National Insurance Co. Ltd vs Sri Muniyappa S/O Anjanappa
2021 Latest Caselaw 5477 Kant

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     IN THE HIGH COURT OF KARNATAKA, BENGALURU

       DATED THIS THE 04TH DAY OF DECEMBER 2021

                          BEFORE

           THE HON'BLE MR.JUSTICE P.N.DESAI

             M.F.A. NO.5739 OF 2012 (MV-D)
BETWEEN:

NATIONAL INSURANCE CO., LTD.,
REGIONAL OFFICE,
NO.144, SUBHARAM COMPLEX,
M.G.ROAD, BANGALORE-560001,
REP. BY ITS ADMINISTRATIVE OFFICER,
SMT.D.KARTHIKA.                                 ...APPELLANT

(BY SHRI. B.C.SEETHARAMA RAO, ADVOCATE)

AND:

1.   SRI. MUNIYAPPA,
     AGED ABOUT 59 YEARS,
     S/O. ANJANAPPA,
     RESIDENT OF YANTAGANAHALLI,
     NELAMANGALA TALUK,
     KASABA HOBLI - 560 094.

2.   M/S. ABHARAN JEWELLERS,
     RESIDING AT NO.192,
     MAHALAKSHMI LAYOUT,
     WEST OF CHORD ROAD,
     BANGALORE - 560 086.
     (OWNER OF CAR NO.
     KA.04/MD-911).

3.   SRI SRINIVASA,
     S/O.SRI VEERAPPA,
     R/AT.DASANAPURA VILLAGE AND POST,
     DASANAPURA HOBLI,
     BANGALORE NORTH TALUK - 560 094,
     (ALLEGED RIDER OF M/C NO.KA.02/EM-3037).
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4.   SRI HANUMANTHARAJU,
     MAJOR,
     S/O. GANGANNA,
     NO.176, YENTAGANAHALLI,
     NELAMANGALATALUK,
     BANGALORE RURAL
     DISTRICT - 560094.                      ...RESPONDENTS

(BY SRI T.MOHANDAS SHETTY, ADVOCATE FOR R2,
    SRI RAVINDRA BABU, ADVOCATE FOR R3 & R4;
        V/O/DT: 31.06.2016 SERVICE OF NOTICE TO R1
        HELD SUFFICIENT)
                            ----

      THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988, AGAINST
THE JUDGMENT AND AWARD DATED: 15.02.2012 PASSED IN MVC
NO.6876/2009 ON THE FILE OF XXI ACMM AND XXIII ADDITIONAL
SMALL CAUSE JUDGE, BANGALORE, AWARDING A COMPENSATION
OF RS.2,33,334/- WITH INTEREST @ 6% P.A FROM THE DATE OF
PETITION TILL THE DATE OF DEPOSIT.

     THIS APPEAL COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                               JUDGMENT

This appeal lays challenge to the judgment and award

passed by the XXI ACMM and XXIII A.S.C.J, Bengaluru, dated

15.02.2012 in MVC No.6876/2019, wherein the tribunal has

awarded a compensation of Rs.2,33,334/- with interest at

6% per annum to the claimant/petitioner who was

respondent No.1 in this case.

2. The brief case of the claimant before the tribunal

was that on 30.09.2007, while the deceased - Ramachandra

@ Chandrakumar was travelling as a pillion rider on the

motor cycle bearing registration No.KA-02/EM-3037, which

was ridden by one Srinivas towards north-south wise at

Subramanyanagar, Bengaluru, at that time, the driver of the

car bearing Registration No.KA-04:MD/911 drove the same

with a high speed in a rash and negligent manner and dashed

against the motor cycle. Due to the impact, the pillion rider -

Ramachandra fell down and sustained grievous injuries.

Immediately after the accident, Ramachandra shifted to

Nimhans hospital, wherein he took treatment as an inpatient

and succumbed to the injuries on 04.10.2007. Hence, the

petitioner being the father of deceased - Ramachandra filed

the claim petition, claiming compensation for the death of his

son.

3. Respondents appeared through counsel and filed

separate objections. RespondentNo.1-insurer of the offending

car admitted that the policy was in force as on the date of the

accident, but they denied the liability and stated that the

liability is subject to terms and conditions of the policy.

