Karnataka High Court
Oriental Insurance Co Ltd vs Smt. Shivamma on 2 January, 2017
Author: B.Manohar
Bench: B.Manohar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JANUARY, 2017
BEFORE:
THE HON'BLE MR. JUSTICE B.MANOHAR
MFA.NO.724/2011(MV)
BETWEEN:
ORIENTAL INSURANCE CO. LTD.,
BANGALORE-MYSORE MAIN ROAD,
OPP: DY.COMMISSIONER OFFICE,
MANDYA DISTRICT,
NOW REPRESENTED BY ITS
REGIONAL MANAGER
ORIENTAL INSURANCE CO. LTD.,
REGIONAL OFFICE
# 44,45, LEO SHOPPING COMPLEX,
RESIDENCY ROAD,
BANGALORE - 560 025. ... APPELLANT
(BY SRI.A.N.KRISHNA SWAMY, ADV.)
AND:
1. SMT.SHIVAMMA
W/O LATE T.SHANKARAPPA,
AGED ABOUT 45 YEARS,
2. VISHWANATH
S/O LATE T.SHANKARAPPA,
AGED ABOUT 28 YEARS,
BOTH ARE RESIDING AT
DUDUKANAHALLY VILLAGE,
2
AKKIHEBBALU HOBLI,
K.R.PET TALUK,
MANDYA DISTRICT.
3. A.B MAHESHKUMAR
S/O BASAVANNA,
AGED ABOUT 34 YEARS,
AKKIHEBBALU VILLAGE & POST/HOBLI
K.R.PET TALUK,
MANDYA DISTRICT.
4. A.N.RAVIKUMAR
S/O A.L. SHIVARAMU,
NOW AGED ABOUT 35 YEARS,
AGRICULTURIST,
R/O AKKIHEBBALU VILLAGE
HOBLI, K.R.PET. ... RESPONDENTS
(BY SRI.SANDESH SHETTY.T, ADV. FOR R1 & 2,
R.3 & R.4 ARE SERVED)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED:06.09.2010 PASSED
IN MVC NO.167/2006(OLD NO.1213/2004) ON THE FILE OF
THE CIVIL JUDGE (SR.DN) AND JMFC, K.R.PET,
AWARDING A COMPENSATION OF Rs.3,23,000/- WITH
INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL
PAYMENT.
THIS APPEAL COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING: -
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JUDGMENT
The Oriental Insurance Company Limited has filed this appeal challenging the legality and correctness of the judgment and award dated 6th September 2010 made in MVC No.167/2006 passed by the Civil Judge (Sr.Dn.) and JMFC at K.R.Pet (hereinafter referred to as "the trial Court" for short) fastening the liability on them to compensate the claimants.
2. The main contention of the appellant is that the insured vehicle is not involved in the accident. In order to get compensation from the appellant, the insured vehicle has been falsely implicated. The trial Court without taking into consideration the contentions raised by the appellant has passed the impugned judgment and award fastening the liability on them to compensate the claimants which is contrary to law.
3. The brief facts of the case are as follows:
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The respondents 1 and 2 herein filed a claim petition contending that husband of the first respondent and father of the second respondent deceased T.Shankarappa went to Krishnaraj Pet on 19-05-2003 along with the first respondent as a pillion rider in the motorcycle bearing Registration No.KA-11/K-6069 belonging to the 4th respondent herein. At about 7.00 p.m., after completion of his work, while he was returning in the said motorcycle, due to the rash and negligent riding of the said motorcycle, Shankarappa fell down and sustained grievous injuries all over the body on K.R.Pet-Akkihebbal road, near Hemavathi bridge. Immediately after the accident, he was shifted to K.R. Hospital, Mysore and after first aid, he was taken to JSS hospital and taken treatment therein. However, he succumbed to injuries on 25-5-2003.
4. In the claim petition, it was contended that the deceased was an agriculturist and also doing paddy business and earning a sum of Rs.15,000/- p.m. In view of the rash 5 and negligent riding of the motorcycle which was insured with the appellant herein, the deceased fell down and sustained grievous injuries. Hence, the rider, owner as well as the insurer of the offending motorcycle are liable to compensate the claimants jointly and severally.
