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2022 DIGILAW 1229 (KAR)

National Insurance Company Ltd. v. Sarojamma

2022-09-16

T.G.SHIVASHANKARE GOWDA

body2022
JUDGMENT 1. This is an appeal filed under Sec. 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act' for brevity) by the appellant/Insurer, challenging the judgment and award dtd. 1/2/2012 passed in M.V.C.No.7/2010 by the Motor Accident Claims Tribunal, Arkalgud (hereinafter referred to as 'the Tribunal' for brevity). 2. The facts leading to filing of the claim petition is that, the petitioner before the Tribunal, aged 38 years claims to be a vegetable vendor said to have sustained injuries while standing on the side of the road on 24/8/2009 allegedly hit by a motor cycle, which is insured with the appellant herein. After 17 days from the date of the alleged accident, the petitioner filed complaint with Gorur Police against the motor cycle bearing No.KA-13/U-6855. As such, she claimed compensation. The Tribunal vide the impugned judgment has awarded compensation of Rs.22, 000.00 with interest @ 6% per annum, fastening liability on the insurer/appellant herein. 3. The appeal is filed on the following grounds: (i) The vehicle in question is not involved in the alleged accident; (ii) The Tribunal failed to look into the notings made in the wound certificate and the MLC extract; (iii) The Tribunal failed to consider the admission made by the petitioner regarding the accident; (iv) The Tribunal failed to consider the delay of 17 days in registering the case; (v) The claimant has played fraud on the Tribunal in getting the compensation and (vi) The award of global compensation is not justified. Therefore, the judgment and award needs to be set aside and claim of the petitioner needs to be dismissed. 4. The respondent No.1 herein is the claimant, respondent no.2 is the owner of the vehicle. Both were served and unrepresented. 5. Heard the learned counsel for the appellant and perused the material available on record. Now the point that would for my consideration is: Whether the Tribunal is justified in accepting the alleged accident while awarding compensation? 6. My answer to the above point is in the negative as per the final orders. 7. Both were served and unrepresented. 5. Heard the learned counsel for the appellant and perused the material available on record. Now the point that would for my consideration is: Whether the Tribunal is justified in accepting the alleged accident while awarding compensation? 6. My answer to the above point is in the negative as per the final orders. 7. The facts leading to the claim before the Tribunal is that, on 24/8/2009, the petitioner after attending pooja in the Shanimahatma temple was waiting on the left side of Jinnenahally Gate on Hassan-Arakalgud road, at that time, a Hero Honda motor cycle bearing registration No.KA-13/U-6855 came from Hassan side towards Arakalgud and dashed against the petitioner resulting in fracture on her left hand, as a result of which, she was admitted to Government Hospital, Hassan as inpatient on 24/8/2009 and she was treated there till 5/9/2009 and thereafter as outpatient for a period of one month. Claiming compensation of Rs.4.00 lakhs, the petitioner came before the Tribunal by filing a petition under Sec. 166 of the Motor Vehicles Act, 1988. 8. Before the Tribunal, the owner of the vehicle was placed exparte. The insurer alone contested the case on various grounds including that the vehicle in question was not involved in the accident and the injury has nothing to do with the alleged accident claimed by the petitioner. 9. The petitioner in order to prove her case examined herself as PW-1 and relied upon Exs.P1 to P9 and one witness was examined on behalf of the insurer as RW-1 and produced Exs.R1 and R2. 10. The Tribunal after hearing the arguments did not accept the plea of the insurer that the vehicle is not involved in the accident and also considered that the delay is natural and thereby considering the said aspect of the matter passed the impugned judgment in part and awarded a global compensation of Rs.22, 000.00. 11. It has been argued by the learned counsel for the appellant/insurer that the alleged accident claimed by the petitioner and the accident that has been informed to the hospital are different. 11. It has been argued by the learned counsel for the appellant/insurer that the alleged accident claimed by the petitioner and the accident that has been informed to the hospital are different. The petitioner is a resident of Kodakahally village of Arkalgud taluk, Hassan district and before the Tribunal, she has made a revelation that the accident took place at Kodakahally village and she was brought to the hospital by one Anand, her relative and in this regard, there was an entry in MLC register, a copy of which has been marked as Ex.R2. 12. Learned counsel brought to the notice of this court, the history mentioned as to the accident, wherein the place of accident is said to be Kodakahally village and there is no reference of Jinnenahally gate. Hence the contention of the petitioner that the accident that took place was at Kodakahally wherein the compensation is claimed to an accident that had occurred at Jinnenahally gate on the same day. It is the version of the appellant/insurer that there cannot be two accidents at the same time and therefore, the claim makes it clear that the vehicle has been fixed and a false claim has been made against the motor vehicle and the Tribunal has ignored of all these facts inspite of being brought to the knowledge of the Tribunal in the form of evidence and therefore, the impugned order needs interference. 13. Since the respondents though served and unrepresented, the Court has to decide the case on its merits, having regard to the material brought before the court in the form of evidence. 