Legal Manager Bharathi Axa Gic Ltd. Vs Shekar H G

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED. 18.01.2020, PASSED IN MVC NO.176/2017, ON THE FILE OF THE MACT AND 1ST ADDITIONAL SENIOR CIVIL JUDGE AND JMFC., CHIKKAMAGALURU, AWARDING COMPENSATION OF RS.20,86,820/- WITH INTEREST AT THE RATE OF 9 PERCENT P.A., FROM THE DATE OF PETITION, TILL ITS ENTIRE REALIZATION.

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IN MFA.CROB NO. 11/2023

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BETWEEN:

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SHEKAR H G S/O GIRYAPPA GOWDA AGED ABOUT 56 YEARS, PROFESSOR, AIT COLLEGE R/O HOUSE NO. 28, 1st STAGE, HOUSING BOARD, CHIKKAMGALURU 577 126

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...CROSS OBJECTOR

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(BY SRI. NAGESH M.,ADVOCATE)

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AND:

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ANNAPPA S/O KITTU AGED ABOUT 31 YEARS,

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HC-KAR

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R/O BISAGNI MUTT, A MAHAL CHIKKAMGALURU 577 126

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(DRIVER CUM OWNER OF THE MAHENDRA JEEP BEARING REGISTRATION NO. KA 34 M-8760)

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2. THE MANAGER

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BHARATHI AXA GENERAL INSURANCE CO. LTD., Ist FLOOR, FERNS ICON SY.NO. 28, DODDANAKUNDI BANGALORE 560 037 (INSURER REGISTRATION NO. KA 34 M 8760)

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...RESPONDENTS

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(BY SRI. PRADEEP B., ADVOCATE FOR R2;

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V/O. DATED 07.06.2023, CROSS OBJECTION AGAINST R1 IS DISMISSED)

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THIS MFA CROB IS FILED UNDER ORDER 41 RULE 22 R/W SECTION 173(1) OF MC ACT AGAINST THE JUDGMENT AND AWARD DATED 18.01.2020 PASSED IN MVC.NO.176/2017 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, CHIKKAMAGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION LIMITATION KEPT OPEN.

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THESE APPEAL AND MFA CROB COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE B M SHYAM PRASAD and

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HON'BLE MR JUSTICE G BASAVARAJA

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HC-KAR

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE B M SHYAM PRASAD)

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The appeal is by the Insurer, and the Cross Objection is by the claimant. They are aggrieved by the Judgment and Award dated 18.01.2020 in M.V.C. No.176/2017 on the file of the Motor Accidents Claims Tribunal and I Additional Senior Civil Judge and JMFC, Chikkamagaluru [for short, ' the Tribunal' ]. The Tribunal has allowed the claimant's petition under Section 166 of the Motor Vehicles Act, 1988 [for short, ' the MV Act' ] awarding the compensation in a sum of Rs.20,86,820/-. The Tribunal has awarded under the following heads:

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1.	Painand Sufferings	_Rs.50,000/- _
2.	Attendant, food and extra nourishment	Rs.19,500/-
3.	Towards medical bills	_Rs.18,17,320/- _
4.	Towards disability	_Rs.2,00,000/- _
	*Total*	*Rs.20,86,820/-*

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The claimant has filed his petition asserting that on 02.01.2017 he was travelling on his motorcycle at around 06.15 p.m. when the driver of

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HC-KAR

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the Jeep bearing No.KA-34/M-8760 [the Insured Vehicle, which is referred to as ‘the Jeep’ ] dashed against his motorcycle resulting in injury to him. The Insurer has filed its Statement of Objections asserting that the Jeep is not involved in the accident and that it is falsely implicated. The Tribunal, in the light of this rival case and the denial of the claimant's assertion for compensation in a sum of Rs.40,00,000/-, has framed Issues which requires the claimant to prove that the driver of the Jeep was responsible for the accident and that he is entitled for compensation.

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3. On the question of the accident : The

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Tribunal has relied upon the evidence of PW2 and PW4, who have been cited by the claimant as eyewitnesses. Mr. Mallesh [PW2] has stated that he was present at the place of the accident, but he has also stated in the cross-examination that he does not know which vehicle was involved in the accident.

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HC-KAR

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Mr. Thammannagowda [PW4], who was working in the same Institution as the claimant, has stated that the Jeep overtook him and hit the injured but did not stop, and that he called an ambulance and shifted the claimant to the hospital. However, in the cross examination he has admitted that he had given a statement to the police stating he did not know who could have given the description and the number of the vehicle involved in the accident.

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Mr. B. Pradeep, the learned counsel for the Insurer, submits that the Tribunal could not have attached any credence to their evidence that the insured vehicle was involved in the accident in the light of the statements of the witnesses as aforesaid in the cross-examination. The learned counsel contends that whether the Jeep was involved in the accident had to be decided based on the documentary evidence and on comparing the claimant's testimony with the contents of the document.

