Karnataka High Court
Ambramma And Ors vs The Branch Maanger And Anr on 14 November, 2024
-1-
NC: 2024:KHC-K:8505
MFA No. 201009 of 2018
C/W MFA.CROB No. 200058 of 2018
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 14TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
MISCL. FIRST APPEAL NO.201009 OF 2018 (MV-D)
C/W
MFA CROSS OBJ NO.200058 OF 2018
IN MFA NO.201009/2018:
BETWEEN:
THE BRANCH MANAGER,
HDFC ERGO GENERAL INS.CO.LTD.,
1ST FLOOR, VIRUPAKSHA KRUPA,
OPPOSITE KIMS MAIN GATE,
B.B.ROAD, VIDYA NAGAR, HUBLI,
(NOW REPRESENTED BY AUTHORIZED
SIGNATORY, BANGALORE)
Digitally signed by
RENUKA ...APPELLANT
Location: HIGH
COURT OF (BY SMT. PREETI PATIL MELKUNDI, ADVOCATE)
KARNATAKA
AND:
1. AMBRAMMA W/ O NINGAPPA PUJARI,
AGE: 31 YEARS, OCC: HOUSEHOLD,
R/O BALASHETTIHAL, TQ. SHORAPUR,
DIST.YADGIR - 585201.
2. GADDEPPA S/O NINGAPPA PUJARI,
AGE: 8 YEARS, MINOR,
-2-
NC: 2024:KHC-K:8505
MFA No. 201009 of 2018
C/W MFA.CROB No. 200058 of 2018
3. BASAMMA D/O NINGAPPA PUJARI,
AGE: 6 YEARS,
THE RESPONDENT NOS.2 AND 3 ARE MINORS
THROUGH U/G OF RESPONDENT NO.1
ALL R/O BALASHETTIHAL,
TQ. SHORAPUR, DIST. YADGIR - 585201.
4. SALIM SAB S/O JANGALISAB AOURADI,
AGE: 35 YEARS, OCC: PAINTER,
R/O BALASHETTIHAL, TQ.SHORAPUR,
DIST. YADGIR - 585201.
...RESPONDENTS
(BY SRI KRUPA SAGAR PATIL, ADVOCATE FOR R1;
R2 & R3 ARE MINORS REPRESENTED BY R1;
R4 SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT, PRAYING TO, CALL FOR THE
RECORDS AND ALLOW THE ABOVE APPEAL BY SETTING ASIDE
THE IMPUGNED JUDGMENT AND AWARD DATED 05.02.2018 IN
MVC NO.172/2017 PASSED BY THE SENIOR CIVIL JUDGE AND
ADDL. M.A.C.T. AT SHORAPUR.
IN MFA CROSS OBJ.NO.200058/2018:
BETWEEN:
1. AMBRAMMA W/ O NINGAPPA PUJARI,
AGE: 31 YEARS, OCC: HOUSEHOLD,
-3-
NC: 2024:KHC-K:8505
MFA No. 201009 of 2018
C/W MFA.CROB No. 200058 of 2018
2. GADDEPPA S/O NINGAPPA PUJARI,
AGE: 8 YEARS, MINOR,
3. BASAMMA D/O NINGAPPA PUJARI,
AGE: 6 YEARS, MINOR,
THE APPELLANT NOS.2 & 3 ARE MINORS U/G OF
THEIR NATURAL MOTHER THE APPELLANT NO.1
ALL ARE R/O BALASHETTIHAL,
TQ. SHORAPUR, DIST. YADGIR.
...APPELLANTS
(BY SRI KRUPA SAGAR PATIL, ADVOCATE)
AND:
1. THE BRANCH MANAGER,
HDFC ERGO GENERAL INS.CO.LTD.,
1ST FLOOR, VIRUPAKSHA KRUPA,
OPPOSITE KIMS MAIN GATE,
B.B.ROAD, VIDYA NAGAR, HUBLI-580 032.
2. SALIM SAB S/O JANGALISAB AOURADI,
AGE: 35 YEARS, OCC: PAINTER,
R/O BALASHETTIHAL, TQ.SHORAPUR,
DIST. YADGIR - 585 224.
...RESPONDENTS
(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE FOR R1)
THIS MFA CROB. IS FILED UNDER ORDER 41 RULE 22 of
CPC, PRAYING TO ALLOW THE APPEAL AND MODIFY THE
JUDGMENT AND AWARD PASSED BY THE SENIOR CIVIL JUDGE
AND ADDL. M.A.C.T. AT SHORAPUR IN MVC NO.172/2017
-4-
NC: 2024:KHC-K:8505
MFA No. 201009 of 2018
C/W MFA.CROB No. 200058 of 2018
DATED 05.02.2018 AND ENHANCE THE AWARD AS PRAYED
FOR.
