Karnataka High Court
The General Manager vs Fairoj S/O Saradar Kittur on 1 February, 2024
Author: V.Srishananda
Bench: V.Srishananda
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MFA No. 21330 of 2013
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 1ST DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE V.SRISHANANDA
MISCELLANEOUS FIRST APPEAL NO.21330 OF 2013 (MV-I)
BETWEEN:
THE GENERAL MANAGER,
NATIONAL INSURANCE CO.LTD.,
"ASHIRWAD" 1241-E WARD, SHAHU MILLS ROAD,
KOLHAPUR-416000,
BRANCH OFFICE RAMDEV GALLI, BELAGAVI.
NOW REP. BY MRS.SAVITA D.KAMAT,
DEPUTY MANAGER,
NATIONAL INSURANCE CO.LTD.,
REGIONAL OFFICE, ARIHANT PLAZA,
KUSUGAL ROAD, KESHWAPUR HUBLI.
...APPELLANT
(BY SRI. S.V. YAJI, ADVOCATE)
AND:
1. SHRI. FAIROJ S/O. SARADAR KITTUR
AGE: 40 YEARS, OCC: WATCH MAKER,
Digitally
signed by R/O: NEW NAIK GALLI, KHANAPUR.
SAROJA
SAROJA HANGARAKI
HANGARAKI Date:
2024.02.19 2. SHRI. SHIVARAJ NANA PATIL
15:55:57
+0530 AGE: 38 YEARS, OCC: AGRICULTURE,
R/O: NEAR KEB OFFICE, NINGAPUR GALLI,
KHANAPUR, DIST: BELAGAVI.
...RESPONDENTS
(BY SRI. SANJAY S.KATAGERI, ADVOCATE FOR R1;
R2 SERVED)
THIS M.F.A. IS FILED U/S 173(1) OF MV ACT, 1988, AGAINST
THE JUDGMENT AND AWARD DATED: 09-11-2012 PASSED IN MVC
NO.1954/2011 ON THE FILE OF PRESIDING OFFICER, FAST TRACK
COURT-I AND MEMBER, ADDL. MACT, BELAGAVI, AWARDING THE
COMPENSATION OF RS.1,20,000/- WITH INTEREST AT THE RATE OF
8% P.A., FROM THE DATE OF PETITION TILL ITS REALISATION.
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MFA No. 21330 of 2013
THIS M.F.A. COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard Sri.S.V.Yaji counsel. No representation on
behalf respondents.
2. Perused the material on record.
3. Insurance company is in appeal challenging the
validity of the judgment and award passed in MVC
No.1954/2011 dated 09.11.2012 on the file of Fast track
Court-I and Addl. MACT, Belagavi.
4. Facts in brief which are utmost necessary for disposal
of appeal are as under:
4.1 In respect of road traffic accident said to have
occurred on 07.05.2011 at about 2.45 pm involving
motorcycle bearing No.KA-24/H-7046, a claim petition
came to be filed under Section 166 of MV Act.
4.2 The claim petition on contest came to be allowed in a
sum of Rs.20,000/- with interest at 6% p.a. from the date
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of petition till realization, fastening the liability on the
insurance company.
5. Being aggrieved by the judgment and award,
Insurance company is challenging the involvement of the
vehicle in the incident and sought for allowing the appeal.
6. Sri.S.V.Yaji, reiterating the grounds urged in the
appeal memorandum contended that material evidence on
record would clearly go to show the genesis of the alleged
incident and the same is not properly established by the
claimant by placing necessary evidence on record.
7. He also contended that the oral evidence of RW-1
coupled with documentary evidence placed on record in
the form of Ex.R4 is not properly appreciated by the
learned trial judge while passing impugned judgment and
award, fastening the liability on the insurance company
and sought for allowing the appeal.
8. Learned counsel for the respondents is absent.
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9. In view of the arguments addressed on behalf of the
appellant, this court has perused the material on record
meticulously.
10. On such perusal of the material on record, it is
crystal clear that the claimant has relied on the wound
certificate marked at Ex.P6 regarding accidental injuries
sustained by him.
11. In Ex.P6, there is mention that he has suffered
injuries on account of road traffic accident.
12. To counter the said evidence, RW.1 is examined on
behalf of the insurance company who has passed BHMS
and not MBBS doctor. He claims himself that he is a CMO
in Vijay Hospital and he has authorization to depose before
the Court on behalf of the Vijay Hospital as per Ex.R1.
13. In his cross examination, he clearly admits that he
was not present when the injured was admitted to the
hospital.
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14. He also admits that the injured has not stated history
of the accident before the doctor who treated him in the
hospital. He further admits that in Ex.R4 there is no
signature of the injured.
15. Further, RW2 is officer of the insurance company who
has also deposed based on documents alone and he has
no personal knowledge about the incident.
16. The evidence of RW1 and RW2 is sought to be re-
appreciated by counsel for appellant to allow the appeal.
17. In the cross examination of RW1, since, RW1 has
specifically admitted that he was not present in the
hospital when injured was admitted to the hospital and he
is deposing based on the documents that were available in
the hospital, his evidence is only to be construed as
evidence placed on documents and not on personal
knowledge.
18. In Ex.R4, there is no signature of the injured.
Further, RW.1 categorically admitted that the injured has
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not stated the history of accident in his presence. He also
admits that in Ex.P6, injured has visited the hospital in the
background of road traffic accident.
19. In this regard, Ex.R4 is meticulously perused by this
court. Ex.R4 is a document that has been filed through
RW.1
20. In the Ex.R4 in the first page there is mention that
(H/o) 'fall himself' is inserted in different ink. One Netra
has singed as doctor who initially examined the injured.
Said Netra is not examined as a witness on behalf of the
insurance company. Ink with which a 'fall himself' is
written with is different from the ink that has been found
in respect of other details.
21. Again in Ex.R2 itself, there is entry stating that on
16.05.2011 patient gives history as road traffic accident.
The same is certified by Dr.Ravi B.Patil. What prevented
the insurance company to summon Sri. Ravi.B.Patil
remains unanswered.
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22. Further, even in the front page of Ex.R2, the time of
examination and doctor who has seen the injured are
entered in different inks. None of those doctors are
examined on behalf of the insurance company.
23. Ex.R4 is another document that has been relied upon
by the insurance company wherein, on the reverse side of
the said document, it has been mentioned as' fallen by
himself.' RW.1 clearly admits that there is no signature of
the injured in Ex.R4, who has signed the endorsement in
Ex.R4 is not forthcoming by the material on record placed
by the insurance company and who is the person who has
made that endorsement is not examined by the insurance
company.
24. Under such circumstances, trial court allowed the
claim petition by fastening the liability both on the owner
and the insurance company.
25. Even after re-appreciation of the material evidence
on record, in view of the foregoing discussions, this court
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does not find any legal infirmity or perversity in recording
such finding by the tribunal.
26. Further, quantum of compensation awarded by the
tribunal is also just and proper having regard to the injury
sustained by the claimant.
27. Accordingly, the following:
ORDER
i) Appeal is merit less and is hereby
dismissed.
ii) Amount in deposit is ordered to be
transmitted to the tribunal.
Sd/-
JUDGE
HMB
