The Branch Manager vs Tejansa S/O Laxmikantsa
2021 Latest Caselaw 6248 Kant

IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

    DATED THIS THE 16 T H DAY OF DECEMBER, 2021

                          BEFORE

       THE HON'BLE MR.JUSTICE RAVI V.HOSMANI


                M.F.A.No.21303/2010 (MV)

BETWEEN:

The Branch Manager,
The Re liance Ge ne ral Insurance Co. Ltd.,
Represented by its Deputy Manager Legal
No.28, East W ing 5 t h F loo r Cente nary
Building M.G.Ro ad,, Bangalo re.
                                              ... APPELLANT
(BY SRI. G.N. RAI CHUR, ADV OCATE)

AND:

1. Tejansa S/o Laxmikantsa
Age: 33 ye ars,Tq: Gangavati
Dist: Koppal,Gadag.

2. Mahesh S/o Ve erabhadrayya S wamy
Kembhavimath,
Age: Major, Occ: Driver o f Hero Honda
Bearing No KA- 37/ L-577, R/o J .P. Nagar,
Karatagi,T q: Gangavathi, Dt. Koppal.

3.Channa Basappa S/o Malakajappa
Age: Major, Occ: Owne r o f He ro
Honda Bearing No KA 37/L- 577
R/o Karatagi,Tq: Gangavathi, D ist: Koppal.
                                           ... RES PONDENTS
(BY SRI RJASHEKHAR R GUNJALLI, A DVOCATE, F OR R.1
R.2 SERV ED, R.3 HELD S UFFICIENT)
                                       2




     THIS MISC.FIRST APPEAL IS FI LED UNDER SECTION
173(1) OF MOTOR VEHICLES A CT, 1988, AGAINST THE
JUDGMENT AND A WARD DATED 18.11.2009 PA SSED IN MVC
NO.655/ 2007 ON THE FILE OF THE CIVIL JUD GE(SR.DN.)
AND MACT, GANGAVATHI, AWARDIN G THE COMPENSA TION
OF RS.2,47,450/- WITH INTERST AT THE RATE OF 6% FROM
THE DATE OF PETITION TILL THE DATE OF ACTUAL
DEPOSIT .

     THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT , DELIVERED THE F OLLOWING:

                             JUDGMENT

Challenging judgment and award dated

18.11.2009 passed by Civil Judge (Sr.Dn.) & M.A.C.T.,

Gangavati, (for short, 'tribunal') in MVC No.655/2007,

this appeal is filed by insurer.

2. Brief facts as stated are that on 25.07.2007

when claimant was riding his of Motorcycle bearing

registration No.KA.37/H-3460 near Saxi Mill at

Karatagi, rider of Hero Honda Motorcycle bearing

registration No.KA 37/L 577 riding it in rash and

negligent manner dashed to claimant's motorcycle

causing grievous injuries. Despite being treated in

hospital, he sustained physical disability. Claiming

compensation for the same, he filed claim petition

against rider, owner and insurer of offending

motorcycle under Section 166 of the Motor Vehicles

Act, 1988.

3. On service of notice, respondents no.1 and 2

did not file objections. Only respondent No.3 - insurer

filed objections disputing accident and alleging

negligence on the part of claimant. Though issuance of

insurance policy was admitted, violation of policy

conditions was alleged.

4. Based on pleadings, tribunal framed

following issues:

"1. Whether the petitioner proves that on 25.07.2007 at bout 7.30 P.M. on Gangvathi - Sindhanoor main road, near Sakshi Mill Karatagi he has sustained grievous injuries in a motor vehicle accident i.e., on account of rash and negligent riding of the Hero Honda bearing No.KA/37/L-577 by the respondent no.1?

2) Whether the petitioner proves that he is entitled for the compensation? From who, to what extent?

3) What order?"

5. In order to establish his case, claimant

examined himself as PW1. He also examined P.W3 - Dr.

Ramakrishna H. Exhibits P.1 to P.30 were marked. On

behalf of respondents, an official of insurer was

examined as RW1 and copy of Insurance policy was

marked as Ex.R.1.