5. In pursuance of the notice issued by the trial Court, though the owner as well as the rider of the motorcycle were served with notice, they remained unrepresented. The insurance company filed written statement denying the entire averments made in the claim petition and also disputed the involvement of the insured vehicle in the accident. Further, the rider of the motorcycle was not having valid and effective driving license as on the date of accident. Hence, the insurance company is not liable to compensate the claimants and sought for dismissal of the claim petition.
6. On the basis of pleadings of the parties, the trial Court framed necessary issues.
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7. In order to prove the case of the claimants, the second claimant got examined herself as P.W.1 and one of the eye- witnesses was examined as P.W.2 and got marked the documents as Ex.P1 to Ex.P7. On behalf of the respondent- insurance company, one of the officers of the company was examined as R.W.1 and got marked the documents as Ex.R1 to Ex.R6.
8. The trial Court after appreciating the oral and documentary evidence let in by the parties held that due to the rash and negligent riding of the motorcycle, the deceased who was proceeding in the said vehicle as a pillion rider fell down and sustained grievous injuries and subsequently, succumbed to injuries. The claimants are the dependants of the deceased and they are entitled for compensation. The trial Court taking the income of the deceased as Rs.100/- per day and loss of dependency as Rs.24,000/- p.a., applying the multiplier 12 since the deceased was aged about 50 years as on the date of death, awarded a sum of Rs.2,88,000/- 7 towards loss of dependency and Rs.35,000/- towards conventional heads. In all, the trial Court has awarded a sum of Rs.3,23,000/- with interest at the rate of 6% p.a. Since the offending vehicle was covered by the insurance policy, the liability was fastened on the appellant to compensate the claimants. Being aggrieved by the said judgment and award passed by the trial Court fastening liability on the insurance company to compensate the claimants, the insurance company has filed this appeal.
9. Sri.A.N.Krishna Swamy, learned counsel appearing for the appellant-insurance company contended that the judgment and award passed by the trial Court is contrary to law. The insured vehicle has been falsely implicated in order to get compensation from the insurance company. Immediately after the accident, the deceased was taken to K.R.Hospital at Mysore and after first aid, he was admitted to JSS Hospital. While admitting in the JSS hospital, the brother-in-law of the deceased had stated the history of injury 8 as "fall from motorcycle bearing Registration No.KA-09/Q- 2527". Further one Chandrappa who lodged a complaint before the jurisdictional police had stated that while the deceased was proceeding in his motorcycle bearing Registration No.KA-09/Q-2527 he fell down and sustained grievous injuries. However, in order to get compensation from the insurance company, the insured vehicle has been involved and got-up the story that the deceased was a pillion rider in the offending motorcycle. Necessary documents have been produced by the insurance company as Ex.R1 to Ex.R6 to show that the death occurred due to fall from bike while he was riding his motorcycle. The trial Court over-looking the documents produced by the insurance company had fastened the liability on the appellant which is contrary to law.
10. On the other hand, learned counsel appearing for respondents 1 and 2 argued in support of the judgment and award passed by the trial Court and sought for dismissal of the appeal.
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11. I have carefully considered the arguments addressed by the learned counsel for the parties and perused the judgment and award, oral and documentary evidence adduced by the parties.
12. The only point that arises for consideration in this appeal is -
Whether the judgment and award passed by the trial Court fastening liability on the appellant to compensate the claimants is in accordance with law?
13. The records clearly disclose that the deceased had sustained injuries in the road traffic accident occurred on 19-5-2003 at about 7.00 p.m. on K.R.Pet - Akkihebbal Road near Hemavathi Bridge and he died on 25-05-2003 during the treatment. It is the case of the claimants that while the deceased was proceeding in the motorcycle bearing Registration No.KA-11/K-6069 as a pillion rider, due to the rash and negligent riding of the said motorcycle, he fell down and sustained grievous injuries and subsequently, he 10 succumbed to the same. However, the insurance company disputed the contention taken by the claimants. Immediately after the accident, the injured was taken to K.R. Hospital at Mysore and thereafter he was shifted to JSS Hospital. While the injured was admitted in the JSS hospital, the brother-in- law of the injured one Mahesh who accompanied him had stated the history of injury as "self-fall from Hero Honda bearing Registration No.KA-09/Q-2527 on K.R.Pet- Akkihebbal road near Hemavathi bridge". Further, one Chandrappa lodged a complaint before the jurisdictional police on 25-5-2003. In the said complaint, it was clearly mentioned that the injury is due to fall from the motorcycle bearing Registration No.KA-09/Q-2527. Further it was stated that immediately after the accident, the same was informed to one Boregowda, Boregowda informed the same to Chandrappa and Chandrappa informed the same to Mahesha. Chandrappa along with Mahesha had taken the injured to K.R.Hospital and thereafter they got admitted the injured to the JSS Hospital. The complaint has been lodged 11 six days after the accident. However, in the claim petition filed before the trial Court, it was contended that the deceased was a pillion rider in the motorcycle bearing Registration No.KA-11/K-6069.
