IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF DECEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH M.F.A.No.4853/2012 C/W M.F.A.No.4852/2012 (MV) IN M.F.A.No.4853/2012 BETWEEN:
GENRAL MANAGER BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD. No.31, L.B.R. TOWER NEW MISSION ROAD ADJACENT TO JAIN COLLEGE J.C. ROAD BENGALURU-560 002. … APPELLANT (BY SRI. E.I. SANMATHI, ADVOCATE) AND:
1. SMT. SUJATHA WIFE OF MALLIK AGED ABOUT 35 YEARS.
2. SMT. NAGARATHNA WIFE OF ERANNA AGED ABOUT 37 YEARS.
BOTH ARE R/AT “MATHRUSHREE NILAYA” No.47/12, ANNAMMA CIRCLE NANDINI LAYOUT-560 054.
3. SRI. MANJUNATH C.R. S/O. JAYAMMA R/AT. No.10-2, CHOLSANDRA NAGAMANGALA MANDYA DISTRICT-560 045. ... RESPONDENTS (RESPONDENTS No.1 TO 3 ARE SERVED) THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 16.11.2011 PASSED IN MVC.NO.9024/2008 ON THE FILE OF THE 17TH ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT, BENGALURU, AWARDING A COMPENSATION OF RS.50,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALISATION.
IN M.F.A.No.4852/2012 BETWEEN:
GENERAL MANAGER BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.
G.E. PLAZA, AIRPORT ROAD YARAVADA, PUNE-411 006 MAHARASHTRA. … APPELLANT (BY SRI. E.I. SANMATHI, ADVOCATE) AND:
1. SMT. ANUSUYA W/O. LATE RAMAIAH @ RAMA AGED ABOUT 29 YEARS OCCUPATION: HOUSE WIFE.
2. KUM. PRIYANKA D/O. RAMA @ RAMAIAH AGED ABOUT 6 YEARS STUDENT BOTH ARE R/AT BISALAHALLI KANAKUPPE POST HEBBUR HOBLI TUMKUR TALUK AND DISTRICT-564 053.
(RESPONDENT No.2 SINCE MINOR REPRESENTED BY MOTHER AND NATURAL GUARDIAN SMT. ANUSUYA THE FIRST RESPONDENT HEREIN).
3. SRI. MANJUNATH C.R. S/O. JAYAMMA, No.10-2 CHOLSANDRA, NAGAMANGALA MANDYA DISTRICT-564 012. ... RESPONDENTS (SMT. MANJULA R. KAMADOLI, ADVOCATE FOR R1 AND R2 R3 IS SERVED) THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 16.11.2011 PASSED IN MVC.NO.383/2009 ON THE FILE OF THE 17TH ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MACT, BENGALURU, AWARDING A COMPENSATION OF RS.2,44,000/-.
THESE M.F.As. COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T These appeals are filed challenging the judgment and award passed in M.V.C.Nos.9024/2008 and 383/2009 questioning the fastening of liability on the Insurance Company to pay compensation.
2. Brief facts of the case:-
It is the case of the claimants before the Tribunal that on 7.11.2008 at 5.00 a.m., the deceased Ramaiah and his sister were going on the left side of the road by pushing the TVS Moped, at that time, the driver of a lorry bearing Reg. No.KA-54-
429 came in a rash and negligent manner and dashed against the said Ramaiah. As a result, he sustained grievous injuries and he was immediately taken to the hospital for treatment. He succumbed to the said grievous injuries.
3. In pursuance of the claim petitions, notices were issued and the respondents appeared through their counsel and disputed the contents of the claim petitions. The claimants, in order to substantiate their case, examined the first claimant Smt.Anusuya, who is the wife of deceased as P.W.2. The third claimant in MFA No.9024/2008 examined herself as P.W.1 and also examined other witness as P.W.3 and got marked documents Exs.P1 to P21. Respondents examined one witness as RW.1 and got marked documents Exs.R1 to R4.
