National Insurance Company Ltd vs Thippeswamy
2022 Latest Caselaw 1658 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 3RD DAY OF FEBRUARY, 2022

                      BEFORE

     THE HON'BLE MR. JUSTICE P. KRISHNA BHAT

MISCELLANEOUS FIRST APPEAL No.7898/2010 (MV-I)

BETWEEN:
NATIONAL INSURANCE COMPANY LTD.,
No.94, B M COMPLEX, LAKSHMI BAZAR,
CHITRADURGA, REPRESENTED BY
ADMINISTRATIVE OFFICE
No.144, SHUBHARAM COMPLEX
M.G.ROAD, BANGALORE - 560 001.
                                      ...APPELLANT
(BY SRI S SRISHAILA, ADVOCATE)

AND:

1.     THIPPESWAMY
       AGED ABOUT 53 YEARS,
       S/O BHEEMANNA,
       R/O MALLAPURA,
       CHITRADURGA TQ.

2.     R.BASAPPA
       MAJOR FATHER' S NAME
       NOT KNOWN, TEACHER,
       SHARANABASAVESWARA
       H P S SCHOOL, GUMASTHA COLONY,
       CHITRADURGA.
                                     ...RESPONDENTS
(BY SRI M.T. JAGAN MOHAN, ADVOCATE FOR R-1
 SRI B M SIDDAPPA, ADVOCATE FOR R-2)
                             2




      THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S
173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD
DATED 31.03.2010 PASSED IN MVC No.657/2008 ON THE
FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE,
ADDITIONAL    MACT, CHITRADURGA, AWARDING        A
COMPENSATION OF Rs.12,000/- WITH INTEREST @ 6%
P.A. FROM THE DATE OF PETITION TILL DEPOSIT.

     THIS APPEAL COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                   JUDGMENT

This appeal is at the instance of Insurance

Company calling in question the correctness of the

judgment and award dated 31.03.2010 in MVC

No.657/2008 by II Additional Senior Civil Judge and

Addl. MACT, Chitradurga.

2. The allegations in the claim petition is to

the effect that on 22.02.2008 at about 08.30 a.m.

while the claimant was proceeding on a bicycle from

Mallapura to Chitradurga, near Mallapurakere one

Hero Honda motor cycle bearing registration No. KA-

16/E-5928 came with its rider riding it in a rash and

negligent manner and in high speed and dashed

against the backside of the bicycle of the claimant

resulting in grievous injuries to him.

3. Before the learned tribunal, the owner of

the insured vehicle bearing registration no. KA-16/E-

5928 entered appearance and filed his written

statement denying the accident as well as the other

material allegations made in the claim petition. The

insurance company also filed its written statement

denying the material averments made in the claim

petition.

4. During the trial, the claimant examined

himself as PW.1 and Ex.P1 to Ex.P7 were marked. The

respondents examined the owner of the insured motor

cycle Mr. Basappa as RW.1 and Ex.R1 and R2 were

marked.

5. After hearing the learned counsel on both

sides and perusing the records, the learned Tribunal

allowed the claim petition in part and awarded

compensation of Rs.12,000/- (Rupees Twelve

Thousand Only) with interest at 6% p.a. thereon from

the date of petition till the date of deposit.

6. Learned counsel for the appellant-insurance

company contended that the insured motor cycle is

falsely implicated in this case and without appreciating

the evidence placed before it, the learned Claims

Tribunal has allowed the claim petition and therefore

the same is liable to be set aside and the appeal

allowed.

7. Learned counsel for the claimants-

respondent is absent.

8. I have given my anxious consideration to

the submission made on behalf of the appellant-

insurance company and I have carefully perused the

records.

9. The allegation in the claim petition is to the

effect that on 22.02.2008 at about 08.30 a.m., when

the claimant was proceeding on his bicycle, the motor

cycle bearing registration no. KA-16/E-5928 came

with its rider riding it in rash and negligent manner

and in high speed and dashed against the bicycle on

its rear side resulting in injuries to him. However, the

owner of the motor cycle (RW.1) as well as the

insurance company in their written statement have

emphatically denied the said accident.

10. In the cross examination, the claimant

PW.1 has clearly admitted that the accident was not

caused by the motor cycle bearing registration No.KA-

16-E-5928 but it was caused by the motor cycle

bearing registration No.KA-16-1198. Perusal of the

wound certificate at Ex.P6 as well as the MLC extract

at Ex.R1 also discloses that claimant had given the

history of the injury as 'RTA' by motor cycle bearing

registration no.KA-16-1198. Further, in the cross

examination, PW-1 has admitted that "C¥ÀWÁvÀ¥Àr¹zÀ

¨ÉÊPï£ÀªÀ£ÀÄ avÀæzÀÄUÀð D¸ÀàvÉæUÉ vÀAzÀÄ ¸ÉÃj¹gÀÄvÁÛ£É." meaning thereby

that the person who had caused the accident himself

had taken him to the hospital. In history column of

Ex.P6 which is the wound certificate as well as in the

MLC extract at Ex. R1, it is mentioned that one

Madhu S. S/o Sri. Keshava Murthy had admitted him

to the Chitradurga hospital. This also makes it quite

clear that it is not RW.1 who had caused the accident

but one Madhu S/o Keshava Murthy was the person

who had caused the accident and the registration

number mentioned in the history column of the MLC

register extract, as already noticed, is also not the

insured vehicle but the motor cycle bearing

registration no.KA-16-1198.

11. In that view of the matter, the finding

recorded by the learned Tribunal that the claimant had

suffered the injury on account of the rash and

negligent riding of the motor cycle bearing registration

No.KA-16-E-5928 is falsified by the evidence of PW.1

himself and accordingly the claim petition is

unsustainable as against the insured vehicle and

therefore, the appeal is entitled to be allowed.

Hence, I proceed to pass the following:

ORDER

a) The appeal is allowed.

b) The judgment and award dated 31.03.2010 passed in MVC No.657/2008 by II Additional Senior Civil Judge and Addl.

MACT, Chitradurga is set aside and consequently the claim petition in MVC No.657/2008 is dismissed.

c) Amount in deposit shall be refunded to the appellant forthwith.

d) Transmit the records to the II Additional Senior Civil Judge and Addl. MACT, Chitradurga forthwith.

SD/-

JUDGE

SSD