Oriental Insurance Co Lt D vs H Annaiah
2021 Latest Caselaw 2035 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 31ST DAY OF MAY, 2021

                        BEFORE

       THE HON'BLE MR. JUSTICE K. NATARAJAN

 MISCELLANEOUS FIRST APPEAL NO.5924 OF 2013 (MV)

BETWEEN:

       ORIENTAL INSURANCE CO. LTD.
       T.A.P.C.M.S. COMPLEX,
       K.M. ROAD, CHIKKAMAGALUR,
       BY ORINETAL INSURANCE CO. LTD.,
       REGIONAL OFFICE, 2ND FLOOR,
       SUMANGALA COMPLEX, LAMINGTON ROAD,
       HUBLI - 580 020.
                                        ... APPELLANT
       (BY SRI O. MAHESH, ADVOCATE)
AND:

1.     H. ANNAIAH
       AGED ABOUT 62 YEARS,
       S/O. LATE HARI RAO,
       ASST. S.I. OF POLICE,
       DIST. ARMED RESERVE,
       RAMANAHALLI @ & POST,
       CHIKKAMAGALUR - 577 101.

2.     S.S. SATHISH
       AGED ABOUT 45 YEARS,
       S/O. SHANKARAPPA GOWDA,
       NEAR URDU SCHOOL,
       NEAR VIJAYAPURA EXTENSION,
       CHIKKAMAGALUR CITY - 577 101.
                                       ... RESPONDENTS
       (R-1 AND R-2 ARE SERVED AND UNREPRESENTED)
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      THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988, AGAINST
THE JUDGMENT AND AWARD DATED 22-1-2013 PASSED IN
M.V.C. NO.2 OF 2009 ON THE FILE OF THE PRINCIPAL DISTRICT
JUDGE,   MEMBER,        M.A.C.T.,       CHIKAMAGALUR,   AWARDING
COMPENSATION OF RS.40,000/- WITH INTEREST @ 6% P.A.
FROM THE DATE OF PETITION TILL REALISATION.

      THIS MISCELLANEOUS FIRST APPPEAL HAVING BEEN
HEARD AND RESERVED FOR JUDGMENT ON 29-3-2021 AND
COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:


                        JUDGMENT

This appeal is filed by the appellant-insurance

company being aggrieved by the judgment and award

dated 22-1-2013 passed in M.V.C. No.2 of 2009 by the

Court of the Principal District Judge and Motor Accident

Claims Tribunal, Chikmagalur, (for short, 'the

Tribunal').

2. For the sake of convenience, the parties shall

be referred to in terms of their status before the

Tribunal.

3. The brief facts of the case are that, the

claimant filed claim petition under Section 166 of the

Motor Vehicles Act, 1988, claiming compensation in

respect of injuries sustained by him in a road traffic

accident. According to the claimant, on 14-3-2008 at

about 7:45 p.m., he was coming to Chikmagalur from

Ramanahalli, on motorbike, bearing Registration

No.KA-18 K-8362. When he came in front of TCH

College, at that time, respondent No.1 being Driver of

407 mini lorry, bearing Registration No.KA-18/2933,

drove the same in a rash and negligent manner with

high speed and dashed against the motorbike. Due to

which, the claimant fell and sustained injuries on his

right and left cheeks, forehead and to the spleen. The

motorbike was also damaged. Immediately, he was

taken to Ashraya Hospital and after first-aid, he was

shifted to Manipal Hospital, Bengaluru, and got

admitted as in-patient. In the said Hospital, he

underwent surgery and was discharged on 22-3-2008.

The claimant also contended that, he has spent lot of

money towards treatment, attendant charges and hired

vehicle to Bengaluru for treatment. He further

contended that due to injuries sustained by him, he was

advised to take complete bed rest for one month and not

to do any strenuous work. He further contended that he

requires Rs.50,000/- for future medical expenses. He

further contended that he was working as Assistant

Sub-Inspector of Police, DAR, and was earning

handsome salary and he had applied for leave and thus,

he lost his salary for the leave period. Hence, he prayed

for granting compensation.

4. In response to the notice issued by the

Tribunal, respondent No.1-Driver and respondent No.2-

Owner remained absent and placed ex-parte.

