Dismissed

New India Assurnace Co.,Ltd., v. Smt. T Vedukondal W/O Borrayya

Karnataka HC22 Aug 2022MFA/25317/2010

Case brief

AI extract

What is this about?

Two appeals by insurers challenging incidental awards of compensation for motor accident deaths. The High Court dismissed the appeals, holding that the depositions of claimant witnesses and the setting-aside of the closure report sufficiently established negligence, absolving the insurers of the burden to prove false implication without direct examination of the driver.

What did the court decide?

Appeals dismissed; unpaid amount ordered to be transferred to the Tribunal.

New India Assurnace Co.,Ltd., Vs Smt. T Vedukondal W/O… — Medical Negligence | Karnataka HC (2022)

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MFA No. 25316 of 2010 C/W MFA No. 25317 of 2010

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 22^ND DAY OF AUGUST, 2022

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BEFORE

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THE HON'BLE MR JUSTICE H.P.SANDESH

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MISCELLANEOUS FIRST APPEAL NO. 25316 OF 2010

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(MV-)

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C/W

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MISCELLANEOUS FIRST APPEAL NO. 25317 OF 2010

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IN MFA No.25316/2010

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BETWEEN:

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NEW INDIA ASSURANCE CO.LTD DIVISIONAL MANAGER, IDIGA COMPLEX BELLARY, REP. THROUGH ITSREGIONAL OFFICE, SUMANGALA COMPLEXIIND FLOOR, STATION ROAD, HUBLI REP. BY ITS ADMINSTRATIVE OFFICER

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…APPELLANT

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(BY SRI. NAGANGOUDA R KUPPELUR, ADVOCATE)

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AND:

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SMT.SATYAVATI W/O RAJU AGE: 39 YEARS, OCC: AGRICULTURE

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NAGARAJU S/O RAJU AGE: 21, OCC: AGRICULTURE

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BOTH ARE RESIDENTS OF KAMAGUNDAMMA CAMP, GUNDUR, TQ: GANGAVATI, DIST: KOPPAL

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MFA No. 25316 of 2010 C/W MFA No. 25317 of 2010

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KRISHNA S/O SUNKAPPA BAJANTRI AGE: 33 YEARS, OCCU: DRIVER R/O VEERAPUR TANDA, GANGAVATI DISTRICT: KOPPAL

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HANUMANTHAPPA S/O ERANNA AGE: 45, OCCU: BUSINESS

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R/O ADAPUR, NAVLI POSTTQ: GANGAVATI, DIST: KOPPAL(OWNER OF MAXI-CAB NO.KA-37/4883)

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…RESPONDENTS

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(BY SRI. RAJASHEKAR R GUNJALLI, ADVOCATE FOR R1 & R2,

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SRI. LAXMAN T MANTAGANI, ADVOCATE FOR R4,

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NOTICE TO R3 IS DISPENSED WITH)

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THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGEMENT AND AWARD DATED 01.09.2010 PASSED IN MVC NO.249/2009 ON THE FILE OF SENIOR CIVIL JUDGE AND MEMBER MACT, GANGAVATHI AWARDING COMPENSATION OF RS.3,98,000/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL DEPOSIT.

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IN MFA No.25317/2010

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BETWEEN

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NEW INDIA ASSURNACE CO.,LTD., DIVISIONAL MANAGER, IDIGA COMPLEX, BELLARY REP. THROUGH ITS REGIONAL OFFICE SUMANGALA COMPLEX IIND FLOOR, STATION ROAD HUBLI REP. BY ITS ADMINISTRATIVE OFFICER. ...APPELLANT

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(BY SRI. NAGANGOUDA R KUPPELUR, ADVOCATE)

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AND

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SMT. T VEDUKONDAL W/O BORRAYYA AGE: 48 YEARS, OCC: AGRICULTURE

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SURYAKUMARI W/O T.VEDUKONDAL AGE: 44 YEARS, OCC: AGRICULTURE,

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MFA No. 25316 of 2010 C/W MFA No. 25317 of 2010

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BOTH ARE RESIDENTS OF KAMAGUNDAMMA CAMP, GUNDUR, TQ: GANGAVATI, DIST: KOPPAL.

