Karnataka High Court
National Insurance Co Ltd vs M Siddaiah on 13 March, 2013
Author: N.Ananda
Bench: N.Ananda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 13TH DAY OF MARCH 2013
BEFORE
THE HON'BLE MR.JUSTICE N.ANANDA
MFA No.2581/2010 C/W MFA No.7673/2011 (MV)
MFA No.2581/2010
BETWEEN:
NATIONAL INSURANCE CO. LTD.
REGIONAL OFFICE, NO.144
SUBHARAM COMPLEX, M.G ROAD
BANGALORE - 560 001, BY IT"S MANAGER. ... APPELLANT
(BY SRI O MAHESH, ADVOCATE)
AND :
1. M SIDDAIAH
S/O MARIJOGAIAH, 52 YEARS
R/A NO.110, 3RD "A" MAIN,
ANIL NURSERY ROAD, VENKATAPURA
KORAMANGALA, BANGALORE
2. KRISHNA
S/O CHOWDEGOWDA, MAJOR
MADARAHALLI VILLAGE, MADDUR TALUK,
MANDYA DISTRICT.
3. G. JAGAN
S/O GANESH, MAJOR
NO.14, NEW BUILDING
2ND MAIN ROAD, RAMACHANDRAPURAM
BANGALORE - 560 021. ... RESPONDENTS
(BY SRI M G RAVISHA, ADV. FOR R1; NOTICE TO R2 & R3
HELD SUFFICIENT V.C.O. DATED 18.04.2012)
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THIS APPEAL IS FILED U/S 173(1) OF MV ACT TO SET
ASIDE THE JUDGMENT AND AWARD DATED:24.11.2009
PASSED IN MVC NO.6553/2008 ON THE FILE OF XIII
ADDITIONAL SMALL CAUSE JUDGE & MEMBER MACT,
BANGALORE, AWARDING COMPENSATION WITH INTEREST &
ETC.
MFA No.7673/2011
BETWEEN:
SRI M SIDDAIAH
S/O MARIJOGAIAH, 53 YEARS
R/A NO. 110, 3RD 'A' MAIN
ANIL NURSERY ROAD
VENKATAPURA, KORAMANGALA
BANGALORE. ... APPELLANT
(BY SRI M G RAVISHA, ADVOCATE)
AND :
1. SRI KRISHNA
S/O CHOWDEGOWDA
MADARAHALLI VILLAGE
MADDUR TALUK, MANDYA DIST.
2. SRI. JAGAN G
S/O GANESH
R/A NO. 14, NEW BUILDING
2ND MAIN ROAD
RAMACHANDRAPURAM
BANGALORE-21
3. THE NATIONAL INSURANCE CO. LTD.
REGIONAL OFFICE, NO. 144
SUBBARAM COMPLEX, M G ROAD
BANGALORE-1. ... RESPONDENTS
(BY SRI O MAHESH, ADV. FOR R3; R1 & R2 - SERVED)
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THIS APPEAL IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED:24.11.2009 PASSED IN
MVC NO.6553/2008 ON THE FILE OF XIII ADDITIONAL SMALL
CAUSE JUDGE & MEMBER, MACT, COURT OF SMALL CAUSES,
BANGALORE, 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:
JUDGMENT
MFA No.2581/2010 is filed by Insurance Company to set aside the impugned award, inter alia contending that insured vehicle was not involved in the accident and it was falsely implicated by claimant with the co-operation of respondents 2 & 3 in MFA No.2581/2010.
