Karnataka High Court
The Divisional Manager vs Mallikarjun S/O Neelkanth Pattar on 28 March, 2013
Author: Jawad Rahim
Bench: Jawad Rahim
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 28TH DAY OF MARCH, 2013
BEFORE
THE HON'BLE Dr.JUSTICE JAWAD RAHIM
MFA No.31851/2011 (MV)
BETWEEN:
THE DIVISIONAL MANAGER
NATIONAL INSURANCE COMPANY LTD.,
BILGUNDI COMPLEX
STATION ROAD
OPP. MINI VIDHAN SOUDHA
GULBARGA
...APPELLANT
(BY SRI.SANJAY M JOSHI, ADVOCATE)
AND:
1. MALLIKARJUN S/O NEELKANTH
PATTAR, AGED 27 YEARS
OCC: ELECTRICIAN
R/O H.NO.4-477
BIDDAPUR
2. ASHA MALYA
W/O NITYANANDA MALYA
AGE: 42 YEARS,
OCC: OWNER OF VEHICLE
BEARING NO.KA-19-B-4548
R/O MAIN ROAD, ALANGA
MUDBIDARI, MANAGALORE
... RESPONDENTS
2
(BY SRI.B.ALIMOHAMMAD, ADVOCATE C/R1)
THIS MISCELLANEOUS FIRST APPEAL FILED UNDER
SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND
AWARD DATED 18.1.2011 PASSED IN MVC NO.696/2009 ON
THE FILE OF THE PRL. CIVIL JUDGE (SR.DN) & MACT AT
GULBARGA, PARTLY ALLOWING THE CLAIM PETITION AND
AWARDING COMPENSATION OF RS.1,70,000/- WITH INTEREST
AT 6% P.A.
THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:-
JUDGMENT
The insurer is in appeal against grant of compensation to the respondents-claimants basically on the ground that the claim was fraudulent.
2. Heard learned counsel of both sides. Appeal is admitted and taken up for final disposal.
3. As much has been urged by and on behalf of the appellant on the question of alleged fraud/ misrepresentation, and it is seriously alleged, the Tribunal 3 has omitted to consider the material evidence on record. I have perused records in supplementation thereto.
4. The factual matrix reveals:
a) Mallikarjun-claimant lodged claim under Section 166 of the MV Act, claiming compensation for pecuniary and non-pecuniary losses on the assertive contention that on 1.2.2008 while he was proceeding to Gulbarga riding motor cycle bearing No.KA-26-H-9353 from Moratgi village, he reached bus stand at around 11-40 a.m. when a private bus bearing Reg.No.KA-19-B-4548 driven by the driver in a rash and negligent manner hit against his motor cycle. He was imbalanced and fell, suffering grievous injuries to the left leg and other parts of the body resulting in fracture of femur, and was shifted to GGH Sindagi, where he received first aid and then shifted to Basaveshwar hospital, Gulbarga. He was in-patient therein from 01.02.2008 to 06.02.2008 and still continuous to be under treatment.4
5. He claimed Rs.25,000/-towards reimbursement medical expenses as also pecuniary and non-pecuniary loss of i.e., loss of amenities in life.
b) The first respondent-owner of the bus and its driver remained away from contest despite service of notice, but the appellant-insurer resisted the claim through detailed counter denying involvement of the vehicle insured by it.
c) Based on the material propositions in the pleadings of the claimant and the insurance company, the Tribunal framed issues for consideration and in the enquiry ensued, claimant tendered evidence as PW.1 and supplemented it through the evidence of Dr.Ramakant Kulkarni. He placed reliance on 34 documents which include the copy of the FIR, copy of the complaint and medical evidence like discharge intimation, medical bills, wound certificate, disability certificate, X-ray films and report.
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d) On behalf of the appellant insurer, claimant was subjected to cross-examination in which suggestion was that complaint was not lodged immediately on 1.2.2008 but it was lodged on 5.2.2008 with the delay of 4 days. The second suggestion put and answer elicited is, he was admitted to BTGH, Gulbarga, and there was no record of Sindagi Hospital. Another suggestion was that Balaji bus in question was not involved in the accident.
e) The Tribunal declined to accept the defence as advanced and has held driver of the bus insured with the appellant responsible for the cause of accident and thus fastened actionable negligence on him and consequently quantified the amount to be paid by the insurance company in view of valid insurance policy and absolved the insured.
f) Assailing the directions this appeal is filed.
6. Learned counsel with his assertive eloquence would contend it is a case of fraud. The bus was not involved in accident; statement given by the complainant vide Ex.P.29 6 is that accident was due to involvement of Maxi Cab; he has given a different version which shows the claim is fraudulent. In support of it he refers to delay in lodging the complaint. Though accident occurred on 1.2.2008 complaint was lodged on 5.2.2008. The second contention is, as the averments in the petition are contrary to entries in Ex.P.29, Tribunal should have considered it as disentitling the claimant to seek compensation.
7. All these grounds are seemingly impressive, but are worth to be discounted for the following reasons:
I) First of all it is seen in the written statement filed by the insurance company, there is no specific denial that the Balaji bus insured by it was not involved in the accident. There is also no allegation of alleged fraud played by the claimant.
II) There is no statement that some other vehicle was involved and not the bus insured with it.
III) Learned counsel tried to wriggle out of the situation drawing my attention to one sentence where 7 there is denial that the bus was involved in the accident.
