Vijayalakshmi vs The Manager
2023 Latest Caselaw 7438 Kant

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                                                       NC: 2023:KHC:38994
                                                    MFA No. 7324 of 2012




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                       DATED THIS THE 2ND DAY OF NOVEMBER, 2023

                                         BEFORE
                      THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
                MISCELLANEOUS FIRST APPEAL NO. 7324/2012 (MV-D)

                BETWEEN:

                1.    VIJAYALAKSHMI,
                      W/O LATE MAHALINGEGOWDA,
                      AGED ABOUT 46 YEARS,

                2.    VINUTHA H.M.,
                      D/O LATE MAHALINGEGOWDA,
                      AGED ABOUT 18 YEARS

                3.    VINAY H.M.,
                      D/O LATE MAHALINGEGOWDA,
                      AGED ABOUT 16 YEARS,

                4.    VARSHITHA H.M.,
                      D/O LATE MAHALINGEGOWDA,
                      AGED ABOUT 14 YEARS,
Digitally
signed by             APPELLANT NO.2 TO 4,
RENUKAMBA             REPRESENTED BY NATURAL GUARDIAN,
KG                    VIJAYALAKSHMI,
Location:             W/O LATE MAHALINGEGOWDA,
High Court of
Karnataka             ALL ARE R/AT HETHAGODANAHALLI, VILLAGE,
                      ARKALGUD TALUK,
                      PRESENTLY R/AT BYADARAHALLI VILLAGE,
                      BAGUR HOBLI,
                      CHANNARAYAPATNA TALUK,
                      HASSAN DISTRICT-573 201.

                                                            ...APPELLANTS
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                                               NC: 2023:KHC:38994
                                         MFA No. 7324 of 2012




(BY SRI. GIRISH B BALADARE, ADVOCATE)

AND:

1.   THE MANAGER,
     THE NEW INDIA ASSURANCE CO. LTD.,
     KENGERI BRANCH-671902,
     KENGERI,BANGALORE-89.

2.   S. JAGADISH,
     S/O LATE SHIVANANDAPPA,
     R/O NO.G-7, N.G.O QUARTERS,
     6TH BLOCK,RAJAJINAGAR,
     BANGALORE.
                                                  ...RESPONDENTS

(BY SRI. S.V. HEGDE MULKHAND, ADVOCATE FOR R1
    SRI. SUMANTH .L BHARDWAJ, ADVOCATE FOR R2)

     THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:06.02.2012 PASSED IN MVC
NO.276/2011 ON THE FILE OF THE PRESIDING OFFICER, FAST
TRACK COURT, CHANNARAYAPATNA, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.

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

                         JUDGMENT

This appeal is filed by the appellants / claimants

under Section 173 (1) of M.V.Act challenging the

judgement and award passed by Fast Track Court / MACT.

Channarayapatna in M.V.C No.276 of 2011.

NC: 2023:KHC:38994 MFA No. 7324 of 2012

2. The brief factual matrix leading to the case are

that on 11.07.2009 at 9:30 p.m. deceased Mahalige

Gowda was coming by walk on the left side of the road

near Channarayapatna APMC bus stop. It is also alleged

that he met with an accident due to actionable negligence

on the part of the rider of the motor cycle bearing

registration No.KA-01-EL-5124 and had sustained grievous

injuries. Subsequently, he succumbed because of the

injuries in NIMHANS on 20.07.2009. That the deceased

was a head constable drawing salary of Rs.13,193/- per

month. The claimants being the legal representatives have

filed a claim petition under section 166 of the Act claiming

compensation of Rs.25 Lakhs from respondents.

3. The respondent No.1 being the owner of the

motorcycle appeared and filed his objection statement

admitting the accident and involvement of the two-

wheeler but he simply asserted that the accident is

because of the actionable negligence on the part of the

deceased who was crossing the road unmindful of traffic.

NC: 2023:KHC:38994 MFA No. 7324 of 2012

4. While respondent No.2 contested the claim

petition disputing the entire case. It is asserted that the

deceased himself was riding the vehicle and he hit a bus

and by colluding with the respondent No.1, the two

wheeler was got implicated. Though respondent No.2 had

admitted the coverage of the policy of two wheeler bearing

registration No.KA-01-EL-5124, however, he disputed the

liability on the ground of involvement of the vehicle.

5. The tribunal after appreciating the oral and

documentary evidence has dismissed the claim petition as

against respondent No.2 / insurer on the ground that

involvement of the vehicle is not established. However, the

claim petition came to be allowed as against respondent

No.1 on the ground that since, he has admitted the

accident, he has estopped from disputing the liability and

a compensation of Rs.13,46,224/- came to be awarded.

Being aggrieved by this judgment, the claimants are

before this court on the ground of liability as well as

quantum.

NC: 2023:KHC:38994 MFA No. 7324 of 2012

6. Heard the learned counsel for the appellants

and learned counsels for the respondents. Perused the

records

7. The learned counsel for the appellants would

contend that and the deceased was a head constable and

the criminal court records clearly establish the

involvement of the vehicle in the accident and the tribunal

has given undue importance to the history referred in post

mortem report and sought for allowing the appeal by

fastening the liability on respondent No.2. It is further

asserted that the compensation awarded under the head

of loss of consortium is on the lower side and sought for

enhancement.