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KRISHNA S/O SUNKAPPA BAJANTRI AGE: 33 YEARS, OCC: DRIVER R/O: VEERAPUR TANDA, GANGAVATI DIST: KOPPAL.

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HANUMANTHAPPA S/O ERANNA AGE: 43 YEARS, OCC: BUSINESS, R/O: ADAPUR, NAVLI POST TQ: GANGAVATI, DIST: KOPPAL(OWNER OF MAXI - CAB NO: KA-37/4883)

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…RESPONDENTS

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(BY SRI. RAJASHEKAR R GUNJALLI, ADVOCATE FOR R1, SRI.LAXMAN T MANTAGANI, ADVOCATE FOR R4, NOTICE TO R3 IS DISPENSED WITH, NOTICE TO R2 SERVED)

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THIS APPEAL IS FILED U/SEC.173(1) OF THE MOTOR VEHICLE ACT 1988, AGAINST THE JUDGMENT AND AWARD DTD:01-09-2010 PASSED IN MVC NO.250/2009 ON THE FILE OF THE SENIOR CIVIL JUDGE AND MEMBER, MACT, GANGAVATHI, AWARDING THE COMPENSATION OF RS.2,83,000/- WITH INTEREST AT THE RATE OF 6% P.A., FROM THE DATE OF PETITION TILL DEPOSIT.

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THESE APPEALS COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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These two appeals are filed by the Insurance

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Company challenging the judgement and award passed in

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MVC Nos.249/2009 and 250/2009 dated 01.09.2010 on

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the file of Senior Civil Judge and MACT, Gangavathi.

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MFA No. 25316 of 2010 C/W MFA No. 25317 of 2010

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Factual matrix of the case of the claimants before the Tribunal is that on 11.01.2007 at 7.30 p.m. the deceased persons were proceeding on the motorcycle as rider and pillion rider from Ambamath to Kamagundamma Camp and when they came on Gangavathi-Karatagi main road, at that time, respondent No.1 being the driver of maxi cab drove the same in rash and negligent manner and dashed against the motorcycle, as a result of which the rider and pillion rider of the motorcycle sustained grievous injuries and succumbed to injuries. Hence, claim petitions were filed by the dependants of the deceased persons before the Tribunal claiming compensation.

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In pursuance of the notices issued, respondents appeared before the Tribunal and filed their written statements and Insurance Company took specific defence that vehicle was not involved in the accident and false case has been registered in order to claim the compensation and matter was investigated and filed ‘C’

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MFA No. 25316 of 2010 C/W MFA No. 25317 of 2010

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report and the same has bee challenged by the complainant and order of ‘C’ report was set aside and charge sheet was filed. The claimants in order to substantiate their claim, examined two witnesses as PWs.1 and 2 in both the cases and respondents also examined one witness as RW.1 and got marked document as Ex.R.1 and claimants relied on Exs.P.1 to P.7 in both the cases.

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After considering both oral and documentary evidence on record, Tribunal allowed the claim petitions in part and awarded Rs.3,98,000/- in MVC No.249/2009 and Rs.2,83,000/- in MVC No.250/2009 with interest at 6% p.a. Being aggrieved by the same, these two appeals are filed by Insurance Company.

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The main contention of the Insurance Company in these two appeals is that the Tribunal has committed an error in directing the Insurance Company to pay the compensation and failed to take note of the fact that the police have filed ‘C’ report after investigation and only on

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MFA No. 25316 of 2010 C/W MFA No. 25317 of 2010

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the ground that the said ‘C’ report has been set aside by this Court claim petitions were allowed. Counsel would also contend that maxi cab was not at all involved in the alleged accident and only afterthought false complaint has been registered in order to make wrongful gain and the Tribunal accepted the false version of the claimants and the very finding of the Tribunal that the vehicle was involved in the accident is erroneous. Hence, it requires interference of this Court.

