THE DIVISIONAL MANAGER, THE ORIENTAL INSURANCE COMPANY LIMITED v. SHRI. K. GANESHWAR MURTHY

2. SHRI. DAVALSAB S/O. NOORAHMED MALADAR, AGE: MAJOR, OCC: DRIVER, R/O.SECTOR NO.30, 2 PLOT NO.82, NAVANAGAR, BAGALKOT.

3. SHRI. MOULASAB HUSAINSAB MANIYAR, AGE: MAJOR, OCC:BUSINESS, R/O.WARD NO.4, NEAR KBS NO.5, BAGALKOT. (BY SRI.JAGADISH PATIL, ADV. FOR R1 SRI. MALLIKARJUN B. HIREMATH, ADV FOR R2 AND R3) ... RESPONDENTS MFA NO.20425/2009 IS FILED UNDER SECTION 173(1) OF MV ACT 1988 AGAINST THE JUDGMENT AND AWARD DATED 7.7.2008 ON THE FILE OF MACT-II, BAGALKOT, AWARDING A COMPENSATION OF RS.1,79,995/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT ETC., M.F.A. NO.20426/2009 BETWEEN: THE DIVISIONAL MANAGER, THE ORIENTAL INSURANCE COMPANY LIMITED DIVISIONAL OFFICE, CHENNAI, THROUGH ITS HUBLI REGIONAL OFFICE, REPRESENTED BY THE CHIEF REGIONAL MANAGER, ORIENTAL INSURANCE COMPANY LTD., SUMANGALA COMPLEX, LAMINGTON ROAD, HUBLI. ... APPELLANT (BY SRI.M.K.SOUDAGAR, ADV.) AND:

1. D. RAMESHKUMAR S/O. DURISWAMI, AGE: MAJOR, OCC: DRILLER/HELPER, R/O. 74-3, PERUMAL KOVIKADU, VELLANDI, VALASU, (PO), E-EDAPPADY, TQ: SALAM DIST, TAMILNADU-STATE NOW RISIDING AT 3 VIDYAGIRI, BAGALKOT.

2. SHRI. DAVALSAB S/O. NOORAHMED MALADAR, AGE: MAJOR, OCC: DRIVER, R/O.SECTOR NO.3, PLOT NO.82,NAVANAGAR, BAGALKOT.

3. SHRI. MOULASAB HUSAINSAB MANIYAR, AGE: MAJOR, OCC:BUSINESS, R/O.WARD NO.4, NEAR KBS NO.5, BAGALKOT. (BY SRI.JAGADISH PATIL, ADV. FOR R1 R2 AND R3 ARE SERVED BUT UNREPRESENTED) ... RESPONDENTS MFA NO.20426/2009 IS FILED UNDER SECTION 173(1) OF MV ACT 1988 AGAINST THE JUDGMENT AND AWARD DATED 7.7.2008 ON THE FILE OF MACT-II, BAGALKOT, AWARDING A COMPENSATION OF RS.24,470/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALISATION. THESE APPEALS COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING JUDGMENT The 3rd respondent – Insurance Company in M.V.C. Nos. 44 and 45 of 2006 has come up in these two appeals impugning the common judgment dated 07.07.2008 passed in claim petitions which were pending on the file of M.A.C.T. Bagalkot.

2. The brief facts leading to these appeals are as under; The case of the claimants before the Tribunal in M.V.C. Nos. 44 and 45 of 2006 are that, they were travelling on Yamaha motor cycle bearing No. KA.29/L-2246 4 Gaddanakeri cross to Bagalkot on 07.12.2005 at about 10.30 a.m. their vehicle met with an accident due to involvement of maxi cab resulting in injuries to both of them. hence, they filed claim petitions seeking compensation for the injuries suffered in the aforesaid accident. In the said proceeding they arrayed the owner and insurer of maxi cab bearing No. KA-28/A-8891 and sought compensation from the owner and insurer of both the vehicles.