4. The Tribunal, considering both oral and documentary evidence, allowed the claim petitions granting total compensation of Rs.2,94,000/- with interest at the rate of 6% per annum from the date of institution of petition in MVC No.9024/2008 and apportioned the said amount to the tune of Rs.25,000/- to the first claimant in MVC No.9024/2008 and an amount of Rs.1,34,000/- and Rs.1,10,000/- to the first claimant and the second claimant respectively in MVC No.383/2009. Hence the present appeals are filed by the Insurance Company.
5. It is contended in the appeal memorandums by the Insurance Company that the Tribunal fails to take note of the fact that the lorry in question has been falsely implicated by the petitioners colluding with the owner of the vehicle. The medical document at Ex.R2 clearly discloses that the vehicle involved in the accident is an autorickshaw and not a lorry. The Tribunal, without considering Ex.R2, has erroneously directed the Insurance Company to pay the compensation. The other contention taken in the appeal is that the Tribunal ought to have seen that the vehicle in question had no permit to be plied on road and as per the permit clause in the policy produced at Ex.R1, the owner is required to use the vehicle only when vehicle is having valid permit to be plied on road. Hence, the Tribunal has committed an error in fastening the liability on the Insurance Company.
6. Learned counsel appearing for the appellant in his arguments vehemently contended that on perusal of Ex.R2, it clearly discloses that the vehicle involved in the accident is an autorickshaw and the same has not been considered by the Tribunal. The Tribunal has committed an error in fastening the liability on the Insurance Company and though the lorry has not been involved in the accident, the same has been falsely implicated.
7. Per contra, learned counsel for the claimants would contend that immediately after the accident, complaint was given and case was registered in respect of the particular vehicle involved in the accident as lorry and spot mahazar was also drawn. There is a typographical error in Ex.R2 and taking advantage of the same, the Insurance Company is contending that the lorry has not been involved in the accident. The Tribunal has considered both documentary and oral evidence and by rightly appreciating the same, has fastened the liability on the Insurance Company and there are no grounds to interfere with the award of the Tribunal.
8. Having heard the arguments of the respective counsels, the points that arise for consideration of this Court are:-
1. Whether the Tribunal has committed an error in fastening the liability on the Insurance Company in coming to the conclusion that the lorry has been involved in the accident and not an auto rickshaw and it requires interference of this Court?
2. What order?
9. Points No.1 & 2:- Having considered both oral and documentary evidence available on record, though it is contended by the Insurance Company that the lorry has not been involved in the accident, except examining the official of the Insurance Company, it has not examined the driver. The driver would be the right person to speak whether the vehicle is involved in the accident or not. No doubt on perusal of Ex.R2, an entry has been made that the injured was knocked down by the auto rickshaw, but it is to be noted that the complaint was given on the very same day at about 10.00 a.m. by the complainant, who has been examined before the Tribunal as P.W.3. In the complaint, he has specifically mentioned the vehicle number and it is also to be noted that mahazar, which is marked as Ex.P.3 discloses that mahazar was conducted on the same day at 12.30 p.m. immediately after lodging of the complaint. Ex.R2 came into existence at 3.00 p.m. when the injured was taken to NIMHANS Hospital. There is no doubt, an entry has been made that the vehicle involved in the accident is an autorickshaw. Prior to the document Ex.R2, Exs.P.1 and 3 have already came into existence. When such being the case, by taking undue advantage of the entry made in Ex.R2, the Insurance Company cannot contend that the said vehicle was not involved in the accident.
10. The Tribunal has considered both oral and documentary evidence and has rightly come to the conclusion that the driver of the lorry caused the accident. Driver of the lorry has also not been examined. The Insurance Company did not substantiate its contention by placing any cogent and satisfactory evidence before the Tribunal. Hence, I am of the opinion that there are no good grounds to interfere with the award of the Tribunal in coming to the conclusion that the lorry has caused the accident. Hence, I do not find any merit in the appeals. The other contention with regard to no permit and there was a deviation of permit is not a fundamental breach and hence, the said contention cannot be accepted.
11. In view of the discussions made above, I pass the following:-
ORDER (i) The appeals are dismissed.
(ii) The Registry is directed to transmit the amount, if any, in deposit to the Tribunal forthwith.
PYR Sd/- JUDGE