The Divisional Manager Vs Manjunatha

REPRESENTED BY ITS: THE DIVISIONAL MANAGER UNITED INDIA INSURANCE CO. LTD. DIV. OFF: MMK COMPLEX, AKKAHAMADEVI ROAD, 2^ND MAIN, P.J. EXTENSION DAVANGERE - 570 002.

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…APPELLANT

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Digitally signed by MADHUSHREE H Location: High Court of Karnataka

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(BY SRI. P B RAJU, ADVOCATE)

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AND:

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MANJUNATHA

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S/O BASAVANA GOUDA, AGED ABOUT 47 YEARS, R/O BEHIND VEGETABLE MARKET, NITUVALLI, DAVANGERE – 577 001

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GURUSHANTHAPPA S/O SIDDALINGAPPA, AGED ABOUT 37 YEARS, DRIVER OF AUTO BEARING

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REGN. NO.KA-17/A-1432 R/O DOOR NO.134, 9^TH CROSS, "A" BLOCK, DEVARAJ URS LAYOUT, DAVANAGERE – 577 001

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JAKIR HUSSAIN S/O ABDUL RASHEED SAB, AGED ABOUT 40 YEARS, OWNER OF: AUTO BEARING R/O DOOR NO.1449/3, 1^ST MAIN, 4^TH CROSS, AHMED NAGARA, DAVANAGERE - 570 001.

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…RESPONDENTS

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( VIDE ORDER DATED 07.06.2018, NOTICE TO R1 AND R3 IS HELD SUFFICIENT;

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R2 IS SERVED)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO a) SET ASIDE THE JUDGMENT AND AWARD DATED 13.08.2014 PASSED IN MVC NO.695/2012 ON THE FILE OF THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE AND MEMBER, MACT-III, DAVANAGERE AND EXONERATE THE INSURANCE COMPANY FROM THE LIABILITY; B) GRANT COSTS AND ETC

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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 T.M.NADAF

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ORAL JUDGMENT

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This appeal is by the appellant – insurance company directed against the judgment and award dated 13.08.2014, in MVC No.695/2012, passed by the II^nd Additional District And Sessions Judge and Member, Motor Accidents Claims Tribunal-III, Davangere, questioning the liability, as well as the quantum of compensation.

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The facts leading to the filing of the present appeal are as follows:

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A claim petition came to be filed under Section-166 of the Motor Vehicles Act, claiming compensation of Rs.35,48,000/- for the injuries suffered by the claimant in a road traffic accident occurred on 29.02.2012. In response to the Notice issued, respondent No.1 though served with notice remained absent and was placed exparte. Respondent Nos.2 and 3 appeared through their respective counsels and filed their separate statement of objections. Respondent No.2 in its written statement denying the claim averments in the petition, asserted that

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there is no rash and negligence on the part of the driver of the auto-rickshaw involved in the accident. So also denies

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the injuries suffered, further stated that the driver of the vehicle was holding valid and effective driving license and there is a valid insurance policy. In the event if there is any liability, it is for the insurance company to indemnify the insured and pay the compensation. The respondent – insurance company filed its statement of objections asserting that it is a case of hit and run. The claimant was a paralytic patient and since four years as on the date of alleged accident, he was under the influence of alcohol and the vehicle is involved in the case only to favour the claimants to get compensation.

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The Tribunal after holding a summary enquiry, awarded a sum of Rs.2,70,600/-, under various heads along with 6% interest per annum and directed respondent No.3 – insurance company to deposit the amount, being the insurer of the offending vehicle. It is this order which is called in question in the present appeal.

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Heard Sri.P.B.Raju, learned counsel for the

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appellant – insurance company. Notice to respondent Nos.1 and 3 was held sufficient, respondent No.2 though served, remained absent.

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Sri.Raju vehemently contended that the

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accident had occurred on 29.02.2012. A complaint came to be lodged after one month. There is no satisfactory explanation for the delay and contends that it is a clear case which is fabricated. The injured being a physically and mentally challenged person was not able to eak-out his livelihood and hence the claimants, police and the injured worked hand in glow to fasten the liability by implicating the vehicle in order to facilitate the claimant to get the compensation. Further, he stated that the Tribunal has committed serious error in awarding compensation of

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Rs.2,70,600/- under various heads and the same calls for interference at the hands of this Court.

