Bajaj Allianz General Insurance ... vs Saraswathi
2021 Latest Caselaw 2018 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 28TH DAY OF MAY, 2021

                             BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

                  M.F.A.NO.2933/2014 (MV)

BETWEEN:

BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.,
G.E. PLAZA, YERAWADA,
PUNE-411 006.
REPRESENTED BY ITS
REGIONAL OFFICE AT
GOLDEN HEIGHTS, IV FLOOR,
RAJAJINAGAR ENTRANCE,
BENGALURU-560010.
BY ITS ASSISTANT VICE PRESIDENT (CLAIMS).
                                                ... APPELLANT

               (BY SMT. H.R.RENUKA, ADVOCATE)

AND:

1.     SARASWATHI,
       W/O SHARAVANA,
       AGED ABOUT 29 YEARS.

2.     MASTER KIRAN,
       S/O SHARAVAN,
       AGED ABOUT 8 YEARS.

3.     MASTER VASANTHA,
       S/O SHARAVAN,
       AGED ABOUT 6 YEARS.

       RESPONDENT NOS.2 AND 3 ARE MINORS
       REPRESENTED BY THEIR MOTHER AND NATURAL
       GUARDIAN RESPONDENT NO.1.
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     ALL ARE R/O JAIL ROAD,
     6TH CROSS LEFT SIDE,
     SHIVAMOGGA-577201.

4.   GANGABHAVANI,
     W/O LATE NAVAKOTI,
     HOSAMANE EXTENSION,
     BHADRAVATHI 577301.
     (SINCE DECEASED REPRESENTED BY
     RESPONDENT NOS.1 TO 3
     WHO ARE ALREADY ON RECORD).

5.   SRINIVASA @ DAYALU,
     S/O GANESH,
     ADULT, KODI CAMP,
     4TH CROSS, TARIKERE,
     CHIKMAGALUR DISTRICT-577 228.

6.   T.P. NANDISH KUMAR,
     S/O T.P. PANCHAKSHARAIAH,
     ADULT,
     MARIGADDIGE CIRCLE,
     TARIKERE,
     CHIKMAGALUR DISTRICT-577 228.
                                         ... RESPONDENTS

         (BY SRI B.S. PRASAD, ADVOCATE FOR R-1;
        VIDE ORDER DATED 01.06.2018, R-1 AND R-3
          ARE TREATED AS LR'S OF DECEASED R-4,
             R-5 - SERVICE HELD SUFFICIENT,
                       R-6 - SERVED)

     THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 01.03.2014 PASSED
IN MVC.NO.18/2010 ON THE FILE OF THE PRESIDING OFFICER,
FAST TRACK COURT AND ADDITIONAL MACT-II, SHIVAMOGGA,
AWARDING COMPENSATION OF Rs.4,98,500/- WITH INTEREST @
6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.

     THIS M.F.A. COMING ON FOR ADMISSION THROUGH 'VIDEO
CONFERENCE' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
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                       JUDGMENT

Though this matter is listed for admission today, with the

consent of both the learned counsel it is taken up for final

disposal.

2. This appeal is filed by the Insurance Company

challenging the judgment and award dated 01.03.2014 passed in

M.V.C.No.18/2010 on the file of the Fast Track Court and

Additional MACT-III, Shivamogga ('the Tribunal' for short)

challenging the liability fastened on the Insurance Company.

3. The parties are referred to as per their original

rankings before the Tribunal to avoid the confusion and for the

convenience of the Court.

4. The factual matrix of the case is that on 06.11.2004 at

about 8.30 p.m. the deceased was proceeding on boxer bike

bearing registration No.KA-18/K-5348 as a pillion rider on B.H.

