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MFA No. 7795 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 30 DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
MFA NO. 7795 OF 2013 (MV-I)
BETWEEN:
THE BRANCH MANAGER
NATIONAL INSURANCE CO. LTD.
ST
1 FLOOR, S.S.COMPLEX
B.H. ROAD, SHIMOGA
NOW REP. BY ITS REGIONAL MANAGER
NATIONAL INSURANCE CO. LTD.
REGIONAL OFFICE, SUBHARAM
COMPLEX, 144, MG ROAD
BANGALORE - 560 001 … APPELLANT
(BY SRI.A.N.KRISHNA SWAMY, ADV.)
AND:
1. SMT. SAROJAMMA
W/O MARAPPA
NOW AGED ABOUT 36 YEARS
UTENSILS MERCHANT
SIDDESHWARA COLONY
ANANDAPURAM, SAGAR TALUK - 577 401
Digitally signed by
HARIKRISHNA V
2. RAJAPPA K.S.
Location: HIGH COURT OF
S/O BANGARAPPA
KARNATAKA
NOW AGED ABOUT 31 YEARS
ADVOCATE, R/O KALLUKOPPA
BARUR VILLAGE, SAGAR TALUK - 577 401
… RESPONDENTS
(BY SRI.HALESHA R.G., ADV. FOR R1;
SRI.SURESH M. ADV. FOR R2)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 18.06.2013
PASSED IN MVC NO.147/2011 ON THE FILE OF THE
ADDITIONAL SENIOR CIVIL JUDGE, JMFC & MEMBER,
ADDITIONAL MACT-9, SAGAR, AWARDING COMPENSATION OF
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MFA No. 7795 of 2013
RS.2,41,760/- WITH INTEREST AT 9% P.A. FROM THE DATE
OF PETITION TILL REALIZATION.
THIS MFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 18.03.2024 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
In this appeal, the Insurance Company has
challenged the judgment and award dated
18.06.2013 in M.V.C.No.147/2011 passed by the
Addl. Senior Civil Judge, J.M.F.C. and Addl. M.A.C.T.-
10, Sagar ('the Tribunal' for short).
2. Appellant was respondent No.2, respondents
No.2 and 3 are the petitioner and respondent No.1
before the Tribunal. For the sake of convenience,
the rank of the parties shall be referred to as per
their status before the Tribunal.
3. Brief facts of the case are, on 21.09.2010 at
about 04:30 p.m., while the petitioner was walking
from Anandapura Fish Market to Siddeshwara Colony
of Sagar Taluk, a Hero Honda motor cycle bearing
Reg.No.KA-15/L-7234 rided by respondent No.1 hit
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MFA No. 7795 of 2013
against the petitioner, due to which she has suffered
injuries over head, left foot, fracture of knee, back,
hands and all over the body. She was treated at
Government Hospital, Anandapura and K.M.C.
Hospital, Manipal under hospitalization. After taking
treatment, she approached the Tribunal for grant of
compensation of Rs.6,40,000/-. Claim was opposed
by the Insurance Company. The Tribunal after
taking the evidence and on hearing both the parties,
allowed the claim petition and awarded
compensation of Rs.2,41,760/- with 9% interest p.a.
directing the Insurance Company to indemnify the
owner of the motor cycle. Aggrieved by the same,
the Insurance Company has filed this appeal on
various grounds.
4. Heard the arguments of
Sri. A.N. Krishnaswamy, learned counsel for the
Insurance Company, Sri. Halesha. R.G, learned
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MFA No. 7795 of 2013
counsel for the petitioner and Sri. Suresh. M, learned
counsel for the owner-cum-rider of the motor cycle.
5. It is the contention of the learned counsel for
the Insurance Company that the rider-cum-owner of
the motor cycle is a practicing Advocate at Sagar;
the intimation given to the Government Hospital,
Anandapura at the first instance clearly indicates
that the petitioner has suffered injuries while triple
riding the motor cycle and due to self-fall; the said
motor cycle was not made as a party to the claim.
12 days after the accident, the motor cycle bearing
Reg.No.KA-15/L-7234 has been implicated; the
delay in filing the F.I.R. is not explained and it is
brought out from PW-3 the brother of the petitioner
that immediately after the accident, the petitioner
was taken to the Government Hospital, history of the
accident has been informed to the Doctor. Therefore,
fraud and justice cannot dwell together; the Tribunal
did not consider the fraud played by the petitioner
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MFA No. 7795 of 2013
for the sake of compensation; when the motor cycle
in question was not at all involved in the accident,
the question of its owner paying compensation does
not arise and the Insurance Company cannot
indemnify a false claim.
6. It is the contention of learned counsel for the
owner-cum-rider of the motor cycle that an accident,
as claimed by the petitioner, has taken place. Being
a practicing Advocate, to facilitate the third-person
to get the compensation, no Advocate will come and
face the criminal trial knowing the consequence if in
the event of conviction; the petitioner is an elderly
lady and the delay in filing the F.I.R. has been
explained as soon after the accident, the petitioner
fell unconscious and she was under hospitalization at
K.M.C. Hospital, Manipal, this aspect has been
challenged by the Insurance Company and therefore,
the Tribunal is right in accepting the explanation and
he supported the impugned judgment.
