Iffco-Tokio General Insurance Co. Ltd. Vs Smt. Radha N K

IFFCO-TOKIO GENERAL INSURANCE CO.LTD., REG. OFFICE # 34, NEHRU PLACE, NEW DELHI - 110 010. IFFCO-TOKIO GENERAL INSURANCE CO.LTD., CUSTOMER SERVICE CENTRE, "SRI SHANTHI TOWERS", 5^TH FLOOR, 3^RD MAIN, NO.141, EAST OF NGEF LAYOUT, KASTURINAGAR, BANGALORE - 560 084. REP. BY ITS DEPUTY GENERAL MANAGER, SRI. V. JAGMOHAN RAO.

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…APPELLANT

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(BY SRI. B.C. SEETHARAMA RAO., ADVOCATE)

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AND:

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Digitally signed by MEGHA MOHAN

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SMT. RADHA N.K. AGED ABOUT 50 YEARS, S/O LATE ERAPPA,

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Location: HIGH 2. SRI. RAVI COURT OF AGED ABOUT 25 YEARS, KARNATAKA S/O LATE ERAPPA,

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SRI. MANJU AGED ABOUT 22 YEARS, S/O LATE ERAPPA, RESPONDENTS NO.1 TO 3 ARE RESIDENTS OF MEKOOR HOSAKERI VILLAGE, POLLIBETTA, MADIKERI TALUK

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MR. SHANTHA KUMARA, MAJOR, C/O K. DECHU MUDDAIAH,

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NC: 2025:KHC:12083 MFA No. 5051 of 2013

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CHETTALLI VILLAGE & POST, SOMWARPET TALUK.

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(DRIVER OF TRACTOR NO.KA.12-T-4332)

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MR. K. DECHU MUDDAIAH, AGED ABOUT 49 YEARS, S/O LATE K.P. MUDDAIAH, CHETTALLI VILLAGE & POST, SOMWARPET TALUK.

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(OWNER OF TRACTOR NO.KA 12-T-4332)

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…RESPONDENTS

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(BY SRI. RANJAN KUMAR K., ADVOCATE FOR R1, R2 AND R4, R3 & R5 SERVED & UNREPRESENTED)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 28.02.2013 PASSED IN MVC NO.58/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE, MACT, MADIKERI, AWARDING COMPENSATION OF Rs.7,10,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL DEPOSIT ETC.

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

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CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

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ORAL JUDGMENT

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Aggrieved by the order passed in M.V.C.No.58/2012 dated 28.02.2013 by the Senior Civil Judge and MACT, Madikeri, the appellant/Insurance Company is before this Court.

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The claim petition was filed by the wife and children of

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the deceased under Section 166 of IMV Act claiming compensation for the death of one Erappa in the motor vehicle

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accident that took place on 01.06.2008. Initially, one K.N.Rathna has filed MVC.No.7/2009 seeking compensation. Thereafter, the claimants in this petition has come up before the Court and stated that the said petition is not filed by her. She did not sign, but she affixed her thumb impression. According to her, the petition is filed by somebody else and she has not filed it. Then she has filed a memo before the Court seeking withdrawal of the petition with a liberty to file a fresh petition. By order dated 20.07.2010, the Court had permitted the claimant to withdraw the petition but has not given the liberty to file a fresh petition. The said order was not questioned by the claimants and they filed the instant petition i.e., M.V.C.No.58/2012.

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The Tribunal had framed issue No.2 "whether these petitioners estopped from filing this claim petition in view of withdrawal of M.V.C.No.7/2009 on the file of Senior Civil Judge and MACT, Virajpet?" The Court came to the conclusion that the earlier petition was filed by one Rathna N.K., wife of late Erappa, Ravi and Manju. The claimants therein filed a memo seeking permission to withdraw the petition with liberty to file a fresh petition. The Tribunal observed that the present petition

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NC: 2025:KHC:12083 MFA No. 5051 of 2013

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has been filed by Radha.N.K. and one Ravi, Manju being the wife and children of Erappa before the Tribunal. To show that these claimants are not the legal heirs of deceased Erappa, no material has been placed by the respondents and nothing is elicited from the mouth of PW.1 being the wife of deceased to say that they are not legal heirs of deceased. It is not the case of the respondents that there are other legal heirs to the deceased and they have already claimed compensation and it has been disposed off and award has been passed and in those circumstances withdrawal of earlier petition in M.V.C.No.7/2009 does not affect the claimants in filing the petition and accordingly granted compensation of an amount of Rs.7,10,000/-. Aggrieved thereby, the appellant/Insurance Company is before this Court.

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Learned counsel appearing for the appellant/Insurance Company submits that when the earlier petition has filed and in that cross-examination, she has stated that her name is Radha and she is also known as Rathna and when the memo is filed seeking withdrawal and liberty is sought to file a fresh petition, though the petition was permitted to be withdrawn, the Court had denied the liberty for filing a fresh petition. In the present

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case, the Tribunal had failed to consider the same and entertained the claim petition which is impermissible. It is submitted that even in this case also, the claimant has stated that she is also known as Rathna and she had filed the petition. He submits that fraud is played before the Court and they cannot be permitted to file petitions one after the other without there being liberty granted by the Court.

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Learned counsel appearing for the claimants submits that the claimants have lost the husband and father. No order has been passed on the merits of the case and they are entitled for compensation. Earlier, the petition is filed in the name of Rathna.N.K and later, it is filed in the name of Radha.N.K. In that case, earlier withdrawal or the liberty not granted by the Tribunal will not come in the way of these petitions and the Court had rightly considered and granted the compensation and there are no grounds to interfere with the well considered order passed by the Tribunal.

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Having heard the learned counsels on either side, perused the entire material on record. The dispute in the earlier petition i.e., M.V.C.No.7/2009 is that with regard to who has

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filed the petition, whether it is Rathna.N.K. or Radha.N.K. A memo was filed seeking to withdraw the petition by the present claimant stating that it is not filed by her. This Court is not inclined to go into the merits of the matter whether such order passed by the Court is legal or not. But the fact remains is that an order is passed on the memo, permitting to withdraw but not granted the liberty to file a fresh petition. When such order is passed, the remedy available to the claimant was to question that order by filing an appeal. For the reasons best known to the claimants, it was not done and later, they have filed the present M.V.C. The reasoning that is given by the Court on issue No.2 is contrary to law. When the liberty is denied by the Court, the claimants cannot be permitted to file another application before the Court and there will not be an end to the litigation if these kinds of matters are entertained. In view of the fact that the order that is passed in M.V.C.No.7/2009 is not questioned by the claimants, they cannot maintain present M.V.C.No.58/2012. The Tribunal went wrong in entertaining the claim petition and granting the compensation.

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Accordingly, the order passed in M.V.C.No.58/2012 dated 28.02.2013 by the Senior Civil Judge and MACT,

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NC: 2025:KHC:12083 MFA No. 5051 of 2013

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Madikeri, is set aside and the appeal of the Insurance Company is allowed .

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i. The amount in deposit shall be transmitted to the Tribunal and Insurance Company is at liberty to withdraw the same.

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ii. Registry is directed to return the Trial Court Records to the Tribunal, along with certified copy of the order passed by this Court forthwith without any delay.

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iii. No costs.

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iv. Pending miscellaneous petitions, if any, shall stand closed.

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SD/(LALITHA KANNEGANTI) JUDGE

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MEG

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List No.: 1 Sl No.: 5

Iffco-Tokio General Insurance Co. Ltd. v. Smt. Radha N K

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Iffco-Tokio General Insurance Co. Ltd. v. Smt. Radha N K

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