Hdfc Ergo General Insurance Co Ltd vs Shivanna
2022 Latest Caselaw 12404 Kant

                          1


     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 13TH DAY OF OCTOBER, 2022

                       BEFORE

     THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

              MFA NO.2130/2018(MV-I)
                       C/W
               MFA NO.34/2018(MV-I)

IN MFA NO.2130/2018:

BETWEEN:

SRI. SHIVANNA
S/O LATE THIMMANNA
AGED ABOUT 54 YEARS
R/O. NINJAYANAPALYA VILLAGE
KALLAMBELLA HOBLI
TUMAKURU DISTRICT
                                        ... APPELLANT
(BY SRI. V.B. SIDDARAMAIAH, ADVOCATE)

AND:

1.    THE HDFC ERGO GENERAL
      INSURANCE CO. LTD.
      2ND FLOOR, JEENEVA HOUSE
      CUNNINGHAM ROAD
      BENGALURU-560 056
      REPRESENTED BY ITS BRANCH MANAGER

2.    SRI. VEERANNA S/O AJJAPPA
      AGED ABOUT 54 YEARS
      R/O. NO.37, MARULALPPANAHALLY
      VILLAGE, KALLAMBELLA HOBLI
      SIRA TALUK-572 137
      TUMAKURU DISTRICT             ... RESPONDENTS
(BY SRI. O. MAHESH, ADVOCATE FOR R1;
    V/O DTD:7-3-2019, NOTICE TO R2 IS D/W)
                            2


     THIS APPEAL IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED:06.10.2017 PASSED IN MVC NO.1121/2014 ON THE
FILE OF THE SENIOR CIVIL JUDGE AND J.M.F.C.,
ADDITIONAL MACT, SIRA, PARTLY ALLOWING THE CLAIM
PETITION   FOR     COMPENSATION    AND    SEEKING
ENHANCEMENT OF COMPENSATION.

IN MFA NO.34/2018:

BETWEEN:

HDFC ERGO GENERAL
INSURANCE CO. LTD.
2ND FLOOR, JEENEVA HOUSE
CUNNINGHAM ROAD
BENGALURU-56

REPRESENTED BY:

HDFC ERGO GENERAL INSURANCE CO. LTD.
II FLOOR, NO.25/1, BUILDING NO.2
SHANKARNARAYANA BUILDING
M.G. ROAD, BENGALURU-560 001
BY IT'S MANAGER-CLAIMS-SOUTH
                                       ... APPELLANT
(BY SRI. O. MAHESH, ADVOCATE)

AND:

1.   SHIVANNA S/O LATE THIMMANNA
     AGED 53 YEARS
     R/A NINJAYANAPALYA VILLAGE
     KALLAMBELLA HOBLI
     SIRA TALUK
     TUMKUR DISTRICT-572 101

2.   VEERANNA S/O AJJAPPA
     AGED ABOUT 53 YEARS
     R/O. NO.37,
     MARULALPPANAHALLY VILLAGE
                                3


    KALLAMBELLA HOBLI
    SIRA TALUK,
    TUMAKURU DISTRICT-572 101
                                                   ... RESPONDENTS
(BY SRI. V.B. SIDDARAMAIAH, ADVOCATE FOR R1;
    R2-SERVED)

      THIS APPEAL IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED:06.10.2017 PASSED IN MVC NO.1121/2014 ON THE
FILE OF THE SENIOR CIVIL JUDGE AND J.M.F.C.,
ADDITIONAL MACT, SIRA, AWARDING COMPENSATION OF
MACT, SIRA, AWARDING COMPENSATION OF RS.3,35,900/-
WITH INTEREST @ 9%P.A. FROM THE DATE OF PETITION
TILL DEPOSIT.

     THESE APPEALS COMING ON FOR HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                            JUDGMENT

These appeals are filed under Section 173 of

Motor Vehicles Act, 1988 (for short, 'MV Act')

challenging the judgment and award dated 06.10.2017

passed by the Senior Civil Judge and Additional MACT

at, Sira in MVC No.1121/2014.

2. MFA No.2130/2018 is filed by the

petitioner/claimant seeking enhancement of

compensation, while MFA No.34/2018 is filed by the

Respondent No.2/HDFC ERGO General Insurance

Company Limited, challenging the liability itself.