Road, Tarikere towards Kodi Camp, Tarikere, along with one

Srinivasa - respondent No.1. Respondent No.1 took the vehicle

to the extreme left side in a rash and negligent manner to give

way to the lorry coming from the opposite direction and could

not control the bike and got skidded. As a result of which the

deceased Sharavana sustained grievous injuries on his head and

other parts of the body. Immediately he was shifted to the

Government Hospital, Tarikere and then to major hospital and as

he was in come, he was shifted to Nanjappa Hospital,

Shivamogga and treated one day as inpatient. Again he was

shifted to NIMHANS Bangalore and then to Abhaya Hospital. He

was treated as inpatient for 16 days and then shifted to Mc.Gann

Hospital, Shivamogga. Inspite of the best medical care his life

could not be saved and succumbed to the injuries on

10.12.2004.

5. The claimants are the wife and children of the

deceased. The Insurance Company took the defence in the

written statement that the deceased himself was riding the

motor cycle and was under the influence of alcohol. Hence, the

Company is not liable to pay the compensation. The claimants in

support of their claim examined the wife of the deceased as

P.W.1 and got marked the documents at Exs.P.1 to 120. The

respondents have examined three witnesses - official of the

Insurance Company as R.W.1, charge-sheeted accused as R.W.2

and the doctor as R.W.3 and got marked the documents at

Exs.R.1 to 7. The Tribunal after considering both oral and

documentary evidence placed on record, answered point No.1 as

affirmative and point No.2 as negative and allowed the petition

in part granting compensation of Rs.4,98,500/- with interest at

the rate of 6% per annum from the date of petition till

realization.

6. This appeal is filed by the Insurance Company

contending that inspite the matter was remanded to the Tribunal

with regard to give a definite finding as to whether the deceased

was the rider or the pillion rider, the Tribunal has committed an

error in giving a definite finding that he was a pillion rider. This

finding is contrary to the documentary evidence, particularly

Exs.R.6 and 7 and also the evidence of R.W.3.

7. The learned counsel for the appellant would contend

that history was given that informant was the pillion rider who

gave history that RTA fall from bike due to skid at around 7.30

p.m. on 06.11.2004 at Tarikere. This has not been appreciated

by the Tribunal when the matter has been remanded. The

learned counsel would vehemently contend that the Tribunal

inspite of the remand of the matter has not appreciated the

evidence of R.W.3 who spoke with regard to an entry made in

respect of history in the discharge summary. The learned

counsel submits that NIMHANS hospital records also discloses

that when the injured was taken to the hospital on 07.11.2004 in

column No.2 it was mentioned that the injured was the rider and

the same has also not been appreciated by the Tribunal while

fastening the liability on the Insurance Company and hence it

requires interference of this Court.

8. Per contra, the learned counsel for the

respondent/claimants would contend that though the Insurance

Company took the defence that the deceased was the rider, the

Investigating Officer has not been examined before the Tribunal,

since the Investigating Officer has filed the charge-sheet against

the rider of the motor cycle who has been examined as R.W.2

before the Tribunal. The learned counsel would contend that

though the Insurance Company cross-examined the witness

R.W.2, nothing has been elicited in the cross-examination of

R.W.2. R.W.2 categorically deposes that he was riding the

motor cycle at the time of the accident. The learned counsel

would contend that the evidence of R.W.3 will not come to the

aid of the Insurance Company to come to other conclusion and in

the cross-examination also he categorically admits that the said

history is mentioned in the discharge summary and he is not the

author of the document of discharge summary and also his

evidence is only a hear say evidence. He is also not aware who

gave the history when the injured was taken to the hospital.

These aspects are appreciated by the Tribunal and nothing is

found to come to conclusion that the deceased was the rider at

the time of the accident and it does not require interference of

this Court.

9. Having heard the arguments of the learned counsel

for the appellant and the learned counsel for the

respondent/claimants, the point that arise for the consideration

of this Court is:

(i) Whether the Tribunal has committed an error in coming to the conclusion that the deceased was the pillion rider and not the rider and whether it requires interference of this Court?

10. Having heard the respective learned counsel and also

on perusal of the records, it is clear that earlier also MFA was

filed before this Court. This Court had remanded the matter to

reconsider the matter with regard to whether the deceased was

the rider or pillion rider of the motor cycle at the time of the

accident. Doubt was found while considering the earlier appeal.

