National Insurance Co. Ltd. Vs Sri Vishwanath

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:30.09.2013 PASSED IN MVC NO.1052/2011 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE, & CJM, MEMBER, MACT, MANGALORE, AWARDING COMPENSATION OF Rs.40,000/- WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL REALIZATION.

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IN MFA NO. 1726/2014 BETWEEN:

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NATIONAL INSURANCE CO., LTD., BRANCH OFFICE, MANGALORE.

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THROUGH ITS REGIONAL OFFICE, NO.144, SUBHARAM COMPLEX, M.G.ROAD, BANGALORE-560 001.

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...APPELLANT

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(BY SRI. JANARDHAN REDDY, ADVOCATE)

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AND:

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SRI THIMMAPPA POOJARY, S/O SRI LATE KORAGAPPA POOJARY, AGED ABOUT 50 YEARS,

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SMT REVATHI, W/O SRI THIMMAPPA POOJARY, AGED ABOUT 43 YEARS,

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KUMARI BHAVYA, D/O SRI THIMMAPPA POOJARY, AGED ABOUT 22 YEARS,

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KUMARI KAVYA, D/O SRI THIMMAPPA POOJARY, AGED ABOUT 20 YEARS,

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3 - NC: 2025:KHC:24078 MFA No. 1727 of 2014 C/W MFA No. 1726 of 2014

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HC-KAR

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ALL ARE R/AT KALLADKA BANGERA KODI HOUSE, GOLTHAMAJALU VILLAGE, BANTWAL TALUK - 574 211 PRESENTLY R/AT BANGERA COMPOUND, VEERA NAGARA, PADIL, MANGALORE - 575 001. 5. SRI SATISH, S/O SRI KRISHNAPPA SAPALLYA, AGED ABOUT 39 YEARS, R/AT ROTTOGUDDE, MARIPALLA, PUDU VILLAGE, BANTWAL TALUK - 574 211 (OWNER OF THE CAR NO.KA-19-M963)

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...RESPONDENTS

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(BY SRI.GURU PRASAD B R FOR R1-R4 SRI.SATISH SD, ADVOCATE FOR R5)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:30.9.2013 PASSED IN MVC NO.289/2011 ON THE FILE OF THE IST ADDITIONAL SENIOR CIVIL JUDGE, MEMBER, MACT, MANGALORE, AWARDING A COMPENSATION OF RS.5,90,000/-WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL ITS REALIZATION.

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

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CORAM: HON'BLE MR. JUSTICE UMESH M ADIGA

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ORAL JUDGMENT

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MFA No.1726/2014 and MFA No.1727/2014 arise out of

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judgment and award dated 30.09.2013 passed in MVC No.289/2011 and MVC No.1052/2011 respectively by the I Additional Senior Civil Judge and CJM, and Member, MACT, Mangalore. The appellant - insurer (respondent No.2) has

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HC-KAR

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challenged the judgment and award passed in both the cases

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on the ground of false implication of the vehicle in the alleged accident.

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For the sake of convenience, the parties are referred to as per their ranking before the Tribunal.

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The brief facts of the case are that, on 22.12.2010 at about 2.15 p.m., the deceased Kishan while riding the Hero Honda Pleasure bearing registration No.KA-19/EA-4119 at Kempugudde Cross, on B.C. Road - Belthangady Road, met with an accident due to the rash and negligent driving of the car bearing registration No.KA-19/M-963 by its driver. As a result, he sustained grievous injuries and succumbed to the said injuries. The claimants in MVC No.289/2011 are parents and sisters of deceased Kishan who filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 seeking compensation. It is further contended that the deceased was aged about 19 years, he was earning Rs.8,000/- per month and was maintaining the family. Due to his death, the family lost an earning member. With these reasons, they prayed to award compensation of Rs.16,00,000/-.

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HC-KAR

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The Claimant in MVC No.1052/2011 is the owner of

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the motor cycle bearing No.KA-19/EA-4119, which was being ridden by the deceased. He filed a claim petition seeking compensation for damage to the said vehicle.