3. For the sake of convenience, the parties

herein are referred as per the ranks occupied by them

before the Tribunal.

4. The brief facts of the case are that, on

28.05.2014 at about 9.30 a.m., when the petitioner

and other labourers were loading the sand to the

tractor-trailer bearing No.KA.02.T.1716 &

KA.02.T.1717 at Madhu's land at Nijjaiahnapalya

Village, Kallambella Hobli, SiraTaluk, at that time,

without giving any signal, the driver of the vehicle

moved the same in rash and negligent manner in

reverse direction and dashed to the petitioner, who

was standing at the back side of the vehicle resulting

in accident and petitioner suffered grievous injuries as

alleged by involving the said tractor-trailer and hence,

he filed the claim petition under Section 166 of the

M.V. Act.

5. The Respondent No.2/Insurance Company

has disputed the accident on the ground that the

petitioner/claimant has not suffered any injuries

alleged by involving the vehicle and disputed the

liability.

6. The Tribunal after assessing oral as well as

documentary evidence, has awarded total

compensation of Rs.3,35,900/- with interest at 9%

p.a., from the date of petition till realization, by

fastening liability on Respondent Nos.1 &2 joint and

severally.

7. Being aggrieved by the impunged judgment

and award, these appeals are filed.

8. Heard arguments advanced by the learned

counsels appearing on both sides.

9. During the course of arguments, learned

counsel for respondent No.2/Insurance Company has

invited the attention of the Court to Ex.R7, which is the

alleged video recording said to have been recorded by

the Investigator by interviewing the

petitioner/claimant, wherein, the petitioner/claimant

has disputed the accident and other aspects. Ex.R8 is

also relied upon, which simply states that, Ex.R7 is a

genuine document and it is not tampered with.

However, issue is regarding whether it is the voice of

the petitioner/claimant or not.

10. Subsequently, after hearing the matter for

some time, the counsels on both sides submit that the

matter may be remanded to the Tribunal with a

direction to take voice sample of the

petitioner/claimant and examine the same, with Ex.R7.

11. The learned counsel for the

petitioner/claimant has also filed a memo stating that

the petitioner/claimant is prepared to give his voice

sample subject to condition that the costs of voice

examination shall be borne by the Respondent

No.2/Insurance Company.

12. Learned counsel for respondent

No.2/Insurance Company would submit that, in case

the matter is remanded, necessary steps will be taken

in this regard.

13. Looking to facts and circumstances and

considering the submission made by the learned

counsels appearing on both sides, it is evident that the

entire matter rests on genuineness of Ex.R7 itself.

Hence, the matter requires to be remanded to enable

the parties to give voice sample of the

petitioner/claimant before the Tribunal, which can be

taken by the competent person and that can be

compared with Ex.R7.

14. Under these circumstances, both the

appeals need to be allowed by setting aside the

impugned judgment and award and the matter

requires to be remitted back to the Tribunal.

Accordingly, I proceed to pass the following:

ORDER

i) The appeals are allowed. The impugned Judgment and award dated 06.10.2017 passed the Senior Civil Judge and

Additional MACT at Sira, in MVC No.1121/2014, stands set aside.

ii) The matter is remanded to the Tribunal with a specific direction that the Tribunal shall secure the voice sample of the petitioner/claimant and then get it analised by comparing the same with Ex.R7 at costs of Insurance Company and shall pass appropriate order basing on other evidence, including the report regarding voice sample.

iii) Considering old nature of the case, the parties on both sides are directed to appear before Tribunal on 04.11.2022 at 11.00 a.m., without waiting for any notice or summons from the concerned Court. On appearance of the parties, the Tribunal shall fix the date for taking voice sample and proceed further.

iv) The amount in deposit before this Court shall be transmitted to the Tribunal.

v) The Tribunal is directed to invest the deposited amount, in Fixed Deposit in any Nationalised Bank and the party who succeeds

in the case, shall be entitled to get the deposited amount with accrued interest thereon.

The Registry is also directed to transmit the

records to the concerned Tribunal forthwith.

Sd/-

JUDGE

KGR* CT:NR