Since such plea is taken, I am compelled to draw the attention of the appellant to the provisions of Order VIII Rule 2 and 3, C.P.C. which requires that averment in the plaint (in this case claim petition) should be specifically traversed. Rule 3 postulates 'it shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages.' Where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance. Thus, if it is alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any part thereof, or else set out how much he received. And if an allegation is made with diverse circumstances, it shall not be sufficient to deny it along with those circumstances. Therefore in a case like this where such serious allegation of fraud is urged, it was 8 incumbent on the insurance company to have taken specific plea in terms of Rules 3 and 4 of Order 8, C.P.C. and as spelled out in Rule 4, if an allegation is made with diverse circumstances, it shall not be sufficient to deny it along with those circumstances. In the instant case claimant has specifically averred involvement of Balaji bus. The written statement is bereft of material particulars and non- compliance to the provisions of Order 8 Rule 3 and 4.
8. It is settled principle law that any evidence thereafter is led which is not based on material propositions has to be eschewed. If any authority is required, reference could be made to the decision of the Apex Court reported in AIR 2008 SC 2033 (ANATHULLA SUDHAKAR .vs. BUCHI REDDY (DEAD) BY L.R.S & OTHERS), dealing with a situation like this where without material propositions before courts below grounds were urged in the appeal. The Apex Court has held specifically in paragraphs 8 and 9 as follows:
8. The High Court by its judgment dated 18.1.1999 allowed the second appeal and 9 restored the judgment and decree of the trial court. For this purpose, the High Court examined the evidence in detail and recorded the following findings:
(i) There was an oral gift of the backyard portion (No.13/776) by way of 'pasupu kumkumam' by Damodar Rao in favour of his sister Rukminibai in the year 1961. As a gift of an immovable property in favour of a daughter or sister by way of 'Pasupu Kumkuman' could be oral, the absence of any registered document did not invalidate the gift.
(ii) Damodar Rao negotiated with plaintiffs, for sale of the two sites, on behalf of his sister Rukminibai, representing that his sister was the owner thereof and attested the sale deeds executed by his sister Rukminibai in favour of plaintiffs as a witness and identified her as the executant of the sale deeds before the Sub-
Registrar. Those acts of Damodar Rao supported the claim of Rukminibai that there was a oral gift. Alternatively, even if there was no gift in favour of Rukminibai, and Damodar Rao was the owner, the aforesaid acts of Damodar Rao showed that with his implied consent, Rukminibai represented to be the ostensible owner of the suit property and transferred the same to plaintiffs for consideration. This attracted the provision of section 41 of Transfer of Property Act, 1882 and therefore the transfers in favour of plaintiffs was not voidable at the instance of Damodar Rao or his successor in interest on the ground that Rukminibai was not the owner of the suit property.
10The High Court consequently held that plaintiffs had established their title in regard to the two vacant sites purchased by them and drew an inference that possession was presumed to be with them by applying the principle of possession follows title. The High Court also held that it was not necessary to plaintiffs to sue for declaration of title, as the question of title could be examined incidental to the question of possession.
9. The said judgment is challenged by the defendant, in this appeal by special leave, on the following grounds :
(a) The suit for permanent injunction without seeking declaration of title was not maintainable on the facts of the case. At all events, the High Court ought not to have recorded a finding of fact on a seriously disputed and complicated issue of title, in a suit for a mere injunction.
(b) The first appellate court held that plaintiffs had neither established their title nor their possession and their remedy was to file a suit for declaration and consequential relief. The High Court, in a second appeal, ought not to have reversed the said decision of the first appellate court, by the process of examining and recording a finding on title, even though there was no issue regarding title.
(c) An oral gift by a brother to a sister was not permissible. At all events, such an oral gift even if permissible, can be made only at the time of a partition or at the time of marriage of the sister, with a view to making a provision for her. The High Court erred in holding that 11 the there was a valid oral gift by Damodar Rao in favour of Rukminibai.
(d) There was no plea in the plaint about the ostensible ownership of Rukminibai or about any acts of Damodar Rao which demonstrated the consent of Damodar Rao to such ostensible ownership. Nor was there any plea about due and diligent enquiries by the plaintiffs regarding title before purchase. Therefore the High Court erred in holding that the sales in favour of plaintiffs were protected by section 41 of the Transfer of Property Act, 1882.
(e) In the absence of pleadings and an issue regarding title, the defendant had no opportunity to effectively lead evidence on the question of title.
(f) The High Court erred in equating plaintiffs' failure to produce title deeds of their vendor to defendant's failure to produce the title deeds of his vendor. The High Court overlooked the fact that there was no dispute that defendant's vendor Damodar Rao was the earlier owner of the suit property and it was for the plaintiffs who had set up a case that their vendor Rukminibai derived title from Damodar Rao under an oral gift, to prove the said claim. Thus any proposition to the contrary urged in the appeal does not require consideration at all. 12
9. Regarding evidence on record it is seen if as alleged Ex.P.29 contains contrary facts compared to statement of claimant, it should have been confronted as is required under Section 145 of the Evidence Act, but for which no court will take of cognizance of it. Provisions of Section 145 requires 'A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.
10. In this case Ex.P.29 has not been confronted to him to be used as contradiction which is now urged.
11. Based on the above discussion, I am satisfied the grounds in the appeal against the impugned judgment and award are unacceptable.
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12. The appeal fails. The statutory amount in deposit is directed to be transferred to the Tribunal for disbursement.
SD/-
JUDGE sdu