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Respondent No.1 is the owner and Respondent No.2 is the insurer of the offending car. Respondent No.1 remained ex-parte before the Tribunal. Respondent No.2 in its written statement, denied the contents of the claim petition and further stated that said vehicle was falsely implicated in the accident just to claim the compensation. It is as per the newspaper report, the deceased while riding a two-wheeler, hit against the roadside stone and sustained the injuries and died. It's liability is restricted to terms and conditions of policy. With these reasons, it prayed to dismiss the claim petition.

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From the rival contentions of the parties, the Tribunal framed the necessary issues.

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The Tribunal clubbed both claim petitions i.e., MVC No.289/2011 and MVC No.1052/2011 and common evidence was recorded.

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HC-KAR

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The claimants to prove their case examined 6

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witnesses as PWs.1 to 6 and marked 18 documents as Exs.P.1 to P.18. Respondent No.2 examined one witness as RW.1 and marked 3 documents as Exs.R.1 to R.2(a).

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After hearing both the parties, the Tribunal held that the accident took place due to the involvement of the car bearing registration No.KA-19/M-963. Due to the accident, the said Kishan died. The Tribunal awarded compensation of Rs.5,90,000/- in MVC No.289/2011 and Rs.40,000/- in MVC No.1052/2011 with interest at the rate of 6% per annum.

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Heard the arguments of learned counsel appearing for the appellant in both the appeals.

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The learned counsel for the appellant vehemently contended that the said car was not at all involved in the accident. On the next day of the incident, a newspaper i.e., 'Udayavani' which is produced at Ex.R.2, a News was published stating that the deceased was riding a vehicle negligently and hit a stone situated at the side of the road, leading to his death. This document were not considered by the Tribunal. He further submits that merely filing of the charge sheet is not sufficient.

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HC-KAR

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It appears there was a collusion between claimants, owner & driver of the car and the Police, in order to help the claimants, to get compensation from respondent No.2. With these reasons, he prays to set aside the impugned judgment and allow the appeals.

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I have scanned the evidence placed on record by both the parties. The incident occurred on 22.12.2010 at about 2.15 p.m. A complaint was lodged in respect of the incident on the same day at about 4.00 p.m., i.e., within the span of two hours. On the basis of the said complaint, the concerned investigating officer had investigated the matter and submitted a final report stating that the accident took place due to the involvement of the offending car.

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To substantiate their contentions, claimants examined petitioner No.2 as PW-1 and examined one eyewitness as PW-4/Prashant. In their cross-examination, nothing was brought out to disbelieve their evidence. Respondent No.2 has not examined the investigating officer to

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prove that it was a faulty investigation and that the said vehicle was falsely implicated. It is true that a news was published in

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HC-KAR

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the widely circulated 'Udayavani' newspaper dated 23.12.2010, regarding the accident in question. There is no presumption that a news published in the daily news papers are true and correct. To prove Ex.R2, respondent No.2 has not examined the said reports. Mere production of a newspaper report is not sufficient to discard a final report submitted by a Police officer, who was authorized by the law to investigate a crime and submit the report. Therefore, the contention of the appellant/insurer that the said vehicle was falsely implicated in the accident is not tenable.

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The Tribunal considered the materials available on record held that accident took place by involvement of the offending car. On re-appreciation of the evidence on record, I do not find any fault in the said findings.

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Considering the materials available on record, the Tribunal awarded just compensation. Therefore, the appeals are devoid of merit.

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In view of the aforesaid submissions, I pass the following:

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HC-KAR

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ORDER

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i. MFA No.1726/2014 and MFA No.1727/2014 are dismissed .

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ii. Impugned judgment and award dated 30.09.2013 passed in MVC No.289/2011 and MVC No.1052/2011, by the I Additional Senior Civil Judge and CJM, and Member, MACT, Mangalore are confirmed.

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iii. Send back TCR along with a copy of judgment to the trial Court.

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iv. Whatever the amount deposited by the appellant/insurer in both the appeals shall be transmitted to the Tribunal for disbursement.

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Sd/(UMESH M ADIGA) JUDGE

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BKN

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List No.: 1 Sl No.: 10

National Insurance Co. Ltd. v. Sri Vishwanath

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National Insurance Co. Ltd. v. Sri Vishwanath

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