IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF FEBRUARY 2019 PRESENT THE HON’BLE MR. L. NARAYANA SWAMY, ACTING CHIEF JUSTICE AND THE HON’BLE MR. JUSTICE ASHOK G. NIJAGANNAVAR MISCELLANEOUS FIRST APPEAL NO.4141 OF 2013 (MV) a/w MISCELLANEOUS FIRST APPEAL NO.2114 OF 2013 IN MFA No.4141 OF 2013 BETWEEN:
THE DIVISIONAL MANAGER UNITED INDIA INSURANCE CO. LTD., NO.10/4, MITRA TOWERS KASTURBA ROAD BANGALORE – 560 001 THROUGH ITS REGIONAL OFFICE # 5TH AND 6TH FLOORS KRISHI BHAVAN, HUDSON CIRCLE BANGALORE – 560 001 REPRESENTED BY ITS ADMINISTRATIVE OFFICER MR. SANDEEP KUMAR ... APPELLANT (BY SRI S.KRISHNA KISHORE, ADVOCATE) AND:
1. SRI.GANGADHARAIAH AGED ABOUT 67 YEARS S/O LATE SIDDAPPA RESIDING AT NO.14, 3RD CROSS SAMPANGIRAMAIAH LAYOUT BONE MILL, HESARAGHATTA MAIN ROAD BANGALORE – 560 073 2. M/S. MACK TOURS AND TRAVELS NO.148, 12TH MAIN, 15TH CROSS I BLOCK, RAJAJINAGAR BANGALORE – 10 3. SRI B.R.CHETHAN AGED ABOUT 26 YEARS S/O RAJAPPA NO.73, I CROSS, MANJUNATHANAGAR NEAR SHANIMAHATMA TEMPLE NAGASANDRA POST BANGALORE – 560 073 (BY SRI M. ANILKUMAR, ADVOCATE FOR R1 NOTICE TO R3 DISPENSED WITH VIDE ORDER DATED 09.08.2016; NOTICE TO R2 HELD SUFFICIENT VIDE ORDER DATED 23.01.2017) ...RESPONDENTS THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 28.12.2012 PASSED IN MVC NO.6959/2010 ON THE FILE OF THE 14TH ADDITIONAL JUDGE, MACT, COURT OF SMALL CAUSES, BANGALORE (SCCH-10) AWARDING A COMPENSATION OF RS.50,000/- WITH INTEREST AT 6% PA FROM THE DATE OF PETITION TILL PAYMENT.
MFA NO.2114 OF 2013 BETWEEN:
SRI S. GANGADHARAIAH AGED ABOUT 67 YEARS S/O LATE SIDDAPPA RESIDING AT NO.14, 3RD CROSS SAMPANGIRAMAIAH LAYOUT BONE MILL, HESARAGHATTA MAIN ROAD BANGALORE – 560 073 ... APPELLANT (BY SRI M. ANILKUMAR, ADVOCATE) AND:
1. M/S UNITED INDIA INSURANCE COMPANY LIMITED NO.10/4, MITRA TOWERS KASTURBA ROAD BANGALORE – 560 001 2. M/S. MACK TOURS AND TRAVELS NO.148, 12TH MAIN, 15TH CROSS, I BLOCK, RAJAJINAGAR BANGALORE – 560 010 REPRESENTED BY ITS MANAGING DIRECTOR 3. SRI B.R.CHETHAN AGED ABOUT 26 YEARS S/O RAJAPPA NO.73, I CROSS, MANJUNATHANAGAR NEAR SHANIMAHATMA TEMPLE NAGASANDRA POST BANGALORE – 560 073 ...RESPONDENTS (BY SRI.S.KRISHNA KISHORE, ADVOCATE FOR R1; NOTICE TO R2 AND 3 DISPENSED WITH VIDE ORDER DATED 19.11.2015) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 28.12.2012 PASSED IN MVC NO.6959 OF 2010 ON THE FILE OF THE 14TH ADDITIONAL JUDGE, MACT, COURT OF SMALL CAUSES, BENGALURU PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS COMING ON FOR FINAL HEARING THIS DAY, ACTING CHIEF JUSTICE DELIVERED THE FOLLOWING:
J U D G M E N T These appeals are filed challenging the judgment and award dated 28th December 2012 passed in MVC No.6959 of 2010 by the Motor Accident Claims Tribunal, Bengaluru. Miscellaneous First Appeal No.4141 of 2013 is filed by the insurer; and Miscellaneous First Appeal No.2114 of 2013 is filed by the claimant.
2. In the appeal filed by the insurer the ground taken is with regard to fixing the liability on it to satisfy the award. The leaned counsel submits that the Tribunal has committed an error in not considering the evidence put fourth by it. It is his submission that the hospital records where the respondent was treated as inpatient has recorded that the injuries were suffered by the injured on 11th May 2010 when he was hit by a two- wheeler. He also submits that though the Tribunal gives a finding with regard to non-involvement of the vehicle, but has fastened the liability on the Insurer which is an error. Hence, the learned counsel submits to modify the award.
3. The learned counsel appearing for the respondent supports the judgment and submits to dismiss the appeal of the insurer.
4. Heard the learned counsel for the parties and gone through the judgment of the Tribunal. We find some force in the submission of the learned counsel for the insurer. The complaint was given by the son of the injured who was not an eye-witness to the accident. The injured himself who was treated as inpatient at Trinity Medical Hospital and Heart Foundation, Bangalore has stated to the Doctors that he was hit by a two- wheeler. PW2 the Doctor has admitted in the cross-examination that as per the say of the injured, he was hit by a two-wheeler and to that extent it has been stated in the case sheet which is marked as Ex.P15(a). In the course of the judgment, the Tribunal has observed that it is admitted that as per Ex.P15(a) it is mentioned that, “hit by 2 wheeler dated 12.05.2010”. Further, it is also observed that “Ex.P17 is the MLC extract it reveals that, history of RTA on 11.05.2010 and mentioned as pedestrian hit by four wheeler. Four is overwriting.” There is no examination of driver of the car who is the proper person to depose about occurrence of the accident. In that view of the matter, it is to be inferred that the inference drawn by the Tribunal is an error. In the result, the Appeal filed by the Insurer is allowed. Order dated 28th December 2012 passed in MVC No.6959 of 2010 in so far as it relates to fixing the liability on it is set aside.
5. As regards the appeal filed by the claimant seeking enhancement is concerned, we have gone through the judgment of the Tribunal. The Tribunal, after considering the material and documentary evidence as also oral evidence adduced before it, has awarded the compensation of Rs.50,000/-, which is just and proper. Accordingly, the appeal filed by the claimant seeking enhancement of compensation stands dismissed. Amount in deposit is directed to be refunded to the insurer.
Sd/-
ACTING CHIEF JUSTICE Sd/- JUDGE lnn