The Nationalinsurance Co. Ltd., vs Anand Gopal Yedave,
2021 Latest Caselaw 2951 Kant

                 IN THE HIGH COURT OF KARNATAKA
                         DHARWAD BENCH
               DATED THIS THE 23RD DAY OF JULY 2021
                             BEFORE
              THE HON'BLE MR.JUSTICE RAVI V.HOSMANI

                    M.F.A. NO.25483/2012(MV)
BETWEEN:

THE NATIONAL INSURANCE CO. LTD.,
RAMDEV GALLI, BELGAUM.
(INSURER OF M/C NO.MH-07/M-6096)
NOW REP. BY ITS DY.MANAGER,
REGIONAL OFFICE, ARIHANT PLAZA,
OPP: SBI ZONAL OFFICE, KESHWAPUR, HUBLI.
                                                  -   APPELLANT
(BY SRI. SURESH S GUNDI, ADVOCATE)

AND:

1.     ANAND GOPAL YEDAVE,
       AGE: 32 YEARS, OCC: NIL,
       R/O: CHURAMURE, TALUK AND DIST: BELGAUM.

2.     MAHANANDA D/O GOPAL YEDAVE,
       AGE: 30 YEARS, OCC: HOUSEHOLD,
       R/O: CHURAMURE, TALUK AND DIST: BELGAUM.

3.     MEDHA D/O GOPAL YEDAVE,
       AGE: 28 YEARS, OCC: HOUSEHOLD,
       R/O: CHURAMURE, TALUK AND DIST: BELGAUM.

4.     GOPAL SHIVARAM YEDAVE,
       AGE: MAJOR, OCC: AGRICULTURE,
       R/O: UBHA BAZAR, BANDA,
       TALUK: SAWANTWADI, DIST: SINDHUDURG.
       (OWNER OF M/C NO.MH-07/M-6096)
                                              -     RESPONDENTS
(BY SRI. RAVIRAJ C PATIL AND SRI. HANUMANTH R. LATUR,
ADVOCATES FOR R1 TO R3
NOTICE TO R4-SERVED)
                                     2




      THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S 173(1) OF M.V.
ACT, AGAINST THE JUDGMENT AND AWARD DATED 07.08.2012 PASSED
IN MVC NO.621/2010 BY THE FILE OF THE PRESIDING OFFICER, FTC-1 &
MEMBER     ADDITIONAL    M.A.C.T.,   BELGAUM,    AWARDING    THE
COMPENSATION OF RS.13,10,000/- WITH INTEREST AT THE RATE OF 8%
P.A. FROM THE DATE OF PETITION TILL ITS REALIZATION & ETC.

     THIS MISCELLANEOUS FIRST APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 14.07.2021, COMING ON FOR
PRONOUNCEMENT, THIS DAY THE COURT PRONOUNCED THE
FOLLOWING:

                                 JUDGMENT

Challenging the judgment and award dated 07.08.2012

passed by the FTC-I and Member Additional MACT (for short

'Tribunal'), Belgaum in MVC No.621/2010, this appeal is filed under

Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred

to as M.V. Act).

2. For the sake of convenience, the parties will be referred

to as per their respective ranks before the tribunal.

3. Brief facts as stated are that on 28.05.2009,

Smt. Geeta was traveling as pillion rider on motorcycle bearing

registration No.MH-07/M-6096 from Kudal to Salgaon. On the way,

due to rash and negligent riding of the motorcycle, she fell down,

sustained fatal injuries and died in the hospital during treatment.

4. As on the date of accident, she was 56 years of age,

working as teacher and drawing salary of `17,785/- per month.

Alleging loss of dependency due to her untimely death, her children

filed claim petition against the owner and insurer of motorcycle,

under Section 166 of M.V. Act.

5. Despite service of summons, owner of motorcycle did

not contest the claim. He was placed exparte. The insurer entered

appearance and filed objections denying the claim petition as being

false, frivolous and vexatious. It was contended that deceased was

traveling as owner of the vehicle and was not covered under the

policy. It was also contended that deceased did not have driving

licence to ride the motorcycle and hence, there was breach of terms

and conditions of policy. Even dependency of claimants was also

disputed.

6. Based on pleadings, following issues were framed :

1. Whether the respondent No.2 proves that this Court has no jurisdiction to entertain this petition?

2. Whether the respondent No.2 proves that deceased being the wife of the respondent No.1 owner, deceased cannot be a third party and the respondent No.2 is not liable to pay compensation?

3. Whether the respondent No.2 proves that there was no accident and the deceased had fell down from the two wheeler due to giddiness.

7. In support of claim petition, claimant No.1 himself got

examined as PW1 and examined two witnesses as PW2 and 3.

Ex.P1 to P7 were marked. Thereafter, respondent examined an

official of the insurer as RW1. Ex.R1 to R3 were marked.

8. On consideration, the tribunal answered issue No.1 in

the affirmative; issue No.2 holding that claimants are entitled for

compensation and issue No.3 allowing claim petition in part

awarding compensation of `13,10,000/- with interest @ 8% p.a.

from the date of petition till realization. Additional issue Nos.1 to 3

answered in the negative.

