Partly allowed

Branch Manager v. Smt G B Yashodamma

Karnataka HC18 Oct 2022MFA/174/2012

Case brief

AI extract

What is this about?

High Court allowed Motor Vehicles First Appeal filed by insurer. Court set aside Claims Tribunal's award for insufficient findings on accident causation involving a third vehicle and remanded matter for reconsideration, directing inquiry into potential fraud under Section 172.

What did the court decide?

Impugned judgment set aside; matter remitted to Tribunal for fresh reconsideration; Section 172 powers to be invoked if fraud found.

Branch Manager Vs Smt G B Yashodamma — Cheque Dishonour | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 18^TH DAY OF OCTOBER 2022

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BEFORE

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THE HON’BLE MR.JUSTICE H.T.NARENDRA PRASAD

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MFA No.174 OF 2012(MV)

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BETWEEN:

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Branch Manager, Oriental Insurance Co. Ltd., Divisional Office, S V Nilaya, B M Road, Hassan, Now represented by its Regional Manager, Oriental Insurance Co. Ltd., Regional Office, # 44/45, Leo Shopping Complex, Residency Road, Bangalore-560 025. … Appellant

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(By Sri.A.N.Krishnaswamy, Advocate)

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AND:

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Smt. G.B. Yashodamma, W/o Late Puttaraju, Now aged about 41 years.

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P.Ramya, D/o Late Puttaraju, Now aged about 18 years.

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P. Gangadhara, S/o Late. Puttaraju, Now aged about 16 years,

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Since minor represented by Respondent No.1 All are R/at Agrahara Street, Hemagiri Road, Krishnarajapet Town, Mandya District.

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Sathya Radhakrishna, S/o Gangaraju, Major, R/o Near KEB, Hosaholalu road, K R pet Town, Mandya District.

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K.B. Viveka, S/o Boralingegowda, Major, R/o Mysore Road, K R Pet Town. ... Respondents

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(By Sri.Vasudeva Murthy N.S., Advocate for R1 to R3: Notice to R4 & R5 is dispensed with v/o dated: 21.07.2016)

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This MFA is filed under Section 173(1) of MV Act, against the Judgment and Award dated:29.08.2011 passed in MVC No.277/2006(old 23/2004) on the file Senior Civil Judge, JMFC, K.R.Pet, awarding a compensation of Rs.6,53,950/- with interest @ 6% p.a from the date of petition till payment.

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This MFA, coming on for hearing, this day, this Court, delivered the following:

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J U D G M E N T

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This appeal under Section 173(1) of the Motor

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Vehicles Act, 1988 (hereinafter referred to as ‘the Act’, for

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short) has been filed by the Insurance Company being

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aggrieved by the judgment dated 29.08.2011 passed by the Senior Civil Judge & JMFC at K.R.Pet in MVC No.277/2006.

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Facts giving rise to the filing of the appeal briefly

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stated are that on 01.09.2002 at about 9.00 p.m. the deceased Puttaraju was proceeding on scooter bearing registration No.KA-05/R-9906 from K.R.Pet to Sheerbilenahalli. When he was going towards Thendekere, at that time, a Tata sumo bearing registration No.KA-05/N5706 which was being driven in a rash and negligent manner, dashed against the deceased. As a result of the aforesaid accident, the deceased sustained grievous injuries and succumbed to the injuries at the hospital.

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The claimants filed a petition under Section 166

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of the Act seeking compensation for the death of the deceased along with interest.

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On service of summons, the respondent No.3 appeared through counsel and filed written statement in

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which the averments made in the petition were denied. The age, occupation and income of the deceased are denied. It was pleaded that the petition itself is false and frivolous in the eye of law. It was further pleaded that the accident occurred when the Tata sumo hit the deceased and the deceased hit the bullock card. It was further pleaded that the driver of the offending vehicle and the deceased were not holding valid driving licence as on the date of the accident. It was further pleaded that the liability is subject to terms and conditions of the policy. It was further pleaded that the quantum of compensation claimed by the claimants is exorbitant. Hence, he sought for dismissal of the petition.

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The respondent Nos.1 and 2 did not appear before the Tribunal inspite of service of notice and hence were placed ex-parte.

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On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded

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the evidence. The claimants, in order to prove their case, examined three witnesses as PW1 to PW3 and got exhibited documents namely Ex.P1 to Ex.P11. On behalf of respondents, two witnesses were examined as RW-1 and RW-2 and got exhibited document namely Ex.R1. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the offending vehicle by its driver, as a result of which, the deceased sustained injuries and succumbed to the injuries. The Tribunal further held that the claimants are entitled to a compensation of Rs.6,53,950/- along with interest at the rate of 6% p.a. and directed the Insurance Company to deposit the compensation amount along with interest. Being aggrieved, this appeal has been filed.

