Karnataka High Court
The Manager United India Insurance Co ... vs Raju S/O Hanumanth Maled on 16 January, 2024
Author: S G Pandit
Bench: S G Pandit
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WP No. 138873 of 2020
C/W MFA No. 100927 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 16TH DAY OF JANUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE K V ARAVIND
WRIT PETITION NO. 138873 OF 2020 (GM-RES)
C/W
MISCELLANEOUS FIRST APPEAL NO. 100927 OF 2019
IN WP NO.138873/2020
BETWEEN:
THE MANAGER,
UNITED INDIA INSURANCE CO. LTD,
KACHERI ROAD, KATAGI BUILDING,
JAMAKHANDI, REPRESENTED THROUGH ITS
REGIONAL OFFICE, ENKAY COMPLEX,
1ST FLOOR, KESHWAPUR, HUBBALLI,
BY ITS REGIONAL MANAGER.
...PETITIONER
(BY SRI. NAGANGOUDA R. KUPPELUR, ADVOCATE)
Digitally signed by
CHANDRASHEKAR
CHANDRASHEKAR LAXMAN
LAXMAN
KATTIMANI
KATTIMANI
Date: 2024.01.27
AND:
11:19:27 +0530
1. RAJU S/O. HANUMANTH MALED
AGE: 39 YEARS, OCC: GOVERNMENT SERVANT,
R/O. KALLATTI GALLI, TERADAL,
TQ: JAMAKHANDI, DIST: BAGALKOT.
2. GANGAPPA S/O. RAMAPPA CHAMAKERI,
AGE: 53 YEARS, OCC: DRIVER,
R/O. RABHAKAVI, JAMAKHANDI, BAGALKOT.
...RESPONDENTS
(BY SRI. PRASHANT S. KADADEVAR, ADV. FOR RESPONDENT NO.1,
NOTICE TO RESPONDENT NO. 2 SERVED)
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WP No. 138873 of 2020
C/W MFA No. 100927 of 2019
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN
THE NATURE OF CERTIORARI QUASHING THE COMPROMISE AWARD
DATED 13/07/2019 SETTLED BEFORE THE LOK ADALATH HIGH
COURT OF KARNATAKA DHARWAD BENCH AT DHARWAD IN MFA
NO.103744/2018 AS PER ANNEXURE-E.
IN MFA NO.100927/2019
BETWEEN
THE MANAGER,
UNITED INDIA INSURANCE CO. LTD,
KACHERI ROAD, KATAGI BUILDING,
JAMAKHANDI-581021.
REPRESENTED THROUGH ITS,
UNITED INDIA INSURANCE CO. LTD,
DIVISIONAL OFFICE, VIJAYAPURA,
BY ITS DIVISIONAL MANAGER.
..APPELLANT
(BY SRI. NAGANGOUDA R. KUPPELUR, ADVOCATE)
AND
1. RAJU S/O. HANUMANTH MALED,
AGE: 39 YEARS, OCC: GOVT. SERVANT,
R/O. KALLATTI GALLI, TERDAL,
TQ: JAMKHANDI-581021.
2. SRI. GANGAPPA RAMAPPA CHAMKERI,
AGE: 53 YEARS, OCC: DRIVER,
R/O. RABKAVI, TQ: JAMKHANDI-581021.
...RESPONDENTS
(BY SRI. PRASHANT S. KADADEVAR, ADV. FOR RESPONDENT NO.1,
NOTICE TO RESPONDENT NO.2 SERVED)
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
1988, PRAYING TO CALL FOR THE RECORDS CONNECTED WITH
MVC NO.542/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND JMFC AND MEMBER MACT NO.XIII, AT BANAHATTI AND
SET ASIDE THE AWARD DATED 31.05.2018 IN THE INTEREST
OF JUSTICE.
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WP No. 138873 of 2020
C/W MFA No. 100927 of 2019
THIS PETITION AND THE APPEAL, COMING ON FOR FURTHER
HEARING, THIS DAY, K V ARAVIND, J., DELIVERED THE
FOLLOWING:
JUDGMENT
Insurance Company is in appeal questioning the liability
to pay compensation awarded under judgment and award
dated 31.05.2018 in MVC No.542/2015 on the file of learned
Senior Civil Judge and J.M.F.C. and Member, MACT-XIII,
Banahatti (for short, 'Tribunal').
2. The appellant was respondent No.2 and
respondent No.1 claimant and respondent No.2 was
respondent No.1 before the Tribunal. Parties to the appeal
would be referred to as per their ranks before the Tribunal
for convenience.
3. W.P.No.138873/2020 is preferred by the
Insurance Company seeking to quash compromise award
dated 13.07.2019 settled before the Lok Adalath of this
Court in MFA No.103744/2018 in an appeal preferred by the
claimant. As appeal and writ petition are arising out of the
common award passed by the Tribunal in MVC No.542/2015,
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both the matters were heard together and disposed of by
this common order.
