M/S Tata Aig General Insurance ... vs Suresh Reddy S/O Basavarajppa And ...
2021 Latest Caselaw 6234 Kant

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          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

      DATED THIS THE 16TH DAY OF DECEMBER 2021

                        PRESENT

          THE HON'BLE MR.JUSTICE R. DEVDAS
                           AND
     THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR


               MFA No.201583/2014 (MV)


BETWEEN:

TATA AIG GENERAL INSURANCE CO. LTD.,
PENINSULA CORPORATE PARK,
NICOLAS PARIMAL TOWER, 9TH FLOOR,
GANPAT KADAM MARG, LOWER PAREL,
MUMBAI-400013.
NOW REPRESENTED BY
M/S TATA AIG GENERAL INSURANCE CO.LTD
2ND FLOOR JP & DEVI JAMBUKESHWAR ARCADE,
NO.69 MILLERS ROAD, BANGALORE-560052.
REPRESENTED BY REGIONAL CLAIMS MANAGER

                                        ...APPELLANT

       (BY SRI. SANJAY M JOSHI, ADVOCATE)

AND:

1.     SURESH REDDY S/O BASAVARAJPPA
       AGE: 31 YEARS,
       OCC:CIVIL CONTRACTOR & AGRICULTURAL
       SINCE UNDER COMA CONDITION
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       HIS NATURAL FATHER NEXT FRIEND
       AND GUARDAIN BY NAME (REPT BY)
       BASAVARAJPPA S/O HANUMAPPA
       AGE:59 YRS OCC:NIL
       R/O RAGHVENDRA COLONY
       SHAKTINAGAR TQ&DIST.RAICHUR

2.     SUGURAYYA S. S/O SUNDERESH.S
       AGE:MAJOR OCC:RIDER OF MOTOR CYCLE
       PASSION BEARING ITS REG NO.KA-36/EA-0075
       R/O TYPE VII/ 125 RTPS COLONY
       SHAKTINAGAR, TQ.RAICHUR

3.     M SUNDRESH S/O MUNAYYA SWAMY
       AGE:MAJOR OCC:OWNER OF MOTOR CYCLE
       PASSION BEARING REG. NO.KA-36/EA-0075
       R/O TYPE VII/ 125 RTPS COLONY
       SHAKTINAGAR TQ.RAICHUR.

                                          ....RESPONDENTS

       (BY SRI.BASAVARAJ R MATH, ADV. FOR C/R1
         R2 & R3 SERVED)


          THIS MFA FILED U/S. 173(1) OF MV ACT, PRAYING TO
CALL FOR THE RECORDS HEAR THE PARTIES AND SET ASIDE
THE JUDGMENT AND AWARD DATED 18.07.2014 PASSED IN
MVC NO.71/2013 BY THE II-ADDL. DIST AND SESSIONS JUDGE
AT RAICHUR, BY ALLOWING THIS APPEAL WITH COST.


       THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY,    RAJENDRA     BADAMIKAR      J.,   DELIVERED   THE
FOLLOWING:
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                      JUDGMENT

This appeal is filed by the Insurance Company

under Section 173(1) of M.V.Act, challenging the

judgment and award passed by the II Addl. District

and Sessions Judge, Raichur (for short 'the Tribunal)

in MVC No.71/2013 dated 18.07.2014, whereby the

Tribunal has awarded the compensation @

Rs.15,97,200/- to the claimant/respondent No.1

herein with interest @ 6% p.a.

2. The brief facts leading to the case are; that

on 18.09.2012, the claimant was proceeding as a

pillion rider on motorcycle bearing registration No.KA-

36/EA-0075 and respondent No.1, who was rider of

the motorcycle rode it in a rash and negligent manner.

At about 11.30 p.m., near 2nd cross, Shaktinagar on

Raichru-Hyderabad Main Road, as a result of rash and

negligent riding, the vehicle fell down by the road side

resulting in the accident. It is also specific case of the

claimant that he suffered head injuries and went into

COMA stage and was initially admitted in Shivam

Hospital, Raichur on 18.09.2012. Later on, he was

shifted to Global Hospital, Hyderabad, wherein he was

inpatient for 34 days. It is further specific case of the

claimant that he underwent three major surgeries in

Global Hospital and he spent more than Rs.9,00,000/.

Later on, he was again admitted to Shivam Hospital

and later on Suraksha Hospital, Raichur. It is the

specific case of the claimant that he was earning

Rs.20,000/- per month by attending civil contract

work and was also earning Rs.5,00,000/- per annum

from agricultural fields and hence he filed the claim

petition claiming total compensation of Rs.58,45,000/-

with interest @ 12% on the ground that he has

suffered disability because of accidental injuries.

3. Respondent No.1-rider of the motorcycle

and respondent No.2-owner of the motorcycle have

contested the petition by filing objection statement

denying rash and negligent riding and further

contended that the vehicle was insured with

respondent No.3-Insurer and the rider was possessing

valid and effective driving license.

4. Respondent No.3-Insurance Company has

filed objection statement denying the age, occupation

and income of the deceased and further specifically

asserted that rider of the motorcycle was not

possessing valid and effective driving license and

there is breach of policy conditions. It is also

contended that the claimant himself fell from the

motorcycle and sustained injuries. The Insurance

Company raised other statutory defences by disputing

their liability and sought for dismissal of the claim

petition.

