IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR MISCELLANEOUS FIRST APPEAL NO.8242/2012(MV) BETWEEN:
SRI. K.B. GURUNATH S/O LATE BASAPPA AGED ABOUT 35 YEARS R/O KODAGIKERE VILLAGE CHANNAGIRI TALUK.
... APPELLANT (BY SRI. P.M. SIDDAMALLAPPA., ADVOCATE) AND:
1. SRI. B. MAHANTESHAPA S/O BHEEMAPPA AGED ABOUT 43 YEARS RESIDING AT UBRANI VILLAGE CHANNAGIRI TALUK DAVANAGERE DISTRICT – 577 203.
2. SRI. B. RAVIKUMAR S/O LATE BASAPPA AGED ABOUT 38 YEARS R/O KODAGIKERE VILLAGE CHANNGIRI TALUK – 577 203.
3. THE MANAGER NATIONAL INSURANCE CO. LTD., BRANCH OFFICE: MERCANTILE BUILDING, BINNY COMPANY ROAD, DAVANAGERE – 577 001.
.. RESPONDENTS (BY SRI. K.N. SRINIVASA., ADVOCATE FOR R-3;
NOTICE TO R-1 AND R-2 SERVED AND UNREPRESENTD) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:26.5.2011 PASSED IN MVC NO.49/2010(OLD NO.376/2009 ON THE FILE OF THE SENIOR CIVIL JUDGE, MACT, CHANNAGIRI, AWARDING A COMPENSATION OF RS.80,000/- WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL REALIZATION.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Owner of the offending vehicle being aggrieved by judgment and award dated 26.05.2011 passed by Senior Civil Judge & MACT, Channagiri in MVC No.49/2010 (old No.376/2009) is before this Court for setting aside the judgment and award and in the alternate, to fasten the liability on the third respondent – insurance company.
2. I have perused the grounds urged in the appeal and bestowed my careful and anxious consideration to the contentions raised by Sri K N Srinivasa, learned Advocate appearing for third respondent.
3. First respondent herein had filed a claim petition in MVC No.49/2010 (Old No. 376/2009) seeking compensation of Rs.5 lakhs contending interalia that while he was proceeding along with two others on 02.08.2007 at about 7.30 p.m., driver of the motor vehicle bearing registration No.KA-17/U-1567 came from hind side and dashed against his vehicle resulting in first respondent sustaining injuries to his legs, left foot, left ear, left forehead and left side of the face and other parts of the body and as such, he was shifted to C.G.Hospital, Davanagere for treatment and was an inpatient at the said hospital from 03.08.2007 to 12.09.2007 and as such, sought for compensation of Rs.5 lakhs.
4. Insurer appeared pursuant to notice issued by the tribunal and denied the averments made in the claim petition contending that there was delay of one day in filing the complaint and jurisdictional police have registered the case against Manja @ Manjunath in Crime No.227/2007 who had no valid and effective driving licence at the time of accident of the motor cycle and as such, insurer though issued insurance policy to the offending vehicle is not liable to indemnify the claim.
5. Tribunal, after evaluating the entire evidence has awarded compensation of Rs.80,000/- with interest @ 6% p.a. from the date of petition till date of realization. However, while fixing the liability to indemnify the claim, third respondent – insurer has been exonerated on the ground that in the complaint – Ex.P-3 filed before Channagiri Police Station on 03.08.2007, complainant has stated that Manju @ Manjunath of Kodagikere village was driving the vehicle and this fact is also elicited in the cross examination of P.W.1 and as such, very filing of the charge sheet – Ex.P-1 against first respondent for the offences punishable under Sections 279, 337 & 338 IPC is erroneous and as such, held that insurer is not liable to indemnify the claim.
6. Since heavy reliance is placed by the Tribunal on the complaint lodged by the complainant – Chandru @ Chandrappa, same is perused by this Court. A bare reading of the complaint would indicate that it has been lodged by one Sri. Chandru @ Chandrappa. In the first instance, he says that motor cycle had dashed from hind side while he was walking on the road and he also states that he saw the registration number of the vehicle as KA -17-U-1567 which was a Hero Honda Splender Bike. In other words, he does not state as to which was the actual vehicle which had dashed against him or the person who was driving the said vehicle. It is later on he has stated in the complaint that on enquiry, he came to know about said vehicle had been driven by Manju @ Manjunath. It is because of this precise reason, jurisdictional police initially registered FIR against Manju @ Manjunath and after investigation, charge sheet has been filed against second respondent only on the say of complainant and as per the contents of Ex.P-3, it cannot be inferred or concluded that person who was driving the offending vehicle was Manju @ Manjunath and version of the complainant is only hearsay evidence. Hence, much credence cannot be attached to it. On the other hand, jurisdictional police who have conducted investigation have filed charge sheet against second respondent herein and filing of the charge sheet against second respondent is not questioned or challenged by the insurer. In other words, insurer has accepted the same. Hence, third respondent – insurer cannot contend that it is not liable to indemnify the claim particularly when policy issued to the offending vehicle as on date of accident being in vogue and in force. Hence, this Court is of the considered view that tribunal committed a serious error in exonerating the insurer of its liability.
Hence, I proceed to pass the following:
JUDGMENT (i) Appeal is allowed in part.
(ii) Judgment and award passed dated 26.05.2011 passed by Senior Civil Judge & MACT, Channagiri in MVC No.49/2010 (old No.376/2009) insofar as exonerating third respondent – insurance company to indemnify the claim is set aside and it is ordered that compensation awarded to first respondent – claimant by the tribunal is liable to be indemnified by the third respondent – insurer.
(iii) Third respondent – insurer shall deposit compensation amount with interest before the jurisdictional Tribunal within one week from the date of receipt of certified copy of this order.
(iv) Registry is directed to transmit the records to the jurisdictional Tribunal forthwith.
*sp SD/-
JUDGE