Karnataka High Court
Divisional Manager, Bajaj Allianz ... vs Ramesh on 6 December, 2023
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2023:KHC-D:14329
MFA No. 25646 of 2011
C/W MFA No. 20374 of 2012
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 6TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO.25646/2011(MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO.20374/2012(MV-I)
IN MFA.NO.25646/2011:
BETWEEN:
DIVISIONAL MANAGER,
BAJAJ ALLIANZ GENERAL
INSURANCE COMPANY LIMITED,
GE PLAZE, AIRPORT ROAD, YERWADE,
PUNE - 411 006, BRANCH
AT BAILHONGAL, DT: BELAGAVI,
REPRESENTED BY ITS
DEPUTY MANAGER, BAJAJ ALLIANZ
GENERAL INSURANCE COMPANY LIMITED,
KALBURGI COMPLEX, LAMINGOTN ROAD,
Digitally HUBBALLI, NOW R/BY ITS
signed by AUTHORISED OFFICER.
BHARATHI
HM ...APPELLANT
(BY SRI S. K. KAYAKAMATH, ADVOCATE)
AND:
1. SRI RAMESH
S/O. RAYAPPA BAGEWADI,
AGE: 32 YEARS, OCC: NIL,
R/O: KALLOLI,
TALUK: GOKAK,
DIST: BELAGAVI.
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NC: 2023:KHC-D:14329
MFA No. 25646 of 2011
C/W MFA No. 20374 of 2012
2. SRI SANTOSH DUNDAPPA HEBBAL,
AGE: 27 YEARS, OCC: OWNER OF MOTOR CYCLE
BEARING REG. NO.KA-49/H-2761,
R/O: KALLOLI, TALUK: GOKAK.
...RESPONDENTS
(BY SRI SANTOSH S. HATTIKATAGI, ADVOCATE FOR R1;
SRI M.J. PEERJADE, ADVOCATE FOR R2)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, 1988, PRAYING TO SETTING ASIDE THE
JUDGMENT AND AWARD DATED 06.07.2011 PASSED BY THE
PRL.SENIOR CIVIL JUDGE AND ADDITIONAL MOTOR ACCIDENT
CLAIMS TRIBUNAL, GOKAK IN MVC NO.680/2009 AND ETC.,
IN MFA.NO.20374/2012:
BETWEEN:
SRI RAMESH S/O. RAYAPPA BAGEWADI,
AGE: 31 YEARS, OCC: NIL,
R/O: KALLOLI, TALUK: GOKAK,
DIST: BELAGAVI.
...APPELLANT
(BY SRI SANTOSH S. HATTIKATAGI, ADVOCATE)
AND:
THE DIVISIONAL MANAGER,
THE BAJAJ ALLIANZ GENERAL
INSURANCE COMPANY LIMITED, GE PLAZE,
AIRPORT ROAD, YERWADE,
PUNE - 411 006, BRANCH OFFICE AT
BAILHONGAL, DIST: BELAGAVI.
...RESPONDENT
(BY SRI S.K.KAYAKAMATH, ADVOCATE)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, 1988, PRAYING TO JUDGMENT AND AWARD
DATED 06.07.2011 IN MVC NO.680/2009 ON THE FILE OF THE
PRL. SENIOR CIVIL JUDGE AND ADDITIONAL MOTOR
ACCIDENT CLAIMS TRIBUNAL, GOKAK MAY KINDLY BE
MODIFIED BY AWARDING THE COMPENSATION AS PRAYED
FOR IN THE CLAIM PETITION AND ETC.,
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NC: 2023:KHC-D:14329
MFA No. 25646 of 2011
C/W MFA No. 20374 of 2012
THESE APPEALS, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
MFA No.25646/2011 is filed by the insurance
company questioning the liability fastened on it.
2. MFA No.20374/2012 is filed by the claimant for
seeking enhancement of compensation.
3. It is the case of the claimant that on 18.01.2008, the
claimant got down from the jeep near Chougala house to
go to house of one Siddappa Mugali on Sangankeri-Kalloli
road, while he was proceeding as a pedestrian, a motor
cycle bearing Reg.No.KA-49H 2761 dashed the claimant,
due to which the claimant sustained injuries. The tribunal
has awarded compensation and fastened the liability on
the appellant-insurance company.
