IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT M.F.A.No.11096 OF 2010 (MV) c/w M.F.A.No.3626 OF 2011 IN MFA.No.11096/2010:
Between:
Oriental Insurance Co., Ltd., Through its Regional Office, No.44/45, Leo Shopping Complex, Residency Road, Bangalore – 560 025. Rep. by its Deputy Manager, Sri. K. Govindarajan. .. Appellant (By Sri. Lakshminarasappa, Advocate for Sri. B. C.Seetharama Rao, Advocate) And:
1. Mr.Abdul Hasan, Aged about 35 years, S/o. Late Mohammed Hanifa Sahab, Resident of Haladi Village & Post, Kundapura Taluk.
2. Smt. Rukmini Bhat, Aged about 43 years, W/o. Late Gopalakrishna Bhat, Resident of R.F.O office, Shankaranarayana Post, Kundapura Taluk (Owner of Bajaj M-80 No.KA.20/H-624) ... Respondents (By Sri. Mahesh Kiran Shetty, Advocate for R1; R2 is served) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 09.08.2010 passed in MVC No.339/2007 on the file of Presiding Officer, Fast Track Court, MACT, Kundapura, awarding a compensation of Rs.80,000/- with interest @ 6% p.a. from the date of petition till payment.
IN MFA.No.3626/2011:
Between:
Abdul Hasan, Aged about 36 years, S/o. Late Mohammed Hanifa Saheb, Haladi Post & Village, Kundapura Taluk. ... Appellant (By Sri. Mahesh Kiran Shetty, Advocate) And:
1. Rukmini Bhat, Aged about 44 years, W/o. Late Gopalakrishna Bhat, Resident of R.F.O office, Shankaranarayana Post, Kundapura Taluk 2. The Oriental Insurance Co., Ltd., Divisional Office: Vishnu Prakash, II Floor, Court Road, Udupi. ... Respondents (By Sri. Lakshminarasappa, Advocate for Sri. B. C.Seetharama Rao, Advocate for R2; Notice to R1 dispensed with) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 09.08.2010 passed in MVC No.339/2007 on the file of the Presiding Officer, Fast Track Court, MACT, Kundapura, partly allowing the claim petition for compensation and seeking enhancement of compensation.
These appeals coming on for Hearing this day, the Court delivered the following:-
J U D G M E N T The appeal in M.F.A.No.11096/2010 by the insurer and the appeal in M.F.A.No.3236/2011 by the claimant challenge the judgment and award dated 09.08.2010 made by the MACT, Kundapura, allowing the claim petition in M.V.C.No.339/2007 whereby a compensation of Rs.80,000/- with interest at the rate of 6% per annum has been awarded.
2. The brief fact matrix of the case is:
On 17.11.2006 at around 3:15 p.m. there was a collision between Bajaj M-80 vehicle bearing Registration No.KA-20-H-624 and the motor cycle bearing Registration No.KA-20-S-258, because of rash and negligent driving of the later; the rider of the Bajaj M-80 i.e., the claimant herein sustained grievous injuries resulting in his filing a claim petition in M.V.C.No.339/2007.
3. To prove his claim, the claimant was examined as PW.1 and the Police Officer who had registered the FIR namely, Mr. Mohan K. Bangera was examined as PW.2. In their evidence, 39 documents came to be marked as per Ex.P.1 to Ex.P.39 which included the police papers, RTO papers, Passport and Medical Records. Significantly, the Doctor was not examined from the side of the insurer, the same Police Officer, Mr. Mohan K. Bangera was including the FIR came to be marked; it’s a bit strange thing.
4. The MACT, after adverting to the pleadings of the parties and after appreciating the evidentiary material on record, has made the impugned judgment and award that are put in challenge both by the insurer and by the claimant.
5. The learned counsel for the insurer contends that the award is bad in law in as much as even in the absence of the Doctor as a witnessand no explanation for not examining him, offered the MACT has wrongly acted upon the so called Medical Records; the case involves a fraudulent claim in as much as the rider of the Bajaj M-80 bearing registration No. KA-20-H-624 was none other than the claimant himself whereas, he has been wrongly projected to be a pillion rider of the said vehicle; this aspect having not been duly adverted to by the MACT, the judgment and award are flawsome; lastly, he submits that the compensation awarded is much on the higher side.
6. The case of the claimant in appeal is that the compensation awarded has been too much on the lower side and that the evidentiary material placed on record justifies an award for a higher amount which has been wrongfully denied to the claimant, with no justification whatsoever.
7. I have heard the learned counsel for the insurer and the learned counsel for the claimant. I have perused the appeal papers and the original papers from the lower court record.
8. The MACT having adverted to the pleadings of the parties and having appreciated the evidentiary material on record has entered the evidence as to the fact matrix of the case involving the vehicles in question and as to the grievous injury sustained by the claimant. These findings cannot likely be interfered with, in the absence of cogent evidence as to the alleged fraud.
9. The appellant could have led necessary evidence to establish the plea as to the fraud based upon the long standing principles laid down by the Apex Court in the case of S.P.Chengalvaraya Naidu v/s Jagnannath reported in 1994 AIR 853. This having not been done, no case is made out for interfering in the findings recorded by the MACT.
10. Similarly, the claim for award of higher compensation is equally unsustainable. The claimant could have examined the Doctor who treated his injuries. The records reveal that the said Doctor has not been examined and the Medical Records are marked in the evidence of the claimant himself. No explanation is offered for not examining the said Doctor. However, some guess work has been done by the MACT in acting upon the Medical Records with restraint. Therefore, no case is made out for upsetting the finding recorded by the MACT in this regard.
11. One strange feature of this case needs to be noted: One Mr. Mohan K. Bangera, a Police Officer who had registered the FIR and undertaken the investigation was examined by the claimant as PW.2; the appellant-insurer had also examined him in the very same case as RW.2. This Court is not sure whether this procedure of examining the same person as a witness from one side and again as a witness on the opposite side is legallypermissible. It was open to the insurer, being the respondent in the claim petition, to cross- examine the said Police Official which it had done. More is not necessary to specify and less is insufficient to leave it unsaid.
In the above circumstances, these appeals being devoid of merits, stand dismissed.
The sum deposited by the appellant-insurer shall be transmitted to the jurisdictional MACT for being released to the claimant in accordance with law, forthwith.
Sd/- JUDGE RB