3. In the proceedings before the Tribunal the driver and owner of the offending maxi cab were arrayed as respondent Nos. 1 and 2 they entered appearance, wherein respondent admit the ownership of the vehicle admits the accident, however denies that it is because of the negligent act on the part of the driver and by way of abundant caution aver that in the event compensation to be awarded and the same shall be paid by the insurer of offending vehicle. The said statement is adopted by the 1st respondent driver. The claim petition is contested only by the 3rd respondent – Insurance Company appellant herein on the ground that the vehicle referred to in the claim petition is not the vehicle which has caused the accident even according to the claimant. Based on the rival pleadings, issues were framed, 5 evidence was recorded in support of both the claimants and contesting respondent Insurance Company.

4. The Tribunal on appreciation of pleadings, oral evidence of P.Ws. 1 and 2 i.e., claimants in both the petitioners in both the claim petitions and also the Doctor, who has given evidence regarding the injury and after going through the documents which are produced and going in support of their claim petition and also for the respondent proceeded to allow the claim petition awarding compensation to both claimants in a sum of Rs.1,79,995/- and Rs.24,470/- respectively.

5. Being aggrieved by the same, these two appeals are filed by the Insurance Company mainly on the ground that the vehicle belonging to 2nd respondent and insured with 3rd respondent viz., maxi cab bearing No. KA-28/A-8891 is an implicated vehicle and is not the vehicle involved in the accident. In that view of the matter, the Insurance Company is not liable to pay compensation for which the appellant strongly relies upon the police documents which has come into existence at the undisputed point of time. 6

6. Heard learned counsel for appellant and respondents. Perused the ground of appeal with reference to the finding of the Tribunal in the judgment impugned and also the oral and documentary evidence available on record. Admittedly, the accident is said to have taken place on

07.12.2005 at about 1.30 hours. It is seen that immediately after the accident rider of the motor cycle has lodged complaint vide Ex.P-2, based on which the F.I.R. is drawn. On going through the same, it is clearly seen that according to the rider of the motor cycle, the vehicle which came and hit his motor cycle is maxi cab bearing No. KA-29/2533 which is also mentioned in the F.I.R.

7. Subsequently, it is seen that a further statement is recorded on 07.12.2005 itself. Incidentally, the said voluntary statement of the complainant does not bear his signature, wherein he changes the number of the vehicle bearing No. KA- 29/2533 to KA-28/A-8891. However, in further statement the reason for furnishing wrong number earlier is not stated and also does not say how he came to know about the correct number from whom he was informed and how he realised that a mistake was committed by him earlier is not explained. 7

8. On going through three these documents it is clearly seen that the said statement being recorded on 07.05.2012 appears to be doubtful inasmuch as the signature of the claimant is not there. It is self-serving statement prepared by the officers of Bagalkot police station, obviously with an intention to help the claimants before the Tribunal in securing compensation through the owner of the vehicle having valid Insurance coverage for the said vehicle. Obviously, that would be the reason, infact when these documents were glaring at the face of the Presiding Officer, he does not look into same, but conveniently tried to ignore the said mistake by relying upon two judgments of the Apex Court which have no nexus to the facts on hand and are quoted out of context. On going through the same, it is clearly seen that there is serious lapse on the part of the Presiding Officer of the Tribunal in appreciating the pleadings, oral and documentary evidence available on record. Inasmuch as ignoring the material evidence which would have assisted to come to right conclusion regarding involvement of the vehicle which has caused the accident. In that view of the matter, it is clearly seen that the claim is fraudulent as against the owner and insurer of the vehicle 8 implicated in this accident. Further this is confirmed by the conduct of respondent Nos. 1 and 2 inasmuch as accepting the accident and not stepping into the witness box and by deliberately stating that they have tried to support the false and frivolous claim of the petitioners before the Tribunal.

9. In that view of the matter, the appeals filed by Insurance Company is allowed. Consequently, the impugned common judgment passed in M.V.C. Nos. 44 and 45 of 2006 on the file of M.A.C.T., Bagalkot, is set aside. In view of the appeals being allowed, the amount in deposit is ordered to be refunded to the Insurance Company. SD/- JUDGE hnm/