Karnataka High Court
National Insurance Co.Ltd. vs Sri. J. Prasanna Kumar on 10 December, 2020
Author: S.Sujatha
Bench: S.Sujatha
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF DECEMBER, 2020
PRESENT
THE HON'BLE MRS. JUSTICE S.SUJATHA
AND
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
MFA.NO.199 OF 2016(MV-I)
BETWEEN:
NATIONAL INSURANCE CO. LTD.
DO-V, BENGALURU - 27
THROUGH ITS REGIONAL OFFICE
#144, SUBHARAM COMPLEX
M.G.ROAD, BENGALURU - 560 001
REP. BY ITS ADMINISTRATIVE OFFICER
SMT.REKHA S MENON
....APPELLANT
(BY SRI. B.C. SEETHARAMA RAO, ADVOCATE)
AND:
1. SRI. J. PRASANNA KUMAR
AGED ABOUT 33 YEARS
(SINCE HE IS NOT STABLE & NOT CONTROL
REP. BY HIS FATHER
SRI.S. JAGADEESH
AGED ABOUT 52 YEARS
2
S/O SIDHALINGAPPA
NO.52, NANJUNDESWARA NAGAR
I MAIN, NANDINI LAYOUT
BENGALURU -560 096
2. SRI. SHRIDHAR, MAJOR
S/O BYLAPPA
RESIDENT OF HANUMANTHANAGAR
MADAVARA POST, BENGALURU DISTRICT
(ONWER OF MOTOR CYCLE NO.KA.02/EV-1750)
....RESPONDENTS
(BY SRI. K.RAMESH, ADVOCATE FOR R1
NOTICE TO R2 IS SERVED AND UNREPRESENTED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED:
31.08.2015 PASSED IN MVC NO.3176/2007 ON THE FILE
OF THE XIII ADDITIONAL SMALL CAUSES JUDGE AND
MEMBER, MACT, BENGALURU, AWARDING COMPENSATION
OF RS.29,82,000/- WITH INTEREST AT 6% P.A. FROM THE
DATE OF PETITION TILL THE REALIZATION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 23.11.2020, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, SACHIN
SHANKAR MAGADUM J., DELIVERED THE FOLLOWING:
3
JUDGMENT
The captioned appeal is filed by the National Insurance Company challenging the judgment and award passed in MVC No.3176/2007 dated 31.08.2015 by the XIII Additional Small Cause Judge and Member, MACT, Bengaluru.
2. The facts leading to the case are as under; Respondent No.1/claimant filed a claim petition through his natural Guardian by contending that on 07.10.2006 at about 11.50 p.m., he was travelling as a pillion rider on the Hero Honda Bike bearing No.KA- 02 EV-1750 towards Tumakuru. The rider of the above said two wheeler was riding the bike in a rash and negligent manner and he lost his control at the humps and caused the accident. In the accident, he suffered multiple fracture injuries. The claim petition was filed through his father by contending that the claimant 4 was diagnosed for severe head injury with a neurological score of 7/15 GCS. It was also further contended in the petition that on account of the head injury, the claimant/respondent No.1 was suffering from right frontal contusion, right temporal contusion, brain stem contusion and traumatic subarchnoid hemorrhage. The claimant/respondent No.1 has also stated that he has underwent an emergency right frontal craniotomy and evacuation of frontal contusion. On account of the accident, the respondent No.1/claimant is having permanent impairment at 91% on neuro psychology side. On these set of grounds, the claim petition was filed claiming compensation of Rs.15,00,000/-.
3. The appellant/Insurance Company on receipt of notice contested the proceedings by filing the written statement. The appellant/Insurance Company stoutly denied the entire averments made in the claim 5 petition. The appellant/Insurance Company further specifically contended that the policy issued by the Insurance Company does not cover the risk of the pillion rider. Insurance Company also disputed the claim made in the petition on the ground that it is excessive, exorbitant and baseless. On these set of defence, the appellant/Insurance Company sought for dismissal of the claim petition. It is borne out from the records that the appellant/Insurance Company by way of amendment to the written statement has also specifically set up a plea of false implication of the rider.