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HC-KAR

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Mr. B. Pradeep argues that in the Wound

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Certificate [Ex. P5], the history of the accident is related as hit by an " Ape Auto " and that the claimant himself has filed first information with the Police on 06.01.2017 stating that he was hit by a car, but two months later, on 12.03.2017 [Ex.P7], he has given a further statement to the Police stating that he had filed first information when hospitalized but after receiving treatment, he has verified that the Jeep was involved in the accident. The learned counsel submits that this change in the version after the next two months shows that there is an effort to implicate the Jeep only for ensuring that there is indemnification.

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6. On the quantum of compensation :

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Mr. B. Pradeep submits that the Tribunal has granted a sum of Rs.18,17,320/- [towards medical expenses] and that is because the Tribunal has overlooked duplication and that the duplication

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HC-KAR

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becomes obvious when the bills and the receipts are compared or read conjointly.

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Mr. Nagesh M., the learned counsel for the

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claimant, submits that the Tribunal has rightly appreciated the evidence of eyewitnesses and any change in the claimant's statement about the vehicle causing the accident, must be considered in the light of the fact that the Police, after due process have filed charge-sheet against the driver of the Jeep and they have also seized the Jeep which is subjected to inspection resulting in IMV Report [as per Exb. P1].

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The learned counsel refutes the assertion on behalf of the Insurer that there is duplication in awarding the sum of Rs.18,17,320/-.

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These rival submissions are considered to

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examine:

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HC-KAR

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Whether there must be interference with the Tribunal's Judgment and Award on the ground that it has overlooked material circumstances and whether a remand would be justified to enable complete adjudication of the lis .

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This Court must opine that the Police records generally will be conclusive as there would be an assumption that these records result from a proper investigation and that the claimant/s can rely upon the records to buttress their case. This enables the claimant/s to discharge the burden that is required of them in law. When there could be certain inconsistencies in the Police records, it should be open to an Owner/Insurance Company to rely on such inconsistencies. However, to discharge the onus that would be on them which follows from the claimants introducing the police records in evidence they must ensure that the inconsistencies are established as required in law.

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HC-KAR

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In the context of the present controversy,

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this Court must observe that the Police, after registering FIR against an unknown person, will have issued a notice under Section 133 of the MV Act to the concerned persons to verify the reason for the accident and that would culminate in a report [if warranted, in a charge sheet against the concerned]. The Insurer has examined its officer who has only tried to tender evidence based on the inferential reading of the Police records, but the Insurer has undertaken no further exercise.

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This Court, for a complete adjudication, is

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of the view that all materials must be brought on record, and especially in this case where the testimony of the so-called eyewitnesses is brought under a shroud. They are not categorical about the identity of the vehicle, and the claimant is not able to explain what happened between 06.01.2017 and 12.03.2017 and how he could find out that the Jeep

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HC-KAR

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was involved in the accident. The Tribunal, in relying upon the evidence of PW2 and PW4, has not considered the categorical admission that they did not know about the details of the accident and in ignoring the inconsistencies in the claimant's case.

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As such, there must be interference restoring the proceedings for reconsideration, but observing that if the Insurer has to discharge the onus that would be on it with the Police filing charge sheet against the driver of the Jeep, it must take all measures as would be permissible to bring on record the evidence or establish inconsistencies that would justify its defence. In similar lines, this Court must observe that if there is duplication in awarding compensation towards ' Medical Expenses ', given the number of bills that are exhibited, it would be incumbent upon the Insurer to place the details of the duplication as part of additional evidence with

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HC-KAR

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due opportunity to claimant to contest the same. In

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the light of the afore, the following:

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ORDER

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a. The Insurer's appeal is allowed-in-part setting aside the Tribunal's impugned Judgment and Award dated 18.01.2020, restoring the claimant's petition for reconsideration, with liberty to the Insurer to lead further evidence and calling upon the Tribunal to dispose of the restored petition within an outer limit of six [6] months.

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b. It is needless to observe that if the Insurer fails to avail the opportunity, it would be appropriate to draw necessary adverse inferences.

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c. The claimant's Cross Objection stands disposed of in the light of the afore.

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d. The Registry is directed to transmit the records to the Tribunal expeditiously.

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HC-KAR

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e. The claimant and the Insurer shall appear before the Tribunal without further notice

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on 11.08.2025 .

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f. The amount in deposit shall also be transmitted to the Tribunal to be invested in a Fixed Deposit with a Nationalized Bank subject to the outcome in the

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restored proceedings.

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Sd/(B M SHYAM PRASAD) JUDGE

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Sd/(G BASAVARAJA) JUDGE

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RB

Legal Manager Bharathi Axa Gic Ltd. v. Shekar H G

Case brief

What is this about?

What did the court decide?

Legal Manager Bharathi Axa Gic Ltd. v. Shekar H G

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Statutes considered

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Parties & counsel

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