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Per contra, the learned counsel for the claimants would contend that the Tribunal while appreciating the material on record in para No.11 has discussed in detail and comes to the conclusion that except examining one of the official witness, the respondents have not examined the driver of maxi cab,

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who is the right person to speak with regard to involvement of vehicle in the accident and no such efforts are made by examining the driver or the investigating

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MFA No. 25316 of 2010 C/W MFA No. 25317 of 2010

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office who conducted the investigation and filed ‘C’ report in order to prove the factum that vehicle was not involved in the accident and hence it does not require any interference.

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7. In view of the rival contentions of the parties,

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the following points would arise for consideration:

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i. Whether the Tribunal has erred in answering issue No.1 and in coming to the conclusion that accident is on account of the negligence on the part of the driver of the offending vehicle?

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ii. What order?

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8. Regarding Point No.1 : Having heard the

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learned counsel for the parties and on perusal of the material on record, PWs.1 and 2 are examined in both the cases and also RW.1 is also examined on behalf of the Insurance Company. P.W.1 in both the cases were crossexamined and in the cross-examination of P.W.1 a suggestion was made that the vehicle was not involved in

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MFA No. 25316 of 2010 C/W MFA No. 25317 of 2010

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the accident and in order to make wrongful gain, a false complaint is given and the same is denied and further suggestion was made that vehicle is not involved in the accident and the said suggestion is also denied.

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In the cross-examination of P.W.1, he admitted the registration of case at the first instance against unknown person and filing of ‘C’ report is also admitted. RW.1 has been examined on behalf of the Insurance Company. In the cross-examination, a suggestion was made that accident was occurred due to negligence on the part of driver of maxi cab and the same was denied. It is also suggested that in order to avoid payment of compensation, false affidavit is filed and the same is also denied.

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Having considered the evidence of P.W.1 and RW.1, except the suggestions nothing is found and no doubt filing of ‘C’ report is accepted but the fact that ‘C’ report filed by the police was set aside is also not in

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MFA No. 25316 of 2010 C/W MFA No. 25317 of 2010

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dispute and charge sheet is also produced before the Court as Ex.P.3 and also Ex.P.1-certified copy of order sheet is produced, but there is no material before the Court with regard to what is the ultimate result of filing of charge sheet against the driver of the offending vehicle.

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It is also suggested in the cross-examination that the offending vehicle was not involved in the accident and only in order to claim compensation a false complaint is given and the same was denied. However, it is elicited that in terms of Ex.P.7-certified copy of order sheet, case is still pending. It is also important to note that result of criminal case is immaterial while claiming compensation and the Insurance Company examined one official witness RW.1 and RW.1 is also not an eyewitness and right person to speak whether vehicle was involved in the accident is the driver and he has not been examined before the Court and in order to prove the factum of false implication of vehicle, no material is placed before the Court.

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MFA No. 25316 of 2010 C/W MFA No. 25317 of 2010

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On the other hand, claimants have placed documents i.e. FIR and charge sheet and also order of setting aside ‘C’ report filed by investigating officer and investigating officer ought to have been examined by the Insurance Company and the same is also not done. The Tribunal also considered this aspect in para No.11 while considering the matter on merits and in detail discussed with regard to non-examination of driver of offending vehicle and when such being the material on record and when nothing is elicited in the cross-examination of P.W.1 with regard to implication of vehicle and only based on self-serving statement of RW.1, the contention of the Insurance Company cannot be accepted and the same

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reason was given by the Tribunal also and hence I do not find any merit in the contention of the Insurance Company in the absence of any cogent evidence to disbelieve the case of the claimants. Hence, there is no merit in the present case to comes to the other conclusion that the

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MFA No. 25316 of 2010 C/W MFA No. 25317 of 2010

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vehicle has been falsely implicated in the case. Accordingly, point No.1 is answered in negative.

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Regarding point No.2 : In view of the

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discussions made above, I pass the following:

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ORDER

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Appeals are dismissed.

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Amount in deposit, if any, is ordered to be transferred to the Tribunal forthwith.

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The registry is directed to transmit the trial court records forthwith.

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Sd/JUDGE

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New India Assurnace Co.,Ltd., v. Smt. T Vedukondal W/O Borrayya

Case brief

What is this about?

What did the court decide?

New India Assurnace Co.,Ltd., v. Smt. T Vedukondal W/O Borrayya

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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