Bajaj Allianz General Insurance ... vs Dr. B. Raghavendra Kasyapa S/O ...
2023 Latest Caselaw 3224 Kant

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                                                    MFA No. 20023 of 2011




                 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                       DATED THIS THE 14TH DAY OF JUNE, 2023

                                       BEFORE

                        THE HON'BLE MRS. JUSTICE M.G.UMA

                 MISCELLANEOUS FIRST APPEAL NO.20023/2011 (MV-I)

            BETWEEN:

            BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.,
            BY ITS MANAGER, REGISTERED OFFICE,
            GE PLAZA, AIRPORT ROAD, YERAWADA, PUNE,
            NEAREST OFFICE: THE MANAGER,
            BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.,
            GUNJ STREET, HUBLI HEREIN REPRESENTED BY
            BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.,
            4TH FLOOR, V.A.KALBURGI MANSION,
            OPPOSITE MUNICIPAL CORPORATION,
            LAMINGTON ROAD, HUBLI, REPRESENTED
            BY ITS AUTHORIZED SIGNATORY.
                                                              ...APPELLANT
            (BY SRI RAVINDRA R. MANE, ADVOCATE)

            AND:

            1.   DR. B. RAGHAVENDRA KASYAPA,
                 S/O. B.G. NARASIMHA MURTHY,
Digitally
signed by        AGE: 40 YEARS, OCC: DOCTOR, "KRISHNA CLINIC",
VINAYAKA         R/O: 4TH WARD, MARIYAMMANAHALLI,
BV
                 TAL: HOSPET, DIST: BELLARY.

            2.   SHRI GOPALA KRISHNA S/O. VIJAYENDRA RAO,
                 AGE: 29 YEARS,
                 R/O: NEAR VIJAYA TALKIES,
                 HOSPET, DIST: BELLARY.

            3.   M/S. HULISHREE ENTERPRISES,
                 BY ITS PROPRIETOR, M.V. GURURAJ,
                 R/O: 28TH WARD, BESIDE MILAN
                 PETROL BUNK, HOSPET.
                                                            ...RESPONDENTS
            (BY NOTICE TO R1 AND R3 - SERVED;
            NOTICE TO R2 IS DISPENSED WITH)
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                                         MFA No. 20023 of 2011




      THIS MFA IS FILED UNDE SECTION 173(1) OF MOTOR
VEHICLES ACT, 1988, AGAINST TE JUDGMENT AND AWARD DATED
10.06.2023, PASSED IN MVC NO.645/2008, ON THE FILE OF THE
PRINCIPAL SENIOR CIVIL JUDGE AND J.M.F.C. HOSPET & ETC.

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

                          JUDGMENT

Insurer-respondent No.3 in M.V.C. No. 645/2008 on the

file of the learned Prl. Sr. Civil Judge & JMFC Cum Member,

MACT-IV, Hospet, (hereinafter referred to as the Tribunal) is

impugning the judgment and award dated 10.06.2010

awarding compensation of Rs.1,56,600/- with interest at 6%

p.a. from the date of petition till realisation holding that the

respondents No.1 to 3 are jointly and severally liable to pay the

compensation.

Parties shall be referred to as per their ranking before the

Tribunal.

2. Brief facts of the case are that;

Claimant filed the claim petition before the Tribunal

claiming compensation for the injuries sustained by him in the

road traffic accident, said to have occurred on 26.01.2008 at

7.30 p.m. on the main road, Mariammanahalli. It is stated that

respondent No.1 was the rider of the motorcycle bearing reg.

MFA No. 20023 of 2011

no. KA-35-Q-4293, respondent No.2 was the owner and the

same was insured with the respondent No.3. It is contended

that respondent No.1 ridden the motorcycle in a rash and

negligent manner, in high speed and dashed to the motorcycle

bearing reg. no. KA-35-5780 as a result of which the claimant

sustained injuries and was shifted to the hospital. He has

taken treatment for 7 days by spending huge amount towards

medical expenses. Therefore, he has sought for compensation

from respondent Nos.1 to 3.

3. Respondent Nos.1 and 2 have not appeared nor contested

the matter before the Tribunal. Respondent No.3-insurer has

filed its objection statement denying the contention taken by

the claimant. It is stated that no such accident as contended

had occurred and therefore the claimant is not entitled for

compensation.

4. On the basis of these pleadings, the following issues were

framed.

1. Whether petitioner proves that on 26.1.2008, at about 7.30 p.m., near Pair Car, Main Road, Mariyammanahalli, on account of rash and negligent driving of vehicle bearing Regn. No. KA-35/Q-5293 by the driver, accident occurred and petitioner has sustained injuries?

MFA No. 20023 of 2011

2. Whether respondent No.3 proves that, the driver of the opponent vehicle did not possess valid driving licence at the time of accident?

3. Whether petitioner is entitled for compensation? If so, what amount and from whom?

4. What order or Award?

5. Heard Sri Ravindra R. Mane, learned counsel for the

appellant and perused the materials including the trial Court

records.

6. Learned counsel for the appellant contended that the

claimant is a Doctor by profession, he was riding the Hero

Honda Motorcycle bearing reg. no. KA-35-Q-4293 and said to

have sustained injuries in the road traffic accident. The

claimant himself lodged the first information with the Police on

27.01.2007, specifically stating that another Hero Honda

motorcycle bearing reg. no. KA-35-Q-878 ridden by M.N.