6. On consideration, tribunal answered issue nos.

1 and 2 in affirmative, issue no.3 by allowing claim

petition in part awarding compensation of

Rs.2,47,450/- with 6% interest and directing

respondent no.3 - insurer to pay same. Aggrieved by

said award, insurer is in appeal.

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

appellant/insurer submitted that impugned award

passed by tribunal was contrary to facts of case and

evidence on record. It was submitted that complaint is

annexed to FIR-Ex.P.1. Complaint is given by brother of

claimant. It is stated that claimant sustained injuries

due to fall from motorcycle. On visiting claimant at

hospital, his mother-in-law also told him that claimant

had sustained injuries due to fall from motorcycle. Even

Ex.P.2 - crime details form also reflects same. But

tribunal held that accident occurred due to collision

between two motorcycles. By referring to Ex.P.3 - IMV

report and wound certificate - Ex.P.4. It was submitted

that as claimant himself had produced Ex.P.1 - FIR

without any explanation, contents of entire documents

have to be taken and pick and choose of favourable

portion while ignoring the unfavourable cannot be

permitted. In support of his submission, learned

counsel relied upon decision of Hon'ble Supreme Court

in Oriental Insurance Company Limited Vs.

Premalata Shukla and Others reported in (2007) 13

SCC 476.

8. On the other hand, Sri Rajashekar R Gunjalli,

learned counsel for claimant - respondent supported

award and opposed insurer's appeal. It was submitted

that contents of police investigation records would not

bind tribunal and it was required to assess evidence

available before it and arrive at independent

conclusion. It was further submitted that filing of

complaint was held to be not mandatory for claiming

compensation under Section 166 of the M.V. Act.

9. Learned counsel further submitted that Ex.P.3

- IMV report indicates damages sustained to both

motorcycles and based on same, tribunal held that

accident was caused due to rash and negligent riding of

motorcycle by its rider.

10. From the above submission, occurrence of

accident and claimant sustaining injuries therein is not

in dispute. Tribunal held that accident had occurred

due to rash and negligent riding of other motorcycle

and held insurer liable to pay same and awarded

compensation. Insurer is in appeal challenging award

only insofar as finding of tribunal directing insurer to

pay compensation, on the ground of false implication of

insured vehicle. Therefore, point for consideration in

this appeal is:

"Whether tribunal was justified in holding that claimant sustained injuries due to accident caused by rider of insured motorcycle?"

11. In order to establish accident, claimant has

produced FIR, crime details form, IMV report and

wound certificate. He has also produced discharge

summary issued by VIMS hospital Bellary as per

Ex.P.9. Though Ex.P.4 - wound certificate and Ex.P.9

shows history of injury caused due to road traffic

accident. Vehicle number of offending motorcycle is not

mentioned. Ex.P.3 - IMV report though indicates

damages sustained by insured motorcycle also.

Inspection was carried out on 08.08.2007 at 3 p.m., 14

days after date of accident, but, damning evidence

lies in the complaint itself. Complaint given by brother

of claimant mentions that claimant was hospitalized

after sustaining injuries due to fall from motorcycle

near Saxi Mills Karatgi. Complaint further states that

mother-in-law, who was initially accompanying

claimant on motor cycle, midway boarded tempo to

reach destination, as claimant was riding motorcycle in

rash and negligent manner. Neither in claim petition

nor in examination- in-chief claimant has offered any

explanation about above mentioned statement made by

his brother in complaint. In view of law laid down in

Premalatha Sukla's case (supra), contents of entire

document would be binding. Hence, it is established

that there is false implication of insured vehicle for the

purpose of claim. Point for consideration is answered in

negative.

In the result, I pass following :

ORDER

Appeal is allowed.

Judgment and award dated 18.11.2009 passed in

MVC No.655/2007 by Civil Judge (Sr.Dn.) MACT.,

Gangavathi, is set aside.

Amount in deposit is ordered to be refunded to

the appellant.

Sd/-

JUDGE Psg*