Karnataka High Court
M/S Bajaj Allianz General Insurance ... vs Nagamma on 18 March, 2013
Author: N.Ananda
Bench: N.Ananda
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 18TH DAY OF MARCH 2013
BEFORE
THE HON'BLE MR.JUSTICE N.ANANDA
M.F.A. No.9137/2010 C/W 9138/2010, 9139/2010 &
5816/2010 (MV)
MFA No.9137/2010
BETWEEN
M/S BAJAJ ALLIANZ GENERAL
INSURANCE COMPANY LTD
NEAR CHIGATERI HOSPITAL
P J EXTENSION, DAVANAGERE
REP. BY BAJAJ ALLIANZ GENERAL
INSURANCE COMPANY LTD
BANGALORE 560034
REP BY ITS ASSISTANT
VICE PRESIDENT (CLAIMS) ... APPELLANT
(BY SMT.H R RENUKA, ADV.)
AND :
1. NAGAMMA
W/O RANGAPPA, 57 YEARS
R/O LOKADOLALU
HOLALKERE TALUK
2. DYAMAPPA G J
S/O THIPPESWAMY, 32 YEARS
R/O MADDERU
HOLALAKERE TALUK. ... RESPONDENTS
(BY SRI R SHASHIDHARA, ADV. FOR R1; NOTICE TO R2 IS HELD
SUFFICIENT V.C.O. DATED 31.08.2012)
2
THIS APPEAL IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED:06.04.2010 PASSED IN
MVC NO.174/2008 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND MACT, HOLALKERE, AWARDING COMPENSATION WITH
INTEREST & ETC.
MFA No.9138/2010
BETWEEN
M/S BAJAJ ALLIANZ GENERAL
INSURANCE COMPANY LTD
NEAR CHIGATERI HOSPITAL
P J EXTENSION, DAVANAGERE
REP. BY BAJAJ ALLIANZ GENERAL
INSURANCE COMPANY LTD
BANGALORE 560034
REP. BY ITS ASSISTANT
VICE PRESIDENT (CLAIMS) ... APPELLANT
(BY SMT. H R RENUKA, ADV.)
AND :
1. THIMMAPPA
S/O RAMANNA, 26 YEARS
R/O MALASINGANAHALLI
HOLALKERE TALUK
2. DYAMAPPA G J
S/O THIPPESWAMY, 32 YEARS
R/O MADDERU
HOLALAKERE TALUK. ... RESPONDENTS
(BY SRI R SHASHIDHARA, ADV. FOR R1 & R2)
THIS APPEAL IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED:6.4.2010 PASSED IN MVC
NO.175/2008 ON THE FILE OF SENIOR CIVIL JUDGE & MACT,
3
HOLALKERE, AWARDING COMPENSATION WITH INTEREST &
ETC.
MFA No.9139/2010
BETWEEN
M/S.BAJAJ ALLIANZ GENERAL
INSURANCE COMPANY LTD
NEAR CHIGATERI HOSPITAL
P J EXTENSION, DAVANAGERE
REP. BY BAJAJ ALLIANZ GENERAL
INSURNACE COMPANY LTD
BANGALORE-560034
REP.BY ITS ASST.
VICE PRESIDENT(CLAIMS). ... APPELLANT
(BY SMT H R RENUKA, ADV.)
AND :
1. SANTHOSH
S/O RANGAPPA, 26 YEARS
R/O MALASINGNAHALLI
HOLAKERE TALUK
2. DYAMAPPA G J
S/O THIPPESWAMY, 32 YEARS
R/O MADDERU
HOLALAKERE TALUK-577526. ... RESPONDENTS
(BY SRI R SHASHIDHARA, ADV. FOR R1; NOTICE ISSUED TO R2
IS RETURNED WITH POSTAL SHARA 'ABSENT')
THIS APPEAL IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED:6.4.2010 PASSED IN MVC
NO.176/2008 ON THE FILE OF SENIOR CIVIL JUDGE & MACT,
HOLALKERE, AWARDING COMPENSATION WITH INTEREST &
ETC.
4
MFA No.5816/2010
BETWEEN
SANTOSH
S/O RANGAPPA, 26 YEARS
AGIRCULTURIST
R/O MALASINGANAHALLI
HOLALKERE TALUK. ... APPELLANT
(BY SRI R SHASHIDHARA, ADV.)
AND :
1. DYAMAPPA G J
S/O THIPPESWAMY , 32 YEARS
OWNER OF MOTOR CYCLE
NO.KA-16/Q-3019
R/O MADDERU
HOLALAKERE TALUK
2. THE GENERAL MANAGER
BAJAJ ALLIANZ GENERAL
INSURANCE CO LTD.,
NEAR CHIGATERI HOSPITAL
P J EXTENSION
DAVANAGERE. ... RESPONDENTS
(BY SMT H R RENUKA, ADV. FOR R2; R1 - SERVED)
THIS APPEAL IS FILED U/S 173(1) OF MV ACT TO MODIFY
THE JUDGMENT AND AWARD DATED:06.04.2010 PASSED IN
MVC NO.176/2008 ON THE FILE OF THE SENIOR CIVIL JUDGE,
MACT, HOLALKERE, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
***
THESE APPEALS COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
5
JUDGMENT
There is serious controversy between parties whether II-respondent herein namely Dyamappa G.J. or one Srinivasa was the rider of insured vehicle at the time of accident. The Insurance Company has taken a specific defence that II respondent herein namely Dyamappa G.J., registered owner of insured vehicle was the rider of motorcycle at the time of accident. He did not possess valid and effective driving licence. Therefore, claimants colluding with II-respondent herein and police officers, implicated one Srinivasa as the rider of insured vehicle, as said Srinivasa had a valid and effective driving licence. The Tribunal has not considered this issue in proper perspective. The Tribunal has placed reliance on police records to arrive at a conclusion that insured vehicle was ridden by said Srinivasa.
2. I have heard learned counsel for parties. 6
3. In the wake of specific defence taken by Insurance Company, Tribunal should have framed a specific issue as to who was the rider of insured vehicle at the time of accident. The reasons assigned by Tribunal to fasten liability on Insurance Company are not satisfactory.
4. The learned counsel for claimants has relied on a judgment of this court, reported in 2003 (4) KCCR 2579 (DB) (in the case of Harkhubai & Others Vs. Jiyaram & Others) to contend that when owner and driver of offending vehicle remained ex parte and there was no challenge by them to pleading and evidence of petitioner regarding rash and negligent driving by the driver of offending vehicle, rash and negligent driving can be taken as cause of accident admission of guilt by driver of offending vehicle can be taken as proof of rash and negligence of rider of offending vehicle.
5. In the aforestated judgment, identification of driver of offending vehicle was not in dispute.
7
In the case on hand, there is serious controversy between parties as to who was the rider of insured vehicle at the time of accident. In the circumstances, Tribunal should have framed a specific issue and recorded a categorical finding as to who was the rider of insured vehicle at the time of accident. Therefore, I am of the opinion that matters requires reconsideration by Tribunal.
6. In the result, I pass the following:-
ORDER The appeals are accepted. The impugned awards are set aside. The matters are remanded to Tribunal for reconsideration in the light of observations made herein and in accordance with law. Both parties are at liberty to adduce further evidence. The finding recorded by Tribunal on quantum of compensation is not disturbed. After an award is passed in terms of this judgment, parties are at liberty to challenge the same as they deem fit. The other contentions urged by Insurance Company are kept open. The amount 8 deposited by the Insurance Company shall be refunded to Insurance Company.
Sd/-
JUDGE SNN