The Branch Manager United India ... vs Pandharinath S/O Maharudrappa ...
2021 Latest Caselaw 5447 Kant

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         IN THE HIGH COURT OF KARNATAKA
                KALABURAGI BENCH


  DATED THIS THE 04TH DAY OF DECEMBER, 2021
                      BEFORE
        THE HON'BLE MR.JUSTICE M.G.S.KAMAL
              MFA No.31295/2013 (MV)
BETWEEN:

THE BRANCH MANAGER
UNITED INDIA INSURANCE CO. LTD.,
BRANCH OFFICE, NO.9-2-24/5
FIRST FLOOR, MAIN ROAD, BIDAR
THROUGH ITS DIVISIONAL MANAGER
JAWALI COMPLEX, SUPER MARKET
GULBARGA.                            ... APPELLANT

(BY SRI. SHIVANAND PATIL, ADVOCATE)

AND:

01.    PANDHARINATH S/O MAHARUDRAPPA SUTAR
       AGE: 54 YEARS OCC: SERVICE WORKING AS
       CASHIER IN KRISHNA GRAMEENA BANK,
       RESIDENT OF SHIVANAGAR,
       BIDAR-585 401.

02.    SHIV KUMAR S/O SHANKER KANNA
       AGE: 38 YEARS OCC: BUSINESS
       R/O: H.NO.9-12-386
       VIDYANAGAR COLONY
       BIDAR - 585 401.            ... RESPONDENTS

(BY SRI. KHADME UMESH, ADVOCATE FOR R1
VIDE ORDER DATED 21.11.2016 NOTICE TO R2 HELD
SUFFICIENT)
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      THIS MISCELLANEOUS FIRST           APPEAL    IS   FILED

UNDER SECTION 173 (1) OF THE MOTOR VEHICLES ACT

PRAYING TO CALL FOR RECORDS AND HEAR THE PARTIES

AND SET-ASIDE THE JUDGMENTS AND AWARD DATED

18.09.2012 IN MVC.NO.289/2008 ON THE FILE OF FAST

TRACK-II AND MACT AT BIDAR.


      THIS APPEAL COMING ON FOR FINAL HEARING THIS

DAY, THE COURT DELIVERED THE FOLLOWING:-


                        JUDGMENT

This appeal is filed by the appellant - insurance

company against the judgment and order dated

18.09.2012 passed in MVC.No.289/2008 by the Fast

Track-II and MACT at Bidar ( for short 'Tribunal').

02. The Brief facts leading upto filing of the present

appeal are that on 04.05.2006 at about 10.15 a.m. the

claimant was proceeding for his duty from his house by

walk. On the way his friend Praveen Kumar came on his

motorcycle bearing Reg.No.KA-38-J-3974. The claimant

thereafter proceeded on his motorcycle as a pillion rider.

When they reached near Bareed Shahi Garden Bidar, the

rider of another motorcycle bearing Reg.No.KA-38-7759

came on wrong side in a rash and negligent manner and

dashed to the motorcycle of the claimant, as a result the

claimant sustained grievous injuries.

03. Thereupon, the claimant has filed a claim

petition under Section 166 of the M. V. Act seeking

compensation on the premise that he was working as

cashier in the Krishna Grameen Bank and getting salary of

Rs.18,080/- per month and was contributing the same for

his family welfare. Due to the said accident he was unable

to join his duty for three months and lost his leave salary.

Further he is not able to carryout routine work as earlier.

It is further case of the claimant that on the date of

accident, at the time of filing the complaint before the

police, number of the motorcycle was given was KA-38-

7759. However, during the investigation it was found that

one Mr.Mallikarjun, the rider of Hero-Honda Splendor

motorcycle bearing Reg.No.KA-38-H-9002 had caused the

accident and not the rider of the bike bearing No.KA-

38/7759. He further pleaded that due to serious injuries

sustained by him, he was in the state of semi-conscious

and he could not give correct registration number of the

motorcycle which had caused the accident. The respondent

No.1 is the owner and respondent No.2 is the insurer of

the offending vehicle are jointly and severally liable to pay

the compensation.

04. Upon service of notice, the respondents No.1

and 2 appeared before the Court. Respondent No.2 has

filed the written statement denying the mode and manner

of accident. It was specifically contended that the claim

petition was filed in collusion with the police, who at the

instance of the claimant had changed the vehicle involved

in the accident to that of a different vehicle. It is

contended that while registering the FIR, the claimant had

specifically given the number oft he vehicle involved in the

accident as KA-38-7759. However, subsequently to derive

the undue benefit, another vehicle bearing Reg. No..KA-

39-H-9002 has been implicated. The involvement of the

vehicle bearing Reg.No.KA-38-H-9002 is false and

unjustifiable. It is further contended that the accident had

taken place on 04.05.2006 and the panchanama was

drawn on the same day itself, wherein the registration

number of the motorcycle was shown as KA-38-7759 and

thereafter the claimant changed his version in pleading

and implicated the motorcycle bearing Reg.No.KA-38-H-

9002. Hence, sought for dismissal of the claim petition.

05. The Tribunal based on the pleadings of the

parties, framed issues and recorded evidence. The

claimant examined himself as PW.1 and marked nineteen

documents as Exs.P1 to Ex.P.19. On behalf of the

respondent No.2 one K. Ramanna, Branch Manager

examined as RW.1 and no documents are produced.