14. It is pertinent to note that the alleged accident took place on 24/8/2009 wherein one Anand has brought the petitioner to the General hospital, Hassan at 10.00 p.m. on the very same day where they have given the history of the accident as, "while she was standing by road side at 6.00 p.m. in her village, a two-wheeler hit her". The petitioner is admittedly a resident of Kodakahalli village and she is not the resident of Jinnenahally. 15. The petitioner is admittedly a resident of Kodakahalli village and she is not the resident of Jinnenahally. 15. As seen from the records, particularly Ex.R2, the MLC Register extract, a message was given to the Gorur Police on 5/10/2009 at 12.45 p.m., that the petitioner has sustained an injury in an accident at Kodakahalli, but as seen from the records, FIR was registered as per Ex.P1 on 10/9/2009 alleging that the accident took place near Jinnenahalli Gate on Hassan-Arkalgud Road in Hassan taluk, wherein it is stated that the petitioner is a resident of Kodakahalli village, Doddamagge Hobli of Arkalgud Taluk. If Ex.R2 is to be accepted, the alleged accident took place in Hassan taluk, wherein the petitioner is reported to the General Hospital, Hassan that she has sustained injury in an accident that took place at Arkalgud taluk. 16. In this regard, it is very relevant to refer the cross-examination of the petitioner where she admitted that she knew the owner of the motor cycle, who is none other than the first respondent before the Tribunal. Inspite of it, in Ex.P1/FIR and in her complaint, she did not refer to the name of the first respondent as the rider of the motor cycle. The cross-examination of PW-1 has brought out that the first respondent is the relative of the petitioner and it is he, who took her to the hospital and got her the treatment in the hospital. As he promised that he will take care of her, she did not file any complaint. As he did not come forward to take care of her, she filed the complaint later. Even the belated complaint did not refer to the name of the first respondent but the cross-examination of the first respondent clearly demonstrates that there is a collusion between the petitioner and the first respondent. To that extent, the statement of PW-1 refers as follows: ...[VERNACULAR TEXT OMITTED]... 17. On the other hand, RW-1/M.V.Dasharathi, the Development Officer of National Insurance Co.Ltd., Hassan, in his affidavit evidence alleged the defence that the accident place at Kodakahalli, but the place of accident as 'near Jinnenahalli Gate' has been invented by fixing the case. To that extent, the statement of PW-1 refers as follows: ...[VERNACULAR TEXT OMITTED]... 17. On the other hand, RW-1/M.V.Dasharathi, the Development Officer of National Insurance Co.Ltd., Hassan, in his affidavit evidence alleged the defence that the accident place at Kodakahalli, but the place of accident as 'near Jinnenahalli Gate' has been invented by fixing the case. The cross- examination of RW-1 did not point out that the accident took place near Jinnenahalli Cross and there is no denial or any explanation to the note made in Ex.R2 with regard to the history of the accident where it is clearly stated that the accident took place when the petitioner was standing by the side of the road at her village Kodakahalli. Thus, the evidence on record is very clear that the petitioner has sustained injuries involving a motor cycle by the road side of Kodakahalli village of Arkalgud taluk, wherein the alleged accident said to have been taken place near Jinnenahalli Gate of Hassan Taluk, thereby the petitioner sustained injuries at Arkalgud Taluk wherein the Police records did develop that the accident took place at Hassan taluk. 18. In North West Karnataka Road Transport Corporation -vs- Gourabai and Others, 2009 15 SCC 165 . the Hon'ble Apex Court held at para 3 as under: "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 place reliance on the document Ext.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." Therefore, it is the duty cast upon the Tribunal to consider the medical records carefully to ascertain the history of the accident. 19. I have perused the impugned order passed by the Tribunal where the learned Presiding Officer did not take into consideration relevant evidence very seriously and casually ignored the same and thereby the Tribunal has lost sight of the actual accident and the alleged accident. 19. I have perused the impugned order passed by the Tribunal where the learned Presiding Officer did not take into consideration relevant evidence very seriously and casually ignored the same and thereby the Tribunal has lost sight of the actual accident and the alleged accident. When the petitioner has not sustained any injury in the accident that took place near Jinnenahalli Gate in Hassan taluk, she cannot claim compensation for the injuries that she has sustained in an accident that took place at Kodakahalli village of Arkalgud taluk. 20. Even taking into consideration the gravity of the injury and also the expenses incurred for treatment, the Tribunal has awarded global compensation of Rs.22, 000.00 for the reason that the accident alleged by the petitioner is not genuine. Hence, the impugned judgment is based on an surmises and conjectures and not supported by the evidence relied upon by the petitioner. Hence, the petitioner cannot be awarded any compensation for the injuries that she has sustained in the accident that took place at Kodakahalli village of Arkalgud Taluk. Hence, the claim is devoid of merits. Accordingly, the order impugned is perverse and illegal, which calls for interference. In the result, I pass the following order: The appeal is allowed. The impugned judgment and award dtd. 1/2/2012 in M.V.C.No.7/2010 passed by the M.A.C.T., Arkalgud, is hereby set aside. The petition filed by the petitioner/first respondent herein under Sec. 166 of the Motor Vehicles Act is hereby dismissed. Any statutory deposit, if made by the appellant, shall be returned to the appellant.