THESE APPEAL AND MFA CROB., COMING ON FOR
FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED
THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM)
IN MFA No.201009/2018:
MFA No.201009/2018 is filed by the insurance
company challenging liability primarily on the ground that
the policy particulars furnished in the claim petition is not
issued by the insurance company. The appellant/insurance
company has taken a specific stand that the insurance
policy is fake and bogus.
2. Upon a careful review of the records, this Court
observes that the charge-sheet materials do not include
even a photocopy of any insurance policy related to the
offending vehicle. Additionally, no documents have been
NC: 2024:KHC-K:8505
C/W MFA.CROB No. 200058 of 2018
retrieved from the owner of the vehicle to substantiate
that the vehicle was insured with the appellant/insurance
company. It is also evident that the appellant/insurance
company has failed to adequately demonstrate or provide
evidence that the offending vehicle involved in the
accident was not covered by a valid insurance policy. This
lapse reflects a failure on the part of both the investigating
authorities and the appellant/insurance company to
present or disprove the existence of an insurance policy.
3. Both counsel have fairly conceded that the
matter requires reconsideration and suggest that it may be
remitted back to the Tribunal specifically for the purpose
of leading evidence on this critical issue.
4. Having thoroughly examined the records and
submissions, this Court is of the considered view that the
appellant/insurance company should be afforded a final
opportunity to substantiate its claim that no insurance
policy was issued for the offending vehicle as of the date
of the accident. It is the appellant's responsibility to
NC: 2024:KHC-K:8505
C/W MFA.CROB No. 200058 of 2018
demonstrate, with cogent and reliable evidence, that the
policy number or details provided, if any, are false or
fraudulent. The burden of proof rests squarely on the
insurance company to dispel any ambiguity and establish
that there was no valid policy in existence for the vehicle
in question.
5. The Court further directs that in the event the
appellant/insurance company fails to discharge this burden
and substantiate its claim before the Tribunal, the Tribunal
shall not only proceed to pass a fresh award based on the
available evidence but shall also impose an additional cost
of Rs.25,000/- on the appellant/insurance company. This
cost will serve as a penalty for the prolonged litigation and
the inconvenience caused due to the appellant's inability to
address this crucial issue adequately.
6. Accordingly, this Court passes the following:
ORDER
(1) The appeal in MFA No.201009/2018 is allowed.
NC: 2024:KHC-K:8505
C/W MFA.CROB No. 200058 of 2018
(2) The judgment and award dated 05.02.2018
passed in MVC No.172/2017 by the Senior Civil
Judge and Additional MACT, Shorapur is set
aside.
(3) The matter is remitted back to the Tribunal
solely for the purpose of permitting both parties
to lead evidence on the question of whether the
offending vehicle was insured with the
appellant/insurance company at the time of the
accident.
(4) The appellant/insurance company is directed to
produce clear, convincing, and substantial
evidence to establish that no insurance policy
was issued to the offending vehicle as of the
date of the accident.
(5) In the event of failure by the
appellant/insurance company to substantiate
this crucial point, the Tribunal is empowered to:
NC: 2024:KHC-K:8505
C/W MFA.CROB No. 200058 of 2018
(i) Pass a fresh award in accordance with
the evidence on record.
(ii) Impose an additional cost of
Rs.25,000/- on the appellant/insurance
company, payable to the claimants as a
penalty for the unnecessary
prolongation of the litigation.
(6) Since the parties are represented by their
respective counsel, they are directed to appear
before the Tribunal on 05.12.2024 without
expecting any further notice from the Tribunal.
(7) The Tribunal shall dispose of the claim petition
within a period of three months from the date
of first hearing i.e., on 05.12.2024.
(8) Both parties are directed to cooperate fully
with the proceedings before the Tribunal to
ensure expeditious disposal of the matter.
(9) Registry to transmit records forthwith to the
Tribunal.
NC: 2024:KHC-K:8505
C/W MFA.CROB No. 200058 of 2018
IN MFA CROSS OBJ.NO.200058/2018:
In the light of the remittal order passed by this Court
in MFA No.201009/2018, the cross-objection relating to
quantum does not survive for consideration. However, the
Tribunal is not precluded in re-determining the
compensation by taking cognizance of the latest law laid
down by this Court in relating to income proof and other
factors. Accordingly, the cross-objection stands dismissed.
Sd/-
(SACHIN SHANKAR MAGADUM)
JUDGE
RSP
