Karnataka High Court
Reliance General Insurance Company Ltd vs G.V.Shivaraju on 5 January, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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MFA No. 849 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO. 849 OF 2017 (MV-I)
BETWEEN:
RELIANCE GENERAL INSURANCE COMPANY LTD,
ANIL DHIRUBHAI AMBANI GROUP,
RELIANCE GENERAL INSURANCE COMPANY,
REGD OFFICE: RELAINCE CENTER,
19,WALCHAND HIRACHAND MARG
BALLARD ESTATE,
MUMBAI - 400 001.
NOW REPRESENTED BY
ITS LEGAL MANAGER,
M/S RELIANCE GENERAL INSURANCE
COMPANY LTD
NO.28, 5TH FLOOR,
EAST WING, CENTENARY BUILDING,
M G ROAD
BANGALORE - 560 045.
Digitally signed by
...APPELLANT
RAMYA D (BY SRI. B. PRADEEP, ADVOCATE)
Location: HIGH
COURT OF
KARNATAKA AND:
1 G.V.SHIVARAJU
S/O H V VENKATEGOWDA
SINCE DEAD BY HIS LRS
1(A) SUNANDA
D/O LATE G V SHIVARAMU
AGED ABOUT 59 YEARS
2. C S SHRUTI
D/O LATE G V SHIVARAMU
AGED ABOUT 35 YEARS
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MFA No. 849 of 2017
W/O G R ASHWIN
3. C S YOGITHA
D/O LATE G V SHIVARAMU
AGED ABOUT 28 YEARS
NOW R/O C/O H M BALARAMARAJU
SRI VENKATADRI NILAYA
OPP:TALUK OFFICE, B M ROAD
KUNIGAL TOWN, TUMKUR DIST
PERMANENT RESIDENTY SLN SWAMY NILAYA, 7TH
CROSS, KUVEMPUNAGAR
CHANNAPATNA
RAMANAGARA DIST
ALL ARE NOW R/O
C/O H.M. BALARAMARAJU,
SRI VENKATADRI NILAYA
OPP:TALUK OFFICE, B M ROAD
KUNIGAL TOWN, TUMKUR DIST
PERMANENT RESIDENT SLN SWAMY NILAYA,
7TH CROSS, KUVEMPUNAGAR
CHANNAPATNA
RAMANAGARA DIST - 521 511.
4. N R KANTHARAJU
S/O RAJAIAH N
AGED ABOUT 47 YEARS
R/O NO.131, NAGARAVA VILLAGE & POST,
CHANNAPATNA TALUK
RAMANAGARA DIST - 521 511
(OWNER OF VEHICLE REG NO.KA-42-H-1040)
...RESPONDENTS
(BY SRI.M.V. MAHESHWARAPPA ADVOCATE FOR R1(A) TO (C);
R2- NOTICE SERVED)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED10.05.2016 PASSED IN
MVC NO.573/2009 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND JMFC, MACT-XV, KUNIGAL, AWARDING COMPENSATION
OF RS.4,18,035/- WITH INTEREST @ 6% P.A. FROM THE DATE
OF PETITION TILL REALIZATION.
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MFA No. 849 of 2017
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The present appeal is filed by the appellant-
Insurance Company challenging the judgment and award
dated 10.05.2016 passed in MVC.No.573/2009 by the
Senior Civil Judge and MACT-XV, Kunigal, by contending
that the Motor Bike No.KA-42-H-1040 was not involved in
the accident, but it is falsely implicated into the case.
2. It is the case of the claimant that on
30.10.2008 at about 7.00 pm., the claimant was going on
footpath beside NH-48 road on Bangalore Mysore Road in
front of Pooja Nursing Home to go towards Bangalore and
at that time, Motor Bike No.KA-42-H-1040 came from
behind from Mysore side with high speed and in a rash and
negligent manner and dashed against the claimant, due to
which, the claimant sustained injuries. Therefore, he filed
the claim petition and during the pendency of the claim
petition, he died. Hence, his legal heirs had come on
record and prosecuted the case. Thus, the Tribunal has
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awarded compensation fixing the liability on the owner and
insurer of the Motor Bike No.KA-42-H-1040.
3. Heard the arguments from both sides and
perused the records.
