Karnataka High Court
The Manager Shriram General Insurance ... vs Subhan S/O Moses And Ors on 22 May, 2023
1 MFA.No.201001/2015
IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH
DATED THIS THE 22ND DAY OF MAY, 2023
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
MFA No.201001 OF 2015 (MV)
BETWEEN:
THE MANAGER
SHRIRAM GENERAL INSURANCE CO. LTD.,
E-8, EPIP, RIICO, INDUSTRIAL AREA,
SITAPUR JAIPUR, RAJASTHAN.
...APPELLANT
(BY SRI. SUBHASH MALLAPUR, ADVOCATE)
AND:
1. SUBHAN
S/O MOSES,
SINCE DECEASED REP BY LR's
a) SHUKIRTA
W/O SUBHAN
AGE: 49 YEARS, OCC: GOVT. SERVANT
b) MICHEAL
S/O SUBHAN
AGE: 27 YEARS, OCC: STUDENT
c) SARIKA
D/O SUBHAN
AGE: 25 YEARS, OCC: STUDENT
d) PRIYANKA
D/O SUBHAN
AGE: 24 YEARS, OCC: STUDENT
2 MFA.No.201001/2015
e) KIRAN
S/O SUBHAN
AGE: 22 YEARS, OCC: STUDENT
ALL R/O HALLADKERI
TQ & DIST BIDAR - 584 101
2. MOHD. ABDUL GAFFAR
S/O ABDUL KHADER,
AGE: MAJOR, OCC: BUSINESS,
R/O H.NO.2-1-231, MUSTAIPURA,
BIDAR - 584 101
(OWNER OF LORRY NO.KA-39/392)
... RESPONDENTS
(BY SRI. RAVI B PATIL, ADVOCATE FOR R-1(c) & (d);
R-1(a), (b), (e) AND R-2 ARE SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF M.V. ACT,
PRAYING TO ALLOW THE ABOVE APPEAL BY SETTING ASIDE THE
JUDGMENT AND AWARD DATED 01.10.2014, IN MVC
NO.372/2011 PASSED BY THE II ADDL. MACT & ADDL. DIST.
JUDGE, BIDAR, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS MFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 31.02.2023, COMING ON FOR PRONOUNCEMENT
OF JUDGMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:-
JUDGMENT
This appeal filed under Section 173(1) of Motor Vehicles Act, 1988 (hereinafter referred to as 'M.V.Act'), is by respondent No.2/Insurance company challenging the impugned judgment and award whereby the Tribunal has allowed claim petition filed by petitioner seeking compensation 3 MFA.No.201001/2015 for the damage caused to his vehicle bearing temporary registration No.KA-25/(T)TY-3314 in a motor vehicle accident dated 21.11.2010.
2. For the sake of convenience the parties are referred to by their rank before the Tribunal.
3. FACTS: It is the case of the petitioner that he is the registered owner of Mahindra Logan car bearing temporary registration No.KA-25/(T)TY-3314 (permanent registration No.KA-38/M-2338) ('car' for short). On 21.11.2010, he was proceeding in his car from Bidar towards Church. At about 4.50 a.m i.e., in the early hours, when he came near Shahapur gate on Bidar-Zahirabad road, a lorry bearing registration No.KA-39/392 ('offending vehicle' for short) driven by its driver in a high speed in a rash or negligent manner came from the opposite side and dashed against the car. In the said accident, the car suffered extensive damage. Petitioner got it repaired by spending Rs.4,46,388/-. In respect of the said accident, a case is registered in Cr.No.163/2010 against the driver of the offending vehicle and hence the petition.
4 MFA.No.201001/2015
4. Respondent No.1 appeared through the counsel and filed written statement denying the entire case of the petitioner i.e., the manner of accident, extent of damage and expenses incurred for getting the car repaired. The offending vehicle was insured with respondent No.2 and in the event of allowing the petition, it may be directed to pay the compensation.
5. Respondent No.2 appeared through counsel and filed written statement denying the manner of the accident and that in the said accident, the car belonging to petitioner was damaged extensively. The accident occurred due to the rash or negligent driving of the car by the petitioner. The driver of the offending vehicle was not holding a valid license and as such respondent No.2 is not liable to pay the compensation. Respondent No.2 has denied that petitioner has spent Rs.1,81,279/- for purchase of parts and Rs.65,109/- for labour and mechanical charges. Petitioner has not at all produced supporting documents. He has also not made any declaration that petitioner has not claimed any compensation from his insurer. The Tribunal may direct 5 MFA.No.201001/2015 petitioner to declare that he has not made any claim and they have not received any OD claim amount from his own insurer and direct to produce the original documents viz., survey report and other documents and prays to dismiss the petition.