8. Per contra, the learned counsel for respondent

No.1 would support and the award passed by the tribunal

fastening the liability on respondent No.1 contending that

since, he has colluded with the claimants, he is bound to

pay the compensation, if any. While the learned counsel

NC: 2023:KHC:38994 MFA No. 7324 of 2012

for respondent No.2 would support the arguments

advanced by the claimants.

9. However the respondent No.2 / owner did not

challenge the award passed against him.

10. Having heard the arguments and perusing the

records, it is not under serious dispute that deceased

Mahalingegowda met with an accident on 11.07.2009 at

about 9:30 p.m. near Channarayapatna, APMC bus stop. It

is also admitted fact that he succumbed due to the injuries

suffered by him in the said accident. However, it is the

assertion of the claimants that the deceased while walking,

was hit by two wheeler bearing registration No.KA-01-EL-

5124 which is disputed by respondent No.1 / insurer

asserting that the deceased himself was the rider and he

hit the bus resulting in the accident.

11. It is important to note here that deceased was

a head constable. The complaint was lodged on

12.07.2009 in the afternoon by PW2. The accident has

occurred on 11.07.2009 at 9:30 p.m. and immediately

NC: 2023:KHC:38994 MFA No. 7324 of 2012

after the accident, the deceased was initially shifted to

Government Hospital, Channarayapatna and thereafter, he

was shifted to SSM Hospital, Hassan and later on, he was

shifted to NIMHANS, Bangalore. PW2 claims that after

admitting the injured to the hospital, on the next day, he

lodged the complaint. The complaint is marked at Ex.P3.

PW2 claims to be an eye-witness. It is important to note

here that immediately after the accident, the injured was

shifted to Government Hospital, Channarayapatna and

thereafter to SSM Hospital, Hassan. The history given

there was only RTA. The hospital authorities have not

issued any intimation regarding the accident to the nearest

police station. No explanation is forthcoming in this

regard.

12. Admittedly, PW2 claims to have shifted the

deceased to the hospital at Channarayapatna, but he has

also admitted that the owner of the vehicle came to the

hospital and he has also assisted in shifting the injured to

NIMHANS, Bangalore. Admittedly, the owner i.e., the

NC: 2023:KHC:38994 MFA No. 7324 of 2012

respondent No.1 is a resident of Bangalore and how he

immediately rushed to Channarayapatna and Hassan

Hospitals is not at all forthcoming. Further, PW2 did not

report the accident to the hospital authorities with

reference to the vehicle number so as to enable the

hospital authorities to report to the nearest police station.

13. Ex.P4 is a relevant record in this case. Ex.P4 is

the postmortem report conducted in the NIMHANS,

wherein it is specifically endorsed in column No.5 that a

report was submitted asserting that two-wheeler rider

hitting against the bus at Channarayapatna on 11.07.2009

at 9:30 p.m. This endorsement is not challenged by any

body and who has given this history before the NIMHANS

hospital authorities is not at all forthcoming. Mere

submission of the charge sheet by the police does not

have any relevancy. Ex.R2 is the investigation report

submitted by the Investigator of the insurance company,

which supports the contents of Ex.P4. Ex.P4 is the

NC: 2023:KHC:38994 MFA No. 7324 of 2012

document relied by the claimants and now they cannot go

against the said document.

14. Further, the learned counsel for the insurance

company has got produced emergency case record for

head trauma and informants name there is shown to be

the respondent No.1 i.e., the owner. There also the

information was given as two wheeler rider hitting against

the bus near Channarayapatna and this history was given

by the owner of the vehicle, but contrary to the said

history, now the owner admits the accident and

involvement of his vehicle, which discloses that he has

colluded with the claimants. Further, Ex.R3 discloses that

the deceased was known for alcoholic and consumes ¼

Quarte every day and this was the history provided. It

clearly disclosed that though the deceased was a head

constable, he is a chronic alcoholic and he being a rider of

the vehicle caused the accident, but the facts were

twisted. Looking to these facts and circumstances, now

subsequent police records cannot be a ground to hold that

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NC: 2023:KHC:38994 MFA No. 7324 of 2012

the accident is because of actionable negligence on the

part of the rider of two wheeler. Even respondent No.1

i.e., owner did not enter into witness box and he has not

made any attempts to examine the rider who alleged to

have caused the accident. The tribunal has appreciated all

these aspects in its proper perspective and has rightly

rejected the claim against the insurance company.

However, considering the conduct of respondent No.1/

respondent No.2 herein viz., the owner in admitting the

accident by colluding with the claimants, the liability was

fastened on him, which may not be proper, but

considering the admission given by owner by colluding

with the claimants, he is liable for reimbursement as

rightly observed by the tribunal as it will be a lesson for

others in future not to indulge in such activities. No doubt

the tribunal has not awarded proper compensation under

the head of loss of consortium, but considering the fact of

non-involvement of the vehicle, this court is not inclined to

enhance the compensation and hence, the appeal being

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NC: 2023:KHC:38994 MFA No. 7324 of 2012

devoid of any merits does not survive for consideration.

Accordingly, the appeal stands dismissed.

Sd/-

JUDGE

SS