The New India Assurance Co.Ltd vs Beerappa S/O Mallappa ...
2021 Latest Caselaw 5631 Kant

IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

      DATED THIS THE 7 T H DAY OF DECEMBER, 2021

                           BEFORE

         THE HON'BLE MR.JUSTICE RAVI V.HOSMANI


                M.F.A.No.21389/2010 (MV-I)

BETWEEN:

The New I ndia Assurance Co mpany Limited
Branch Office,
J.C.Nagar Hubli, through its
Divisional Officer
The New I ndia Assurance Ltd.,
Divisional Office Club Road, Be lgaum
                                                  ... APPELLANT
(BY SRI. G.N. RAI CHUR, ADV OCATE)

AND

1. Beerappa
S/o Mallappa Khanappanaar
Age: 30 ye ars
Occ: A griculture & M ilk Ve nding
R/o S idogi Tq: Saundatti D ist: Be lgaum

2. S ri Rudrappa
S/o Gurusiddappa Wali
Age: Major
Occ: A griculture/Business
R/o Karikatti Tq: Saundatti
Dt.Be lgaum

                                             ... RES PONDENTS
(BY SRI H.M. DHA RIGOND, ADVOCA TE)

      THIS MISC.FIRST APPEAL IS FI LED UNDER SECTION
173(1)    OF   MOTOR   VEHICLES   A CT,   1988,   AGAINST   THE
                                     2




JUDGMENT AND A WARD DATED 24.09.2009 PA SSED IN MVC
No.255/ 2005        ON     THE    FILE   OF      THE    ADDL.     MACT,
SAUNDATTI,          AWARDING         THE      COMPENSATION            OF
RS.2,30,500/- WITH INTEREST AT THE RATE OF 6% P.A .
FROM THE DATE OF PETITON TILL REALISATION.


     THIS APPEA L COMING ON FOR HEARING THIS DAY,
THE COURT , D ELIV ERED THE F OLLOW ING:

                              JUDGMENT

Challenging judgment and award dated

24.09.2009 passed by Addl. Civil Judge (Sr.Dn.) and

Addl. MACT, Saundattti, (for short, 'tribunal') in MVC

No.255/2005, this appeal is filed by insurer-appellant.

2. Brief facts as stated are that on 26.04.2004 at

about 4.30 p.m. Beerappa while riding pillion on

motorcycle bearing registration No.KA-29-E/4354

sustained grievous injuries when Mahindra Jeep

bearing registration No KA-21-Z 8899 collided with it

due to rash and negligent driving by its driver.

Immediately after accident claimant was shifted to Dr.

Naik's hospital, Munavalli. Despite taking treatment, he

did not recover fully and sustained physical disability.

Claiming compensation for the same, he filed claim

petition under Section 166 of the Motor Vehicles Act

(for short referred to as 'Act') against owner and

insurer of offending vehicle.

3. On service of summons respondent no.1 -

owner entered appearance and filed objections denying

occurrence of accident, age, occupation, income and

also loss of earning capacity sustained by claimant. It

was contended that driver of Jeep was acquitted in the

criminal case filed against him. It was also stated that

vehicle was insured with respondent no.2 and driver

was holding valid licence, therefore, award if any, be

passed against respondent no.2. Respondent no.2 -

insurer also denied accident. It alleged collusion

between police and claimant. Issuance of insurance

policy was admitted, but alleged violation of terms and

conditions.

4. Based on pleadings tribunal framed following

issues:

1.Whether the petitioner proves that, he sustained bodily injuries in a motor vehicle accident that occurred on 6.04.2004 at about 16.30 hours on Munavalli-Yaragatti road, on account of rash and negligent driving of the driver of Mahendra Jeep No KA.24/Z-8899?

2. Whether the petitioner is entitled to any compensation? if so, what is the quantum and from whom?

3. What order or award?

5. In order to establish his case, claimant got

himself examined as PW1. Dr. B.F. Patil and Fakirappa

G Khanappanavar, rider of motorcycle were examined

as P.W.2 and P.W3. Exhibits P1 to P.58 were marked.

On behalf of respondents, one witness was examined

as RW.1. and certified copy of judgment in criminal

case was marked as Exhibit R.1.

6. On consideration, tribunal answered issue no.1

in affirmative, issue no.2 partly in affirmative and

issue no.3 by awarding compensation of Rs.2,30,500/-

and holding respondent no.2 - insurer liable to pay

same with interest at 6% per annum. Aggrieved by the

same, insurer is in appeal.

7. Sri G.N. Raichur, learned counsel for

appellant- insurer contended that though owner of Jeep

denied involvement of insured vehicle in accident,

tribunal held insurer liable to pay compensation relying

upon charge sheet filed against driver of Jeep. It was

submitted that tribunal did not take into account

judgment passed in a criminal case, wherein driver was

acquitted of charges.

It was also submitted that motor vehicle

inspector's report -Ex.P.5 indicated no fresh damages

to Jeep, establishing that it was not involved in any

accident.

8. On the other hand, Sri H.M. Dharigond,

learned counsel for claimant/respondent supported

award and opposed insurer's appeal. It was submitted

that neither driver of Jeep nor insurer challenged

charge sheet filed by police. Complaint was given by

rider of motorcycle immediately after accident by

specifically naming Jeep as offending vehicle.

Panchanama, seizure panchanama etc., corroborates

claimant's case.

9. Heard learned counsel for both parties and

perused impugned judgment, award and the record.

10. From the above submissions, point that

arises for consideration herein is:

"Whether tribunal was justified in holding insured vehicle was involved in accident and that it was due to sole negligence of driver of Jeep?"

11. In order to establish that accident occurred

due to negligence of driver of Jeep, claimants produced

complaint, FIR, panchanama, Spot Panchanama, Motor

Vehicle Inspector's report, wound certificate, charge

sheet, statement, further statement of complainant and

vehicle release report etc., as Exs.P.1 to P6 and P.55,

P.57 respectively. It is seen that complaint is given by

one Fakirappa - rider of motorcycle, immediately after

accident. Though there is some discrepancy while

mentioning vehicle number, same is not material. Spot

panchanama-Ex.P.3 does not show presence of vehicle

at accident spot. Ex.P.4-seizure panchanama indicates

that it was seized from respondent-owner. In Ex.P.5 -

Motor Vehicles Inspector reported no fresh damages on

Jeep. Contents of Exs.P.3, to P.5 raise doubt about

involvement of insured vehicle. In Ex.P.6 - wound

certificate issued by Dr. Naik's hospital, Munavalli

dated 10.05.2004, there is no mention about time of

examination of injured. Lack of MLC endorsement on

Ex.P.6 fortifies the doubt about claimant sustaining

injuries in the accident alleged to be caused by insured

vehicle. Yet another factor which reinforces the doubt

is the fact that complainant - rider of motorcycle on

which claimant was proceeding as pillion did not sustain

any injuries in accident. Under these circumstances,

without any evidence to establish that insured vehicle

caused accident, tribunal held that accident occurred

due to rash and negligent driving of driver of Jeep.

Hence, finding of tribunal would be perverse and liable

to be setaside. Point for consideration is answered in

favour of insurer.

12. In the result, I pass following:

ORDER

Appeal is allowed.

Impugned award is set aside. Claim petition is dismissed.

Amount in deposit is ordered to be refunded to appellant.

Sd/-

JUDGE Ps g *