Karnataka High Court
The Nationalinsurance Co. Ltd., vs Anand Gopal Yedave, on 23 July, 2021
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 23RD DAY OF JULY 2021
BEFORE
THE HON'BLE MR.JUSTICE RAVI V.HOSMANI
M.F.A. NO.25483/2012(MV)
BETWEEN:
THE NATIONAL INSURANCE CO. LTD.,
RAMDEV GALLI, BELGAUM.
(INSURER OF M/C NO.MH-07/M-6096)
NOW REP. BY ITS DY.MANAGER,
REGIONAL OFFICE, ARIHANT PLAZA,
OPP: SBI ZONAL OFFICE, KESHWAPUR, HUBLI.
- APPELLANT
(BY SRI. SURESH S GUNDI, ADVOCATE)
AND:
1. ANAND GOPAL YEDAVE,
AGE: 32 YEARS, OCC: NIL,
R/O: CHURAMURE, TALUK AND DIST: BELGAUM.
2. MAHANANDA D/O GOPAL YEDAVE,
AGE: 30 YEARS, OCC: HOUSEHOLD,
R/O: CHURAMURE, TALUK AND DIST: BELGAUM.
3. MEDHA D/O GOPAL YEDAVE,
AGE: 28 YEARS, OCC: HOUSEHOLD,
R/O: CHURAMURE, TALUK AND DIST: BELGAUM.
4. GOPAL SHIVARAM YEDAVE,
AGE: MAJOR, OCC: AGRICULTURE,
R/O: UBHA BAZAR, BANDA,
TALUK: SAWANTWADI, DIST: SINDHUDURG.
(OWNER OF M/C NO.MH-07/M-6096)
- RESPONDENTS
(BY SRI. RAVIRAJ C PATIL AND SRI. HANUMANTH R. LATUR,
ADVOCATES FOR R1 TO R3
NOTICE TO R4-SERVED)
2
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S 173(1) OF M.V.
ACT, AGAINST THE JUDGMENT AND AWARD DATED 07.08.2012 PASSED
IN MVC NO.621/2010 BY THE FILE OF THE PRESIDING OFFICER, FTC-1 &
MEMBER ADDITIONAL M.A.C.T., BELGAUM, AWARDING THE
COMPENSATION OF RS.13,10,000/- WITH INTEREST AT THE RATE OF 8%
P.A. FROM THE DATE OF PETITION TILL ITS REALIZATION & ETC.
THIS MISCELLANEOUS FIRST APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 14.07.2021, COMING ON FOR
PRONOUNCEMENT, THIS DAY THE COURT PRONOUNCED THE
FOLLOWING:
JUDGMENT
Challenging the judgment and award dated 07.08.2012 passed by the FTC-I and Member Additional MACT (for short 'Tribunal'), Belgaum in MVC No.621/2010, this appeal is filed under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as M.V. Act).
2. For the sake of convenience, the parties will be referred to as per their respective ranks before the tribunal.
3. Brief facts as stated are that on 28.05.2009, Smt. Geeta was traveling as pillion rider on motorcycle bearing registration No.MH-07/M-6096 from Kudal to Salgaon. On the way, due to rash and negligent riding of the motorcycle, she fell down, sustained fatal injuries and died in the hospital during treatment. 3
4. As on the date of accident, she was 56 years of age, working as teacher and drawing salary of `17,785/- per month. Alleging loss of dependency due to her untimely death, her children filed claim petition against the owner and insurer of motorcycle, under Section 166 of M.V. Act.
5. Despite service of summons, owner of motorcycle did not contest the claim. He was placed exparte. The insurer entered appearance and filed objections denying the claim petition as being false, frivolous and vexatious. It was contended that deceased was traveling as owner of the vehicle and was not covered under the policy. It was also contended that deceased did not have driving licence to ride the motorcycle and hence, there was breach of terms and conditions of policy. Even dependency of claimants was also disputed.
6. Based on pleadings, following issues were framed :
1. Whether the respondent No.2 proves that this Court has no jurisdiction to entertain this petition?4
2. Whether the respondent No.2 proves that deceased being the wife of the respondent No.1 owner, deceased cannot be a third party and the respondent No.2 is not liable to pay compensation?
3. Whether the respondent No.2 proves that there was no accident and the deceased had fell down from the two wheeler due to giddiness.
7. In support of claim petition, claimant No.1 himself got examined as PW1 and examined two witnesses as PW2 and 3. Ex.P1 to P7 were marked. Thereafter, respondent examined an official of the insurer as RW1. Ex.R1 to R3 were marked.
8. On consideration, the tribunal answered issue No.1 in the affirmative; issue No.2 holding that claimants are entitled for compensation and issue No.3 allowing claim petition in part awarding compensation of `13,10,000/- with interest @ 8% p.a. from the date of petition till realization. Additional issue Nos.1 to 3 answered in the negative.
