Karnataka High Court

The National Insurance Company ... vs Smt Sarojamma on 16 September, 2022

Bench: T G Gowda

                                         MFA.5303/2012
                          1
  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 16TH DAY OF SEPTEMBER, 2022

                       BEFORE

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

           M.F.A.No.5303 OF 2012 (MV-I)

BETWEEN:

THE NATIONAL INSURANCE COMPANY LTD.,
D.O-7, NEW DELHI-110 001 ALSO AT
REGIONAL OFFICE, SHUBHRAM COMPLEX,
# 144, M.G.ROAD, BANGALORE - 560 001
REP. BY ITS MANAGER.                 ... APPELLANT

(BY SRI. K.SRIDHARA, ADVOCATE)

AND:

1.   SMT SAROJAMMA
     W/O SWAMYGOWDA,
     AGED ABOUT 40 YRS,
     R/A KODAKAHALLY VILLAGE,
     DODDAMAGGE HOBLI,
     ARKALGUD TALUK,
     HASSAN DISTRICT

2.   SHRI DEVARAJEGOWDA
     S/O THOPEGOWDA,
     AGED 50 YEARS,
     R/A HONNAVALLI VILLAGE, KASABA HOBLI,
     ARKALGUD TALUK
                                      ... RESPONDENTS
(R1 & R2 SERVED AND UNREPRESENTED)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLE ACT PRAYING TO THE JUDGMENT AND AWARD
DATED 01.02.2012 IN MVC NO.7/2010 PASSED BY THE
SENIOR CIVIL JUDGE AND JMFC, ADDL. MACT, ARKALAGUD
BE SET ASIDE BY ALLOWING APPEAL WITH COSTS
THROUGHOUT,      AND     SUCH     OTHER      ORDER/S,
                                               MFA.5303/2012
                            2
DIRECTIONS/RELIEF'S IF ANY AS THIS HON'BLE COURT MAY
DEEM FIT, IN THE INTEREST OF JUSTICE AND EQUITY.

     THIS MFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 03.09.2022 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:

                      JUDGMENT

This is an appeal filed under Section 173(1) of

the Motor Vehicles Act, 1988 (hereinafter referred to

as 'the Act' for brevity) by the appellant/Insurer,

challenging the judgment and award dated

01.02.2012 passed in M.V.C.No.7/2010 by the Motor

Accident Claims Tribunal, Arkalgud (hereinafter

referred to as 'the Tribunal' for brevity).

2. The facts leading to filing of the claim

petition is that, the petitioner before the Tribunal,

aged 38 years claims to be a vegetable vendor said

to have sustained injuries while standing on the side

of the road on 24.08.2009 allegedly hit by a motor

cycle, which is insured with the appellant herein.

After 17 days from the date of the alleged accident,

the petitioner filed complaint with Gorur Police MFA.5303/2012

against the motor cycle bearing No.KA-13/U-6855.

As such, she claimed compensation. The Tribunal

vide the impugned judgment has awarded

compensation of Rs.22,000/- with interest @ 6% per

annum, fastening liability on the insurer/appellant

herein.

3. The appeal is filed on the following grounds:

(i) The vehicle in question is not involved in the alleged accident;

(ii) The Tribunal failed to look into the notings made in the wound certificate and the MLC extract;

(iii) The Tribunal failed to consider the admission made by the petitioner regarding the accident;

(iv) The Tribunal failed to consider the delay of 17 days in registering the case;

(v) The claimant has played fraud on the Tribunal in getting the compensation and

(vi) The award of global compensation is not justified.

MFA.5303/2012

Therefore, the judgment and award needs to be set

aside and claim of the petitioner needs to be

dismissed.

4. The respondent No.1 herein is the claimant,

respondent no.2 is the owner of the vehicle. Both

were served and unrepresented.

5. Heard the learned counsel for the appellant

and perused the material available on record. Now

the point that would for my consideration is:

Whether the Tribunal is justified in accepting the alleged accident while awarding compensation?

6. My answer to the above point is in the

negative as per the final orders.

7. The facts leading to the claim before the

Tribunal is that, on 24.08.2009, the petitioner after

attending pooja in the Shanimahatma temple was

waiting on the left side of Jinnenahally Gate on MFA.5303/2012

Hassan-Arakalgud road, at that time, a Hero Honda

motor cycle bearing registration No.KA-13/U-6855

came from Hassan side towards Arakalgud and

dashed against the petitioner resulting in fracture on

her left hand, as a result of which, she was admitted

to Government Hospital, Hassan as inpatient on

24.08.2009 and she was treated there till

05.09.2009 and thereafter as outpatient for a period

of one month. Claiming compensation of Rs.4 lakhs,

the petitioner came before the Tribunal by filing a

petition under Section 166 of the Motor Vehicles Act,

1988.

8. Before the Tribunal, the owner of the vehicle

was placed exparte. The insurer alone contested the

case on various grounds including that the vehicle in

question was not involved in the accident and the

injury has nothing to do with the alleged accident

claimed by the petitioner.

MFA.5303/2012

9. The petitioner in order to prove her case

examined herself as PW-1 and relied upon Exs.P1 to

P9 and one witness was examined on behalf of the

insurer as RW-1 and produced Exs.R1 and R2.

10. The Tribunal after hearing the arguments

did not accept the plea of the insurer that the vehicle

is not involved in the accident and also considered

that the delay is natural and thereby considering the

said aspect of the matter passed the impugned

judgment in part and awarded a global compensation

of Rs.22,000/-.