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Having heard the learned counsel for the

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appellant-insurance company, the only question that arises for consideration is:

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“Whether the judgment and award passed by the Tribunal requires any interference at the hands of the this Court?

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In the facts and circumstances of the case as

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asserted by the appellant – insurance company, my answer to the above point is in ‘negative’ for the following reasons:

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It is seen from the records that the respondent No.1 – claimant sustained severe injuries which has resulted in amputation his left leg. The explanation offered by the wife of the complainant in the complaint was that she was with her husband in hospital and looking after him in view of the severe injuries. The Police during the investigation recorded the statement of one Basavaraj, S/o. Yellappa who witnessed the accident caused by the auto-rickshaw bearing No.KA-17/A-1432 and subsequently, he had

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informed the same to the Police and given statement. The Tribunal while answering the additional issue No.1 had held that the complainant has satisfactorily explained the delay in lodging the complaint and satisfied with the documentary evidence produced specifically at Exhibits-P3 to P7 i.e., the further statements of injured, wife of the injured and the statement of the eye-witness by name Basavaraj.

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The Tribunal satisfied with the documentary evidence coupled with oral evidence answered the additional issue in favour of the claimant / respondent No.1 and against the insurance company. The insurance company except examining Investigating Officer i.e., retired Sub-Inspector as RW-1 and one Doctor as RW-2 and producing Exhibits-R1 to R4 not produced any acceptable evidence to dislodge the case of the claimant to show that the vehicle was not involved as contended by it.

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Though the said RW-1 had stated that he had received intimation on 01.03.2012, but not registered any

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case. A case was registered only on the complaint lodged by the wife of the injured on 28.03.2012. However, in his examination-in-chief he has denied that he has filed a false charge-sheet. He has admitted the accident and also admitted the fact of receiving the intimation of the accident and admitting the injured and he has stated that after the statement of the eye-witness and further the statement of the injured, filed a charge-sheet against the driver of the offending vehicle. Though the insurance company has taken the contention that the claimant was

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under the influence of alcohol and examined the Doctor as

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RW-2, but nothing worthwhile has come in the evidence to

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show that the claimant was under the influence of the

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alcohol. That apart, the insurance company had taken a stand that there is an involvement of the vehicle and just opposite to the said stand it has also contended that the injured-claimant was under the influence of alcohol at the

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time of accident. The insurance company examined two witnesses in order to prove its case that the claimant was under the inebriant condition and was responsible for the

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accident. This dual defense is incongruent and defeats the case of the insurance company. The Tribunal has rightly considered the case on merits and held that the injured suffered injuries due to the actionable negligence on the part of the driver of the auto-rickshaw stated supra.

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So far as the quantum is concerned, it is seen from the record that the injured has suffered amputation of the leg above knee i.e., femur amputation. Under these circumstances, the compensation awarded by the Tribunal although not befitting just compensation principle, however in the absence of the cross-appeal or crossobjection this Court is of the opinion that the same deserves to be kept intact.

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For the above reasons, the insurance company failed in both the grounds urged in the appeal. Accordingly proceed to pass the following:

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ORDER

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i) The appeal filed by the insurance company calling in question the judgment and award dated 13.08.2014, in MVC No.695/2012, passed by the II^nd Additional District And Sessions Judge and Member, Motor Accidents Claims Tribunal-III, Davangere, is

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Dismissed .

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ii) The amount in deposit is directed to be transferred to the concerned Tribunal for disbursement.

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iii) The appellant - Insurance Company, shall deposit the balance compensation amount along with accrued interest at 6% per annum before the concerned Tribunal within six weeks from the date of receipt of a certified copy of this order.

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iv) Disbursement as well as apportionment of the compensation amount shall be as per the impugned order of the Tribunal.

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v) No order as to cost.

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Sd/(T.M.NADAF) JUDGE

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JJ List No.: 1 Sl No.: 18

The Divisional Manager v. Manjunatha

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The Divisional Manager v. Manjunatha

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