Karnataka High Court
M/S Icici Lombard General Insurance ... vs B Abhishek on 5 January, 2024
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MFA No. 5676 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
MFA NO. 5676 OF 2013 (MV-I)
BETWEEN:
M/S ICICI LOMBARD GENERAL
INSURANCE COMPANY LIMITED
NO.204, 1ST FLOOR, MYTHRI ARCADE
KANTHARAJ URS ROAD
SARASWATHIPURAM
MYSORE - 570 001
REP. BY ITS MANAGER-LEGAL ... APPELLANT
(BY SRI. LAKSHMINARASAPPA, ADV. FOR
SRI.A.M.VENKATESH, ADV.)
AND:
1. B.ABHISHEK
S/O BYRAIAH, AGED ABOUT 24 YEARS
R/AT NO.419/10, 17TH CROSS, 11TH MAIN
5TH BLOCK, JAYANAGAR, BANGALORE - 560 041
2. T.RAMAKRISHNA
NO.132, 25TH MAIN ROAD
Digitally signed by MALA
KN KALAPPA BLOCK, SRINAGAR
BASAVANAGUDI, BANGALORE - 560 041
Location: HIGH COURT OWNER OF MOTORCYCLE BEARING
OF KARNATAKA
REG.NO.KA-41/J-5770 ... RESPONDENTS
(BY SRI.M.B.RAMACHANDRA, ADV. FOR
SRI.RAJANNA, ADV. FOR R1;
VIDE ORDER DATED 20.02.2017
SERVICE OF NOTICE TO R2 IS HELD SUFFICIENT)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 06.05.2013
PASSED IN MVC NO.65/2009 ON THE FILE OF THE SENIOR
CIVIL JUDGE, MACT, MADDUR, AWARDING A COMPENSATION
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MFA No. 5676 of 2013
OF 2,15,000/- WITH INTEREST AT 6% P.A. FROM THE DATE
OF PETITION TILL REALIZATION.
THIS MFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 08.12.2023 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
In this appeal, the Insurance Company has
challenged the judgment and award dated
06.05.2013 passed in M.V.C.No.65/2009 on the file
of the Senior Civil Judge and Motor Accident Claims
Tribunal, Maddur ('the Tribunal' in short).
2. The parties will be referred to as per their
status before the Tribunal for the sake of
convenience.
3. The brief facts of the case are, on
14.01.2008 at about 12:00 noon, while the
petitioner was riding the motorcycle bearing
registration No.KA-41-J-5770, on Koppa - Kowdley
road, near Kowdley Village, met with an accident due
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to sudden application of brake by the rider Yogesha
on account of intervening stray dog. As a result, he
sustained the injuries. He has taken treatment at
Government hospital, Nagamangala and BGS Global
Hospital, Bengaluru. Thereafter, he approached the
Tribunal for grant of compensation of Rs.7,50,000/-.
The respondents have opposed the claim. In
particular, the Insurance Company has contended
that there is an inordinate delay in filing the
complaint. The rider of the motorcycle did not
possess a valid driving license and he has no liability
to pay the compensation. After taking the evidence,
the Tribunal by the impugned judgment allowed the
claim petition, awarded the compensation of
Rs.2,15,000/- with interest at 6% per annum.
Aggrieved by the same, the Insurance Company has
filed this appeal on various grounds.
4. Heard the arguments of Shri. Lakshmi
Narasappa, learned Advocate on behalf of Shri A.M.
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Venkatesh, learned counsel for the Insurance
Company and Shri. M.B. Ramachandra, learned
Advocate on behalf of Shri Rajanna, learned counsel
for the petitioner.
5. It is the contention of the learned counsel
for the Insurance Company that the hospital records
point out the history of self fall from the motorcycle
bearing registration No.KA-7170. Whereas, the
complaint was filed one day after the accident
incorporating the motorcycle bearing registration
No.KA-41/J-5770. The rider as well as the
motorcycle has been replaced even before the
petitioner was admitted to BGS Global Hospital. The
history was furnished as self fall. Hence, the
petitioner being the rider fell down on his own and
the rider as well as the motorcycle has been
replaced. Hence, for the suppression of material
facts, the Tribunal ought to have rejected the claim;
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instead allowed the claim petition and sought for
interference.