4. Heard the learned counsel for the parties and
perused the material on record.
NC: 2023:KHC-D:14329
5. It is the case of claimant that he was pedestrian and
the motorcycle has hit the claimant. Thus, claimant has
sustained injuries.
6. The learned counsel for the appellant-insurance
company submitted that case of the claimant is not
believable for the reason that he was pillion rider on some
other motorcycle belongs to his uncle Mahadev Shivappa
Madabavi. But, the respondent No.1 is not the owner of
the vehicle on which the claimant either has dashed or he
was pillion rider. He placed reliance on the Ex.R1-
statement stated to have been given by the claimant
before the investigating officer. Therefore, this Ex.R1
proves different version as stated by the claimant in the
claim petition. Therefore, prays to allow the appeal filed
by the insurance company.
7. In the complaint-Ex.P1, the complainant gave
complaint before Police that he was pedestrian and hit by
the motorcycle bearing Reg.No.KA-49H 2761. As per
complaint, the accident was happened on 18.01.2008.
NC: 2023:KHC-D:14329
But, complaint is lodged on 19.01.2008. Ex.R1 is
statement given before the investigating officer by the
claimant and claimant has admitted during the course of
cross examination that he has given such statement as per
Ex.R1 before the Police. It is proved that Ex.R1-statement
was given by the claimant himself before the Police. In the
said Ex.R1, the claimant himself has stated that he was
pillion rider on the motorcycle belonging to his uncle
Mahadev Shivappa Madabavi and met with accident. In the
Ex.R1, the date of accident is mentioned earlier as
18.01.2008, later it is overwritten as 19.01.2008. But,
what the claimant has stated in Ex.R1 statement in the
claim petition regarding accident occurred to him, the
complainant in the evidence has admitted that he has
given Ex.R1-statement before the investigating officer and
also admitted his signature. But, the averments in the
claim petition and in the Ex.R1 are considered, it is found
that there were two different versions. In the Ex.R1-
statement, the claimant has stated that motorcycle
belongs to his uncle Mahadeva Shivappa Madabavi. But, in
NC: 2023:KHC-D:14329
the claim petition, the owner-respondent No.1 is different
person. Hence, what the averments made at the earliest
point of time that can be considered for appreciation. If
the claimant was pillion rider on the motorcycle belonging
to his uncle Mahadev Sihivappa Madabavi, then the said
uncle Mahadev Shivappa Madabavi ought to have been
made as a respondent-owner. But, some other person is
arraigned as respondent-owner in the claim petition.
8. Therefore, upon considering the evidence on record
on all its preponderance of probability, it is proved that
claimant might have travelled in the motorcycle as pillion
rider in some other motorcycle but for the best reasons
known to him, he has fixed another motorcycle for the
purpose of making claim. Therefore, there is a merit found
in the arguments canvassed by the counsel for the
appellant-insurance company. Hence, the insurance
company is not liable to pay the compensation.
9. The respondent No.1 denied the fact of accident and
his motorcycle is involved in the accident. Therefore, from
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the reasoning as above discussed, the claimant had failed
to prove the involvement of motorcycle bearing No.KA-
49/H-2761 and hit by the said motorcycle when he was a
pedestrian. Therefore, claimant failed to prove the factum
of accident and involvement of motorcycle what he has
pleaded in the claim petition and in his evidence.
Therefore, judgment and award passed by the Tribunal is
liable to be set aside.
10. Accordingly, I pass the following:
ORDER
i) Appeal filed by the insurance company is
allowed.
ii) Judgment and award passed in MVC
No.680/2009 dated 06.07.2011 passed by the
Prl. Senior Civil Judge and Addl. MACT., Gokak
is set aside.
iii) Claimant's appeal is dismissed.
NC: 2023:KHC-D:14329
iv) Refund the deposited amount to appellant
insurance company.
v) No order cost.
vi) Draw decree accordingly.
SD/-
JUDGE
HMB
CT-ASC
