IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF AUGUST 2019 BEFORE THE HON’BLE MR. JUSTICE S.G.PANDIT MISCELLANEOUS FIRST APPEAL NO.925/2013 (MV) BETWEEN:
M/S. ICICI LOMBARD GENERAL INSURANCE COMPANY LIMITED NO.89, 2ND FLOOR S V R COMPLEX HOSUR MAIN ROAD MADIWALA BANGALORE-560068 REPRESENTED BY ITS MANAGER-LEGAL ... APPELLANT (BY SRI A M VENKATESH, ADVOCATE) AND:
1. T N NARASIMHAMURTHY S/O K NARASIMHAIAH AGED ABOUT 50 YEARS WORKING AS CASHIER IN VIJAYA BANK R/AT TURUVEKERE TOWN PIN 572 227 2. PARAMESHWARAIAH S/O NANJAPPA AGED ABOUT 42 YEARS OWNER CUM DRIVER OF HERO HONDA MOTORCYCLE BEARING NO.KA-44/H-8618 R/O SOPANAHALLI VILLAGE DABBEGHATTA HOBLI TURUVEKERE TALUK-572 227 ... RESPONDENTS (BY SRI M B CHANDRA CHOODA, ADVOCATE FOR R1; SRI M N MADHUSUDHAN, ADVOCATE FOR R2) THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:16.7.2012 PASSED IN MVC NO.292/2011 ON THE FILE OF MEMBER, 18TH ADDITIONAL MACT, TURUVEKERE, AWARDING A COMPENSATION OF RS.94,738/- WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.
THIS MFA COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T 1. Appellant-Insurance Company is before this Court assailing the judgment and award dated 16.07.2012 passed in M.V.C.No.292/2011 on the file of 18th Additional MACT, Turuvekere.
2. The claimant/respondent no.1 filed a claim petition under Section 166 of the Motor Vehicles Act claiming compensation for the injuries sustained by him in a road traffic accident that is alleged to have taken place on 23.04.2010. It is stated that on 23.04.2010, at about 9.30 p.m., when the claimant was proceeding on his motorbike bearing registration No.KA.44/E.0364 near Turuvekere KSRTC depot, a Hero Honda motorcycle bearing No.KA.44/H.8618 driven by its driver came from opposite direction in a rash and negligent manner and dashed to the vehicle. Due to the accident, he sustained grievous injuries.
It is stated that he was shifted to Government Hospital, Turuvekere and thereafter to M.S.Ramaiah Hospital, Bengaluru. The claimant was working as Cashier in Vijaya Bank, Turuvekere and drawing salary of more than Rs.45,000/- per month. The claimant was having agricultural land. On service of summons, the appellant- Insurance Company appeared through its Counsel and filed its objections stating that the motorbike bearing No.KA.44. H.8618 has been implicated in the alleged accident at the instance of the claimant in collusion with the police. It is also stated that the complaint was lodged by the claimant before the jurisdictional police after lapse of 38 days from the date of the accident and the vehicle bearing No.KA.44.H.8618 has been seized after 75 days from the date of the accident.
The Tribunal, based on the pleadings, framed the following issues for consideration:
1) Whether the petitioner proves that the alleged accident was occurred due to rash and negligent driving of the rider of Hero Honda Motor cycle bearing no.KA.44.H.8618?
2) Whether the petitioner proves that he had sustained injuries in the said accident?
3) Whether the petitioner is entitled for compensation? If so, what amount and from whom?
4) What order or award?
The claimant himself got himself examined as PW1 and got marked documents as Exs.P1 to P43 and the Manager of the appellant-Insurance Company was examined as RW1. The Tribunal, on consideration of the evidence on record, held all the issues in the affirmative and awarded a sum of Rs.94,738/- as compensation to the claimant along with interest @ 6% p.a. and held that respondent nos.1 and 2 jointly and severally liable and directed respondent no.2 to deposit the compensation amount. The Insurer aggrieved by the same is before this Court in this appeal.
3. Heard learned counsel for the appellant and learned counsel for respondent no.1-claimant.
4. Learned counsel for the appellant-Insurance Company submitted that the Tribunal had committed an error in holding that the accident occurred involving motorcycle bearing No.KA.44.H.8168. He submitted that the Tribunal ought not to have fastened the liability on the appellant- Insurer. He submitted that the vehicle bearing No.KA.44.H.8618 was not involved in the accident and falsely the vehicle is implicated. He submitted that FIR was filed against the motorcycle bearing No.KA.14.K.1790 and the complaint was lodged on 01.06.2010 and further statement of the claimant recorded states that the vehicle bearing No.KA.44.H.8618 was involved in the accident and the vehicle was seized after 75 days from the date of the accident. Learned counsel invites the attention of this Court to Ex.P4 - motor vehicle inspectors report wherein it states that no damages are found on the alleged vehicle bearing No.KA.44.H.8618. Therefore, he prays for allowing the appeal.