6. Per contra, learned counsel appearing for
the petitioner has contended that soon after the
accident, the injured was taken to the Government
Hospital, Nagamangala. A Medico Legal Case(MLC)
was registered as road traffic accident. The
petitioner was accompanied by the rider Yogesha.
From Nagamangala, immediately, the petitioner was
shifted to BGS Global Hospital. Though MLC was
registered, an intimation was sent to the
Nagamangala Police by the Government Hospital,
Nagamangala. It was not communicated to the
Koppa Police, within whose limits, the accident has
taken place. For the reason that the petitioner was
shifted from Nagamangala to Bengaluru, the police
intimation was sent to the Kengeri Police by the BGS
Global Hospital and the Kengeri Police, in turn,
informed the Koppa Police, who visited the Hospital,
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recorded the statement of the petitioner and set the
law into motion. It is further contended that there is
no material on record to show that who had
furnished the information about the registration
number of the motorbike. Before the hospital
authorities, a clear statement is made that the
petitioner sustained the injuries on account of the
road traffic accident involving the motorcycle. There
is no motorcycle in existence bearing registration
No.KA 7170. Yogesha was not the owner of the
motorcycle. He borrowed it from the first respondent
and the first respondent did not deny the accident.
The prosecution of Yogesha, as the rider of the
motorcycle was also not challenged. The Tribunal
has rightly accepted the evidence and recorded its
finding assessing the compensation. Though the
compensation assessed is on the lower side, the
petitioner has not filed any appeal but he sought for
suo motu interference for enhancement of
compensation.
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7. I have given my anxious consideration to
the arguments advanced on both sides and also
perused the materials on record.
8. The material on record did point out that
one Yogesha and the petitioner along with other
friends were going from Bengaluru to
Adichunchanagiri on Koppa - Kowdley road, near
Kowdley village since the stray dog came across the
road, the rider applied sudden brake, due to which,
the petitioner and the rider fell down; bike fell on the
leg of the petitioner fracturing his legs. Soon after
the accident, the petitioner was taken to nearby
Government Hospital, Nagamangala, after first aid,
he was shifted to BGS Global Hospital, Bengaluru.
BGS Global Hospital sent MLC intimation to the
Kengeri Police, who in turn informed the Koppa
Police. The Koppa Police have visited the Hospital
and recorded the statement of the petitioner and
registered a case in Crime No.5/2008.
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9. Ex.P3 is the statement of the petitioner
recorded in BGS Global Hospital by the Koppa Police
in the presence of Dr. Abhiram R, the resident of the
said Hospital at 2:30 p.m, on 05.01.2008 and an FIR
was registered at 5:30 p.m. on that day. After
investigation, Ex.P1, charge sheet came to be filed
against Yogesha, the rider of the motor cycle. The
petitioner has relied upon the investigating papers
such as spot mahazar, seizure mahazar, wound
certificate, IMV report, as per Exs.P4 to P7. Neither
the owner of the motorcycle nor the rider has denied
any of these aspects.
10. The only ground that the Insurance
Company banking upon is that the petitioner was
brought to the hospital, due to 'self fall' and also the
registration number of the motorcycle as KA-7170.
Ex.R1 is the inpatient record pertains to the
petitioner, its recital points out that "History of self
fall from his bike vehicle No: KA-7170 while driving
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along with a friend at 12:00 p.m. near
Nagamangala, Koppal on 14.01.2008." In this
regard, intimation was also referred to the Kengeri
Police. As found from the recitals in Ex.R1(a), the
Insurance Company claimed that the petitioner was
riding the bike bearing registration No.KA 7170. No
doubt, the registration number is though mentioned,
nothing is placed before the Court that such a
motorcycle is in existence. When a prefix of 'KA'
comes, the RTO identification being given as per
District wise. Here in this case, there is no reference
to the District and the series of the vehicle registered
in the RTO office. When the petitioner was brought
to the BGS Global Hospital, he was accompanied by
his friend and his sister. Nothing is elicited in the
cross-examination of the petitioner that who was his
friend who accompanied him to the hospital. Even
before the General Hospital, Nagamangala, the
history furnished was fall from the motorcycle. The
motorcycle capsized on the road due to sudden
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crossing of stray dog on the road. Both the rider as
well as the pillion rider fell down. Under such
circumstances, the history has to be furnished as self
fall from the motorcycle as it is not a case of
motorcycle hitting against any other vehicle or road
side tree or the culvert.
