The Branch Manager vs Arpitha J S
2022 Latest Caselaw 12991 Kant

                             1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 14TH DAY OF NOVEMBER, 2022

                          BEFORE

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

                  M.F.A.NO.444/2016 (MV-I)

BETWEEN:

THE BRANCH MANAGER
NEW INDIA ASSURANCE CO. LTD.,
BRANCH OFFICE, PANDURANGA COMPLEX
JAIN TEMPLE ROAD, CHIKKAMAGALURU
THROUGH ITS BENGALURU REGIONAL OFFICE
NO.9/2, MAHALAKSHMI CHAMBERS
2ND FLOOR, M.G.ROAD
BENGALURU-560 001
REPRESENTED BY ITS BY ITS MANAGER.           ... APPELLANT

          (BY SRI S.V.HEGDE MULKHAND, ADVOCATE)

AND:

1.     ARPITHA J.S.
       D/O LATE SHANTHINATH
       AGED ABOUT 31 YEARS
       R/O JANIGE VILLAGE
       KANNEHALLI POST
       MUDIGERE TALUK
       CHIKKAMAGALUR DISTRICT-577 111.

2.     SADIQ PASHA
       S/O ALTHAF HUSSAIN
       AGED ABOUT 37 YEARS
       DRIVER, R/O.HANDI VILLAGE AND POST
       CHIKMAGALAUR TALUK
       AND DISTRICT-577 111
                                        2



3.     MAMTAZ ALI
       S/O MUHAMMED ISMAIL
       AGED AOBUT 37 YEARS
       R/O HANDI VILLAGE AND POST
       CHIKMAGALUR TALUK AND
       DISTRICT-577 111.                              ... RESPONDENTS

                        (R1 & R3 ARE SERVED
                   VIDE ORDER DATED 25.06.2019
                  NOTICE TO R2 IS DISPENSED WITH)


     THIS M.F.A., IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:30.09.2015
PASSED IN MVC NO.624/11 ON THE FILE OF THE PRINCIPAL
DISTRICT JUDGE & MMACT, CHIKKAMAGALURU, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.

     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. Though the notice was served on

respondent Nos.1 and 3, they are unrepresented.

2. This appeal is filed challenging the judgment and

award dated 30.09.2015 passed in M.V.C.No.624/2011 on the

file of the Principal District Judge and M.M.A.C.T., at

Chikkamagaluru ('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 she was proceeding along with her brother in

the Maruti Omni Car, at that time, the driver of the Lorry drove

the same in a rash and negligent manner and dashed against the

Omni Car, as a result, the accident was occurred and she has

sustained the injuries.

5. In pursuance of the claim petition, notice was

ordered against the respondents. The Insurance Company

appeared and filed the written statement contending that the

accident was occurred due to rash and negligent driving of the

driver of the Car.

6. The claimant in order to substantiate her case, she

examined himself as P.W.1 and examined another witness as

P.W.2 and got marked the documents as Exs.P1 to P16. On the

other hand, the respondent - Insurance Company has examined

one official witness as R.W.1 and got marked the document as

Ex.R1-Certified Copy of the Insurance Company.

7. The Tribunal after considering both oral and

documentary evidence from page Nos.17 to 26 in detail

discussed with regard to the oral and documentary evidence

available on record.

8. The main contention of the learned counsel

appearing for the appellant - Insurance Company in this appeal

is that the accident was occurred due to rash and negligent

driving on the part of the driver of the Omni Car and not on

account of the rash and negligent driving on the part of the

Lorry. In order to substantiate the said contention only

examined R.W.1, who is the official witness of Insurance

Company and not examined respondent No.1, who is the driver

of the offending vehicle, the same has been discussed in

paragraph No.25 of the Judgment that he is a right person to

speak with regard to the contributory negligence on the part of

the driver of the Omni Car. It is also brought to the notice of

this Court by the learned counsel appearing for the Insurance

Company that the complaint was given by the cleaner of the

Lorry in terms of Ex.P3. No doubt, Ex.P3 is marked, wherein, an

allegation is made against the driver of the Car. But in order to

substantiate the said contention, even not examined the author

of the said document i.e., complainant. This aspect is also

considered by the Tribunal while considering the material on

record while answering issue Nos.1 and 2 with regard to the

negligence. Except taking the defense of negligence on the part

of the driver of the Omni Car, nothing is placed on record before

the Tribunal by the Insurance Company except examining the

official witness. The official witness is not an eye witness to the

accident. P.Ws.1 and 2 are the injured and eye witness,

respectively to the accident and nothing is elicited in the cross-

examination of PWs.1 and 2 to substantiate the contention of the

Insurance Company. When such being the material available on

record, I do not find any error committed by the Tribunal in not

taking the contributory negligence and there is no any cogent

evidence before the Court to comes to a conclusion that the

negligence is on the part of the driver of the Omni Car. Under

the circumstances, I do not find any force in the contention of

the learned counsel appearing for the Insurance Company that

the Tribunal ought to have taken the contributory negligence.

9. 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 cp*