4. Based on the rival contentions, the Tribunal formulated the following issues:
1. ¢£ÁAPÀ: 07.10.2006 gÀAzÀÄ gÁwæ 11.50 UÀAmÉ ¸ÀĪÀiÁjUÉ CfðzÁgÀ ªÉÆÃmÁgï ¸ÉÊPÀ ï £ÀA.PÉJ-02-
02-E«-1750 1750 gÀ ªÉÄÃ É gÁ¶ÖçÃAiÀÄ ºÉzÁÝj 4 gÀ ªÉÄÃ É ¸ÀºÀ ¥ÀæAiÀiÁtÂPÀ£ÁV 6 ¥ÀæAiÀiÁt¸ÀĪÀ PÁ®PÉÌ D ªÁºÀ£ÀzÀ ZÁ®PÀ CzÀ£ÀÄß D gÀ¸ÉÛAiÀÄ ªÉÄÃ É Cwà eÉÆÃgÁV ªÀÄvÀÄÛ C®PÀëöåvÀ£À¢AzÀ £Àqɹ D gÀ¸ÉÛAiÀÄ ªÉÄÃ É EgÀĪÀ J£ï.Dgï. D¬Ä ï JzÀÄgÀÄ gÀ¸ÉÛAiÀÄ vÀqÉUÀ¼À ªÉÄÃ É CzÀ£ÀÄß £Àqɹ CfðzÁgÀ£À£ÀÄß PɼÀPÉÌ PÉqÀ« CfðzÁgÀ£À ªÉÄʪÉÄÃ É UÁAiÀĪÀ£ÀÄßAlÄ ªÀiÁrzÀ C£ÀÄߪÀ CA±ÀªÀ£ÀÄß CfðzÁgÀ£ÀÄ gÀÄdĪÁvÀÄ¥Àr¹AiÀiÁ£ÉÃ?
2. CfðzÁgÀ£ÀÄ ¥ÀjºÁgÀzÀ ºÀtPÉÌ CºÀð£ÉÃ?
AiÀiÁjAzÀ? ªÀÄvÀÄÛ JµÀÄÖ ºÀt gÀÆ¥Á¬Ä?
3. K£ÀÄ DzÉñÀ?
5. The respondent No.1/claimant in support of his contention, examined his father i.e., natural guardian as P.W.1 and to corroborate the ocular evidence, has produced documentary evidence vide Exs.P.1 to 19. The appellant/Insurance Company by way of rebuttal evidence has lead in ocular evidence of two witnesses i.e., R.Ws.1 and 2 and to corroborate the oral evidence, has produced rebuttal documentary evidence vide Exs.R.1 to R.8. Respondent No.2 who is 7 the owner of the bike is examined as C.W.1 and documents were got marked through C.W.1 as per Exs.C.1 to C.4.
6. The Tribunal while dealing with Issue No.1 has come to the conclusion that the police papers have got presumptive values, which are prepared while discharging official duties and while investigating the crime. The Tribunal was of the view that the appellant/Insurance Company has not lead any rebuttal evidence. On the contrary, the appellant/Insurance Company has relied on police papers particularly FIR to prove its defence of false implication of the rider. The Tribunal by accepting ocular evidence of the natural guardian who is examined as P.W.1 coupled with the police papers marked at Exs.P.1 to 3 and 5 has come to the conclusion that the appellant/Insurance Company has failed to establish the false implication of the rider and 8 has proceeded to answer Issue No.1 in the affirmative by holding that the respondent No.1/claimant has proved that the rider of the bike was riding the bike in a rash and negligent manner and the injuries sustained by respondent No.1 are on account of rash and negligent act of the rider of the bike.
7. While determining the compensation, the Tribunal has assessed the income of respondent No.1 notionally at Rs.4,500/- and by assessing the disability at 100% has come to the conclusion that future prospects also has to be taken into consideration. Having regard to the disability of 91% on Neuro psychological side, the Tribunal by taking 100% disability and by assessing the notional income of respondent No.1 at Rs.4,500/-, applied multiplier of 18 and by adding 50% future prospectus has awarded a sum of Rs.4,36,000/-. The Tribunal in all awarded 9 total compensation of Rs.29,82,000/-. Being aggrieved by the same, the Insurance Company has preferred this appeal.
