Karnataka High Court
M/S Oriental Insurance Co Ltd vs H M Shivanna on 3 August, 2012
Author: B.Sreenivase Gowda
Bench: B.Sreenivase Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 03RD DAY OF AUGUST 2012
BEFORE
THE HON'BLE MR. JUSTICE B.SREENIVASE GOWDA
MFA No.8660/2008 (MV)
BETWEEN :
M/S ORIENTAL INSURANCE CO LTD
DIVISIONAL OFFICE,
YATHIRAJ MUTT
BUILDING, NO 199,
2ND MAIN ROAD
SAMPIGE ROAD,
MALLESWARAM,
BANGALORE
NOW REP BY ITS REGIONAL OFFICE
NO 44/45
LEO SHOPPING COMPLEX,
RESIDENCY ROAD,
BANGALORE
REP BY ITS AUTHORIZED SIGNATORY
...APPELLANT
( By Sri. A M VENKATESH )
AND :
1. H M SHIVANNA
S/O LATE MARIYAPPA
2
AGED ABOUT 29 YEARS
R/O HAROHALLI TOWN
MEGALA BEEDI
KANAKAPURA TALUK
BANGALORE RURAL DISTRICT
2 NANJUNDAPPA
MAJOR
S/O SHIVAIAH
CHIKKAKUNTANAHALLI
KARENAHALLI POST
BIDADI HOBLI
RAMANAGARA TALUK,
BANGALORE
RURAL DISTRICT
...RESPONDENTS
( By Sri. GIRIMALLAIAH FOR R1, R.2 SERVICE HELD
SUFFICIENT. )
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED: 2-4-2008 PASSED
IN MVC NO. 1750/2007 ON THE FILE OF THE IX ADDL.
JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT-7,
METROPOLITAN AREA, BANGALORE, (SCCH.NO.7),
AWARDING A COMPENSATION OF RS.79,000/- WITH
INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL
REALISATION.
THIS APPEAL COMING ON FOR HEARING, THIS DAY
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is by the insurer of offending vehicle 3 challenging the judgment and award made by the Tribunal on the ground of liability and quantum.
2. Heard the learned Counsel appearing for parties and perused the records.
3. For the sake of convenience parties are referred to as they are referred to in the claim petition before the Tribunal.
4. There is no dispute regarding injuries sustained by the claimant in a road traffic accident occurred on 14-2-07 by involvement of motor cycle bearing registration No. KA-42-E-919 and quantum of compensation awarded by the Tribunal. Therefore, the only point that remains for my consideration in the appeal is:
Whether finding of the Tribunal on liability, holding respondents 1 and 2 - the 4 owner and the insurer are jointly and severally liable to pay compensation and directing the appellant - insurer to deposit the compensation amount with interest is just and proper or not ?
5. Learned Counsel appearing for the appellant - insurer of offending vehicle submits, as per the history of RTA recorded in MLC register extract marked as Ex. R.1, the claimant himself was riding the motor cycle and he being the tort feasor, his risk is not covered under the policy and the insurer is not liable to indemnify the owner and pay compensation awarded by the Tribunal to the claimant. Therefore, he prays for allowing the appeal by setting aside the judgment and award of the Tribunal, in so far as liability is concerned.
6. Per contra, the learned Counsel for the claimant submits, the claimant after sustaining major fractures 5 in the accident had lost his consciousness and somebody got him admitted to Sanjay Gandhi Hospital and the history of RTA recorded in the MLC extract of the said hospital that the claimant was riding the motor cycle is not based on his statement. He submits, claimant in support of his contention that he has travelled in the offending motor cycle as a pillion rider, has examined himself as P.W.1 and has produced FIR along with the complaint, mahazar and the charge sheet marked as Exs.P.1 to P.3. The Tribunal considering the oral and documentary evidence has rightly held that the claimant has travelled as a pillion rider in the offending motor cycle which was insured under package policy, and it has justified in fastening the liability against the insurer and he prays for dismissal of the appeal.
7. The claimant in support of his contention that he 6 travelled in the offending motor cycle as a pillion rider, did not choose to examine the person who rode the motor cycle. In support of his further contention that after sustaining fracture injuries in the accident he lost his consciousness and somebody got him admitted to SGARC hospital and the statement recorded in the MLC register of the said hospital that the claimant was riding the motor cycle by himself is not based on his statement, could have examined the person who got him admitted to the hospital or he could have examined the person who recorded such statement in the MLC register - Ex.R.1. In the absence of such an exercise on the part of claimant, the finding of the Tribunal that the claimant himself was riding the motor cycle at the time of accident cannot be sustained.
8. At this stage, learned Counsel for the claimant 7 submits, the judgment and award of the Tribunal may be set aside in its entirety and the matter may be remanded to the Tribunal and claimant may be given an opportunity to examine the person who rode the motor cycle at the time of accident and the person who recorded the statement in the MLC register - Ex.R.1 and establish his contention that he travelled in the motor cycle as a pillion rider.
9. Considering the submission made by the learned Counsel for the parties and after perusing the judgment and award of the Tribunal, I deem it just and proper, the appellant may be given an opportunity to lead further evidence and establish his case that he travelled in the motor cycle as a pillion rider. Further learned Counsel appearing for the insurer submits, quantum of compensation awarded is not just and proper and it is on the higher side and while remanding 8 the matter, the Tribunal may be directed to reconsider the matter in its entirety. In response to the said submission, learned Counsel for claimants submits, claimant may also be given opportunity to lead further evidence regarding quantum also.
10. Accordingly, appeal is allowed. Judgment and award of the Tribunal is set aside in its entirety and the matter is remanded to the Tribunal with a direction to reconsider the claim petition afresh and in accordance with law, after giving opportunity to all the parties to lead further evidence on all aspects.
11. Amount in deposit is ordered to be refunded to the insurer.
12. The Tribunal is directed to dispose of the matter within a period of six months from the date of receipt of 9 a copy of this order and records.
Office to return the records forthwith. No order as to costs.
Sd/-
JUDGE Mgn/-