Having remanded the matter, the matter was reconsidered by

the Tribunal. While reconsidering the material on record, the

Tribunal has given the reasons that the evidence of R.W.3

cannot be accepted as he was not aware of the person who gave

the history. R.W.3 categorically admits that he do no know who

had given the information to the hospital authorities stating that

the injured was the rider. The Tribunal in paragraph No.25 of

the order discussed that emergency case record also reveals that

history of fall from two wheeler due to daze of on coming light.

The name of the informant also not described in the discharge

summary. Such being the circumstances, much sanctity cannot

be attached in the word "informant-pillion rider". Even for the

sake of discussion it cannot be believed that the person who

became responsible for the accident will give true information to

the doctor stating that due to his negligence the accident

occurred.

11. The learned counsel for the appellant would

vehemently contend that the very reasoning given by the

Tribunal is erroneous. However, pointed out Exs.R.6 and 7

which have been marked. The Insurance Company is mainly

relying upon the evidence of R.W.1 and R.W3. The evidence of

R.W.1 is that he is the official of the Insurance Company and he

categorically admits that he is not an eye witness. It is observed

in the judgment that R.W.1 has categorically given the

admission that he has no personal knowledge about the accident

and he has given the evidence based on the records. R.W.1 has

stated that under the private investigation they have not come

across who was pillion rider of the motor cycle at the time of the

accident. It has to be noted that when the Insurance Company

took the defence that the deceased was riding the motor cycle,

the Insurance Company ought to have examined the

Investigating Officer who has filed the charge-sheet. The

Investigating Officer has not been summoned before the Tribunal

in order to elicit the truth with regard to whether the deceased

was the rider or pillion rider. No steps have been taken before

the Tribunal to examine him.

12. Apart from that, the charge-sheeted accused who

has been examined as R.W.2 before the Tribunal categorically

deposes that he was riding the motor cycle. The document of

driving licence is marked before the Tribunal that the R.W.2 was

having driving licence to drive the motor cycle. In the cross-

examination of R.W.2, suggestions are made that the deceased

was riding the motor cycle and the same has been categorically

denied. In the cross-examination also not suggested that he

gave the information in the hospital. In order to prove the fact

that the informant has given the information before the hospital

that he was the pillion rider relied upon the evidence of R.W.3.

R.W.3 in his evidence he says that he has produced the case-

sheet and in the discharge summary information was mentioned

that the informant was the pillion rider. But he categorically

admits that he cannot tell who gave the information in the

hospital and also there is no mention in the case sheet records

that who gave information in respect of the accident. R.W.3 is

not sure about who gave the information to prove the fact that

there was an entry that informant has given the information that

he was pillion rider has not been proved by the examining any of

the witness except evidence of R.W.3. R.W.3 categorically

admits that he is not aware who gave information and also he is

giving evidence only based on the discharge summary wherein it

was mentioned that the informant is the pillion rider and in order

to prove the fact that the deceased was riding the motor cycle,

no substantial material has been placed before the Tribunal.

13. Having considered the material on record, I do not

find any error committed by the Tribunal in answering issue No.2

as negative as the Insurance Company has failed to prove the

contention that the deceased was the rider of the motor cycle at

the time of accident. The document relied upon by the

Insurance Company particularly, Exs.R.6 and 7 and also case

sheet Ex.R.3 will not come to the aid of the Insurance Company

unless the same is proved by examining the person who has

made the entry and the author of the said documents have not

been examined before the Tribunal. R.W.3 categorically admits

that he is not aware of the person who gave the details of the

information in respect of the accident is concerned. Under the

circumstances, when the evidence of R.W.2 has not been

rebutted by the Insurance Company, I do not find any merit in

the appeal to come to other conclusion that the Tribunal has

committed an error in coming to the conclusion that the

deceased was not the rider at the time of accident and he was a

pillion rider.

14. In view of the discussions made above, I pass the

following:

ORDER

(i) The appeal is dismissed.

(ii) The amount deposited before this Court is ordered to be transmitted to the Tribunal forthwith.

(iii) The Registry is directed to transmit the Trial Court records to the concerned Tribunal, forthwith.

Sd/-

JUDGE

MD