14. Wife of the deceased was examined as P.W.1. She has clearly admitted in her evidence that while the deceased was proceeding in his motorcycle he fell down and sustained grievous injuries. One of the eye-witnesses Jagadish Patil who was examined as P.W.2 also stated that he was present as on the date of accident. But, he did not inform the police regarding occurrence of the accident; he was not one of the witnesses in the criminal case. If the eye-witness was present on the accident spot, nothing prevented him to inform the same to the police. Though he was present at the time of accident, he had not made any effort to take the injured to the hospital whereas, it is the case of the claimants that the accident was made known to Chandrappa and Chandrappa informed the same to Mahesha, both Chandrappa and 12 Mahesha went to the spot and took the injured to the hospital. Hence the evidence of the eye-witness cannot be believed.
15. The records produced by the insurance company clearly disclose that immediately after the accident, the injured was taken to K.R.Hospital at Mysore and thereafter he was shifted to JSS Hospital. The records of K.R.Hospital are not made available to the trial Court however, the MLC register of JSS hospital was made available in which, the history of injury was mentioned as "self-fall from Hero Honda bike bearing Registration No.KA-09/Q-2527 on Akkihebbal-K.R.Pet road near Hemavathi bridge". The register maintained by the JSS hospital clearly disclose that co-brother of the deceased i.e. Mahesha accompanied the injured to the JSS hospital on 20-05-2003 at about 12.15 a.m. Before the Hospital authorities, it was clearly mentioned that injury is due to fall from Hero Honda motorcycle owned by the deceased himself. In addition to that, 5 days after the accident, Chandrappa 13 lodged a complaint before the jurisdictional police i.e., on 25-5-2003. In the said complaint, it was clearly mentioned that while the deceased was proceeding in his motorcycle, due to rash and negligent riding, he fell down and sustained grievous injuries and he had taken treatment at JSS hospital. During the course of treatment he died on 25-5-2003. Only thereafter, they had taken a decision to lodge a complaint before the jurisdictional police.
16. Ex.R1 and Ex.R6 produced by the insurance company clearly disclose that accident occurred due to rash and negligent riding of the deceased himself. Since the vehicle owned by the deceased was not insured, in order to get compensation from the insurance company the insured vehicle has been falsely implicated in the accident. Further, the owner and rider of the insured motorcycle though served with notice, they remained unrepresented. All these documents clearly disclose that the deceased did not die due to rash and negligent riding of the motorcycle bearing 14 Registration No.KA-11/K-6069 on the other hand, documents available on record show that while the deceased was proceeding in his motorcycle bearing Registration No. KA-09/Q-2527, due to rash and negligent riding he fell down and sustained grievous injuries, subsequently died on 25-5- 2003. The trial Court, without taking into consideration the documents produced by the insurance company without appreciating Ex.R1 and Ex.R6 i.e. MLC Extract of JSS Hospital and copy of the complaint, only on the ground that the deceased sustained injuries in the accident which occurred due to rash and negligent riding of the offending motorcycle, which was insured with the appellant had fastened the liability on the appellant-insurance company to compensate the claimants. Hence, the judgment and award passed by the trial Court cannot be sustained, the injuries sustained are due to fall from bike owned by the deceased himself. He had not sustained any injuries as a pillion rider in the insured vehicle. Hence, the said judgment and award is liable to be set aside. Accordingly, I pass the following: 15
ORDER The appeal is allowed. The judgment and award dated 06-09-2010 made in MVC No.167/2006 passed by the Civil Judge (Sr.Dn.) and JMFC, K.R.Pet is set aside. The claim petition is dismissed.
The amount in deposit is directed to be refunded to the appellant-insurance company.
Sd/-
JUDGE mpk/-*