8. The learned counsel appearing for the appellant/Insurance Company would vehemently argue and contend that the finding recorded by the Tribunal on Issue No.1 is perverse and contrary to the materials on record, which clearly establishes that respondent No.1 has filed a claim petition by falsely implicating the rider of the bike. The Tribunal has noticed that the Investigating Officer has come to the conclusion that the accused/rider of the bike is Shivaraja @ Shivaprasada based on the statement of the injured as per Ex.R.3 and in this background, the Tribunal held that there are contradictions in Exs.R.3 and Ex.P.1 and has rightly disbelieved the statement of eye witnesses. But, however, the Tribunal has proceeded to answer issue No.1 in the Affirmative. He 10 would also further submit that the Tribunal has erred in discarding Ex.R.8, which is the emergency case record and the same indicates that the rider of the bike was shown to be one Shivaraja s/o Mylarappa who has also suffered injuries in the same accident. This material aspect is not at all taken into consideration, which would clinch the issue and would substantiate the defence set up by the appellant/Insurance Company to the effect that the rider of the bike was falsely implicated. Learned counsel would further submit that the Tribunal has not meticulously examined the conduct of respondent No.2 who has deliberately misrepresented about the rider of the motorbike and it is an attempt on the part of respondent No.2 to avoid personal liability and to shift the same on the appellant/Insurance Company. The Appellant/Insurance Company on these set of grounds, urges this Court to allow this appeal and set 11 aside the judgment and award insofar as fastening the liability on the appellant/Insurance Company.
9. Per contra, learned counsel appearing for respondent No.1/claimant would vehemently argue and contend before this Court that there is absolutely no rebuttal evidence to substantiate the case of the appellant/Insurance Company in regard to false implication of the rider of the bike. He would submit to this Court that clinching evidence adduced by respondent No.1/claimant as per Exs.P.1 to 3 and 5 and also the medical records would clearly establish the fact that respondent No.1 has sustained grievous injuries on account of rash and negligent riding by the rider of the bike. The Tribunal in absence of clinching rebuttal evidence was justified in relying on the police records, ocular evidence of P.W.1 and by taking holistic view of the documents has rightly answered Issue No.1 in the Affirmative. The reasons assigned 12 and conclusion arrived at is based on the evidence adduced by respondent No.1/claimant. The finding on Issue No.1 does not suffer any infirmities and the grounds urged would not indicate any strong point to reverse the findings of the Tribunal on Issue No.1.
10. We have heard learned counsel for the appellant/Insurance Company and respondent No.1/claimant. We have meticulously perused the pleadings of the parties. We have also reassessed the evidence and have meticulously gone through the entire trial Court records. The following points would arise for our consideration are;
1. Whether the findings of the Tribunal that respondent No.1 sustained grievous injuries on account of rash and negligent riding by the rider of the bike bearing No.KA-02 EV-1750 by name Shivaraju @ Shivaprasad s/o 13 Rudrappa suffers from perversity and is contrary to materials on record?
2. Whether the quantum determined by the Tribunal is fair and just in accordance with law?
3. Whether the Insurance Company is liable to pay compensation?
11. Regarding Point No.1:-
The case of the respondent No.1/claimant is that, on 07.10.2006 at about 11.50 p.m., respondent No.1/claimant was proceeding towards Tumakuru on a bike bearing Registration No.KA-02 EV-1750 as a pillion rider. Due to rash and negligent riding, the rider of the motor bike hit the humps and caused the accident. Immediately after the incident, both the injured who were proceeding on a bike, were taken to the Government Hospital by the Police Constable, who was on duty. On perusal of Ex.R.7, which is the MLC 14 maintained by the District Hospital, Tumakuru indicates that two injured persons were taken to the Hospital by one K.M.Rangaiah, P.C.No.205. Thereafter, both the injured i.e., respondent No.1 and one Shivaraja S/o Mylarappa were immediately shifted to National Institute of Mental Health & Neuro Sciences, Bengaluru. The said Shivaraja S/o Mylarappa was admitted on 08.10.2006 at 2.48 a.m., which is evident from Ex.R.8. On perusal of Ex.P.7, which is the admission record along with emergency case record, it is evident that respondent No.1 was also admitted on 08.10.2006 at about 2.47 a.m., If Ex.R.8 is perused, one Shivaraja S/o Mylarappa was shifted to NIMHANS, Bengaluru along with respondent No.1 and his age was shown as 21 years. Further, in the emergency case record as per Ex.R.8, it appears that one Narayana Swamy who appears to be the relative of Shivaraja S/o Mylarappa has furnished the 15 detailed address of Shivaraja S/o Mylarappa which is shown as No.579, 2nd Block, Kantirava Nagar, Nandini Layout, Bengaluru - 96. Now, coming to the first information report as per Ex.P.1, we would notice that the case is registered on 07/08.10.2006 at 1.00 a.m. In the First Information Report, it is clearly stated that respondent No.1 was proceeding along with one Shivaraja. In the First Information Report, it is stated that one Shivaraja was a rider of the bike.
