Karnataka High Court

Sri Kariyappa vs Mr.Manjappa on 31 July, 2024

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                                                              NC: 2024:KHC:30274
                                                         MFA No. 876 of 2014




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                             DATED THIS THE 31ST DAY OF JULY, 2024

                                              BEFORE
                            THE HON'BLE MR JUSTICE C.M. POONACHA
                   MISCELLANEOUS FIRST APPEAL NO. 876 OF 2014 (MV-I)
                   BETWEEN:

                   SRI KARIYAPPA
                   S/O BASAPPA
                   AGED ABOUT 69 YEARS
                   AGRICULTURIST
                   R/O HADADI VILLAGE
                   DAVANAGERE TALUK 577002
                                                                     ...APPELLANT
                   (BY SRI. HAREESH BHANDARY T., ADVOCATE)

                   AND:

                   1.    MR.MANJAPPA
                         S/O NAGAPPA
                         MAJOR
                         R/AT HADADI VILLAGE
                         DAVANAGERE TQ & DIST 577002.
Digitally signed
by BHARATHI        2.    SRI C M HANUMANTHAPPA
S                        S/O MASIYAPPA
Location: HIGH           AGED ABOUT 39 YEARS
COURT OF
KARNATAKA                R/AT HADADI VILLAGE
                         DAVANAGERE TQ. & DIST 577002.

                   3.    THE DIVISIONAL MANAGER
                         M/S NATIONAL INS. CO. LTD
                         DIVISIONAL OFFICE
                         MELAGIRI PLAZA
                         OPP. DENTAL COLLEGE
                         MCC "B" BLOCK
                         DAVANAGERE 577002.
                                                                  ...RESPONDENTS
                   (BY SRI. ARUN PONNAPPA., ADVOCATE FOR R3
                   R1 & R2 -SERVED)
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                                                       NC: 2024:KHC:30274
                                                      MFA No. 876 of 2014




     THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 2.3.2012 PASSED IN MVC
NO.1133/2010 ON THE FILE OF THE I ADDL. DISTRICT AND
SESSIONS JUDGE AND MACT-II, DAVANGERE, DISMISSING THE
CLAIM PETITION FOR COMPENSATION.

     THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM:           HON'BLE MR JUSTICE C.M. POONACHA

                                   ORAL JUDGMENT

1. The present appeal is filed by the claimant challenging

the judgment and award dated 02.03.2012 passed in MVC No.

1133/2010 by the I Addl. District and Sessions Judge and

MACT-II, Davanagere1, whereunder the claim petition filed by

the claimant has been dismissed.

2. The relevant facts necessary for consideration of the

present appeal are that, claiming compensation for the injuries

sustained in a road traffic accident dated 01.3.2010, the

claimant filed a claim petition contending, inter alia, that when

he was walking on the road, on the date of the accident, a

motorcycle being ridden by the 1st respondent, owned by the

2nd respondent and insured with 3rd respondent insurer came

Hereinafter referred to as the 'Tribunal'

NC: 2024:KHC:30274

and hit the claimant causing the accident in question,

whereunder, he sustained grievous injuries. Hence, he filed the

claim petition claiming compensation for the injuries sustained.

3. The 1st and 2nd respondents filed their statement of

objections denying the case of the claimant. 3rd respondent

insurer filed objections as well as additional statement of

objections denying the case of the claimant. It is the specific

contention of 3rd respondent - insurer that the vehicle owned

by the 2nd respondent which was insured by 3rd respondent i.e.,

motorcycle bearing No.KA 17/EA-4264 was not involved in the

accident. That there is a delay of 47 days in lodging the

complaint. Hence, respondents sought for dismissal of the

claim petition.

4. The claimant examined himself as PW.1 and a Doctor has

been examined as PW.2. Exs.P1 to P11 has been marked in

evidence. The official of the insurer has been examined as

RW.1. Exs.R1 to R8 has been marked in evidence. The

Tribunal vide judgment and award dated 02.03.2012 dismissed

the claim petition. Being aggrieved, the claimant has preferred

the above appeal.

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5. Heard submissions of Sri Hareesh Bhandary T., learned

counsel appearing for the appellant and Sri Arun Ponnappa,

learned counsel appearing for respondent No.3.

6. It is the vehement contention of the learned counsel for

the appellant that the claimant has specifically alleged

regarding the occurrence of the accident and has also adduced

his testimony as PW.1 who has been adequately cross

examined. That a stray sentence in the cross examination will

not be detrimental to the case of the claimant. He further

submits that the Doctor has deposed with regard to the injuries

sustained by the claimant. Hence, he seeks for allowing of the

claim petition and granting of the relief sought for.

7. Per contra, learned counsel for the 3rd respondent insurer

has contended that the insurer has appointed as an investigator

to investigate the claim made, who has submitted his

investigation report (Ex.R8). The statements recorded by the

investigator have also been marked as Exs.R1 to R4 and R7.

He further contends that a perusal of the said documents along

with the admission made by the PW.1 in his cross examination

discloses that 1st respondent has caused the accident in

NC: 2024:KHC:30274

question while he was riding his vehicle and since the vehicle

of 1st respondent did not have an insurance policy, the vehicle

of the 2nd respondent which was insured with 3rd respondent

has been implicated. It is further contended that PW.1 has

specifically admitted that he has not seen which vehicle has

caused the accident and having regard to the material on

record which discloses that he has a poor eye sight, the

claimant not having specifically noticed that the vehicle of 2nd

respondent has caused the accident, the Tribunal has rightly

dismissed the claim petition. Hence, he further submits that

the Tribunal has adequately appreciated the oral and

documentary evidence on record and dismissed the claim

petition which ought not to be interfered with by this Court in

the present appeal.

