan'.

10. Apart from that, it is rightly pointed out by the

counsel appearing for the respondent that the author of the

document has not been examined in a case of specific contention

was urged by the Insurance Company that the document was a

fake document and relies upon the document in support of their

claim, ought to have proved the same by examining the author

of the document. The Tribunal while considering the material on

record, particularly, in paragraph No.32, observed that the same

has not been proved by examining the author of the document.

Mere taking of defense that the driving license is fake is not

enough and the same has to be proved. In paragraph No.32 of

the judgment, the Tribunal had taken note of Ex.R6 as well as

Ex.R7 and also taken note of the validity of the period and Ex.R7

clearly shows that the RTO, Davanagere has issued the driving

license to A.Natarajan on 21.07.2008. It is further observed

that the burden casted on the respondent - Insurance Company

to establish that whether this driving license is valid driving

license or not, the same has not been done. Respondent No.3,

who is the owner of the offending vehicle, has produced Ex.R7-

Original Driving License. Ex.R7, clearly discloses that on the date

of the accident, the driver was holding the valid driving license.

But the Insurance Company failed to dis-prove the document -

Ex.R7 and also the endorsement Ex.R3. Ex.R3, is in respect of

A.S.Nataranjan and not in respect of A.Natarajan. In the

absence of proving of the document that the same is a fake

document, the question of interfering with the finding of the

Tribunal does not arise. The burden lies on the Insurance

Company to prove the same except relying upon the

endorsement, nothing is placed on record and also the author of

the document has not been examined. Under the circumstances,

I do not find any force in the contention of the Insurance

Company that the driving license was a fake document. Unless

the same is proved as a fake document, the shifting of the

liability on the owner does not arise.

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

following:

ORDER

(i) The appeal is dismissed.

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

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

Sd/-

JUDGE

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