2. At the inception, claimant had not given vehicle number or the name of rider of vehicle. It was a hit and run case. Subsequently, the insured vehicle has been implicated to fasten liability on Insurance Company. The Tribunal without properly appreciating evidence on record has fastened liability on Insurance Company. 4
3. MFA No.7673/2011 is filed by claimant for enhancement of compensation.
4. I have heard learned counsel for parties.
5. The averments of claim petition are as follows:-
The claimant namely M.Siddaiah is a native of Dalawai Kodihalli Village, Malavalli Taluk, Mandya District. It is the case of claimant that on 10.05.2008 at about 8 p.m., when he was standing near bus stop in Dalawai Kodihalli Village, he was hit by a motorcycle. The claimant was shifted and admitted to Victoria Hospital at 10.40 p.m., on 10.05.2008. The claimant had suffered fracture of left tibia. He was discharged from Victoria Hospital on 10.07.2008. On 20.05.2008, Sub-Inspector of Halagur Police Station, Malavalli Taluk, Mandya District, came to Victoria Hospital and recorded statement of claimant and registered a case against one Nagesh of Halagur Village, alleging that he had ridden motorcycle bearing No.KA-02-EL-1879 at a high speed and dashed against claimant at 8 p.m., on 10.05.2008 5 near bus stop at Dalawai Kodihalli Village. The Investigating Officer completed investigation and filed chargesheet against said G.Nagesh.
6. The claim petition was filed against I-respondent namely Krishna (registered owner of motorcycle bearing No.KA-02-EL-1879). The II-respondent namely Jagan.G., is shown as policy holder and III-respondent namely M/s.National Insurance Company Ltd., is shown as the insurer.
7. The Tribunal mainly relying on investigation records has held that delay in lodging first information was inconsequential. The Tribunal placing reliance on evidence of PW1 (claimant), PW2-Dr.Manjunatha has held that vehicle (motorcycle bearing No.KA-02-EL-1879) was involved in the accident and accident took place due to rash and negligent riding of motorcycle bearing No.KA-02-EL-1879.
8. At this juncture, it is relevant to state that PW2- Dr.Manjunatha was an Orthopaedic Surgeon of Victoria 6 Hospital. He has given evidence relating to injuries suffered by claimant and nature of treatment given to claimant. In the circumstances, it is not possible to comprehend as to how Tribunal could rely upon evidence of PW2- Dr.Manjunatha to answer issue No.1 in favour of claimant.
9. The Tribunal has failed to notice that accident in question is alleged to have taken place on 10.05.2008 at about 8 p.m., near bus stop of Dalawai Kodihalli Village, Malavalli Taluk, Mandya District. As per Wound Certificate, claimant was admitted to Victoria Hospital at about 10.40 p.m., on 10.05.2008. The distance between place of accident and Bangalore is nearly 120 Kms. In the accident register extract marked as Ex.R.3, it is shown that claimant suffered injury due to road traffic accident on 10.05.2008 at 8 p.m., while standing near bus stop hit by a bike. Neither the place of accident nor registration number of vehicle is mentioned in Ex.R.3.
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10. The claimant has failed to examine the witness, namely Puttaswamigowda, who is stated to have seen the claimant near the place of accident. The claimant has not led evidence to prove that he had suffered injuries in the accident and he was shifted from place of accident and admitted in Victoria Hospital. The Tribunal has failed to notice that final report filed by police is not decisive on the issue of negligence. The Tribunal is bound to consider substantive evidence adduced by parties and subject evidence to test of preponderance of probabilities. The claimant has not adduced satisfactory evidence to prove issue No.1. Therefore, I am of the considered opinion that matter requires reconsideration.
11. In the result, I pass the following:-
ORDER MFA No.2581/2010 is accepted. The matter is remanded to Tribunal for reconsideration in the light of observations made herein and in accordance with law. Both parties are at liberty to adduce further evidence. 8
In view of remand order made in MFA No.2581/2010, MFA No.7673/2011 filed by claimant for enhancement of compensation does not survive for consideration for the present. After the award is passed, parties are at liberty to challenge the same as they deem fit. The amount deposited in MFA No.2581/2010 shall be refunded to Insurance Company. Parties shall appear before Tribunal on 15.04.2013. Office is directed to forthwith send the records along with a copy of this judgment to Tribunal.
Sd/-
JUDGE SNN