Karnataka High Court
The Manager vs Smt R Jayalakshmi on 5 December, 2023
-1-
NC: 2023:KHC:44039
MFA No. 3989 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
MISCELLANEOUS FIRST APPEAL NO. 3989 OF 2017 (MV-D)
BETWEEN:
THE MANAGER
HDFC ERGO GEN INS CO LTD
2ND FLOOR SHANKARANAYANA BUILDING
M.G.ROAD
BENGALURU -560 001
...APPELLANT
(BY SRI D VIJAYAKUMAR.,ADVOCATE)
AND:
1. SMT R JAYALAKSHMI
W/O LATE RAJEGOWDA
AGED ABOUT 47 YEARS,
2. SMT ANITHA
D/OLATE RAJEGOWDA
AGED ABOUT 24 YEARS
Digitally signed
by JAI JYOTHI J 3. SMT.JAYAMMA
Location: W/O LATE NARAYANAGOWDA
HIGH COURT
OF AGED ABOUT 67 YEARS
KARNATAKA
ALL ARE R/AT NO.239, 5TH CROSS
LEELAVATHI BADAVANE
MADDUR TOWN
MANDYA DIST-571421
4. SRI MANJUNATHA G
S/O GOVINDA REDDY
MAJOR
R/AT NO.821, II DIVISION
IN FRONT OF BASAVESHWARA TEMPLE
ATTIBELE CIRCLE
-2-
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MFA No. 3989 of 2017
ANEKAL TALUK
BENGALURU DIST-562 107
...RESPONDENTS
(BY SRI.MANJUE GOWDA B.V. FOR SRI
K.A.CHANDRASHEKARA.,ADVOCATES FOR R-1 TO R-3; NOTICE
TO R-4 IS HELD SUFFICIENT V.O.D 14.03.2022)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED17.03.2017 PASSED IN MVC
NO.113/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
MACT, MADDUR, AWARDING COMPESNATION OF RS.
8,56,000/- WITH INTEREST AT 6% P.A. FROM THE DATE OF
PETITION TILL REALIZATION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This is an appeal filed by the Insurance Company
aggrieved by the award passed in MVC.No.113/2015 dated
17.03.2017 on the file of the Senior Civil Judge & MACT,
Maddur.
2. The claim petition was filed seeking
compensation of an amount of Rs.50,00,000/- for the
death of the deceased in the accident that occurred on
05.10.2014. The case of the claimant is that on
05.10.2014 at about 12.30 a.m. the deceased was
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sleeping in front of a resort at Murudeshwara. At that
time a mini bus bearing registration No.KA-51/B-5547
driven by its driver in a rash and negligent manner and at
high speed, ran over the head of the deceased and caused
the accident. Immediately, he was taken to the hospital
wherein he was declared as brought dead. The insurance
company has filed its written statement and denied
everything and also stated that the accident had taken
place solely due to the negligence on the part of the
deceased since he slept in the beach negligently and if
there is any insurance policy as on the date of accident,
the claimant and the Respondent No.1-owner of the
vehicle has to prove the existence of the policy and the
then liability of Respondent-Insurance Company is subject
to the compliance of the provisions of the Insurance Act.
Further it is stated in the written statement that driver of
the vehicle was not having a driving license at the time of
the accident. The court below has held that the accident
has taken place because of the rash and negligent driving
of the driver of the offending vehicle. The court below has
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observed during the cross-examination of PW-1, it is
elicited that PW-1 has not witnessed the accident, but PW-
2 has witnessed the accident. PW-1 had deposed in what
manner the accident had occurred. PW-1 denied that the
deceased was negligent at the time of the accident. The
court below observed that nothing has been elicited during
the cross-examination of PW-1. When it comes to PW-2,
even from the evidence of PW-2 nothing contra could be
elicited by insurance company. The court below had
considered Ex.P-2 FIR, which is registered basing on the
complaint Ex.P-1 and the crime which is registered for
offences under section 279 and 304(A) of IPC.
Considering all these facts, the court below has come to
the conclusion that the accident had taken place because
of the rash and negligent driving of the driver of the
offending vehicle. Then coming to the aspect of
compensation, the court below had granted compensation
of an amount of Rs.8,56,000/-. The court below has also
observed about the postal seal on the acknowledgement.
With regard to the contention that the cheque is
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dishonoured, in the cross-examination it is revealed that
he has not furnished the postal receipt to show that the
insurance company has issued the notice of intimation
about the dishonour of cheque and Ex.R-3-postal
acknowledgement does not reveal any date or the postal
seal. Further it is brought on record that Ex.R-2 was
issued by one Venugopal, the Ex.R-2 reveals the signature
of one Shrinath Reddy and not the name or the signature
of Respondent No.1. Accordingly the liability was fastened
on the insurance company.
3. Learned counsel for the insurance company
submits that the court below had failed to appreciate Ex.R-
2,3,4, and 5 which clearly discloses that as on the date of
the accident, there was no insurance policy. He submits
that cheque was given on 19.12.2013, it was dishonoured
on 26.12.2013 and on 01.01.2014 they have sent a notice
which was intimating about the dishonour of the cheque
and he submits that as on the date of the accident , there
is no policy. As such the insurance company is not liable
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to pay the compensation. The 2nd contention advanced
by the learned counsel for the appellant is that the vehicle
which according to them is a offending vehicle was infact
hired by them and cleverly the said fact was not stated by
them. While returning from Murudeshwara they have
enagaged another vehicle i.e., Ex.P-4. By engaging
another Ex.P-4 which clearly shows that they have
engaged the offending vehicle. This aspect was not
considered by the court below.
4. Learned counsel for the Respondent submits
that the court below had rightly considered all the
evidence on record and rightly granted the compensation.
5. Having heard the learned counsel on either
side, perused the entire material on record. The
contention of the learned counsel for the insurance
company on both the grounds i.e., one is dishonour of
cheque, 2nd is engaging of the offending vehicle by the
claimant. This court is not able to appreciate the same for
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the reason, it is nobody's case that the said offending
vehicle is engaged by the claimant. Basing on what
material the learned counsel is making such submission is
not known. As they have engaged another vehicle for
coming back from Murudeshwara, it doesn't mean that
they have engaged offending vehicle at the first place.
There is no basis for such argument and it is accordingly
rejected.
6. Then coming to the dishonour of cheque,
accordingly to the claimant, the court below has rightly
observed that there is no postal seal on the
acknowledgement. The information about the dishonour
of cheque was not communicated to the owner of the
vehicle. The court below rightly had held that the
insurance company is liable to pay the compensation.
Hence, this court finds no reasons to interfere.
7. Accordingly, the appeal of the insurance
company is dismissed.
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(i) The amount in deposit shall be forthwith
transferred to the Tribunal.
(ii) The Registry is directed to return the Trial
Court Record to the Tribunal along with
the certified copy of the order passed by
this court forthwith without any delay.
(iii) No Costs.
Pending miscellaneous petitions, if any, shall stand
closed.
Sd/-
JUDGE
TS
