Karnataka High Court
Smt Gurushanthamma vs S K Mohan Raju on 21 November, 2012
Author: Ravi Malimath
Bench: Ravi Malimath
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
ON THE 21ST DAY OF NOVEMBER 2012
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
MISCELLANEOUS FIRST APPEAL NO.1426 OF 2009(MV)
C/W
MISCELLANEOUS FIRST APPEAL NO.2660 OF 2009(MV)
MFA.NO.1426/2009:
Between :
Smt.Gurushanthamma
W/o late Guddada Mallappa
Aged about 62 years,
"Kalleshwara Nilaya"
9th Cross, Srinivas Nagar,
Davanagere. ...Appellant
(By Sri R.Shashidhara, Advocate)
And :
1. S.K.Mohan Raju
S/o Krishnappa
Age Major,
Owner of Motor Cycle
Bearing No.KA-14/S-9298
Holebenavalli B.Beeranahalli
Shimoga Taluk and District.
2. The Divisional Manager
Oriental Insurance Company Ltd.,
2
Laxmana Shopping Complex,
Subhash Road, Koppa
Chikkamagalur District. ... Respondents
(By Sri C.R.Ravishankar, Advocate for R2
R1-Served)
This MFA is filed under Section 173(1) of MV Act
against the Judgment and award dated 21.11.2008
passed in MVC.No.268/2007 on the file of II Additional
Civil Judge (Sr.Dn.) & Additional MACT, Davanagere,
partly allowing the claim petition for compensation and
seeking enhancement of compensation.
MFA.NO.2660/2009:
BETWEEN:
The Oriental Insurance Co. Ltd.,
Laxmana Shopping Complex,
Subhash Road, Koppa,
Chimagalur District
Represented by Regional Office,
No.44/45. Residency Road,
Bangalore - 560 025
By its Regional Manager. ...Appellant
AND:
1. Smt.Gurushanthamma
Aged about 62 years,
W/o late Guddada Mallappa
"Kalleswara Nilaya," 9th cross,
Srinivasanagar, Davanagere.
2. Sri S.K.Mohan Raju
Major,
3
S/o Sri Krishnappa
Holebenavalli, B.Beeranahalli,
Shimoga Taluk & District. ...Respondents
(By Sri R.Shashidhar, Advocate for R1
R2-Served)
This MFA is filed under Section 173(1) of MV Act
against the Judgment and award dated 21.11.2008
passed in MVC.No.268/2007 on the file of the II
Addl.Civil Judge (Sr.Dn.) and Addl.MACT, Davanagere,
awarding a compensation of Rs.85,000/- with interest @
6% P.A. from the date of petition till realization.
These MFAs coming on for hearing this day, the
Court delivered the following:-
JUDGMENT
Aggrieved by the judgment and award passed by the Tribunal, the claimants have filed MFA No.1426/2009 seeking enhancement and the insurer has filed MFA No.2660/2009, questioning the liability to satisfy the award.
2. The learned counsel for the insurer Shri.C.R. Ravi Shankar, submits that a complaint was lodged on 4 21.02.2007, i.e., on the date of accident narrating that a two wheeler namely, "Bajaj 4S", motor cycle came and dashed the deceased. Thereafter, criminal proceedings continued. However, in the charge-sheet what has been brought about is that the accident occurred due to the negligent act of the rider of the "TVS Victor motorcycle, bearing No.KA-14-S-9298". Hence, he pleads that the entire criminal papers are cooked up and are contrary to the plea of the complainant. Hence, on this ground alone, the claim petition be rejected.
3. The Tribunal on considering these contentions was of the view that based on Exhibit - P4, the panchanama, it suggests that the accident was due to the rash and negligent act of the TVS Victor motor cycle. Hence, it held that the death was caused through this vehicle. On considering the plea and the contentions, I'am of the considered view that the Tribunal committed an error in arriving at such a conclusion relying on 5 Exhibit - P4, dated 22.02.2007, namely, a day after the accident. The complaint was lodged on 21.02.2007. The accident is said to have occurred on 11.15 a.m. The complaint was lodged at 7.45 p.m. The panchanama was drawn on the next date, after more than 24 hours, between 2.30 p.m. to 3.15 p.m. In the complaint, it is stated that the vehicle involved in the accident was "Bajaj 4S (Bajaj Force)". This would clearly indicate that the complainant has keenly observed the vehicle that is involved. He is very specific and he has even clarified the name of the vehicle in brackets. To upset the very statement of the complainant and relying on the charge- sheet that proceeds on the said complaint is erroneous. The prosecution has necessarily committed a blunder in overlooking the complaint.
4. Under these circumstances, it is amply clear that reliance placed on Exhibit-P4 is wholly misconceived. There is substantial delay in recording 6 the panchanama. It is not the case of the complainant that it is recorded immediately after the accident. Under these circumstances, it is apparent that based on the statement of the complainant, the TVS Victor motor cycle, is not the vehicle that is responsible for the said accident.
5. Under these circumstances, consideration of the appeal for enhancement would not arise. It is a clear case that there has been an implication of a false vehicle. The claim petition should have been rejected based on this material alone. The Tribunal committed error in granting compensation to the claimant. Under these circumstances, the claim petition requires to be rejected.
6. Consequently, the appeals are disposed off in the aforesaid terms. MFA.No.1426/2009 is dismissed. MFA.No.2660/2009 is allowed. The judgment and 7 award dated 21.11.2008 passed in MVC.No.268/2007 on the file of II Addl. Civil Judge & Addl. MACT, Davanagere is set aside. The claim petition is dismissed. The amount in deposit is directed to be refunded to the appellant - insurer.
Sd/-
JUDGE JJ