ORIENTAL INSURANCE COMPANY LIMITED Vs. RAYAN FERNANDES

JUDGEMENT

(1.) The captioned appeals are directed against the judgment and award dated 8.7.2010 passed in MVC.No.230/2010 by the Principal District Judge and Member, MACT, Udupi. MFA.No.7279/2016 is filed by the Insurance Company questioning false implication of the rider of the bike by the first respondent-claimant with the connivance of the second respondent-owner of the bike, whereas the claimant has referred MFA.No.7110/2016 seeking enhancement.

(2.) For the sake of convenience, the parties are referred to as per their rank before the Tribunal.

(3.) The facts leading to the filing of the above appeals are as under: The claimant filed a claim petition claiming compensation of Rs.51 lakhs with interest at 12% p.a. The claimant specifically contended in the claim petition that on 24.9.2008 at about 10.15 p.m., he was walking by the side of the road and when he reached Bhajanakatte- Bommarabettu, Udupi Taluk, a motor cycle bearing Regn.No.KA-20/V-1137 came from the hind side in a rash and negligent manner to the extreme side of the road and dashed against the cement drain and thereafter dashed against him, as a result of the same claimant fell down and sustained grievous injuries. Claimant was immediately shifted to Kamath Nursing Home, Hiriadka, and after first aid he was shifted to KMC Hospital, Manipal, wherein he was admitted as an inpatient. The claimant specifically averred in the claim petition that on account of grievous injuries sustained in the accident, he had to undergo treatment and had incurred medical expenses of Rs.4 Lakhs. The claimant further contended that he has undergone vocational training and also completed a course in mechanical maintenance and he is a Industrial technician and has undergone training and getting a salary of Rs.12,000/- p.m. and on account of disability suffered in the above said road traffic accident, he is virtually leading a vegetative life. The claimant has further contended that he is the sole bread earner and his father is a jobless person and his entire family is dependant on his earning. On these set of grounds, he filed the claim petition. On receipt of notice, the first respondent-owner appeared through an advocate and filed written statement contending that the claimant has suppressed the true facts regarding the alleged accident. He has specifically stated that on the alleged date of accident, the rider of the bike was proceeding in a careful manner and when he reached the place called Bhajanakatte- Bommarabettu, the petitioner suddenly crossed the road and dashed against the vehicle and sustained grievous injuries. On these set of defences, the first respondent claimed that the claimant is guilty of contributory negligence on his part and as such he is not entitled for any compensation. The respondent No.2-Insurance Company filed written statement and stoutly denied the entire averments made in the claim petition. The respondent no.2-Insurance Company at para 5 of the written statement specifically disputed the very version narrated by the claimant in the claim petition. It is the specific case of the Insurance Company that the claimant was riding the motor bike on the alleged date of accident. On account of his rash and negligent riding, he lost control over the bike and sustained grievous injuries. The second respondent-Insurance Company further contended that since first respondent himself is the tort feasor, he is not entitled to claim compensation and a specific averment was also made at Para 5 of the written statement that owner of the bike colluded with the claimant with an intention to saddle the liability on the Insurance Company to pay the compensation and that the claim petition is filed after two years. It is also contended at para 9 of the written statement that the claimant did not possess driving licence to ride the bike as on the date of the accident. The other averments in regard to avocation, salary and gravity of injuries sustained by the first respondent is also seriously disputed by the Insurance Company. The claimant examined his mother as P.W.1 and examined himself as P.W.2. The first respondent also examined one eye witness as P.W.4, doctor as P.W.3 and the Investigating officer as P.W.5 To corroborate the ocular evidence, the claimant got marked Exs.P1 to P22. The second respondent-Insurance Company examined three witnesses as R.Ws.1 to 3 and by way of rebuttal evidence produced documentary evidence vide Exs.R1 to 9 and M.O.1-C.D.