11. It has been argued by the learned counsel

for the appellant/insurer that the alleged accident

claimed by the petitioner and the accident that has

been informed to the hospital are different. The

petitioner is a resident of Kodakahally village of

Arkalgud taluk, Hassan district and before the

Tribunal, she has made a revelation that the accident

took place at Kodakahally village and she was MFA.5303/2012

brought to the hospital by one Anand, her relative

and in this regard, there was an entry in MLC

12. Learned counsel brought to the notice of

this court, the history mentioned as to the accident,

wherein the place of accident is said to be

Kodakahally village and there is no reference of

Jinnenahally gate. Hence the contention of the

petitioner that the accident that took place was at

Kodakahally wherein the compensation is claimed to

an accident that had occurred at Jinnenahally gate

on the same day. It is the version of the

appellant/insurer that there cannot be two accidents

at the same time and therefore, the claim makes it

clear that the vehicle has been fixed and a false

claim has been made against the motor vehicle and

the Tribunal has ignored of all these facts inspite of

being brought to the knowledge of the Tribunal in MFA.5303/2012

the form of evidence and therefore, the impugned

order needs interference.

13. Since the respondents though served and

unrepresented, the Court has to decide the case on

its merits, having regard to the material brought

before the court in the form of evidence.

14. It is pertinent to note that the alleged

accident took place on 24.08.2009 wherein one

Anand has brought the petitioner to the General

hospital, Hassan at 10.00 p.m. on the very same day

where they have given the history of the accident as,

"while she was standing by road side at 6.00 p.m. in

her village, a two-wheeler hit her". The petitioner is

admittedly a resident of Kodakahalli village and she

is not the resident of Jinnenahally.

15. As seen from the records, particularly

Ex.R2, the MLC Register extract, a message was

given to the Gorur Police on 5.10.2009 at 12.45

p.m., that the petitioner has sustained an injury in MFA.5303/2012

an accident at Kodakahalli, but as seen from the

records, FIR was registered as per Ex.P1 on

10.09.2009 alleging that the accident took place

near Jinnenahalli Gate on Hassan-Arkalgud Road in

Hassan taluk, wherein it is stated that the petitioner

is a resident of Kodakahalli village, Doddamagge

Hobli of Arkalgud Taluk. If Ex.R2 is to be accepted,

the alleged accident took place in Hassan taluk,

wherein the petitioner is reported to the General

Hospital, Hassan that she has sustained injury in an

accident that took place at Arkalgud taluk.

16. In this regard, it is very relevant to refer

the cross-examination of the petitioner where she

admitted that she knew the owner of the motor

cycle, who is none other than the first respondent

before the Tribunal. Inspite of it, in Ex.P1/FIR and in

her complaint, she did not refer to the name of the

first respondent as the rider of the motor cycle. The

cross-examination of PW-1 has brought out that the MFA.5303/2012

first respondent is the relative of the petitioner and it

is he, who took her to the hospital and got her the

treatment in the hospital. As he promised that he

will take care of her, she did not file any complaint.

As he did not come forward to take care of her, she

filed the complaint later. Even the belated complaint

did not refer to the name of the first respondent but

the cross-examination of the first respondent clearly

demonstrates that there is a collusion between the

petitioner and the first respondent. To that extent,

the statement of PW-1 refers as follows:

"zÉÃªÀgÁdÄ £ÀªÀÄä ¸ÀA§A¢üPÀgÁzÀ PÁgÀt DvÀ£ÉÆA¢UÉ ¸ÉÃjPÉÆAqÀÄ ¨ÉÊPÀ£ÀÄß ¥ÀæPÀgÀtzÀ°è ¸ÉÃj¹zÉÝÃªÉ JAzÀgÉ ¤d. CzÀPÁÌV 17 ¢£ÀUÀ¼À PÁ® vÀqÀªÁV zÀÆgÀÄ PÉÆqÀ.ÁVzÉ JAzÀgÉ ¤d."

17. On the other hand, RW-1/M.V.Dasharathi,

the Development Officer of National Insurance

Co.Ltd., Hassan, in his affidavit evidence alleged the

defence that the accident place at Kodakahalli, but

the place of accident as 'near Jinnenahalli Gate' has

been invented by fixing the case. The cross-

MFA.5303/2012

examination of RW-1 did not point out that the

accident took place near Jinnenahalli Cross and there

is no denial or any explanation to the note made in

Ex.R2 with regard to the history of the accident

where it is clearly stated that the accident took place

when the petitioner was standing by the side of the

road at her village Kodakahalli. Thus, the evidence

on record is very clear that the petitioner has

sustained injuries involving a motor cycle by the

road side of Kodakahalli village of Arkalgud taluk,

wherein the alleged accident said to have been taken

place near Jinnenahalli Gate of Hassan Taluk,

thereby the petitioner sustained injuries at Arkalgud

Taluk wherein the Police records did develop that the

accident took place at Hassan taluk.

        18.   In     North    West        Karnataka           Road

Transport          Corporation         -vs-        Gourabai    and
                                               MFA.5303/2012

Others1, the Hon'ble Apex Court held at para 3 as

under:

"3. The effect of the evidence of the doctor and Exhibit R-1 does not appear to have been looked into by MACT and the High Court. MACT did not place reliance on the document Ext.R-1 on the ground that the brother of the injured stated that he did not know what was written in the document and his signature was taken on one page. This conclusion overlooks the fact that a doctor will not take a signature on a piece of paper mentioning something which is not correct."

Therefore, it is the duty cast upon the Tribunal to

consider the medical records carefully to ascertain

the history of the accident.

19. I have perused the impugned order passed

by the Tribunal where the learned Presiding Officer

did not take into consideration relevant evidence

very seriously and casually ignored the same and

thereby the Tribunal has lost sight of the actual

accident and the alleged accident. When the

(2009) 15 SCC 165 MFA.5303/2012

petitioner has not sustained any injury in the

accident that took place near Jinnenahalli Gate in