12. The Investigating Officer has conducted investigation and has submitted his charge sheet in the case, which is also produced before the Tribunal as per Ex.P.5. In the charge sheet, the Investigating Officer has charge sheeted one Shivaraju @ Shivaprasad S/o Rudrappa and his age was mentioned as 33 years. As per Ex.C.2, the address of R.Shivaprasad S/o Rudrappa is shown as Geddalahalli, Billanakote, Nelamangala Taluk. If Exs.C.2 and Ex.R.8 16 are compared and examined, we are of the firm view that the particulars of the injured referred in Ex.R.8, which is emergency card issued by NIMHANS Hospital and the one stated in the charge sheet are totally different. The false implication of a driver and vehicle is rampant and the litigants in collusion with police officials have been exploiting and taking the undue advantage of the beneficial legislation enabling the injured/victims seeking compensation under the Motor's Vehicles Act. This is a classic case where it is clearly evident that investigation done by the Investigating Officer is tainted with malafide and has come up with distorted version. Our view in this regard gets further strengthened, if we meticulously assess the evidence of respondent No.2 (owner of the bike) who is examined as C.W.1. Respondent No.2 has stated in his examination-in-chief that Shivaprasad who is alleged to be the rider of the 17 offending bike involved in the accident is his close friend. In the cross-examination, respondent No.2 has stated that he met Shivaprasad on 08.10.2006 near the police station. He has also stated that he enquired with Shivaprasad about the accident and Shivaprasad informed that he was riding the bike and pillion rider suffered the injuries. This evidence would clearly substantiate the case of the appellant/Insurance Company that the rider of the bike is falsely implicated. On perusal of Ex.R.8, it is forthcoming that one Shivaraja S/o Mylarappa was shifted to NIMHANS on 08.10.2006 at about 2.48 a.m. So, this aspect clearly substantiates and clinches the issue. If one of the injured along with respondent No.1/claimant was also shifted to NIMHANS Hospital on 08.10.2006, then the statement made by respondent No.2 that he had met the rider of the bike on 08.10.2006 near the police station at Tumkuru is totally false and that 18 would reflect the very credibility of this witness. One more vital aspect that has to be noticed in the ocular evidence of respondent No.2 is that in the examination-in-chief at para No.2, he has stated that he does not know the father's name of Shivaprasad. At one breath, he has stated that Shivaprasad is also known as Shivaraju @ Shivaprasad and the person referred in Ex.P.1 coupled with Ex.R.8 and one Shivaprasad shown in Ex.P.5 i.e. charge sheet are one and the same person. However, his ignorance in regard to Shivaprasad's father's name appears to be quite unnatural to us. This statement has a relevancy in the present case on hand. The claimant has set up a rider whose name partially resembles with the alleged rider of the bike. But, however, when Ex.R.8 and the FIR as per Ex.P.1 are compared and examined, the persons cited in the above documents are totally different. Probably, in this background, 19 respondent No.2 who appears to be in acquaintance with the claimant has stated in the examination-in- chief that he does not remember father's name of Shivaprasad. According to us, this statement is made consciously and deliberately to suit the claim made by the claimants. On reading the ocular evidence of C.W.1, the case of appellant/Insurance Company stands probabilized.
13. The Police Official who has submitted charge sheet is examined as R.W.2. In his examination-in- chief, he has stated that the Investigation was already over and it was found that the accident took place on account of the negligence of Shivaraju @ Shivaprasad s/o Rudrappa. At this stage, it appears that the appellant/Insurance Company sought permission to cross-examine the witness. Accordingly, the Insurance Company was permitted to cross-examine the witness. In the cross-examination, he has stated that 20 he recorded the statement of respondent No.1/claimant. This statement is contrary to what father of claimant has stated in his evidence. It is specifically stated by the P.W.1 at para No.2 of the examination-in-chief that immediately after the accident, his son fell down and lost consciousness. At para No.3, he has stated that the injuries were serious in nature and as such, he was shifted to NIMHANS Hospital, Bengaluru for further treatment. At para No.3 of the affidavit, P.W.1 - father of respondent No.1 has stated that on account of accident and in spite of surgery conducted on 10.10.2006, his entire nerve system is damaged and he is not in a position to speak. If this ocular evidence of P.W.1 is meticulously examined, then the statement made by R.W.2 in the cross-examination that he has recorded the statement of injured is a false statement. The police records and consequent charge sheet submitted 21 is tainted with malafides. The charge sheet filed in the present case on hand has lost its credibility. In the light of the above said significant details, which we have narrated in the course of our reasoning assigned supra, it is unfortunate that P.W.1 in collusion with police officials has come up with a false case. It is a clear case of fraud and it is trite proposition of law that fraud vitiates everything.