Gopalakrishna had caused the accident as a result of which he

sustained injuries and was shifted to the hospital. The claimant

being a professional Doctor owning the Hero Honda Motorcycle

could easily identify another Hero Honda Motorcycle and he can

specifically state the registration number. He not only stated

the register number of the offending motorcycle along with its

MFA No. 20023 of 2011

make, but also stated the name of the rider of the offending

motorcycle. But strangely while filing the charge sheet the

Investigating Officer filed it against respondent No.1 and

referred to the Yamaha motorcycle bearing reg. no. KA-35-Q-

5293 which was owned by respondent No.2 and insured with

respondent No.3. Apparently it is a false implication, may be

due to the reason that the vehicle which caused the accident

and referred to in the first information may not have the

coverage of insurance. The Tribunal has not taken into

consideration any of these materials on record but mechanically

proceeded to award compensation without any basis.

Therefore, he would pray for allowing the appeal by setting

aside the impugned judgment and award passed by the

Tribunal and also to dismiss the claim petition.

7. The respondents have not represented before this Court.

8. In view of the above, the point that would arise for my

consideration is:

Whether the impugned judgment and award passed by the Tribunal calls for interference by this Court?

9. My answer to the above point is in the affirmative for the

following;

MFA No. 20023 of 2011

REASONS

10. As rightly contended by the learned counsel for the

appellant, the claimant is a Doctor by profession running a

clinic by name 'Krishna Clinic'. He was aged 38 years, he

himself lodged the first information as per Ex.P.1 on

27.01.2008 at 5.40 p.m. He specifically stated that on

26.01.2008 he was riding his Hero Honda Motorcycle bearing

reg. no. KA-35-Q-5780 and in the meantime the rider by name

M.N.Gopalakrishna, of another Hero Honda motorcycle bearing

reg. no. KA-35-Q-878 ridden the same in a rash and negligent

manner and dashed to his motorcycle as a result of which he

sustained injuries. Immediately he was shifted to hospital by

the onlookers. Accordingly sought for initiation of criminal

proceedings against the rider of the motorcycle.

11. Ex.P.2 is the charge sheet filed by the Investigating

Officer against the accused being the rider of Yamaha Crux

motorcycle bearing reg. no. KA-35-Q-5293. When the claimant

is examined as PW1 he has stated during cross-examination

that since he was suffering from injuries he was informed by

others regarding the registration number of the motorcycle and

accordingly lodged the first information. But it is pertinent to

MFA No. 20023 of 2011

note that the accident had occurred on 26.01.2008 and the first

information was came to be filed on 27.01.2008 wherein he has

stated that on the date of accident he was not in a position to

lodge the first information and accordingly he came to the

Police Station on the next day. In Ex.P.1 he categorically

states that the offending motorcycle is the Hero Honda

Motorcycle bearing reg. no. KA-35-Q-878 ridden by

M.N.Gopalakrishna. If at all the claimant was not alert and was

not in a position to notice the offending motorcycle properly he

would not have given all such details in the first information.

There is absolutely no explanation for this glaring inconsistency

in naming the rider and the offending motorcycle. Respondents

No.1 and 2 being the rider and owner of the motorcycle

remained absent through the proceedings before the Tribunal

as well as before this Court. All these facts and circumstances

leads to a reasonable conclusion that it may be a case of false

implication as contended by the learned counsel for the

appellant that the motorcycle bearing reg. no. KA-35-Q-878

which is referred to in the first information which was lodged at

the first instance, might not have the coverage of insurance.

MFA No. 20023 of 2011

12. It is also pertinent to note that Ex.P.5 is the Motor Vehicle

Inspector's report who inspected the motorcycle bearing reg.

no. KA-35-Q-5293 but found no visible damages. It further

supports contention of the appellant regarding false implication.

13. There are no other reasonable explanation for filing the

charge sheet against a totally different motorcycle that means

to say different make, different registration number and

different rider altogether. The Tribunal has not taken into

consideration all these facts and circumstances and proceeded

to award the compensation considering only the injuries

sustained by the claimant.

14. The claimant is not a village rustic but he is a professional

practicing Medicine, having a clinic of his own. When he

himself owns a Hero Honda motorcycle it cannot be said that he

failed in identifying another motorcycle of Yamaha Company to

refer the same as a Hero Honda motorcycle. Therefore, I am of

the opinion that the claimant has not proved his contention

regarding involvement of the motorcycle bearing reg. no. KA-

35-Q-5293 and causing the accident as contended.

15. I have gone through the impugned judgment and award

passed by the Tribunal. It has mechanically awarded

MFA No. 20023 of 2011

compensation without referring to any of these glaring facts

and circumstances. hence, I am of the opinion that the

impugned judgment and award calls for interference by this

Court. Accordingly, I answer the above point in the affirmative

and proceed to pass the following order.

ORDER Appeal is allowed with costs.

Impugned judgment and award dated 10.06.2010 passed

in M.V.C. No. 645/2008 by the learned Prl. Sr. Civil Judge &

JMFC Cum Member, MACT-IV, Hospet, is set aside.

Consequently, M.V.C. No. 645/2008 is dismissed.

Draw award accordingly.

Amount in deposit by the insurer made before this Court

is ordered to be refunded on due identification.

Registry to send back the records along with a copy of

judgment and award.

SD/-

JUDGE BVV