06. The Tribunal based on the pleadings and

evidence on record held that the accident in question

occurred due to rash and negligent riding of the offending

motorcycle bearing Reg.No.KA-38-H-9002 by its rider

causing injuries to the claimant. Consequently, the

Tribunal held that the claimant is entitled for a total

compensation of Rs.95,660/- along with interest at the

rate of 6% p.a. from the date of petition till payment.

07. Being aggrieved by the same the appellant -

insurer of the offending vehicle is before this Court.

08. The learned counsel for the appellant -

insurance company reiterating the grounds urged in the

appeal memorandum submits that a bare perusal of the

FIR and Panchanama, reveal that the vehicle which was

involved in the accident was bearing Reg.No.KA-38-7749.

However, it is subsequently substituted with another

vehicle bearing Reg.No.KA-38-MH-9002, as the said

vehicle bearing Reg.No.KA-38-H-7759 was not insured.

Therefore, he submits that it is a case of clear

manipulation and fabrication of the record to implicate the

vehicle bearing Reg.No.KA-38-H-9002. He further submits

that the Tribunal had not taken into consideration this

aspect of matter and therefore arrived at an erroneous

conclusion that accident in question was caused by the

motorcycle bearing Reg.No.KA-38-H-9002. Accordingly,

sought for allowing the appeal.

09. Heard the learned counsel for the appellant -

insurance company and perused the records.

10. The point that arise for consideration are:

"Whether the appellant - insurance company has made out a case for interference in the judgment and order passed by the Tribunal.?"

11. The accident in question is not in dispute and

injuries suffered by the claimant are also not in dispute.

The only dispute raised by the insurance company is with

regard to involvement of the vehicle i.e., "whether it is the

vehicle bearing Reg.No.KA-38-7759 or KA-38-H-9002."

The vehicle number mentioned in the FIR is KA-38-H-

7759. However, during the investigation, the jurisdictional

police have found that the actual vehicle involved in the

accident is bearing Reg.No.KA-H-9002. Pointing out on

this, learned counsel for the appellant submits that this is

a false implication as the earlier vehicle did not have

insurance coverage therefore the claimant and the police

in collusion have manipulated the records by implicating

another vehicle, which had the insurance coverage.

12. However, as rightly noted by the Tribunal, the

insurance company has not led in cogent evidence with

regard to reasons for so-called false implication of the

vehicle bearing Reg.No.KA-38-H-9002. After the

investigation by the police it was found that the vehicle

bearing Reg.No.KA-38-9002 was involved in the accident

and not the vehicle bearing Reg.No.KA-38-7759. The

insurance company has not proved its contention of false

implication of the vehicle.

13. Be that as it may, it is necessary at this

juncture to note that against the order of the Tribunal, the

claimant (respondent No.1 herein) had earlier filed an

appeal in MFA.No.32926/2013 on the file of this Court for

enhancement of compensation. The Insurance company

(appellant herein) was arrayed as respondent No.2 in the

said matter. This Court by an order dated 30.10.2014 has

allowed the said appeal and awarded the additional

compensation of Rs.50,000/- to the claimant in the said

case. The said matter has attained finality.

14. Though it is specific case of the appellant -

insurance company that the vehicle bearing Reg.No.KA-38-

9002 was implicated in the place of KA-38-7759, except

the said allegation, no material evidence is produced by

the insurance company. It is settled principle of law that

FIR is not a substantial piece of evidence. The contents of

the same can be used to corroborate the other material

evidence on record. It is necessary to note after the

investigation the police have filed the charge sheet which

has neither been disputed not challenged by the insurance

company. If as stated by the learned counsel for the

Insurance Company, the vehicle bearing Reg.No.KA-38-

7759 did not have the insurance coverage as on the date

of accident, therefore, the vehicle bearing Reg.No.KA-38-

9002 was implicated, nothing prevented the insurance

company to produce material evidence in this regard. In

the absence of production of material evidence, no fault

can be found in the reasoning given by the Tribunal. Since

the insurance company is disputing its liability on the

premise of collusion between the claimant and the police,

it ought to have discharged its burden by leading proper

and acceptable evidence in this regard. The insurance

company has not even examined the investigating officer

or even the owner of the motorcycle involved in the

accident. Merely because there is a change in the vehicle

cannot be the ground to suspect the case of claimant

particularly in the absence of any rebuttal evidence being

led in by the insurance company.

15. For the aforesaid reasons, the point raised is

answered in the negative and hence the following:

ORDER

1. MFA No.31295/2013 filed by the appellant -

insurance company is dismissed.

2. The amount in deposit if any be transmitted to the

Tribunal.

Sd/-

JUDGE

KJJ