Respondent No.1 has denied the occurrence of the accident,

income of the deceased and other contentions taken by the

petitioner. It is contended that the charge-sheet was filed

against the rider of the motorcycle and the driver of the car is

no way responsible for the accident. Hence, the petitioner is

not entitled for any compensation. It is also contended that

the driver of the car was not having valid driving license as

on the date of the accident, hence, respondent No.1 is not

liable to pay compensation and also denied other contentions

of petitioner. The owner of the car also took similar

contention and contended that the accident was due to

negligence on the part of the rider of the motor cycle bearing

registration No.KA-02:EM-3037. In fact the driver of the car

has lodged the complaint against the rider of motor cycle and

the rider of the motor cycle was charge sheeted and there is

no negligence on the part of the driver of the car. Further it is

also contended that the petitioner is entitled to claim

compensation from the owner and insurer of the motor cycle.

With these main contentions, they prayed to dismiss the

petition.

4. Respondent Nos.3 and 4 who are the rider and

owner of the motorcycle contended that it is the driver of the

car who caused the accident and his pillion rider sustained

injuries and succumbed to the injuries. The police have

registered a false case against respondent No.3 on the basis

of complaint lodged by driver of the car. But he was acquitted

of the charges. It is further contended that as per the case

history sheet maintained in the Nimhans hospital, it is stated

that the two wheeler is hit by four wheeler in the death

memo. Hence, they prayed to dismiss the petition against

them.

5. The tribunal after considering the pleadings and

contentions of the parties, framed the following issues:

"1. Whether the petitioner proves that he is the Legal heir of the deceased Ramachandra @ Chandra Kumar?

2. Whether the petitioner proves that the death of his son Ramachandra @ Chandra Kumar on 4.10.2007 is due to the use of Motor cycle bearing Reg. No.KA-02:EM-3037 on 30.9.2007 in which his son was a pillion rider?

3. Whether the petitioner is entitled for compensation? If so, what is the quantum? From whom payable?

4. What order or award?"

6. Before the tribunal, petitioner No.1 got examined

himself as PW.1, got examined another two witnesses as

PWs.2 and 3 and got marked sixteen documents as Exs.P1 to

P16 which consists of copy of the FIR, copy of the complaint,

requisition letter, mahazar, PM report, inquest report, ration

card, election identity car, authorization letter, case sheet,

certified copy of the judgment in criminal case against the 3rd

respondent, 9 certified copies of depositions, intimation letter

etc., On behalf of respondents, one G.Shivakumar -

Administrative Officer got examined himself as RW.1 and

driver of the car - Bharath Kamath got examined himself as

RW.2 and got marked two documents as Exs.R1 and R2.

7. After hearing the arguments of learned counsel

for the parties, the tribunal passed the impugned judgment

and award which is under challenge now.

8. Heard Sri.B.C.Seetharama Rao, learned counsel

for the appellant and Sri. T.Mohandas Shetty, learned counsel

for respondent No.2 and Sri. Ravindra Babu, learned counsel

for respondent Nos.3 and 4.

9. The learned counsel for the appellant argued that

the tribunal has failed to appreciate the evidence on record.

In fact, the accident occurred due to the negligence of the

rider of the motor cycle. The tribunal ought to have decided

the negligence issue based on the material evidence placed

on record, even though the petition was filed under Section

163-A of the M.V.Act. Even in a bonafide claim under Section

163-A of the Motor Vehicles Act, the liability to pay the

compensation would be against the owners and insurers of

both the vehicles involved in the accident. The charge sheet

was manipulated against rider of the motor cycle. It is the

rider of the motor cycle alone who is responsible for the

cause of accident and it is the deceased who was riding the

motorcycle at the time of accident. Therefore, the father of

the deceased is not entitled for any compensation from the

third party and the evidence of RW.2 is not considered by the

tribunal. Therefore, learned counsel argued that the award of

the compensation is contrary to material on record hence,

prays to set aside the award and dismiss the appeal.