Respondent Nos.3 to 5 appeared through Advocates and

filed separate objections.

5. Respondent No.3 filed objections by denying

the averments made in the claim petition as false, but

admitted the issuance of insurance policy in favour of

the mini lorry in question and it was in force as on the

date of the accident in question, but liability on the

insurance company is subject to the terms and

conditions of the policy. It is further contended that the

accident was solely due to rash and negligent riding of

the claimant himself, who was not having valid Driving

Licence and there was no rash and negligent driving on

the part of respondent No.1 and prayed for dismissing

the claim petition.

6. Respondent No.4 filed objections and

contended that, he has given motorbike to the claimant

on his request. The claimant was having valid Driving

Licence to ride the motorbike and the said motorbike

was insured with respondent No.5. If any liability is

fastened on his part, respondent No.5 is liable to pay.

7. Respondent No.5-insurance company in

respect of motorbike also filed objections by denying the

averments made in the petition. It is contended that

the policy issued in favour of respondent No.4 was in

force for a period from 15-1-2008 to 14-1-2009. It is

contended that the claimant who was riding motorbike

and respondent No.1, who was driving 407 mini lorry

were not having any Driving Licence at the time of the

accident and as such, it is not liable to pay any

compensation. It is further contended that the insured

has not produced the vehicular documents and the

policy and he has also not intimated the date, time and

place of accident. Under such circumstances, there is

breach of contract and therefore, the insurance

company is not liable to pay compensation and prayed

for dismissing the claim petition.

8. On the basis of rival pleadings, the Tribunal

framed the following issues:

1. "Whether the petitioner proves that the accident occurred on 14.3.2008 at about 7.45 PM, while proceeding on the motor bike bearing Regn. No. KA-18/K-8362, due to the rash and negligent driving of the 407 mini lorry bearing Regn. No.KA-18/2933 by the 1st respondent with excessive speed and thereby suffered grievous injuries?

2. Whether the 3rd respondent proves that the accident was solely due to the rash and negligence of the petitioner himself?

3. Whether the petitioner is entitled to any compensation? If so, how much and from whom?

4. What order?"

9. In support of his case, the claimant examined

himself as P.W.1 and got marked Exs.P.1 to P.7.

Respondent No.3-insurance company examined one

witness on their behalf as R.W.1 and got marked

insurance policy as Ex.R.1.

10. On the basis of evidence on record, the

Tribunal answered issue Nos.1 and 3 in the affirmative

and issue No.2 in the negative and partly allowed the

petition by granting compensation of Rs.40,000/-

payable by respondent Nos.1 to 3 jointly and severally.

Being aggrieved by fastening of liability on the insurer,

the insurance company preferred this appeal.

11. Heard the arguments of the learned counsel

for the insurance company and perused the material on

record. The respondents are served and absent.

12. Sri O. Mahesh, learned counsel for the

insurance company, has contended that the judgment

and award passed by the Tribunal is not sustainable in

law. There is delay of seven days in lodging the

complaint. F.I.R. was lodged against unknown vehicle

and subsequently, the mini lorry, bearing Registration

No.KA-18/2933, has been implicated. Even on perusal

of Ex.P.4-Wound Certificate, it never reveals that mini

lorry hit the motorbike, but it is stated as 'history of fall

from bike'. Even from the IMV report, only the

motorbike was subjected to inspection and the mini

lorry was not at all inspected. In spite of the same, the

Tribunal fastened the liability on the insurance

company, which is contrary to the evidence on record.

Mini lorry is not at all met with an accident. The

claimant after falling from the motorbike has falsely

implicated the vehicle of respondent Nos.1 to 3. The

Tribunal awarded compensation in respect of false claim

made by the claimant. Therefore, he prayed for setting

aside the same. In support of his contention, the

learned counsel relied upon the judgment of the

Division Bench of this Court in the case of

THE REGIONAL OFFICE, UNITED INDIA INSURANCE

CO. LTD. v. SMT. GAYATHRIDEVI AND OTHERS

(M.F.A. No.11443 of 2006 and connected matters

disposed of on 18-7-2012).

