The Oriental Insurance Co Ltd vs Masood
2023 Latest Caselaw 634 Kant

                                          MFA.9314/2015
                           1

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 10TH DAY OF JANUARY, 2023

                        BEFORE

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

              MFA NO.9314 OF 2015 (MV)

BETWEEN:

THE ORIENTAL INSURANCE CO. LTD.
D.NO.12, NO.1001/56
JAYALAKSHMI MANSION
2ND FLOOR, DR. RAJKUMAR ROAD
4TH BLOCK, RAJAJINAGAR
BANGALORE-560010.

AND ALSO
THE ORIENTAL INSURANCE CO. LTD.,
44/45, RESIDENCY ROAD
LEO SHOPPING COMPLEX
BANGALORE-560 025.

BY ITS REGIONAL OFFICER.                 ... APPELLANT

(BY SRI LAXMI NARASAPPA, ADVOCATE FOR
 SRI A.M. VENKATESH, ADVOCATE)

AND:

1.     MASOOD
       S/O MEHABOOB PASHA
       AGED ABOUT 26 YEARS
       RESIDING AT TIPPUNAGAR
       2ND CROSS
       MELEKOTE ROAD
       TUMKUR-572 101.

2.     SHAIK MASOOD
       S/O ABDUL KADAR BASHA
       SIRA GATE
       TUMKUR-572 101.                  ...RESPONDENTS
                                                      MFA.9314/2015
                                  2

(BY SRI FAYAZ SAB B.G., ADVOCATE FOR R1;
 VIDE ORDER DATED 16.02.2018, NOTICE TO R2 HELD
 SUFFICIENT)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 11.08.2015
PASSED    IN   MVC    NO.163/2009       ON    THE   FILE   OF   THE
ADDITIONAL     SENIOR     CIVIL       JUDGE   AND   MACT-XI,     AT
TUMAKURU, AWARDING COMPENSATION OF RS.2,63,000/-
WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION
TILL REALIZATION.


     THIS MFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT       ON    12.12.2022       AND     COMING       ON   FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:


                      JUDGMENT

In this appeal, the Insurance Company

assailing the judgment dated 11.08.2015 passed in

M.V.C.No.163/2009 on the file of the Additional

Senior Civil Judge and MACT-XI, Tumakuru ('the

Tribunal' in short).

2. The appellant/insurer was the second

respondent, respondent No.1 was the petitioner and

respondent No.2 was respondent No.1 before the MFA.9314/2015

Tribunal. For the sake of convenience, the parties

will be referred to as per their status before the

Tribunal.

3. Briefly stated, the facts are that, on

14.01.2006 at about 3.15 p.m., the petitioner was

riding the motor cycle bearing No.KA-35/H-3223, as

a pillion rider on N.H.206 at M.H.Patna gate, at that

time, the rider rode the motor cycle in a rash and

negligent manner, lost control and capsized and

caused grievous injuries, the petitioner took

treatment and thereafter he moved the Tribunal

seeking compensation. The claim was opposed by

the respondents. The Tribunal awarded the

compensation of Rs.2,63,000/- with interest @ 6%

per annum.

4. Aggrieved Insurance Company has come

before this court on the ground that there is

an unexplained inordinate delay of 116 days in

filing the complaint, no MLC records were MFA.9314/2015

recorded in the hospital inspite of petitioner was

inpatient for 45 days. Before the Tribunal, no

opportunity was provided to the Insurance Company

to cross-examine the petitioner to demonstrate that

there was no sufficient cause to condone the delay in

filing the FIR.

5. Heard Sri.Laxmi Narasappa on behalf of

Sri.A.M.Venkatesh, learned counsel for the insurer

and Sri.Fayaz Sab.B.G., learned counsel for the

petitioner.

6. It has been argued by learned counsel for

the insurer that the accident said to had taken place

on 14.01.2006, complaint was filed on 25.03.2006

after a lapse of 70 days and there was no

explanation for the belated FIR. The petitioner alone

was examined, no MLC records were produced. The

motor vehicle inspection was conducted after 116

days of the accident and inspite of the request by

the Insurance Company, the Tribunal did not allow MFA.9314/2015

the cross-examination of the petitioner and thereby

the Insurance Company was completely prevented

from challenging the accident and sought for

interference of this Court.

7. Per contra, learned counsel for the petitioner

has contended that before the Tribunal, the MLC

particulars have been produced soon after the

accident, petitioner was admitted to General

Hospital, Tumakuru, from there he was brought to

the Bowring Hospital, Bangalore, from there he was

shifted to Hosmat Hospital and then he was admitted

to St.John's Hospital, Bangalore. The petitioner was

under hospitalization for 46 days, he was unable to

move out of the bed and for this reason, there is a

delay in filing the FIR. Sufficient opportunity was

given, due to lack of interest shown by the counsel

for the Insurance Company, petitioner cannot be

penalized. The medical bills for more than Rs.3 MFA.9314/2015

lakhs were produced, but lesser compensation was

awarded and seeks for enhancement.

8. I gave my anxious consideration to the

arguments advanced on both sides and perused the

materials on record.

9. At the outset, it is the case decided one-

sidedly as the petitioner examined himself and

marked Exs.P1 to P138, wherein the Tribunal

assessed the compensation of Rs.2,63,000/-. The

material on record though pointed out the

hospitalization of the petitioner, the delay of 70 days

has to be considered and after 116 days, the motor

cycle was inspected by the Motor Vehicle Inspector.

The contention of the Insurance company is that no

MLC records were produced to explain the history of

the accident. The petitioner has produced the FIR,

wound certificate, mahazars, IMV report, charge

sheet, his photographs and medical bills. His oral

testimony has not been testified on behalf of the MFA.9314/2015

respondents. Therefore, without giving an

opportunity to the respondents to contest the claim,

it is not proper on the part of the Tribunal to block

the door of justice by rejecting the prayer of the

Insurance Company seeking opportunity to cross-

examine.

10. The contention of the insurer that there is a

fraud played, denial of opportunity to cross-examine

added salt to injury. This court in VEERAPPA AND

ANOTHER -VS- SIDDAPPA AND ANOTHER1 held

that fraud committed for the sake of claiming

compensation cannot be entertained. The facts and

circumstances of the case explain that the insurer

was blocked from demonstrating the said contention

and the award is one sided. Hence, it is a fit case for

remand without reference to the merits of the case.

The matter requires re-consideration by the Tribunal

and an opportunity has to be given to the petitioner

ILR 2009 KAR 3562 MFA.9314/2015

also to explain the delay in filing the FIR and to

prove that the injuries were on account of the

accident in question. Hence, I do not find any

ground to go in detail on the merits of the case in

view of remand, accordingly, the appeal deserves to

be allowed.

11. In the result, I pass the following order:

The appeal is hereby allowed in part. The

impugned judgment and award passed by the

Tribunal is hereby set aside.

The matter is remanded back to the Tribunal

with a direction to take the case to the stage of

evidence, give sufficient opportunity to the parties

to lead evidence and to decide the case on its merits

in accordance with law.

Without further notice to the parties, they shall

appear before the Tribunal on 13th February 2023.

MFA.9314/2015

Registry to return the amount in deposit to the

appellant and transmit the Trail Court records to the

Tribunal forthwith.

Sd/-

JUDGE

KNM/-