The Oriental Insurance Co.Ltd Vs Sri. Ganesh Rao Khande

THE ORIENTAL INSURANCE CO.LTD DIVISIONAL OFFICE-7, NO 1, 3RD FLOOR, SHANKAR HOUSE, RMV EXTENSION, MAKHRI CIRCLE BENGALURU. THROUGH ITS REGIONAL OFFICE, LEO SHOPPING COMPLEX, NO 44/45, RESIDENCY ROAD, BENGALURU-560025, REPRESENTED BY ITS DEPUTY MANAGER.

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APPELLANT

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(BY SRI. S V HEGDE MULKHAND.,ADVOCATE)

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AND:

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SRI. GANESH RAO KHANDE S/O LATE DHARMA RAO KHANDE, AGED ABOUT 52 YEARS, R/O NO 10, 2ND & 3RD CROSS, Digitally signed 2ND MAIN RMV 2ND STAGE, ASHWATHA NAGARA, by BENGALURU-560094. PADMASHREE SHEKHAR DESAI 2. MR JEYSON J MAJOR IN AGE Location: High Court of R/O 53/2, KARTHIRU LAYOUT, Karnataka GANGAMMA LAYOUT, JALAHALLI POST, BENGALURU-560013.

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RESPONDENTS

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(BY SRI. M ANIL KUMAR.,ADVOCATE FOR R1;

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R2 SERVED AND UNREPRESENTED)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 9.02.2015 PASSED IN MVC

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2 - NC: 2026:KHC:35559 MFA No. 4027 of 2015

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HC-KAR

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NO.7174/2012 ON THE FILE OF THE XIII ADDITIONAL SMALL CAUSE JUDGE & MEMBER, MACT, BENGALURU, AWARDING COMPENSATION OF RS.92,000/- WITH INTEREST @ 8% P.A FROM THE DATE OF PETITION TILL THE REALIZATION AND ETC,.

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

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CORAM: HON'BLE MRS. JUSTICE P SREE SUDHA

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ORAL JUDGMENT

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This appeal is filed by the insurance company under Section 173(1) of Motor Vehicles Act, 1988 challenging the judgment and award dated 09.02.2015 passed in MVC.No.7174/2012 on the file of the learned Motor Accident Claims Tribunal, XIII Additional Court of Small Causes Judge, Metropolitan Area Bengaluru SCCH-15 (hereinafter referred as to 'Tribunal), seeking for modification of the order.

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Heard the arguments of learned counsel for the appellant and learned counsel for respondent No.1. The ranks of the parties are retained as per Tribunal for the sake of convenience.

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The injured/claimant met with an accident on 21.07.2012 and filed claim petition claiming compensation of

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3 - NC: 2026:KHC:35559 MFA No. 4027 of 2015

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HC-KAR

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Rs.3,00,000/-. The Tribunal considering entire evidence on record granted an amount of Rs.92,000/- with interest rate of 8% per annum from the date of petition till the realization. Aggrieved by the said order insurance company preferred this appeal and mainly contented that accident occurred on 21.07.2012 and complaint was given on 28.07.2012 after delay of 7 days and there is no proper explanation for the delay in lodging the complaint. As such the motor cycle bearing No.KA04-EN-5558 was not involved in the accident and false case was lodged against the owner and insurer of the said vehicle. The Tribunal has not considered the delay and fastened the liability against them. He has not examined any independent witnesses to prove the involvement of the motorcycle. IMV report shows that there is no damage to the motorcycle. The petitioner was joined in RMV Hospital immediately after the accident for treatment as per Exs.R2 and R3 and evidence of RW1. PW2 clearly stated that, there is no MLC entry with regard to the accident to the petitioner on 21.07.2012 and his treatment in the said hospital, but it was not considered by the Tribunal. The petitioner has not examined the doctor to prove the injury sustained by him. He is not the author of Exs.P7 to

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4 -

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NC: 2026:KHC:35559 MFA No. 4027 of 2015

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HC-KAR

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P14. But the Tribunal erred in appreciating the facts and granted compensation. Therefore, requested this Court to set aside the said order of the Tribunal.

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Perusal of the judgment shows that, on 21.07.2012 at about 10.00 a.m., while the petitioner was waiting for bus at Ashwathanagar bus stop, a motorcycle bearing registration No.KA-04-EN-5558 came in a rash and negligent manner and dashed him. He filed complaint on 28.07.2021 with day of 7 days against the owner and insurer of the said vehicle. It is stated that, immediately after the accident he took first aid in RMV Hospital and after 2 days he was admitted to Manipal North side Hospital, due to pain. PW2 is the Investigating Officer, he stated that he visited RMV Hospital, but there is no entry regarding the accident and he has not received any memo from RMV Hospital. He took only first aid in the said hospital, as such there is no MLC registered, but RW1 stated that as per Ex.R1 endorsement there is no MLC entry on 21.07.2012 and they also brought the MLC register from 08.12.2011 to 16.12.2012 and with page Nos.1 to 310, but in the said book on 21.07.2012 there is only one entry pertaining to IP/OP.No.8571 dated 21.07.2012 at 12.30 a.m., and the

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HC-KAR

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patient name is Sanjan S/o Shivanna. The register is marked as Ex.R2 and the pages of 173 to 175 as Ex.R2(a). This clearly shows that there is no register of MLC in favour of petitioner on that particular day of accident. Moreover, it is stated that, initially he sustained simple injuries as such he took first aid in the RMV Hospital. But only after 2 days when there was sever pain he went to Manipal North side Hospital. It is also stated that, he suffered tendo achilles rupture in the right ankle. Respondent No.1 contended that, the petitioner in collusion with police and RC owner got falsely implicated the two wheeler, as such he gave complaint after 7 days. Exs.P1 to P4 are copies of FIR with complaint, spot sketch, spot mahazar and charge sheet. The Investigating Officer/PW2 has not investigated the case properly, but filed charge sheet against the driver of the motorcycle without verifying whether the said vehicle was involved in the accident or not. They have not collected any medical records from RMV Hospital. The reasons stated by him for filing complaint after 7 days are not convincing or satisfactory. The Tribunal has failed to appreciate the facts properly instead of dismissing the application the

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6 - NC: 2026:KHC:35559 MFA No. 4027 of 2015

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HC-KAR

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Tribunal has granted compensation and the said order of the Tribunal is patently erroneous and is liable to be set aside.

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In the result, the following:

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ORDER

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i) The appeal is allowed ;

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ii) The judgment and award dated 09.02.2015 passed in MVC.No.7174/2012 on the file of the learned Motor Accident Claims Tribunal, XIII Additional Court of Small Causes Judge, Metropolitan Area Bengaluru SCCH-15, is set aside;

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iii) The amount in deposit is to be refunded to the insurance company;

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iv) Registry is directed to send back the records.

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Sd/(P SREE SUDHA) JUDGE

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PNV

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List No.: 1 Sl No.: 34

The Oriental Insurance Co.Ltd v. Sri. Ganesh Rao Khande

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The Oriental Insurance Co.Ltd v. Sri. Ganesh Rao Khande

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