13. Having heard the learned counsel for the

insurance company, the points that arise for

consideration are:

i. Whether the Tribunal committed error in fastening the liability on the appellant- insurance company without considering Exs.P.2-F.I.R. and Ex.P.4-Wound Certificate or the same calls for interference?

ii. What order?

14. The appellant-insurance company has not

disputed the quantum of award passed by the Tribunal,

but challenged the award only in respect of fastening

the liability on it.

15. The main ground urged by the learned

counsel for the insurance company is that, the Tribunal

has not considered Ex.P.2-F.I.R. which was registered

against unknown vehicle, Ex.P.4-Wound Certificate

which shows the claimant fell from the bike and Ex.P.5-

IMV report, wherein the vehicle in question was not

inspected by the Regional Transport Officer. Therefore,

the question of fastening the liability on the insurance

company does not arise. Hence, he prayed for allowing

the appeal.

16. I have perused the evidence of the claimant as

well the documents relied upon therein. The claimant

is a Police official. He has deposed that while riding the

motorbike on 14-3-2008 that a mini lorry came and

dashed against the motorbike and thereby, he fell from

the motorbike and sustained injuries. Immediately, he

was taken to Ashraya Hospital, Chikmagalur, and was

referred to Manipal Hospital, Bengaluru. Ex.P.2.-F.I.R.

along with complaint reveal that the complaint has been

registered by the Traffic Police, Chikmagalur, on the

same day at 10.00 p.m. and the case was registered

against the Driver of mini lorry. However, the

name of the Driver and registration number of the mini

lorry was not mentioned. Subsequently, the Police

apprehended the Driver of the mini lorry and filed

charge-sheet. In Ex.P.4-Wound Certificate issued by

Ashraya Hospital, it is stated as 'history of fall from

bike' and it is not mentioned that mini lorry caused the

accident. Therefore, the learned counsel for the

appellant contended that mini lorry was falsely

implicated. But on perusal of Ex.P.4, it is stated that

the injured sustained injuries falling from bike and a

medical legal intimation was sent to the Police Station

and the Police visited the Hospital, recorded the

statement of the claimant and he has stated that when

he was riding motorbike, the mini lorry came in a

negligent manner and dashed against the motorbike.

Due to which, he fell from the bike and sustained

injuries. Since the registration number of the mini lorry

was not mentioned in the F.I.R. that itself is not a

ground to reject the contention of the claimant. This

aspect of the evidence was not disputed by the learned

counsel for the appellant.

17. Apart from that, R.W.1-P. Rathna Naik,

Branch Manager, admitted that she has not conducted

internal investigation to show that the mini lorry was

not involved in the accident. The Investigating Officer

though chosen to seize the mini lorry, but not subjected

the vehicle for inspection. Merely, negligence on the

part of the Investigating Officer for not subjecting the

motor vehicle for inspection, the evidence of the

claimant cannot be rejected. Of course, Ex.P.5-IMV

report reveals that motorbike was inspected on

27-3-2008, but not the mini lorry and the Driver of the

mini lorry admitted his guilt and paid the fine amount.

The Tribunal, after considering the evidence on record

and appreciating the evidence, has held that the

accident occurred due to rash and negligent driving of

the Driver of 407 mini lorry. Apart from that, the

vehicle was duly insured with the appellant as on the

date of the accident, the policy was in force and there is

no violation of any conditions of policy. Respondent

No.1-Driver and respondent No.2-Owner of the mini

lorry did not contest the matter for denying the

accident. Therefore, the Tribunal considering all these

aspects rightly fastened the liability on the insurance

company. Even if Exs.P.2 and P.4 are considered, the

liability cannot be absolved from the insurance

company. Therefore, I am of the view that, the Tribunal

has not committed any error in fastening the liability on

the insurance company. Further, the judgment relied

upon by the learned counsel for the insurance company

do not apply to the circumstances and fact of the case

on hand. Accordingly, I answer issue No.1 in favour of

the respondent-claimant and against the appellant-

insurance company.

18. For the reasons stated above, the appeal is

dismissed.

The judgment and award dated 22-1-2013 passed

in M.V.C. No.2 of 2009 by the Court of the Principal

District Judge and Motor Accident Claims Tribunal,

Chikmagalur, is hereby confirmed.

Sd/-

JUDGE

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