IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF JULY 2017 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA MISCELLANEOUS FIRST APPEAL NO.8984/2008 (MV) BETWEEN:
NATIONAL INSURANCE CO LTD DIVISIONAL OFFICE, G MUDDAPPA COMPLEX VIVEKANANDA ROAD, TUMKUR BY NATIONAL INSURANCE CO LTD REGIONAL OFFICE NO 144 SUBHARAM COMPLEX, MG ROAD, BANGALORE-01 BY ITS MANAGER ... APPELLANT (By Sri: O MAHESH, ADVOCATE) AND:
1. PARVATHAMMA AGED 41 YEARS W/O LATE MAHADEVAIAH 2. K M CHAITRA AGED 18 YEARS D/O LATE MAHADEVAIAH 3. K M PUNITH KUMAR AGED 15 YEARS, S/O LATE MAHADEVAIAH 4. CHANNABASAVANNA AGED 79 YEARS S/O LATE GUBBANNA 5. SMT GOWRAMMA AGED 72 YEARS W/O CHANNABASAVANNA RESPONDENTS 2 AND 3 ARE MINORS BY M/G 1ST RESPONDENT ALL R/O DODDAKATTIKENAHALLI GOPALAPURA POST, GUBBI TALUK TUMKUR DISTRICT RESPONDENTS R1 TO R3 & R5 ARE LR’s OF DECEASED R4 AND ARE TREATED AS LR’s OF DECEASED R4 VIDE COURT ORDER DT.10.2.2012 6. VIJAYAKUMAR S/O LINGAIAH AGED 32 YEARS, R/A KAMBATHANAHALLI, GULUR HOBLI TUMKUR TALUK (CAUSE TITLE AMENDED VIDE COURT ORDER DATED 19.03.2012) ... RESPONDENTS (By Sri: THYAGARAJA, ADVOCATE FOR R1,2 & 5; R3-MINOR, REPRESENTED BY R1;
R4 DEAD, R1 TO R3 AND R5 ARE LR’S OF R4 AS PER ORDER DATED 10.02.2012; AND NOTICE TO R6 IS HELD SUFFICIENT V/O/D 19.3.2012) ---
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 21.5.2008 PASSED IN MVC NO. 671/2006 ON THE FILE OF THE CIVIL JUDGE (SR.DN) AND ADDL. MACT, GUBBI, AWARDING A COMPENSATION OF Rs.3,33,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALISATION.
THIS MFA HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 16.06.2017, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, JOHN MICHAEL CUNHA J., DELIVERED THE FOLLOWING:
J U D G M E N T This appeal is directed against the judgment and award dated 21.5.2008 passed by the Civil Judge (Sr.Dn.) and Addl. MACT, Gubbi, in MVC.No.671/2006.
2. By the impugned award, the Addl. MACT has allowed the petition in part awarding a total compensation of Rs.3,33,000/- together with 6% interest from the date of petition till realization of the awarded amount.
3. The appellant –Insurance Company is aggrieved mainly by the finding of the learned Addl. MACT that the accident in question was caused on account of the rash and negligent driving of the TVS Max 100 Bike bearing registration No.KA.06.S.9469. It is contended in the appeal that a false claim has been laid by the claimants implicating the owner of the aforesaid motor bike even though the circumstances pleaded by the claimants and the facts proved in evidence clearly indicate that the said motor bike was not at all involved in the alleged accident.
4. I have heard the learned counsel for the appellant and the learned counsel for the respondents.
5. In view of the contentions urged in the appeal, the only question that arise for consideration is, Whether on the facts and circumstances of the case, the finding of the Addl. MACT that the accident in question was caused on account of the actionable negligence of the rider of the motor bike bearing registration No.KA.06.S.9469 is sustainable?
6. I have gone through the records of the Addl.
MACT and the impugned judgment.
7. At the outset, it is relevant to note that the claim petition has been presented on the specific averment that on 29.10.2005, at about 11.30 p.m., when the deceased Mahadevaiah was walking on the left side of the road near Siddappa’s land, the rider of the motor bike bearing registration No.KA.06.S.9469 came in a rash and negligent manner and dashed against the deceased from behind, as a result, the deceased died instantaneously.
8. The owner of the aforesaid motor bike is arrayed as respondent No.1. The respondent No.1 has filed a statement of objections denying the allegation that the accident was caused due to the rash and negligent driving of the TVS Max 100 bike bearing registration No.KA.06.S.9469 by its rider. The Insurer of the said vehicle who is arrayed as second respondent has also filed the statement of objections admitting the insurance cover, but denying the involvement of the aforesaid motor bike in the accident in question.
9. In the course of the evidence, claimant No.1 (PW.1) has squarely implicated the rider of the aforesaid motor bike and in support thereof has produced in evidence the certified copy of the complaint Ex.P1, panchanama Ex.P2, inquest mahazar Ex.P3, PM Report Ex.P4, charge- sheet Ex.P5, Milk Co-operative Society Card Ex.P6 and other documents. In her cross-examination she has denied the suggestion that the deceased did not succumb to the injuries caused due to the actionable negligence of the rider of the aforesaid motor bike. This witness is not an eyewitness to the incident and therefore, much credence cannot be given to her evidence as she has unequivocally admitted that she was not present at the spot during the accident.
10. PW.2 an eyewitness to the incident has also spoken about the involvement of the aforesaid motor bike in causing the accident leading to the death of the deceased. But this witness is not subjected to cross-examination. As such, his evidence cannot be relied on.
11. However, PW.3 another eyewitness to the incident has specifically stated that when he was waiting to board the bus to return to his village after attending the marriage function of his relative at Bommanahalli, the TVS Max 100 bike bearing registration No.KA.06.S.9469 driven in a rash and negligent manner hit against the deceased and caused the accident. In the cross-examination of this witness, it is elicited that this witness did not take the deceased to the hospital nor informed the police. It is also elicited that the police did not record his statement with regard to the incident in question. These circumstances lead to doubt the presence of this witness at the spot.
12. But what is relevant to be noted is that the claimants have produced the certified copy of the charge- sheet at Ex.P5 wherein the charge-sheet has been laid against the rider of the aforesaid motor bike under sections 279, 304(A) Indian Penal Code r/w. section 134(a)(b) and section 187 of IMV Act on the specific accusation that being the rider of the motor bike bearing registration No.KA.06.S.9469 on 29.10.2005, at 11.30 p.m., he drove the said vehicle in a rash and negligent manner, as a result, he hit against the deceased Mahadevaiah while he was walking by the side of the road near Oorukere resulting in his death. This document has not been challenged either by the appellant or by the first respondent even though both the respondents have taken up a specific plea that the rider of the aforesaid motor bike was not involved in the accident. Neither respondent No.1 nor respondent No.2 have chosen to examine the rider of the said vehicle against whom charge-sheet has been laid by the police after due investigation. It is not the case of the appellant that the claimants are in collusion with the first respondent or the rider of the vehicle. In the face of the said document, in my opinion, the Addl. MACT was justified in holding that the accident in question was caused on account of the actionable negligence of the rider of the motor bike in question. Therefore, I do not find any error or infirmity in the finding recorded by the learned Addl. MACT in fastening the liability on the owner and the insurer of the said motor bike bearing registration No.KA.06.S.9469. There is no merit in the contention urged by the appellant. Appeal therefore, is liable to be dismissed.
Accordingly, the appeal is dismissed.
Sd/- JUDGE Bss.