Karnataka High Court
Branch Manager,United India Insurance ... vs Shivanand Mallappa Bilagi (Katagi) on 1 March, 2016
Author: S.Sujatha
Bench: S.Sujatha
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 1ST DAY OF MARCH 2016
BEFORE
THE HON'BLE MRS. JUSTICE S.SUJATHA
MFA NO. 31337/2010 (MV)
BETWEEN:
BRANCH MANAGER,
UNITED INDIA INSURANCE
CO. LTD., BIJAPUR.
...APPELLANT
(BY SRI MANAVENDRA REDDY, ADVOCATE)
AND:
1. SHIVANAND MALLAPPA BILAGI
(KATAGI) AGE: 10 YEARS
OCC: NIL, M/G BY MALLAPPA
IRAPPA BILAGI (KATAGI)
AGE: 35 YEARS, OCC: COOLIE
R/O BIJAPUR.
2. GOUDAPPA BASAPPA PUJARI
AGE: MAJOR, OCC: BUSINESS
R/O KAVADIMATTI IN
MUDDEBIHAL TALUK
DIST: BIJAPUR.
...RESPONDENTS
(NOTICE TO R1 & R2 HELD SUFFICIENT
V/O. DATED 11/01/2016)
2
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S. 173 (1) OF MV
ACT, AGAINST THE JUDGMENT AND AWARD DATED 23.03.2010
PASSED IN MVC NO. 930/2005 ON THE FILE OF THE I ADDL. DIST.
AND SESSIONS JUDGE AND MEMBER M.A.C.T. -II AT BIJAPUR,
PARTLY ALLOWING THE CLAIM PETITION AND AWARDING THE
COMPENSATION OF RS. 64,423/- WITH INTEREST AT 6% P.A.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:-
JUDGMENT
Heard learned counsel appearing for appellant and there is no representation on behalf of the respondents.
2. Brief facts of the case are:
Claim petition was filed by the minor petitioner represented by guardian under Section 166 of Motor Vehicles Act, 1988 (for short 'the Act') claiming compensation for the injuries sustained in the alleged accident said to have been involving tum-tum vehicle bearing registration No.KA-
28/9077.
3. The claim was made on the ground that on 27.05.2005 at 14.30 hours the injured met with an accident due to the rash and negligent driving of the tum-tum vehicle 3 and sustained injuries. It was contended that the petitioner took treatment at private hospital at Bijapur and incurred Rs.50,000/- towards medical expenses. The appellant herein after entering the appearance through its counsel, resisted the claim by filing the written statement interalia contending "it is an admitted fact that the petitioner has received the injuries due to fall from 8 ft. height. Hence, this petition deserves to be dismissed".
4. The Tribunal after considering the evidence and material available on record, allowed the claim petition in part and awarded compensation of Rs.64,423/- along with interest at 6% per annum, fastening the liability on respondent No2 - Insurance Company to satisfy the award. Being aggrieved by the said judgment and award, the appellant insurer is before this Court.
5. It is vehemently contended by the learned counsel appearing for the appellant that Ex.P3 demonstrates that the injuries were sustained by the petitioner/claimant due to fall 4 from 8 ft. height on 27.05.2005 and the Tribunal ignoring this relevant document awarded the compensation. There is fraud and misrepresentation played by the claimant in order to make wrongful gain, suppressing the real facts and creating concocted story of tum-tum vehicle involving in the accident. Accordingly, learned counsel seeks to set aside the award passed by the Tribunal and to reject the claim petition.
6. Heard the learned counsel appearing for the appellant and perused the material on record. It is an admitted fact as per Ex.P3, that claimant was admitted to Ashwini Hospital, Bijapur on 27.05.2005 for treatment of the injuries sustained by him for falling down from 8 ft. height as per the admission and discharge certificate dated 11.08.2005. This crucial evidence was lost sight off by the Tribunal while fixing the liability on the appellant, more particularly, when this defence was taken by the appellant. No arguments/material evidence are placed by the claimants to 5 controvert the submission made by the appellant - Insurance Company either before the Tribunal or before this Court.
7. The Apex Court in the case of NORTH WEST KARNATAKA ROAD TRANSPORT CORPORATION vs. GOURABAI AND OTHERS [(2009) 15 Supreme Court Cases 165] has held as follows:
"2. The main contention of the appellant before MACT as well as before the High Court was that the deceased did not sustain any injury in any accident involving the bus of the Corporation. Reference was made to the evidence of the doctor, who had suffered head injury due to fall from the height of 8 to 10 ft. of his own house. Though this was specifically stated in the written statement, MACT and the High Court brushed aside the same stating that there was indirect admission about the deceased having sustained injury in vehicular accident.
3. The effect of the evidence of the doctor and Exhibit R-1 does not appear to have been looked into by MACT and the High Court. MACT did not 6 place reliance on the document Ex.R-1 on the ground that the brother of the injured stated that he did not know what was written in the document and his signature was taken on one page. This conclusion overlooks the fact that a doctor will not take a signature on a piece of paper mentioning something which is not correct."
8. In the case of RAM CHANDRA SINGH vs. SAVITRI DEVI AND ORS. [2004 SAR (CIVIL) 1], the Apex Court while considering an identical issue has held thus:
"15. Commission of fraud on court and suppression of material facts are the core issues involved in these matters. Fraud as is well-known vitiates every solemn act. Fraud and justice never dwells together.
16. Fraud is a conduct either by letter or words, which induces the other person, or authority to take a definite determinative stand as a response to the conduct of former either by word or letter.
17. It is also well settled that misrepresentation itself amounts to fraud.7
Indeed, innocent misrepresentation may also give reason to claim relief against fraud".
9. In the light of law enunciated by the Apex Court, the vital evidence Ex.P3 appears to have not been considered in a right perspective by the Tribunal, which is an admitted document placed by the claimant. In the given circumstances, to meet the ends of justice, it would be appropriate to remand the matter back to the Tribunal to consider Ex.P3 in the light of observations made above. Accordingly, the judgment and award passed by the Tribunal is set aside and the matter is remanded by to the Tribunal.
The Tribunal shall dispose of the matter as expeditiously as possible after providing an opportunity of hearing to both the parties.
All contentions are left open.
Ordered accordingly.
8The amount in deposit shall be transmitted to the jurisdictional Tribunal and the appellant is permitted to withdraw the same.
Sd/-
JUDGE Srt