4. The claimant filed a claim petition u/sec.166 of
the Motor Vehicles Act seeking compensation of
Rs.14,00,000/- for injuries suffered in an accident occurred
on 09.04.2015 at 10.00 p.m. at Rabakavi-Terdal PWD road,
Near Hen Farmhouse involving his motorcycle bearing
No.KA-48/J-8387 and lorry bearing No.KA-25/2220.
5. It is stated that the claimant while proceeding on
his motorcycle bearing No.KA-48/J-8387 after completion of
his duty, due to rash and negligent driving of lorry bearing
No.KA-25/2220 from the opposite direction, the lorry dashed
his motorcycle and due to the said accident, he sustained
grievous injuries.
6. On issuance of notice, respondents appeared and
filed their objections. The respondent No.1, the owner of the
lorry denying the petition averments contended that the
driver of the lorry was not at fault, driver was possessing
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valid driving licence and vehicle is covered by insurance
policy issued by the respondent No.2.
7. The respondent No.2/Insurance Company filed its
written statement denying the accident, contended that
accident was due to negligence of the driver of the lorry. The
lorry bearing No.KA-25/2220 was not involved in the
accident, for the purpose of claiming compensation, claimant
in collusion with the lorry owner and police have implicated
the vehicle. On the above submissions, prays for dismissal of
the claim petition.
8. Before the Tribunal, the claimant examined
himself as PW1, eyewitness was examined as PW2 and the
doctor was examined as PW3. Claimant in support of his
case, marked Exs.P1 to P24. The 2nd respondent examined
its Administrative Officer as RW1 and got marked Ex.R1. The
Tribunal based on the material evidence on record awarded
total compensation of Rs.2,70,061/- and fastened the
liability on the respondent No.2/insurer.
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9. Heard learned counsel Sri Naganagouda
R.Kuppelur for the appellant and learned counsel Sri
Prashant S.Kadadevar for respondent No.1. Respondent No.2
is served and unrepresented. We have also perused the
appeal papers and original records.
10. Learned counsel for the Insurance Company
submits that the accident occurred on 09.04.2015. Learned
counsel further submits that the claimant has filed a
complaint on 10.04.2015 in Terdal Police Station stating he
met with an accident due to rash and negligent driving of a
lorry and driver of the lorry after hitting him has left the
accident place without stopping the vehicle and the
complaint does not reflect or reveal the vehicle number
involved in the accident. It is further contended that it is only
when further statement of the victim/claimant was recorded
on 13.05.2015 vehicle bearing No.KA-25/2220 has been
brought on record as offending vehicle involved in the
accident occurred on 09.04.2015. The Tribunal without
taking into consideration the evidence placed on record
regarding implication of the lorry, has proceeded to award
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compensation and fastened the liability on the respondent
No.2 being insurer of the offended vehicle. Thus, prays for
setting aside of the judgment and award.
11. Learned counsel for respondent No.1 supported
the impugned order and prays to dismiss the appeal.
12. The Tribunal on examination of the pleadings,
evidence and material on record determined the
compensation to be payable to the claimant at Rs.2,70,061/-
with interest at 6% per annum by holding that the accident
occurred due to negligence of the driver of the lorry bearing
No.KA-25/2220. The respondent No.2/insurer was directed
to deposit the compensation. The Insurance Company being
aggrieved against the finding of the Tribunal on the
involvement of the insured vehicle is before this Court
praying to set aside the judgment and award.
13. Having heard the learned counsel for the parties
and on perusal of the appeal papers and the Tribunal
records, the following point would arise for consideration.
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i. Whether the Tribunal is justified in holding
that the accident occurred on 09.04.2015 due
to involvement of lorry bearing
No.KA-25/2220?
14. Our answer to the above point would be 'in the
affirmative' for the following reasons.
15. It is the specific case of the claimant that the
accident occurred on 09.04.2015 at 10.00 p.m. involving his
motorcycle bearing No.KA-48/J-8387 and lorry bearing
No.KA-25/2220. The occurrence of the accident and the
injuries due to accident and the treatment is not under
dispute. The claimant has filed complaint on 10.04.2015 and
FIR has been registered at Terdal Police Station. The
claimant was inpatient from 10.04.2015 to 29.07.2015. The
police have recorded statement u/sec.161(3) Cr.P.C. from
the claimant on 05.06.2015 wherein the lorry bearing
number has been stated to be KA-25/2220. Similarly
statement of PW2 who was eyewitness has been recorded by
the police u/sec.161(3) Cr.P.C. who has stated that the
accident on 09.04.2015 to the claimant was caused by the
lorry bearing No.KA-25/2220.
