Remanded

Sri Kyathappa C v. the Manager

Karnataka HC9 Dec 2020MFA/5487/2019

Case brief

AI extract

What is this about?

The High Court allowed the insurer's appeal and disposed of the claimant's appeal. It remanded the matter to the Motor Accident Claims Tribunal for reconsideration, directing the Tribunal to allow the insurer to examine the IMV Inspector and Investigating Officer to clarify the accident circumstances. The original award setting aside was modified with explicit directions for remand.

What did the court decide?

The matter is remitted to the Tribunal for reconsideration after providing an opportunity to the insurer to examine the IMV Inspector and Investigating Officer. Previous award set aside.

Sri Kyathappa C Vs the Manager — Motor Accident Claims | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 9^TH DAY OF DECEMBER, 2020

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PRESENT

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THE HON’BLE MRS.JUSTICE S.SUJATHA

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AND

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THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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M.F.A.No.4804/2019 c/w M.F.A.No.5487/2019 (MV)

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IN M.F.A.No.4804/2019:

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BETWEEN :

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THE MANAGER ICICI LOMBARD GIC LTD., NO.89, SVR COMPLEX, 2^ND FLOOR, MADIVALA, HOSUR MAIN ROAD, BENGALURU-68 NOW REP BY ITS THE REGIONAL MANAGER, REGIONAL OFFICE, ICICI LOMBARD GIC LTD., NO.121, THE ESTATE BUILDING, 9^TH FLOOR, DICKSON ROAD, BANGALORE-42 ...APPELLANT

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(BY SRI B.PRADEEP, ADV.)

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AND :

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1 . KYATHAPPA C., S/O CHIGAMMALLAPPA @ CHIKKAMALLAPPA,

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AGED ABOUT 52 YEARS, R/O MUGANAHALLI VILLAGE, RATHNASANDRA, GULIGENAHALLI POST, SIRA TALUK, TUMAKURU

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2 . K.KAMANNA S/O KAVALLAPPA, AGED ABOUT 52 YEARS, R/AT NO.20/21, BALAJI EXTENSION, LGR LAYOUT, LAGGERE, BENGALURU-560058 …RESPONDENTS

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(BY SRI V.B.SIDDARAMAIAH, ADV. FOR C/R-1; SRI MOHAN S., ADV. FOR R-2.)

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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED 26.10.2018 PASSED IN MVC No.675/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC, ADDITIONAL MACT, SIRA, AWARDING COMPENSATION OF Rs.37,16,000/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL ITS DEPOSIT.

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IN M.F.A.No.5487/2019:

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BETWEEN :

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SRI KYATHAPPA C., S/O CHIGAMMALLAPPA @ CHIKKAMALLAPPA, AGED ABOUT 52 YEARS, R/O MUGANAHALLI VILLAGE, RATHNASANDRA, GULIGENAHALLI POST, SIRA TALUK, TUMAKURU-572137 ...APPELLANT

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(BY SRI V.B.SIDDARAMAIAH, ADV.)

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AND :

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THE MANAGER ICICI LOMBARD GENERAL

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INSURANCE CO. LTD., NO.89, SVR COMPLEX, 2^ND FLOOR, MADIVALA, HOSUR MAIN ROAD, BENGALURU-560068 REP BY ITS MANAGER.

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2 . SRI K.KAMANNA S/O KAVALLAPPA, AGED ABOUT 52 YEARS, NO.20/21, BALAJI EXTENSION, LGR LAYOUT, LAGGERE, BENGALURU-560058 …RESPONDENTS

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(BY SRI B.PRADEEP, ADV. FOR R-1; SRI MOHAN S., ADV. FOR R-2.)

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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED 26.10.2018 PASSED IN MVC No.675/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE, ADDITIONAL MACT, SIRA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THESE APPEALS COMING ON FOR HEARING, THIS DAY, S. SUJATHA, J ., DELIVERED THE FOLLOWING:

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J U D G M E N T

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The insurer as well as the claimant are before this

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Court challenging the judgment and award dated 26.10.2018 passed in MVC No.675/2017 on the file of the Court of Senior Civil Judge and Addl. MACT, Sira (‘Tribunal’ for short).

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The claimant instituted petition under

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Section 166 of the Motor Vehicles Act, 1988 claiming compensation for the injuries sustained by him in the motor vehicle accident which occurred on 23.04.2017.

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It was contended in the petition that on 23.04.2017 at about 2.30 a.m., when he along with son of his cousin by name Girish were proceeding on the motorcycle bearing registration No.KA-06-EH-1988 from Madhugiri to Sira on Madhugiri – Sira road, when they reached near Borasandra Gate near MuganahalliGollarahatti gate, the speeding Maruthi Car bearing registration No.KA-02-MH-1767 (offending vehicle) crashed to the said motorcycle which was ridden by the claimant – injured. As a result, the claimant and the pillion rider fell down on the road and sustained grievous injuries. Immediately, they were shifted to Government Hospital, Sira and first-aid treatment was given to him and thereafter as per the advise of the duty

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doctor, the claimant was shifted to Jain Institute of Science, Care and Research, Bengaluru for higher treatment where he was admitted as an inpatient and taken treatment by incurring huge medical expenses.