10. Against this learned counsel for

petitioner/respondent No.1 in this appeal supported the

impugned judgment and award and stated that the judgment

passed by the tribunal is just, proper and reasonable and the

same does not requires any interference.

11. I have perused the appeal memo, impugned

judgment and records of the tribunal.

12. From the above materials, the point that arise for

my consideration of this court is:

"1. Whether the judgment of the tribunal is illegal, erroneous and needs any interference by this court?

2. Whether the claimant being father of the deceased who is rider of the motorcycle is entitled for compensation."

13. The claimant being the father of the deceased got

examined himself as PW.1 and produced documents which

shows that the deceased died in the accident. The petitioner

is not the eye witness to the accident and he has examined

rider of the motorcycle as PW.3. Admittedly, the charge

sheet is filed against the rider of the motorcycle who

admitted that he was riding the motor cycle at the time of

accident. He was acquitted in the criminal case as per the

judgment passed in C.C.No.245/2008 dated 19.08.2010-

Ex.P13. Therefore, the tribunal held that the death of the

deceased while travelling as a pillion rider in the motor cycle

is proved. Further, the tribunal taking the income of the

deceased and other materials, awarded the compensation.

14. Insurance company has examined RW.1 -

administrative officer of respondent No.1/insurance company.

He has admitted that policy was in force in respect of the

offending car. The only contention taken by insurance

company is that since the case is registered against rider of

the motorcycle, insurance company is not liable to pay the

compensation. But as per the evidence of RW.1, the

deceased himself was riding the motor cycle and has

produced copy of the emergency case record of Nimhans

marked as Ex.R2. The tribunal held that mere registering of

criminal case against the rider of the motor cycle is not a

conclusive proof regarding rash and negligent riding of rider

of the motor cycle. Exs.P5 and P6 - sketch and mahazar,

corroborates the evidence of PW.3. As per the evidence of

PW.3, he was acquitted in the criminal case. Further, the

insurer has failed to prove that the accident occurred due to

the rash and negligent riding of the motorcycle. Further, the

respondents have failed to prove that there is no negligence

on the part of the driver of the car. Hence, the tribunal found

that the accident occurred due to the negligence of the driver

of the car. But the tribunal believing the evidence of PW.3

and looking to the evidence of driver of the car, came to

conclusion that the accident occurred due to the negligence

of the car driver. Therefore, answered that issue.

15. It is evident from the record that the driver of the

car has given the complaint against the rider of the motor

cycle and he was charge-sheeted and he was acquitted. But

considering the sketch map and evidence on record, the

tribunal found that the driver of the car was negligent.

Ofcourse, acquittal or conviction has no direct bearing on

claim petition while considering the case regarding

compensation under motor accident cases. RW.1 -

administrative officer of insurance company has not seen the

accident. Insurance company has not proved its case by

examining any eye witness. The insurance company has not

filed separate investigating report. But recently the Hon'ble

Supreme Court in the decision rendered in the case of United

India Insurance Company Ltd. vs. SunilKumar and anr.

reported in AIR 2017 SC 5710 while considering the claim

petition under Section 163A of Motor Vehicles Act (for short

the Act), held that in a proceeding under Section 163A of the

Act, it is not open for the Insurer to raise any defence of

negligence on the part of the victim. Therefore, the question

of considering the negligence of the deceased does not arise

and insurer could not raise such defence in a petition filed

under Section 163A of Act. Whether he was a rider or pillion

rider, the tribunal has came to the conclusion based on the

evidence and held that it is the driver of the car who has

caused the accident and involvement of car is not disputed.

Therefore, the insurer/appellant is liable to pay the

compensation.

16. There is no pleading with regard to contributory

negligence on the part of the deceased - pillion rider. The

tribunal has rightly held that the accident occurred due to the

negligence on the part of the driver of the car and there is no

need to interfere with the said finding. Therefore, the appeal

filed by the appellant does not survive for consideration. The

appeal being devoid of merit is liable to be dismissed.

In the result, I proceed to pass the following:

ORDER

(i) Appeal is dismissed.

      (ii)    There is no order as to costs.


      (iii)   The   amount     in    deposit   be   immediately

transmitted to the tribunal for disbursement.

Sd/-

JUDGE HJ