8. The submissions made by both the learned counsels have

been considered and the material on record including the

records of the Tribunal have been perused. The questions that

arise for consideration is "whether the judgment and award of

the Tribunal dismissing the claim petition is erroneous and

liable to be interfered with?".

NC: 2024:KHC:30274

9. The accident is alleged to have occurred on 01.03.2010.

Admittedly, the complaint has been lodged on 17.04.2010 after

a delay of 48 days.

10. The 3rd respondent - insurer has appointed as an

investigator to investigate the claim made by the petitioner and

the report has been marked as Ex.P8. The statements of

various persons recorded by the investigator have also been

marked as noticed above. In the investigation report also it is

stated that the claimant has not seen that which vehicle caused

the accident. That the 1st respondent was involved in the

accident and since the vehicle of the 1st respondent did not

have a policy of the insurance, the vehicle of the 2nd

respondent has been implicated. Hence, it is the opinion of the

investigator that the claim made by the petitioner is a false

one.

11. The claimant examined himself as PW.1. In his cross

examination he has clearly admitted that he has not seen the

vehicle which caused the accident and that it is stated that the

vehicle which caused the accident belongs to the 1st

respondent.

NC: 2024:KHC:30274

12. Although it is the vehement contention of the learned

counsel for the appellant that there are other statements made

in the cross examination of PW.1 and the statement at para

No.4 of the cross examination on which reliance is placed by

the learned counsel for respondent No.3 - insurer is a stray

admission and is not liable to be accepted, having regard to

the fact that there are various other material on record to

indicate that it was not the vehicle owned by the 2nd

respondent that was involved in the accident in question, it

cannot be construed that the admission of PW1 is a stray one.

13. The reliance is placed by the learned counsel for the

appellant on the testimony of the Doctor to contend that the

same would also demonstrate that the claimant has suffered

injuries in the accident in question is also not liable to be

accepted having regard to the fact that the contest by the 3rd

respondent is with regard to the assertion by the claimant that

the injuries sustained in the accident was caused by the vehicle

belonging to the 2nd respondent. Hence, the testimony of

PW.2 will not aid the case of appellant.

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14. It is further noticed that in the present case, the statement

recorded by the investigator of the claimant (Ex.R1), the wife

of the claimant (Ex.R2), son of claimant (Ex.R3) and another

two witnesses (Exs.R4 and R7) have been marked. The officer

of the 3rd respondent - insurer has been examined as RW.1

wherein it is deposed as to the steps taken by the insurer to

have the claim made by the claimant investigated through its

investigator and the investigation report is also marked as

Ex.R8.

15. It is clear and forthcoming from the aforementioned that

there is sufficient material to indicate that it was not the

vehicle owned by the 2nd respondent which had caused the

accident in question. The claimant had specifically averred in

the claim petition that the accident has been caused by the 1st

respondent who has allegedly riding the vehicle of the 2nd

respondent. In the present case, upon re-appreciation of the

material on record, it indicates that 1st respondent was riding

his vehicle when the accident was caused. In order to claim

compensation from the 3rd respondent, the claim petition has

been filed alleging that the accident has been caused by the 1st

respondent while riding the vehicle of the 2nd respondent.

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16. The Tribunal while appreciating the oral and documentary

evidence on record has recorded the following findings:

"10. In the cross examination he admitted that one Sri.Manjappa caused the accident and the said Sri. Manjappa was owner of the vehicle which dashed him. He further admitted the vehicle which caused the accident was owned by Sri. Manjappa. In the cross examination he further admitted that the Investigator from the Insurance company visited the village and conducted investigation. The statement given by him before the Investigator, which is enclosed with the Photograph of the petitioner is marked as Ex.R1. The statement of his wife Smt. Thippamma given before the Investigating Officer is marked as Ex.R2. The said statement is enclosed with the photograph of Smt. Thippamma. The statement of Sri.Shekharappa, (the son of the petitioner) recorded by the Investigating Officer is marked as Ex.R3. The said statement is also enclosed with the photograph of Sri.Shekharappa. Ex.R4 is the statement of Sri.Kavalappa Basavarajappa. Ex.R4 is the also enclosed with his photograph. Ex.R1 to R4 are marked during the course of cross examination of PW1.

11. In the cross examination, PW.1 deposed that the respondent No.1 is the member of village panchayath and the said Sri.Manjappa owned motor cycle and he caused the accident by his own motor cycle. The said motor cycle is not insured. Hence, I find strong force in the defence set up by 3rd respondent Insurance Company.

13. The evidence placed on record reveals that there is a collusion with the police officials and got registered a false case at Hadadi Police Station in Cr.No.30/2010 as against the motor cycle bearing Reg No.KA-17/EA-4264. But in fact, the said vehicle was not at all involved in the accident. Under circumstances, much importance cannot be attached to Ex.P3 (charge sheet)."

(emphasis supplied)

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NC: 2024:KHC:30274

17. It is forthcoming from the aforementioned, that the

Tribunal has adequately appreciated the oral and documentary

evidence on record and dismissed the claim petition with cost of

`5,000/-. Upon re-appreciation of the oral and documentary

evidence on record, the appellant is failed in demonstrating

that said findings is erroneous and liable to be interfered with in

the present appeal. Hence the question framed for

consideration is answered in the Negative.

18. Hence, the following