9. Assailing the said award the insurer is in appeal. 5
10. Sri. Suresh S. Gundi, learned counsel for appellant- insurance company submitted that the award passed by the tribunal was contrary to law and evidence on record. It was specifically contended that no accident as alleged by claimants had occurred. Death of Smt.Geeta was in fact due to rider not possessing valid driving licence to ride the motorcycle. There was no evidence to support the finding of negligence against rider of motorcycle. It was submitted that in the absence of claimants failing to establish that the accident occurred due to rash and negligent riding of the motor vehicle, by its rider, the insurer could not be made liable to pay the compensation to the claimants.
11. It was contended that from the documents produced by the claimants themselves, it is established that cause of death of Smt. Geeta was unnatural death. After investigation, the Police had filed unnatural death report (UDR). Ex.P3 indicated that cause of death is fall from vehicle, due to giddiness as the reason for death. It is further contended that tribunal committed grave error in fastening the liability on insurer, that too without assigning proper 6 reasons. Therefore sought interference with award on the ground of liability.
12. On the other hand, Sri. H.R. Latur, learned counsel for the respondents-claimants submitted that Ex.P5-copy of post mortem report read in the light of Ex.P1 certified copy of FIR, Ex.P3-crime details have clearly indicated that Smt.Geeta died due to fall from motorcycle. Neither the insurer nor the owner disputed that death of Smt.Geeta was not due to fall from motor vehicle in question.
13. In order to sustain a claim petition under the provisions of M.V. Act, the claimants were not required to establish that the accident occurred due to sole negligence of rider of insured vehicle. Filing of FIR was not mandatory and non registration of FIR would not result in rejection of a claim petition. As the documents have produced by the claimants established that death of Smt.Geeta occurred by use of a motor vehicle, which was undisputed. The tribunal was fully justified in passing the impugned award. Learned counsel relied upon the decision of Hon'ble Supreme Court in Anita Sharma and others V/s New India Assurance Company Ltd., 7 and another reported in 2021 ACJ 17 for the proposition that in accident claims, the standard of proof would not be that of proof beyond reasonable doubt, but, on the basis of preponderance of probabilities.
14. From the above submissions, it is seen that occurrence of the accident involving the insured vehicle in which the claimant's mother died is not in dispute. Issuance of the policy and its coverage as on date of accident is also not in dispute. The tribunal awarded compensation against the insurer. The claimants have not filed any appeal, only the insurer is in appeal challenging the award on negligence. Therefore, the point that arises for consideration in this case is:
"Whether the finding of the tribunal on issue No.1 is justified?"
15. To establish that death of their mother-Smt. Geeta occurred due to a motor accident, the claimants produced copy of FIR, copy of statement, copy of crime detailed form, copy of inquest panchanama, copy of postmortem report etc., were marked as Ex.P1 to P5 respectively. From a perusal of Ex.P1-FIR, it is seen 8 that the Police have submitted information of unnatural death to the jurisdictional court. The said report was accepted and the investigation was closed. The contents of crime details indicate that the deceased died upon sustaining head injury due to fall from motorcycle due to giddiness. The same was based on the statement of her husband. The inquest panchanama indicates that death was due to accident. Ex.P5 postmortem report contains the reason for death as due to accidental injury in road traffic accident.
16. From the above documents, the occurrence of the accident is not in dispute. The evidence would reveal that Smt. Geeta died due to fall from motorcycle while traveling as pillion rider. The claimants have asserted that it was on account of rash and negligent riding of the motorcycle by the rider. Though the insurer denied the same, the claimants produced records to establish the link between the use of the motor vehicle and death. Admittedly, in the case on hand, the insurer had not led any evidence. Though there may be no direct evidence to establish that the accident occurred due to rash and negligent riding of the motorcycle by its rider, in view of the position of law having been 9 clarified by the Hon'ble Supreme Court in Anita Sharma (supra) case the assessment of evidence available on record has to be on touchstone of preponderance of probabilities. There is no suggestion by the insurer that deceased deliberately or negligently fell down from the motorcycle and died. No case of suicidal death has been recorded. Therefore, fall from the motorcycle is probably due to rash and negligent riding of the motorcycle by its rider. Under the circumstances, finding of the tribunal that the accident was due to rash and negligent riding of the motorcycle by the rider of the insured vehicle and therefore, the insurer was liable to pay the compensation, does not call for any interference. The point framed for consideration is answered in the affirmative.
17. In the result, the appeal is devoid of merit and is accordingly, dismissed.
The appellant-insurer is directed to deposit the balance award of compensation before the tribunal within six weeks from the date of receipt of a certified copy of this judgment. 10
Registry to transmit trial Court records and the amount in deposit before this Court is ordered to be transmitted to the tribunal, forthwith.
SD JUDGE MNS/