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It was averred that the claimant was aged about 50 years at the time of the accident; he was a leading practicing advocate in Tumakuru, Madhugiri and Sira and he was also doing agriculture work; his income was around Rs.40,000/- per month. All the family members are entirely depending upon the income of the claimant. Due to the injuries sustained by him, he is suffering from permanent physical disability to the whole body and he cannot do any work as earlier and lost his earning capacity. On these set of facts, sought for compensation.

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After service of notice, the owner remained

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absent and was placed ex-parte . The insurer appeared through its counsel and filed written statement denying

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the petition averments. The specific defence set up was that the accident occurred due to the fault of the claimant and not due to the negligence of the driver of the offending vehicle. It was specifically contended that the two wheeler got less damages whereas the Maruthi Omni car was fully damaged which discloses that the petition averments were false and concocted.

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On the basis of the pleadings, issues were

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framed and answered as per the reasons recorded in the impugned judgment, partly allowing the claim petition awarding total compensation of Rs.37,16,000/- with interest at the rate of 6% per annum from the date of petition till its realisation fastening the liability on the insurer.

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Being aggrieved, the insurer is before this

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Court challenging the negligence, liability as well as the quantum of compensation awarded by the Tribunal;

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whereas the claimant has preferred the appeal seeking enhancement of compensation.

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Learned counsel for the insurer vehemently

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argued that the damages caused to the vehicles and the manner of accident putforth by the claimant are not in consonance with the IMV report. The damages caused to the Maruthi Car would clearly indicate that the motorcycle was not at all involved in the accident. The claimant colluding with the owner of the motorcycle and the jurisdictional police have cooked up a false story of alleged accident involving two vehicles by suppressing material facts. This vital aspect of the matter has not been considered by the Tribunal in a right perspective.

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Learned counsel further contended that the Tribunal committed serious error in rejecting the application filed by the insurer under Order 16 Rules 1 and 2 of CPC to summon the IMV Inspector to tender evidence. The compensation awarded by the Tribunal is

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exorbitant. Accordingly, a fervent plea was made by the learned counsel to remand the matter to examine the Inspector of Motor Vehicles as well as the Investigating Officer to discern the truth and to do complete justice.

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Learned counsel for the claimant submitted

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that the arguments of the learned counsel for the insurer are not supported by any material evidence. It is only on surmises and conjectures, the insurer is disputing the involvement of the motorcycle in the accident in question. Indeed, the claimant was the rider of the motorcycle. The rash and negligent driving of the driver of the Maruthi car was the cause for the accident in question. This aspect is being properly appreciated by the Tribunal, no remand is required. On the other hand, the compensation awarded by the Tribunal being minimal, the same requires to be enhanced substantially.

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11. We have heard the learned counsel

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appearing for the parties and perused the original records.

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Spot mahazar - Ex.C4 indicates that the

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name of the driver of the motorcycle was one Mr. Manjunath and the said driver has not been examined. The police records though discloses that the rash and negligent driving of the said driver of the Maruthi Car was the cause for the accident, the IMV report would suggest that the said car was fully damaged and only few damages could be found on the motorcycle. The application filed by the insurer under Order 16 Rules 1 and 2 of CPC has been dismissed on 03.08.2018, the claim petition was disposed of on 26.10.2018. As could be seen from the records as aforesaid, the damages caused to the heavy vehicle being on a higher side, it was necessary for the insurer to examine the Inspector of the Motor Vehicles who has

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drawn the report as well as the Investigating Officer to discern the truth.

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It is settled that the trial is a voyage to discover the truth. In this direction, the efforts made by the insurer to examine the concerned officers being relevant in adjudicating upon the issue of involvement of two vehicles in the accident in question, we deem it appropriate to remand the matter to the Tribunal for reconsideration in order to provide an opportunity to the insurer to examine the Inspector of Motor Vehicle and Investigating Officer and to adduce additional evidence if any, by both the parties. Hence, the following

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ORDER

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i) MFA No.4804/2019 filed by the insurer is allowed.

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ii) The impugned judgment and award dated 26.10.2018 passed in MVC.No.675/2017 by

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the Senior Civil Judge and Additional MACT at Sira is set aside.

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iii) The matter is remitted to the Tribunal for reconsideration.

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iv) The Tribunal shall provide an opportunity to the insurer to examine the Inspector of Motor Vehicles as well as the Investigating Officer to establish its case.

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v) All the rights and contentions of the parties are left open. Both the parties are at liberty to advance further arguments and to further cross-examine the claimant or witnesses, if any. Such expenses shall be borne by the insurer.

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vi) The Tribunal shall dispose of the matter in accordance with law as expeditiously as possible, preferably within a period of six months from today.

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vii) The amount in deposit shall be refunded to the insurer forthwith.

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viii) MFA No.5487/2019 filed by the claimant stands disposed of accordingly. ix) The Registry shall transfer all the original records to the Tribunal forthwith.

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x) Since the parties are represented by their respective counsels, the parties/learned counsel for the parties are directed to appear before the Tribunal on 21.12.2020 without waiting for any notice and shall take further orders.

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xi) All pending I.As. stand disposed of.

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Sd/JUDGE

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Sd/JUDGE

Sri Kyathappa C v. the Manager

Case brief

What is this about?

What did the court decide?

Sri Kyathappa C v. the Manager

Case brief

What is this about?

What did the court decide?

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