6. Based on these pleadings, the Tribunal has framed necessary issues and additional issues.
7. As evident from impugned judgment and award, the learned Presiding Officer of the Tribunal has reframed the issues as detailed in the impugned judgment.
8. During the pendency of the petition, the petitioner has died. His legal representatives have come on record. LR No.3 of the petitioner is examined as PW-1. She has relied upon Ex.P1 to 6.
9. Respondents have not led any oral and documentary evidence.
10. Vide the impugned judgment and award, the Tribunal has partly allowed the claim petition granting compensation in a sum of Rs.2,66,388/- and directed respondent No.2 to pay the same with interest at 6% p.a. 6 MFA.No.201001/2015
11. Being aggrieved by the same, respondent No.2 has filed this appeal contending that the impugned judgment and award is contrary to the facts of the case, besides being erroneous and as such liable to be set aside. The Tribunal has not considered the fact that respondent No.2 has made a specific pleading to the Tribunal to direct the petitioner to produce the survey report of the Insurance Company which has insured the car and to give a declaration that no other claim has been made with the insurer of the car. In the absence of compliance of the same, petitioner is not entitled for any award. The Tribunal has lost sight of the fact that the car in question was a brand new car with temporary registration. Every brand new car must and should be insured before getting registration. Without registration it cannot ply on the road. Without considering this aspect the Tribunal has mechanically proceed to allow the petition in part.
12. The Tribunal has erred in marking Xerox copies of the bills, despite strong objection by respondent No.2. Intentionally petitioner has not disclosed the name of the Insurance company which insured the car in question and the 7 MFA.No.201001/2015 Tribunal has ignored to draw an adverse inference. Despite observing that petitioner has not produced original bills, the Tribunal has fallen into error by allowing the petition. Viewed from any angle the impugned judgment and award is not tenable and prays to allow the appeal and set aside the impugned judgment and award and dismiss the petition.
13. On the other hand learned counsel for respondent supported the impugned judgment and award.
14. Heard arguments and perused the record.
15. It is not in dispute that the car in question is a brand new vehicle having temporary registration number. Consequently it is required to be covered by a temporary registration. The very registration number of the vehicle goes to show that it was having temporary registration with insurance. For reasons best known to him, petitioner has not chosen to disclose with which insurance company it was registered. Petitioner has not chosen to produce the survey report and original bills. PW-1 has expressed ignorance as to the insurer of the car and whether her father has given any 8 MFA.No.201001/2015 intimation to the insurer and claimed compensation. The survey report of the automobile engineer, photographs of the damage car, original bills for having purchased the parts and also bills for having paid mechanic and repair charges are not produced. Despite respondent No.2 making a specific defence that petitioner has not made any declaration regarding not having claimed any compensation from its insurer, petitioner has not chosen to make such declaration. Despite objection by respondent No.2, the Tribunal has marked Xerox copies of the documents. Petitioner is not having any explanation as to why the original documents are not produced.
16. In fact at para No.14 of the judgment, the Tribunal has clearly observed that for the reasons best known to them neither petitioner nor his legal representatives have produced the original bills and it supports the contention of respondent No.2 that petitioner might have produced the original bills before the insurer of his vehicle and received the amount. Of course, the burden is on the petitioner and his legal representatives to produce the said documents or come up with proper explanation. Therefore, the Tribunal has erred in 9 MFA.No.201001/2015 further making an observation that there is no evidence to come to a definite conclusion that petitioner has claimed compensation from insurer of the car and on that premise, it has proceeded to allow the claim petition.
17. In the absence of survey report, photographs, original bills and also bill to prove that repair charges were borne by the petitioner, there is absolutely no basis for arriving at the figure of Rs.2,66,388/-. The very fact that original bills are not produced indicate that in all probabilities petitioner might have produced the original bills and received the compensation from the insurer of the car. Concealing the said fact, he has made an attempt to get some compensation. Of course the Tribunal without examining all these aspects has fell into error in allowing the petition and granting the compensation.
18. Thus, from the above discussion and in the facts and circumstances of the case, this Court is of the considered opinion that appeal deserves to be allowed and the petition is liable to be dismissed and accordingly, I proceed to pass the following:
10 MFA.No.201001/2015
ORDER
(i) The appeal by respondent No.2 is allowed.
(ii) The impugned judgment and award is set aside. Consequently, the petition filed by the petitioner is dismissed.
(iii) The appellant/respondent No.2 is permitted to withdraw the amount in deposit (if any).
(iv) The registry is directed to send back the trial court records along with the copy of this judgment to the Tribunal forthwith.
Sd/-
JUDGE RR