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Sri A.N.Krishna Swamy, the learned counsel for the Insurance Company has raised the following contentions:

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Firstly, as per the complaint lodged by PW-3 the accident has occurred on 01.09.2002, the rider of the motorcycle has came in a rash and negligent manner and dashed to the bullock cart and fell down. On the basis of the same FIR has been registered as Ex.P1. While filing the charge sheet police have included the Tata sumo and filed the charge sheet against the driver of the Tata sumo. The claimants have not proved as to how the Tata Sumo has been involved in the accident. They have not examined the investigating officer.

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Secondly, even though in the FIR and the complaint Tata Sumo is not mentioned, first time it has been appeared in the charge sheet. The Tribunal has not given any finding regarding how the Tata Sumo was involved in the accident.

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Thirdly, it is a clear case of fraud. The claimant, to make a false claim colluded with the owner of the Tata Sumo and filed the claim petition.

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Fourthly, under Section 172 of the Motor Vehicles Act, if any party or insurer put forward a false or vexatious claim or defence, the Tribunal can award special costs by way of compensation.

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Fifthly, even if this Court intends to remand the matter to give an opportunity to the claimants to examine the investigating officer or any other witness to prove his case and if the Tribunal finds that the claimant has colluded with the owner of the offending vehicle and has filed the claim petition the Tribunal has to exercise the power under Section 172 of the Motor Vehicles Act. Hence, he sought for allowing the appeal.

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On the other hand, Sri Vasudeva Murthy, learned counsel appearing for the claimants has raised the following contentions:

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Firstly, the accident occurred due to the negligence of the driver of the Tata Sumo. He came in a rash and negligent manner and dashed to the scooter, due to the

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impact the rider of the scooter, i.e., the deceased lost control and dashed against the bullock cart and he fell down and sustained grievous injuries and died at the hospital.

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Secondly, the police have registered the FIR and after thorough investigation have filed the charge sheet against the driver of the Tata Sumo. The Tribunal after considering the materials available on record has rightly held that the driver of the Tata Sumo was negligent in causing the accident. Hence, he sought for dismissal of the appeal.

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Heard the learned counsel for the parties and perused the judgment and award and the original records.

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The case of the claimant is that on 01.09.2002 at about 9.00 p.m. the deceased Puttaraju was proceeding on scooter bearing registration No.KA-05/R-9906 from K.R.Pet to Sheerbilenahalli. When he was going towards Thendekere, at that time, a Tata sumo bearing registration No.KA-05/N-5706 which was being driven in a rash and

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negligent manner, dashed against the scooter, due to which the deceased lost control and dashed to the bullock cart and fell down and sustained grievous injuries and he was shifted to the hospital and he succumbed to the injuries at the hospital. But in the judgment the Tribunal has extracted the fact that the deceased was traveling in the scooter and the Tata Sumo came from the opposite direction and hit the deceased, due to the impact he fell down and sustained injuries and succumbed to the injuries. The facts narrated by the Tribunal is contrary to the case of the claimants. Even as per the complaint given by PW-2 the deceased was riding the scooter in a rash and negligent manner and dashed to the bullock cart, fell down and sustained injuries. The police have registered the FIR. Even in the compliant and FIR there is no mention about the Tata Sumo. For the first time in the charge sheet it is mentioned that Tata Sumo dashed against the scooter and the driver of the Tata Sumo is negligent in causing the accident.

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To prove the case of the claimants that Tata Sumo

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has been involved in the accident, the claimants have relied on the police records, i.e., the charge sheet. But the claimants have not examined the investigating officer. Even the Tribunal has not given any finding as to how police have come to the conclusion that the Tata Sumo is involved in the accident. The finding given by the Tribunal is contrary to the materials available on record. The parties have not examined even the driver and owner of the Tata Sumo. The reasons assigned by the Tribunal is contrary to the materials available on record and without application of mind. Hence, the mater requires to be reconsidered by the Tribunal afresh.

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Accordingly, appeal is allowed. Judgment and award passed by the Tribunal is set aside. The mater is remitted back to the Tribunal for re-consideration afresh. If the Tribunal finds that the parties have played fraud to

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make a false claim, the Tribunal shall exercise the power

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under Section 172 of the Motor Vehicles Act.

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The Tribunal is directed to dispose of the matter as

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expeditiously as possible, not later than six months from the date of appearance of the parties.

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The amount in deposit is ordered to be transferred to

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the Tribunal forthwith.

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Cm/-

Branch Manager v. Smt G B Yashodamma

Case brief

What is this about?

What did the court decide?

Branch Manager v. Smt G B Yashodamma

Case brief

What is this about?

What did the court decide?

What the court decided

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