The Oriental Insurance Co., Ltd., Vs Sri. M S Chandan Kumar

THE ORIENTAL INSURANCE CO., LTD., BRANCH: TGMA BUILDING, J.C. ROAD, TUMKUR - 572 101. THROUGH ITS REGIONAL OFFICE, LEO SHOPPING COMPLEX, #44/45, RESIDENCY ROAD, BANGALORE - 560 025. REP. BY ITS DEPUTYL MANAGER MS. LYNETTE SUARES.

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…APPELLANT

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

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Digitally signed by SHARADAVANI B Location: High Court of Karnataka

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AND:

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SRI. M.S. CHANDAN KUMAR, AGED ABOUT 27 YEARS, S/O SRI. M.P. SOMASHEKAR, II BLOCK, DODDAHATTI BEEDHI, MADHUGIRI TOWN, TUMKUR DISTRICT - 572 101.

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MR. MEER MOHAMMED HANEEF, AGED ABOUT 34 YEARS, S/O MR. MEER IBRAHIM, RESIDENT OF KUMBARA STREET,

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HC-KAR

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MADHUGIRI TOWN, TUMKUR DISRICT - 572 101. (OWNER OF KA-06-EG-3835, TVS XL DUTY)

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…RESPONDENTS

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(BY SRI. H.S. SANTHOSH, ADVOCATE FOR R1; R2 - SERVED)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 14.6.2016 PASSED IN MVC NO.1/2012 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, MACT, MADHUGIRI, AWARDING A COMPENSATION OF RS.2,52,712/- WITH INTEREST @ 6% P.A FROM THE DATE OF THE CLAIM PETITION TILL THE DATE OF REALIZATION.

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THIS APPEAL, COMING ON FOR 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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This appeal is filed by the insurer challenging the judgment and award dated 14^th June 2016 passed in M.V.C.No.1/2012 by the learned Principal Senior Civil Judge & MACT, Madhugiri (for short `Tribunal').

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For the sake of convenience, the parties are referred to

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as per their ranking before the Tribunal.

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HC-KAR

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The brief facts of the case are that, on 01.09.2011, at about 10:30 P.M., in front of the house of one Veerabhadraiah at Doddapet, Madhugiri Town, rider of a motor cycle bearing No.KA-06-EG-3835 rode his vehicle in a rash and negligent manner and hit the claimant, who was walking at the side of the road. Due to the impact, the claimant sustained a fracture of the shaft of right femur. He took treatment as an in-patient from 02.09.2011 to 17.09.2011 at the District Hospital, Tumkur. He has spent substantial amount towards medical expenses and has suffered permanent disability. With these reasons, he prayed to award compensation of Rs.6,00,000/-.

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Respondent No.1 is the owner and Respondent No.2 is the insurer of the offending vehicle. Respondent No.1 did not file written statement. Respondent No.2 in its written statement denied the contentions of the claimant, the involvement of the vehicle and the alleged negligence of the rider. It also denied its liability to pay compensation and prayed to dismiss the claim petition.

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

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HC-KAR

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The claimant to prove his case examined three witnesses as PW-1 to PW-3 and marked 20 documents as per Exs.P-1 to P-20. Respondent No.2 examined one witness as R.W.1 and marked Exs.R1 & 2.

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The Tribunal, after hearing both parties, held that the accident occurred due to the rash and negligent riding of the motorcycle by its rider and awarded total compensation of Rs.2,52,712/-.

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I have heard the arguments.

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The learned counsel for the appellant contended that the offending vehicle was falsely implicated in the case. As per the averments in the petition and the evidence of P.Ws.1 and 2, the claimant was hit by motor cyclist while going by walk, at the time of the incident. However, the said fact is not substantiated by the medical records and evidence of P.Ws.1 & 2.

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He further contended that in the inpatient records secured from the District Government Hospital, Tumkur, marked as Ex.P14, the history of the accident is recorded as:

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HC-KAR

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"H/O RTA on 01.09.2011 while going in two-wheeler near Madhugiri." Respondent No.2 also produced a certified copy of the MLC register as per Ex.R2, wherein the history is stated before the concerned doctor by PW-2 which reads as under:

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"Referred from Government Hospital, Madhugiri. History of alleged RTA on 01.09.2011 at around 10.30 P.M. near Doddapete, Madhugiri. Patient is not giving the history of the accident. Patient was riding his two wheeler

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O/E G.C: CONSCIOUS"

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It also indicates that the claimant was conscious and had three injuries, and his blood pressure was normal. The learned Counsel for the Insurer contended that these facts clearly suggests that, merely to claim compensation from respondent No.2, a complaint was lodged after a delay of twelve days, falsely implicating the vehicle. Although this was argued before the Tribunal, the Tribunal failed to consider it. Therefore, the learned counsel prayed to allow the appeal and set aside the impugned judgment.

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The learned Counsel for the claimant supported the impugned judgment and prayed to dismiss the appeal.

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HC-KAR

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Perused the materials on record. The case made out in the pleadings and materials produced are not consistent. In the claim petition it is stated that claimant was hit by motor cycle. As stated above, in Ex.R2, it is stated that while riding the motor cycle, he met with an accident. In Ex.P14, it is stated that patient was not giving history of the accident and patient was riding his two wheeler. Neither the claimant nor his attendar has stated that claimant met with an accident by involving the offending vehicle. There is no explanation about the same.

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P.Ws.1 & 2 are eyewitnesses to the incident. Out of them, P.W.1 is the claimant. On going through their evidence, both of them admit that they have not seen the face of the rider of the vehicle or vehicle number, which is inconsistent with Ex.P1. Both P.Ws.1 & 2 have stated that Ganesh Pandal was near the spot of accident. Lot of people gathered at Ganesh Pandal and due to rush of people, the said road was closed for movement of the vehicles. If such was the fact, it is difficult to believe that in such crowded place, the rider of the offending vehicle rode his vehicle in a rash and

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HC-KAR

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negligent manner and dashed against the claimant. On the contrary, contention of the insurer is probable.

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The incident is alleged to be occurred on 01.09.2011

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and complaint was lodged on 13.09.2011 after delay of 13 days. The explanation given in Ex.P1 is inconsistent with evidence of P.Ws.1 & 2. Ex.P4 shows that brother of claimant was an eyewitness. There was no reason as to why he did not lodge the complaint. All these facts support the contentions of the claimant.

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The Tribunal failed to consider this aspect in detail and did not give due importance to Ex.P11 & Ex.R2 as well as the delay in lodging the complaint and held that the doctor did not inform the police, hence there was delay in registering the FIR. A doctor would inform to the police only if it is an MLC case. Even the doctor noted that both P.Ws. 1 and 2 were reluctant to disclose the true history of the injury to him. Therefore, the Tribunal came to the erroneous conclusion.

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Motor Vehicles Act is a benevolent piece of legislation. The person seeking compensation must approach the court

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HC-KAR

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with clean hands. Unfortunately, this is one of those instances where, in an attempt to secure compensation, the claimant and the insured appear to have colluded and suppressed material facts. The Tribunal failed to take note of this fact and wrongly awarded compensation, which deserves to be set aside, and the claim petition is liable to be dismissed.

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For the aforesaid discussion, I proceed to pass the

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following:

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ORDER

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(i) The appeal is allowed;

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(ii) The impugned judgment and award dated 14^th June 2016 passed in M.V.CNo.1/2012 by the learned Principal Senior Civil Judge & MACT, Madhugiri, is set aside;

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(iii) The claim petition is dismissed;

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