9. Assailing the said award the insurer is in appeal.

10. Sri. Suresh S. Gundi, learned counsel for appellant-

insurance company submitted that the award passed by the tribunal

was contrary to law and evidence on record. It was specifically

contended that no accident as alleged by claimants had occurred.

Death of Smt.Geeta was in fact due to rider not possessing valid

driving licence to ride the motorcycle. There was no evidence to

support the finding of negligence against rider of motorcycle. It

was submitted that in the absence of claimants failing to establish

that the accident occurred due to rash and negligent riding of the

motor vehicle, by its rider, the insurer could not be made liable to

pay the compensation to the claimants.

11. It was contended that from the documents produced by

the claimants themselves, it is established that cause of death of

Smt. Geeta was unnatural death. After investigation, the Police had

filed unnatural death report (UDR). Ex.P3 indicated that cause of

death is fall from vehicle, due to giddiness as the reason for death.

It is further contended that tribunal committed grave error in

fastening the liability on insurer, that too without assigning proper

reasons. Therefore sought interference with award on the ground

of liability.

12. On the other hand, Sri. H.R. Latur, learned counsel for

the respondents-claimants submitted that Ex.P5-copy of post

mortem report read in the light of Ex.P1 certified copy of FIR,

Ex.P3-crime details have clearly indicated that Smt.Geeta died due

to fall from motorcycle. Neither the insurer nor the owner disputed

that death of Smt.Geeta was not due to fall from motor vehicle in

question.

13. In order to sustain a claim petition under the provisions

of M.V. Act, the claimants were not required to establish that the

accident occurred due to sole negligence of rider of insured vehicle.

Filing of FIR was not mandatory and non registration of FIR would

not result in rejection of a claim petition. As the documents have

produced by the claimants established that death of Smt.Geeta

occurred by use of a motor vehicle, which was undisputed. The

tribunal was fully justified in passing the impugned award. Learned

counsel relied upon the decision of Hon'ble Supreme Court in Anita

Sharma and others V/s New India Assurance Company Ltd.,

and another reported in 2021 ACJ 17 for the proposition that in

accident claims, the standard of proof would not be that of proof

beyond reasonable doubt, but, on the basis of preponderance of

probabilities.

14. From the above submissions, it is seen that occurrence

of the accident involving the insured vehicle in which the claimant's

mother died is not in dispute. Issuance of the policy and its

coverage as on date of accident is also not in dispute. The tribunal

awarded compensation against the insurer. The claimants have not

filed any appeal, only the insurer is in appeal challenging the award

on negligence. Therefore, the point that arises for consideration in

this case is:

"Whether the finding of the tribunal on issue No.1

is justified?"

15. To establish that death of their mother-Smt. Geeta

occurred due to a motor accident, the claimants produced copy of

FIR, copy of statement, copy of crime detailed form, copy of inquest

panchanama, copy of postmortem report etc., were marked as

Ex.P1 to P5 respectively. From a perusal of Ex.P1-FIR, it is seen

that the Police have submitted information of unnatural death to

the jurisdictional court. The said report was accepted and the

investigation was closed. The contents of crime details indicate that

the deceased died upon sustaining head injury due to fall from

motorcycle due to giddiness. The same was based on the statement

of her husband. The inquest panchanama indicates that death was

due to accident. Ex.P5 postmortem report contains the reason for

death as due to accidental injury in road traffic accident.

16. From the above documents, the occurrence of the

accident is not in dispute. The evidence would reveal that

Smt. Geeta died due to fall from motorcycle while traveling as

pillion rider. The claimants have asserted that it was on account of

rash and negligent riding of the motorcycle by the rider. Though

the insurer denied the same, the claimants produced records to

establish the link between the use of the motor vehicle and death.

Admittedly, in the case on hand, the insurer had not led any

evidence. Though there may be no direct evidence to establish that

the accident occurred due to rash and negligent riding of the

motorcycle by its rider, in view of the position of law having been

clarified by the Hon'ble Supreme Court in Anita Sharma (supra)

case the assessment of evidence available on record has to be on

touchstone of preponderance of probabilities. There is no

suggestion by the insurer that deceased deliberately or negligently

fell down from the motorcycle and died. No case of suicidal death

has been recorded. Therefore, fall from the motorcycle is probably

due to rash and negligent riding of the motorcycle by its rider.

Under the circumstances, finding of the tribunal that the accident

was due to rash and negligent riding of the motorcycle by the rider

of the insured vehicle and therefore, the insurer was liable to pay

the compensation, does not call for any interference. The point

framed for consideration is answered in the affirmative.

17. In the result, the appeal is devoid of merit and is

accordingly, dismissed.

The appellant-insurer is directed to deposit the balance award

of compensation before the tribunal within six weeks from the date

of receipt of a certified copy of this judgment.

Registry to transmit trial Court records and the amount in

deposit before this Court is ordered to be transmitted to the

tribunal, forthwith.

SD JUDGE

MNS/