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16. The claimant in his affidavit filed as examination-
in-chief has also reiterated that the accident occurred due to
rash and negligent driving of the lorry bearing No.KA-
25/2220. The 2nd respondent/insurer has cross-examined
PW1 and no contrary evidence or statement has been
elicited. The PW1 has stated in his evidence the reason for
not mentioning the vehicle number in the complaint. The
claimant has further stated that due to accidental injuries, he
was unconscious due to which the vehicle number is not
mentioned in the complaint. The involvement of vehicle
No.KA-25/2220 was informed by his brother on the
information from the local persons. The insurer except
alleging that the vehicle has been implicated as part of the
accident due to the claimant being the police constable and
in collusion with the insured vehicle to claim compensation
illegally, has failed to place any material evidence to disprove
the contentions of the claimant or to prove the case of the
insurer itself.
17. PW2-eyewitness has deposed that lorry bearing
No.KA-25/2220 was involved in the accident. In his cross-
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examination by the insurer, no contrary evidence has been
elicited. Police have filed charge sheet at Ex.P7 concluding
that accident occurred on 09.04.2015 involving motorcycle
and lorry due to rash and negligent driving by the driver of
the lorry No.KA-25/2220. The charge sheet has been filed
against the driver of the vehicle. The Insurance Company
has not examined the driver of the lorry. The Motor Vehicle
report at Exs.P4 and P5 is not seriously disputed by the
insurer. The report also indicate the occurrence of the
accident between the lorry No.KA-25/2220 and motorcycle
bearing No.KA-48/J-8387. Exs.P8 and P9/discharge summary
also would prove the injuries suffered by the claimant.
18. For the aforesaid reasons, we are of the view that
the Tribunal justified in holding that the accident occurred
due to negligence of the driver of lorry bearing No.KA-25/
2220. The Tribunal justified in determining the compensation
and fastened the liability on the respondent No.2/insurer of
the vehicle bearing No.KA-25/2220. We see no justifiable
reasons to interfere with the order of the Tribunal. Hence,
MFA No.100927/2019 is liable to be dismissed.
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19. The claimant seeking enhancement of
compensation preferred MFA No.103774/2018 as ordered in
MVC No.542/2015 dated 31.05.2018 on the file of Senior
Civil Judge and J.M.F.C. and MACT-XIII at Banahatti. Appeal
in MFA No.103774/2018 was referred to Lok Adalath. The
conciliation order dated 13.07.2019 was passed in the
presence of learned counsel for the appellant/claimant and
representative of the respondent/Insurance Company along
with its counsel by enhancing global compensation of
Rs.80,000/- in full and final settlement of the claim.
20. W.P.No.138873/2020 has been filed by the
Insurance Company questioning the compromise award
dated 13.07.2019 settled before the Lok Adalath of this
Court in MFA No.103774/2018.
21. Sri Nagangouda R.Kuppelur, learned counsel
appearing for the petitioner/Insurance Company submits that
MFA No.100927/2019 and MFA No.103774/2018 arise out of
the same judgment and award passed in MVC No.542/2018
dated 13.05.2018. MFA No.100927/2019 preferred by the
Insurance Company and MFA No.103774/2018 preferred by
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the claimant. It is submitted both the appeals ought to have
been clubbed. It is submitted that in view of the involvement
of the insured vehicle is under dispute in MFA
No.100927/2019, compromise in the appeal preferred by the
claimant is without knowledge of the pendency of the appeal
preferred by the Insurance Company. It is further submitted
that the lorry was implicated in the alleged accident and
charge sheet has been filed against the driver-cum-owner of
the lorry in view of the claimant is a police constable in
Banahatti Police Station. On the above submission, prays to
allow writ petition and set aside the compromise award.
22. Sri Prashant S.Kadadevar, learned counsel
appearing for the claimant/respondent No.1 justifies the
compromise and prays for dismissal of the writ petition.
23. Heard learned counsel for both the parties and
perused the appeal papers and record.
24. The appeal by the insurer in MFA
No.100927/2019 is filed before this Court on 08.03.2019.
The order of conciliation is dated 13.07.2019 in the presence
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of counsel for the appellant and representative of the
Insurance Company. The joint memo before the High Court
Legal Services Committee has been signed by the
representative of the Insurance Company. Insurance
Company has engaged service of the counsel in both the
appeals. In the circumstances, it is not open to the Insurance
Company to contend that the dispute in MFA
No.103774/2018 was settled without knowledge of the
pendency of the appeal filed by the Insurance Company in
MFA No.100927/2019.
25. The Insurance Company has questioned the
compromise award dated 13.07.2019 on the ground that
insured lorry has been implicated in the alleged accident. In
this common order, we have disposed of the appeal in MFA
No.100927/2019 preferred by the Insurance Company by
holding that accident on 09.04.2015 occurred due to rash
and negligent driving of lorry bearing No.KA-25/2220. In
view of our finding in MFA No.100927/2019, the grounds
raised in the writ petition would not arise for consideration.
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26. For the aforesaid reasons, we find no reasons to
entertain the writ petition questioning the compromise award
dated 13.07.2019. In the result, we pass the following:
ORDER
Both MFA No.100927/2019 and
W.P.No.138873/2020 are dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
CLK