11. At Government Hospital, Nagamangala,
first aid was only given to the petitioner.
Immediately he was brought to BGS Global Hospital,
Bengaluru. As pointed out in Ex.P6/Wound
Certificate, the petitioner has suffered comminuted
fracture of right tibia and fibula and cut wound on
the shin of right leg. He was under hospitalization
till 18.01.2008. When the petitioner has suffered
the fracture of both the bones of right leg, it may not
be possible for him to go to the Police Station and
file a complaint as at that juncture of the accident
one would be interested only in the safety of the
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injured rather thinking of claiming compensation for
the injuries.
12. There is no material on record to explain
KA 7170 motorcycle is in existence. The accident
took place at 12 noon. The petitioner after taking
first aid at Government Hospital, Nagamangala,
came down to BGS Global Hospital at 7:30 p.m., on
the very day. Hence, the first aid as well as the
travelling time itself has consumed a lot. Without
any suppression of material, it was reported to the
BGS Hospital that the petitioner fell from the
motorcycle. Admittedly, neither the petitioner nor
the rider of the motorcycle, Yogesha is the owner of
the motorcycle. It is Yogesha, who brought the
motorcycle from respondent No.1.
13. Ex.P14 is the copy of the order sheet in
C.C.No.547/2008 on the file of Principal Civil Judge
(Jr.Dn.) & JMFC., at Maddur, the jurisdictional
Magistrate before whom the rider Yogesha pleaded
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guilty for the offences punishable under Sections
279, 337 and 338 of IPC. The order sheet did point
out that the rider did not appear voluntarily and
pleaded guilty, but he was secured only after issuing
the Non-bailable Warrant. The charge sheet was filed
on 03.05.2008, whereas he pleaded guilty on
22.01.2009, after six adjournments before the
learned JMFC.
14. RW.1-Santhosh Nirvani, the Legal
Manager of the Insurance Company is not an eye
witness. RW.2-T.Murthy is the Investigator on
behalf of the Insurance Company. Except he
collecting the police intimation as per Ex.R1 issued
from BGS Global Hospital and the Discharge
Summary as per Ex.R2 and his report as per Ex.R3,
nothing is found to explain that the petitioner has
joined hands with Yogesha or the first respondent.
When a motorcycle bearing No.KA 7170, is not in
existence and the motorcycle involved in the
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accident is bearing registration No.KA-41-J-5770,
there is no evidence explaining malice in the conduct
of the petitioner. Merely on the ground of
discrepancy in the registration number of the
motorcycle, it in dangerous to accept the arguments
of the Insurance Company that fraud has committed.
If the petitioner commits a fraud and for the purpose
of compensation if the records are created, he could
have clearly stated the registration number of the
motorcycle after fixing. The cross-examination of
the petitioner did not bring out anything that he has
committed any fraud.
15. PW.2 - Yogesha is the rider of the
motorcycle. He has categorically stated before the
Tribunal that he was the rider of the motorcycle, he
borrowed the motorcycle from the first respondent,
since for the first time he was riding the motorcycle,
he could not give the correct registration number in
the hospital. When the rider and the pillion rider
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both have offered perfect explanation with
justification, there is no reason to doubt their
veracity nor to doubt that the accident was fake or
fraud has been committed for the purpose of
compensation. Grounds urged by the Insurance
Company is not persuasive. The appeal is devoid of
merits, in the result, the following:
ORDER
(i) The appeal is dismissed.
(ii) The impugned judgment and award
is confirmed.
(iii) The amount in deposit, if any, shall
be transmitted to the Tribunal
along with records, forthwith.
Sd/-
JUDGE
*CP
CT:HS
*Corrected v/chamber
order dt.12.1.2024