5. Per contra, learned counsel appearing for respondent no.1 submitted that the accident took place on 23.04.2010 and due to the accident, he suffered serious injuries and as he was in a semi conscious state, he was not in a position to give correct vehicle number. He submitted that he took treatment initially at Government Hospital, Turuvekere and subsequently he was shifted to M.S.Ramaiah Hospital, Bangalore wherein he took treatment from 26.04.2010 to 17.05.2010 and his further statement was recorded by the police wherein he stated that the vehicle bearing No.KA.44.H.8618 was involved in the accident. He further submitted that the police have filed charge sheet against the rider of the vehicle No.KA.44.H.8618 who is respondent no.1. Respondent no.1 has pleaded guilty and has paid fine. He also submitted that the claimant was not in a position to move from the date of the accident till 17.05.2010. Therefore, he prays for dismissal of the appeal.
6. After hearing the learned counsel for the parties and on perusal of LCR, the question that arises for consideration is as to whether the Tribunal is justified in holding that the accident had occurred due to rash and negligent driving of rider of motorcycle bearing No.KA.44.H.8168 and awarding compensation. It is answered in the negative and the Tribunal is not justified in allowing the claim petition.
7. The claimant stated that he suffered accidental injuries on 23.04.2010 at about 9.30 p.m. when he was proceeding in his motorbike bearing No.KA.44.E.0364. Initially it is the case of the claimant that rider of the vehicle bearing No.KA.14.K.1790 came in opposite direction and dashed to his motorcycle due to which he suffered injuries and initially he was treated at Government Hospital, Turuvekere and he was shifted to M.S.Ramaiah Hospital, Bengaluru for further treatment. Ex.P1 is FIR registered on 01.06.2010. Ex.P2 is complaint dated 01.06.2010 submitted by the claimant wherein he categorically states that the vehicle involved in the accident was motorcycle bearing No.KA.14.K.1790. Subsequently, on 10.07.2010, further statement of the claimant was recorded in which the claimant states that the vehicle involved in the accident was motorcycle bearing No.KA.44.H.8618 and the claimant changed his version totally. The claimant stated that he could not lodge the complaint immediately on the date of the accident or subsequently as he was an inpatient at M.S.Ramaiah Hospital from 26.04.2010 to 17.05.2010. However, no material is produced to show that he was an inpatient for the said period. The complaint was filed 38 days after the date of the accident against motorcycle bearing No.KA.14.K.1790 but the same was subsequently changed to No.KA.44.H.8618. Ex.P4 – motor vehicle inspectors report would indicate that there was no damage to the vehicle bearing No.KA.44.H.8618. The claimant has also not examined the Doctor, who treated him to say that he was not in a position to move till 01.06.2010, the date on which the complaint was filed.
8. In the facts of the present case and in view of Exs.P1 to P4, non-examination of the investigator or filing of charge-sheet against respondent No.1 would have no bearing on the case. The truthfulness or otherwise of the accident will have to be examined on the basis of material on record. On careful examination of the material on record, one can safely come to the conclusion that the claimant has changed his version as it appears that the vehicle bearing No.KA.14.K.1790 had no insurance and it was not insured with respondent no.2. Further, there is no evidence to come to the conclusion that the vehicle, which was involved in the accident was got repaired during the period between the date of accident and the date of seizure. Hence, the Tribunal committed an error in allowing the claim petition holding that vehicle bearing No.KA.44.H.8618 is involved in the accident. Thus, I am of the view, that claimant has not proved the accident, which occurred on 23.04.2010 involving motorbike bearing No.KA.44.E.0364 and motorcycle bearing No.KA.44.H.8618. Thus, the claim petition is liable to be dismissed.
For the reasons stated above, the appeal is allowed. The impugned judgment and award dated 16.07.2012 passed in MVC No.292/2011 on the file of Member, 18th Additional MACT, Turuvekere, is set aside. The claim petition is dismissed. The amount in deposit be refunded to the appellant – Insurance Company.
Sd/- JUDGE hkh./NG*