14. The Investigating Officer has further admitted the suggestion made by the appellant/ Insurance Company to the effect that as per Ex.R.8, the age of the injured is shown as 21 years, whereas in the charge sheet, the age of the rider of the bike is shown as 33 years. Respondent No.2 has, however, made an attempt to offer explanation saying that approximate age is mentioned. Therefore, this explanation has to be outrightly rejected. The numerical 21 and 33 cannot be taken as approximate 22 numerical numbers. The explanation offered by the Investigating Officer is absurd and has to be outrightly rejected. To pursue as a wrong offender in the event of commission of offence would not sub-serve the ends of justice. In the recent years, it is noticed that Investigating Officers in collusion with the victims of the motor vehicle accident are replacing vehicle's rider/driver of the vehicle to enable the victims to claim compensation under Motor Vehicles Act. The Hon'ble Apex Court in the case of DAGDU & OTHERS ETC., VS. STATE OF MAHARASHTRA reported in AIR 1977 SC 1579 has held that history shows that misuse of authority is a common human failing and, therefore, Courts must guard against all excesses. The police, with their wide powers, are apt to overstep their zeal to detect crimes and are tempted to use the strong arm against those who happen to fall under their secluded jurisdiction. This fortifies our view that 23 of late, the Investigating Officer in collusion with victims and other agencies/institutions are indulging in distorting manner in which accidents would have occurred. This tendency and pattern is to make wrongful gain. Again, an Investigating Officer over stepping and manipulating the road traffic accident needs to be nipped in the bud. If both the persons who were travelling on the bike have sustained injuries and both were admitted to the NIMHANS Hospital, Bengaluru, we are unable to accept the police records, wherein the Investigating Officer has deposed before the Tribunal that he has recorded the statement of respondent No.1 as well as the rider of the bike. If Shivaraja s/o Mylarappa was also admitted to the NIMHANS Hospital along with respondent No.1, it is not forthcoming as to how he could have recorded the statement. It is also not forthcoming from the record that the Investigating 24 Officer had travelled from Tumakuru to Bengaluru and had visited the NIMHANS Hospital to record the statement of both the injured. The statement made by respondent No.2 who is the owner of the offending bike also cannot given any credence. He has deposed before the Court that Shivaprasad s/o Rudrappa was riding the bike. He is not a witness to the accident and his statement before the Tribunal is that rider himself informed him on the next day near police station is nothing but a blunt lie. The material available on record does not establish as to who was riding the bike. The constable who had noticed the accident from a distance and had immediately shifted both the injured to the District Hospital, Tumakuru is also not examined.
15. If the above said clinching materials are taken into consideration, we are of the view that the findings of the Tribunal recorded on issue No.1 is 25 perverse, palpably erroneous and suffers from serious material irregularities. The Tribunal has drawn adverse inference against the appellant/Insurance Company on the ground that the appellant/Insurance Company has not cross-examined P.W.1 in regard to police records. Learned counsel appearing for the appellant/Insurance Company to counter these reasonings submitted that P.W.1 is not an eye witness. He has stated in his evidence that he has no knowledge as to how the accident took place and hence, the question of cross- examining P.W.1 in regard to police records would not arise. There is a force in the submission made by the learned counsel appearing for the appellant/Insurance Company. The Tribunal has lost sight of the fact that the appellant/Insurance Company has succeeded in eliciting relevant admissions from the mouth of the owner of the bike i.e., respondent No.2 who is examined as C.W.1 and also from the mouth of 26 Investigating Officer who has submitted charge sheet and examined as R.W.2 before the Tribunal. The appellant/Insurance Company has succeeded in demonstrating that the police records and the admissions elicited in the cross-examination of C.W.1 and R.W.2 substantiates the plea set up by the appellant/Insurance Company.
16. The Tribunal has not at all touched and assessed this part of evidence, which is available on record and the same would have enabled the Tribunal to arrive at a right conclusion. The Tribunal has believed the document produced at Ex.R.7 and for the reasons best known has discarded Ex.R.8. The evidence has to be assessed on touch stone of preponderance of probabilities. Prasanna Kumar and Shivaraja s/o Mylarappa, at first instance, were admitted to District Hospital, Tumkuru and from there both were shifted to NIMHANS Hospital on 08.10.2006 27 at almost same time. The medical records of Prasanna Kumar were produced by the appellant/Insurance Company as per Exs.R.7 and R.8 to establish that it is respondent No.1/Prasanna Kumar and Shivaraja s/o Mylarappa were proceeding on the bike and met with an accident. On perusal of the reasoning assigned by the Tribunal, we are of the view that the Tribunal has totally misread the relevant evidence available on record and the findings arrived at are palpably erroneous and are not sustainable.