5. After appreciating the evidence on record,

the Tribunal has come to a conclusion that the

accident was because of actionable negligence on the

part of respondent No.1, who was rider of the

motorcycle and since he was possessing valid and

effective driving license, the Tribunal has fastened the

liability on respondent No.3-Insurance Company by

awarding the compensation of Rs.15,97,200/- under

the various heads as under;

1. Towards pain and suffering Rs. 60,000/-

2. Loss of future earning Rs. 3,67,200/-

3. For medical expenses based Rs. 11,00,000/-

on medical bills and evidence

4. Loss of income during Rs. 15,000/-

treatment period

5. Towards future medical Rs. 25,000/-

expenses

6. Towards attendance charge & Rs. 30,000/-

special food & diet & also transportation charges Total Rs. 15,97,200/-

6. Learned counsel for the appellant-

Insurance Company would contend that the claimant

was himself rider of the motorcycle and in this

context, he placed reliance on Exs.R6 & R7. He would

contend that facts have been distorted and material

documents have been withheld by the claimant and as

such he sought for allowing the appeal, as the

accident is because of actionable negligence on the

part of the claimant himself.

7. Per contra, learned counsel for the

claimant/respondent No.1 would support the award of

the Tribunal contending that no such specific defense

is raised in the objection statement and only on the

basis of Exs.R6 and R7, now a ground is made out in

the appeal without there being any specific pleading.

Hence, he would submit that such defense is not

permissibel and sought for dismissal of the appeal.

8. Having heard the arguments and perusing

the records, it is an undisputed fact that the claimant

did suffer head injury in the accident which has

occurred during the intervening night on 18.09.2012

and 19.09.2012. It is also an admitted fact that

initially the claimant was admitted in Shivam Hospital,

Raichur, wherein he was provided first aid. Later on,

he was shifted to Global Hospital, Hyderabad, wherein

he was inpatient for 34 days. The records also clearly

disclose that all along the claimant was in COMA stage

for nearly 4 months and the claim petition is filed after

lapse of four months by his next friend/guardian who

is father of claimant.

9. Now the contention of the appellant-

Insurance Company is that the claimant himself was

rider of the motorcycle and he fell from the motorcycle

sustaining injuries and as such disputed the liability.

But on perusal of the objection statement filed by

respondent No.3-appellant herein, it is evident that no

such specific defense is raised before the Tribunal and

an omnibus allegation is made that claimant fell from

the motorcycle and sustained injuries. Even, during

the cross-examination of claimant, who was examined

on commission as PW.1, no specific suggestion was

made that he was rider of the motorcycle but simple

suggestion was made that he suffered injuries by fall

from motorcycle as he was under drunken state of

mind. Hence, it is impermissible for the Insurance

Company to raise a new defense that the claimant

was in-fact rider of the motorcycle and same is not

permissible under Order VI Rule 7 of CPC.

10. Apart from that PW.3, is an eye-witness

who has specifically deposed that RW.1 was riding the

motorcycle at the time of accident and claimant was

the pillion rider. But during the cross-examination of

PW.3, also no specific suggestion has been made in

this regard that claimant himself was rider of the

motorcycle and simple suggestion is made that the

accident did not occur as stated by him and his

statement was not recorded by the police in the

criminal case, but he specifically states that he was an

eye-witness in the criminal case.

11. Apart from that RW.1 is the Executive

Claims Legal Officer of the Company, but objection

statement is not signed by him. During his evidence

first time he has set up an evidence that claimant was

the rider of the motorcycle only on the basis of Exs.R6

and R7. But without there being any specific defense

in the objection statement, the evidence led by

Insurance Company in this regard is in-admissible in

evidence. Exs.R1 to R3, does establish that RW.1, the

rider of the motorcycle was possessing valid and

effective driving license and respondent No.2 was the

owner of the offending vehicle. The evidence also

discloses that respondent No.1 was prosecuted and he

pleaded guilty and accordingly was convicted. The

charge sheet filed against respondent No.1 was also

not challenged by the Insurance Company. Under

these circumstances, now it is not permissible for the

appellant-Insurance Company to raise a new defense

that the claimant was infact rider of the motorcycle

and not pillion rider. The Tribunal has appreciated all

these aspects in proper manner and arrived at just

conclusion by fastening the liability on the appellant-

Insurance Company which does not call for any

interference.

12. The Insurance Company has not challenged

the quantum. The Tribunal has awarded the

compensation under various heads based on the

evidence on record and claimant is also not aggrieved

by this finding and award in a sum of Rs.15,97,200/-

as compensation. Hence, the appeal does not call for

any interference. Considering, all these facts and

circumstances, we are of the considered opinion that

the appeal is deviod of merits and needs to be

rejected.

13. Accordingly, we proceed to pass the

following;

ORDER

The appeal stands dismissed by confirming the

judgment and award dated 18.07.2014 passed in MVC

No.71/2013 by the II Addl. District and Sessions

Judge, Raichur.

The amount deposited by the Insurance

Company before this Court shall be transmitted to the

Tribunal along with trial Court records forthwith.

Sd/-

JUDGE

Sd/-

JUDGE

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