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MFA No. 7795 of 2013
7. Per contra, learned counsel for the petitioner
has contended that soon after the accident, the
petitioner was taken to the Government Hospital
Anandapura; as per the advice, the petitioner was
taken to K.M.C. Hospital, Manipal; the petitioner was
not aware who has furnished the information to the
treating Doctor at Government Hospital and any
entry made cannot be read against her. It is further
contended that there is a clear explanation in the
evidence the reasons for the delay in filing the
F.I.R.; mere delay in filing the F.I.R. is not a fatal
and no person will make such a false claim, that too
filing the complaint against the practicing Advocate;
if really the owner of the motor cycle was not
involved in the accident, he ought to have
challenged the criminal prosecution, but the material
on record indicates that the owner of the motor cycle
though being an Advocate, has faced the criminal
trial; under such circumstances, the Tribunal has
rightly accepted the evidence and awarded
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MFA No. 7795 of 2013
compensation; in order to avoid the payment of
compensation, new contention has been invented in
the appeal and he sought for dismissal of the appeal.
8. I have given my anxious consideration to the
arguments addressed on behalf of both parties and
perused the records.
9. Now the point that arises for consideration
is,
"Whether the accident in question was on
account of a fraud?"
10. Admittedly, there is a 12 days' delay in
filing the complaint as the accident was on
21.09.2010, the complaint was filed on 03.10.2010.
Ex.P1 is the F.I.R. along with the statement of one
H.C. Shankar, the brother of the petitioner. The
averments made in the complaint points out that at
04:30 pm on 21.09.2010, while the petitioner was
returning home after doing fish shopping in the fish
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MFA No. 7795 of 2013
market of Anandapura, a Hero Honda motor cycle
bearing Reg.No.KA-15/L-7234 came and hit against
her, due to which she fell down and sustained the
injuries over the head, hands and legs. She was
taken to the Government Hospital, Anandapura and
as per the advice of the Doctor, she was taken to
K.M.C. Hospital, Manipal. Since nobody were
available to attend her, he or she could not report
the complaint to the Police. Upon filing the
complaint, motor cycle in question has been seized
and subjected to I.M.V. as per Ex.P4. There were
damages noticed on the motor cycle when it was
examined on 06.10.2010 at Sagar Rural police
Station premises. Ex.P5 is the wound certificate
where the history is mentioned as:
"alleged history of road traffic accident
near Sagar"
The statement of the petitioner was also recorded
during the time of investigation. Respondent No.1
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MFA No. 7795 of 2013
being the rider-cum-owner of the motor cycle has
been charge sheeted before the Addl. Civil Judge and
J.M.F.C., Sagar for the offence punishable under
Sections 279 and 338 of I.P.C. and he has faced the
trial for the said offences. The medical records
clearly point out that the petitioner was admitted to
K.M.C., Manipal on 21.09.2010 and discharged on
03.11.2010. The history furnished to the K.M.C.
Hospital shows that the petitioner has sustained
injury in a road traffic accident.
11. The main contention of the Insurance
Company that when the petitioner was brought to
the Government Hospital, Anandapura, the history is
so furnished as self-fall. On perusal of Ex.P5,
nothing is mentioned as such that the petitioner has
suffered injuries due to self-fall while triple-riding.
The Insurance Company relies upon Ex.R3 the M.L.C.
register extract dated 21.09.2010 in respect of one
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MFA No. 7795 of 2013
Sarojamma W/o Marappa and the history is
furnished as:
"H/o of Fall from the bike while Travelling
(Triple riding) on 21/09/2010.
Self Fall.
Fall from their own bike, patient refused
Medico legal case (MLC).
NIL MLC.
Sd/-
Manjula"
When the Insurance Company relying on Ex.R3, it is
required to prove the said document through proper
evidence. The entry refers the name of Dr. Manjula
who is the Medical Officer of Primary Health Centre,
Anandapura. RW-1 M.N. Vinayak is the Officer of
the Insurance Company and the contents of Ex.R3
required to be proved through Dr. Manjula. No
efforts are made to secure her presence. Who gave
the information and who brought the injured to the
hospital are not forthcoming. Under such
circumstances, it is unsafe to rely upon Ex.R3 which
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MFA No. 7795 of 2013
was not even confronted to the petitioner during the
course of her cross-examination. Mere production of
such document through the Officer of the Insurance
Company is not enough to prove its genuineness.
Ex.R3 was not confronted either to the petitioner or
the complainant who is examined as
PW-3. Then, what value can be attached to the said
document? In the absence of proof of Ex.R3, the
argument canvassed on behalf of the Insurance
Company is not persuasive in nature as during the
course of cross-examination of RW-1, there is a
specific denial as to the genuineness and contents of
Ex.R3. Hence, the alleged fraud without any proof
will not stand to its reason.
12. Since the Insurance Company is only
banking on the theory of falsehood and not
challenged the quantum of compensation, it is not
proper to dwell into the aspects of correctness of the
assessment of compensation made by the Tribunal.
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MFA No. 7795 of 2013
Hence, the appeal is devoid of merits. In the result,
the following:
ORDER
dismissed
i) The appeal is .
ii) The insurer shall deposit the
compensation within 8 weeks from
the date of receipt of certified copy
of the judgment.
iii) Amount in deposit, if any, shall be
transmitted to the Tribunal along
with records forthwith.
SD/-
JUDGE
PA
CT:HS
List No.: 1 Sl No.: 1