17. The appellant/Insurance Company has succeeded in establishing that the claim petition is filed by playing fraud. If that is accepted, then the appellant/Insurance Company has to be exonerated from satisfying the compensation. If the rider of the vehicle does not possess licence and the claim petition is filed by falsely implicating person possessing licence, it is fundamental breach of policy conditions 28 and as such, the appellant/Insurance Company is entitled to raise a defence in that regard under Section 149(2)(a) of the Motor Vehicles Act. We are of the view that this is a fit case where the defence raised in the written statement is established and the Insurance Company is entitled to be exonerated from paying the compensation on account of fundamental breach of policy conditions. Accordingly, Point No.1 is answered in the Affirmative.
18. Regarding Point No.2 :-
The clinching medical evidence on record clearly indicates that the claimant/respondent No.1 has suffered disability of 91% on neuro psychology side. P.W.3 has stated that claimant/respondent No.1 is having permanent impairment at 91% on neuro psychology side. The father who is examined as P.W.1 on behalf of claimant has also stated that the claimant/respondent No.1 has lost his power to 29 speech and he is also unable to understand spoken and written words. The Tribunal by meticulously examining the medical evidence on record has awarded an amount of Rs.9,52,000/- towards future loss of income. The tribunal has also awarded fair and just compensation under various heads. The Tribunal in all awarded a sum of Rs.29,82,000/- and on re-appreciation, we are of the opinion that the compensation determined by the Tribunal would not warrant any interference. The compensation determined under the various heads is in accordance with law and it is fair and just compensation. Accordingly, Point No.2 is answered in the Affirmative.
19. Regarding Point No.3 :-
C.W.1 who is the owner of the bike which was involved in the accident has made statement before the Tribunal that he had entrusted the bike to his friend i.e., Shivaprasad. He is also stated in his 30 examination-in-chief that Shivaprasad is also known as Shivaraja. He is also stated in the cross- examination that he met Shivaprasad on the next day before the police station. He is also stated that before handing over the offending bike, he had checked the driving licence of Shivaprasad @ Shivaraja. We have already held that his statement is nothing but a blunt lie. Respondent No.2 has consciously and deliberately made the above said statement to enable respondent No.1 - injured to claim compensation before the Court. On appreciating the entire evidence on record, what probabilizes is that respondent No.2/owner of the offending bike has recklessly entrusted the bike to a person who did not possess driving licence. It is stated that respondent No.1/injured was proceeding as a pillion rider. In that event, it has to be assumed that Shivaraja S/o Mylarappa was riding the bike as a pillion rider on 07.10.2006 at 11.50 p.m. Neither the 31 Investigating Officer nor the claimant have disclosed as to what happened to Shivaraja S/o Mylarappa who was admittedly hospitalized to NIMHANS, Bengaluru at 2.48 a.m. on 08.10.2006. The clinching medical records are credible and would out weigh the police records on which respondent No.1/claimant is placing reliance. The police records relied by respondent No.1/injured are concocted and the same indicates the distortic version of occurrence of accident. If all these material aspects are meticulously examined, we would not hesitate to hold that respondent No.1 has recklessly entrusted the bike to a person who was not having a driving licence. There is a fundamental breach of policy conditions and the defence available to the Insurance Company under Section 149(2)(a) stands established. In that view of the matter, there is absolutely no liability on the Insurance Company to indemnify the insured. Respondent No.2/owner admits 32 that he had entrusted the vehicle and since he has failed to establish that the vehicle was entrusted to Shivaprasad @ Shivaraju, then it is only respondent No.2/owner of the bike who is liable to pay the compensation to respondent No.1/injured. No documents are produced to show that respondent No.1/claimant and Shivaraja s/o Mylarappa did possess driving licence. Accordingly, Point No.3 is answered in the Negative.
For the reasons stated supra, the appeal is allowed and claim petition is dismissed against the appellant/Insurance Company.
We would further direct respondent No.2/owner of the bike to satisfy the compensation. 33
Registry is directed to refund the amount in deposit, if any, to the appellant-Insurance Company.
Sd/-
JUDGE Sd/-
JUDGE NBM