IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S. DIXIT M.F.A No.1677 OF 2010 (MV) BETWEEN BRANCH MANAGER, THE ORIENTAL INSURANCE CO. LTD, BRANCH OFFICE, SRI. SHARADA COMPLEX, OPP. KSRTC BUS STAND, CHITRADURGA, NOW REPRESENTED BY ITS REGIONAL MANAGER, REGIONAL OFFICE, NO.44/45, LEO SHOPPING COMPLEX, RESIDENCY ROAD, BANGALORE – 25. ... APPELLANT (BY SMT. HARINI SHIVANANDA, ADVOCATE) AND 1. SRI.M. NARAYANAPPA, S/O MELAPPA, 47 YEARS, R/O NEHRUNAGAR, 2ND CROSS, HOLALKERE ROAD, NEAR WATER TANK, CHITRADURGA.
2. N.M. THULSI PRASAD, S/O M.G. MALLAPPA, MAJOR, SRI. ANJANEYA KRUPA, HOLALKERE ROAD, CHITRADURGA TOWN. ... RESPONDENTS (BY SRI.B.L. KUMAR, ADVOCATE FOR R1; R2 SERVED) THIS MFA IS FILED U/S 173 (1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:12.10.2009 PASSED IN MVC NO.58/2008 ON THE FILE OF CIVIL JUDGE (SR.DN.) & CJM, & ADDITIONAL MACT, CHITRADURGA, AWARDING A COMPENSATION OF RS.75,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL DEPOSIT.
THIS MFA COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT This appeal by the Insurer calls in question the judgment and award dated 12.10.2009 rendered by the Addl. MACT, Chitradurga, allowing the claim petition in M.V.C.No.58/2008 whereby, a compensation of Rs.75,000/- with interest at the rate of 6 % per annum, subject to a usual condition of bank deposit, has been awarded.
2. In a vehicular accident that happened on 17.04.2007, at about 7 p.m, because of alleged rash and negligent driving of the motorcycle bearing registration No.KA16/L.5366, the claimant was grievously injured and he had filed his claim petition in M.V.C.No.58/2008, that was stoutly opposed by the appellant- Insurer who had filed Written Statement.
3. To prove the claim petition, the claimant got examined himself as PW.1 and got marked as many as nine documents as per exhibits P.1 to P.9 which inter alia included a copy of the FIR, IMV Report, Charge Sheet and Medical Records. From the side of the Insurer, although none was examined, a copy of insurance policy was got marked as per exhibit R.1.
4. The MACT after looking to the pleadings of the parties and after appreciating the evidentiary materials on record, has entered the impugned judgment and award that are put in challenge on the ground of falsity of claim.
5. The learned counsel for the appellant-Insurer submits that the findings recorded by the MACT are contrary to evidence; there is enough material to impeach the character of the claimant who was examined as PW.1 and that there are grave contradictions in his deposition and therefore, it does not generate confidence in the version put forth by him.
6. I have heard the learned counsel for the appellant- Insurer; I have perused the Appeal Papers and the relevant papers from the original LCR.
7. I am of the considered opinion that the evidence of PW.1 does not generate confidence for the following reasons:
(a) The claimant who was examined as PW.1 states one thing in examination-in-chief and the other in his cross- examination. In his FIR, lodged before the jurisdictional police on the same day, at around 9.45 p.m, he has mentioned about the presence of his son-in-law namely M.M. Thulasiprasad, whereas in the cross-examination, he states that his son-in-law was not there; the son-in- law being a very close relative, his presence or absence cannot be easily got confused;
(b) the claimant has got marked as many as nine documents as per exhibits P.1 to P.9, out of which, five documents are medical records; The doctor who treated the claimant was not examined nor any plausible explanation is offered for not examining the doctor either.
(c) A claim is not probablised merely by producing the FIR and the Charge Sheet when their contents have vital contradictions that are not properly explained by the claimant side even when there was sufficient opportunity.
In the above circumstances, this appeal succeeds; the impugned judgment and award are set-at-naught; the amount in deposit shall be refunded to the appellant-Insurer, forthwith.
No costs.
cbc SD/- JUDGE