4. Learned counsel for the appellant-Insurance
Company submitted that the Motor Bike No.KA-42-H-1040
was falsely implicated into the case only for the purpose of
making claim against the Insurance Company. He
submitted that the brother of the claimant has given first
information statement namely FIS before the police on
10.11.2008 by mentioning the offending Motor Cycle
No.KA-09-ED-1170 and also specifically stated that this
motor cycle number was furnished by three eye witnesses
named in the FIS, but substantially in the charge sheet,
the number of motor cycle was changed into KA-42-H-
1040. Therefore, submitted that manipulation was done by
the police in collusion with the claimants and the Tribunal
has not appreciated the evidence correctly resulting into
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delivering erroneous judgment. Hence, prays to allow the
appeal.
5. On the other hand, the learned counsel for the
respondents/claimants submitted that, though, initially in
the complaint the number of motor cycle was mentioned
as KA-09-ED-1170, but during the course of investigation,
truth is revealed that involved motor cycle is KA-42-H-
1040 and accordingly, charge sheet is filed. Learned
counsel by pointing out to the charge sheet material
submitted that one of the eye witnesses by name
Shivaramukumar has given statement before the police
stating that the Motor Bike No.KA-42-H-1040 was involved
in the accident. Therefore, there is no manipulation. The
entire investigation is found to be genuine and fair one.
Hence, prays to dismiss the appeal. Learned counsel
further submitted that during the pendency of the claim
petition before the Tribunal, the injured died and hence,
his legal heirs have prosecuted the claim petition and the
compensation awarded is only in respect of medical bills
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and hospital charges. Hence, prays to dismiss the appeal
by confirming the judgment and award passed by the
Tribunal.
6. In the present case, there is a delay of 10 days
in lodging the complaint. Brother of the claimant has
lodged the complaint before the police. The complainant
has specifically mentioned the registration number of the
motorcycle as he received such information from three eye
witnesses. The number of motorcycle mentioned in the
complaint is "KA-09-ED-1170", but subsequently the
charge sheet is filed by mentioning the motorcycle number
as "KA-42-H-1040". Initially in the complaint the
allegation is made against one Phaneendra, who has
caused the accident, but subsequently, the charge sheet is
filed against one Kantharaju. Therefore, there is a change
of motorcycle number with driver from the stage of first
information statement to charge sheet. For this, the IO
has recorded a statement of complainant and the
claimant, but the complainant is not the eye witness. The
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IO has recorded the statement of one eye witness namely,
Shivakumar, who has changed the version in his
restatement stating that motorcycle involved is "KA-42-H-
1040". This eye witness is not examined before the
Tribunal. Though in this claim proceedings eye witnesses
need not be examined, but considering the mitigating
factors where there is a complete change of version from
motorcycle and rider in the charge sheet, then
examination of these witnesses is relevant, but they are
not examined. Therefore, there is a change of version in
mentioning the number of motorcycle and a rider from the
stage of FIR to charge sheet. One Phaneendra against
whom accusation is made in the FIR, is examined and he
could have deposed atleast to say that motorcycle No.KA-
09-ED-1170 had insurance policy and he has a driving
licence, but he has not stated so. Therefore, there is a
force found in the statement made by the learned counsel
for the appellant that there might not be either insurance
policy to the motorcycle KA-09-ED-1170 or Phaneendra
might not be holding driving licence and as such, there
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might have been change of version in mentioning the
number of motorcycle and a rider.
7. Upon considering all the circumstances and
evidence on record on all its preponderance of
probabilities, an impression is created that with an
intention to avoid the liability, the number of motorcycle
and the name of rider of motorcycle has been changed.
8. The brother of claimant who has lodged the
FIRs is not examined. There is no evidence before the
Tribunal as to how the complainant has got information
about the motorcycle - KA-42-H-1040. Also upon
considering the evidence of PW1, there is no evidence that
how he has received the information regarding motorcycle
- KA-42-H-1040. Therefore, there is merit found in the
appeal filed by the insurance company. In this regard, the
Tribunal has not appreciated the evidence correctly.
Therefore, the appeal is liable to be allowed.
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9. For the reasons stated above, I proceed to pass
the following:
ORDER
(i) Appeal is allowed.
(ii) The judgment and award dated
10.05.2016 passed by the Senior Civil
Judge and MACT-XV, Kunigal, in MVC
No.573/2009, is set aside.
(iii) The amount in deposit shall be
refunded to the appellant.
(iv) No order as to costs.
Sd/-
JUDGE
PB:Para 1 to 5
DR:Para 6 to 9
