Partly allowed

The Divisional Manager v. Eshwar

Karnataka HC1 Aug 2022MFA/1173/2018

Case brief

AI extract

What is this about?

The High Court exonerated the National Insurance Company from liability in a motor accident claim, holding that the insured driver (respondent) was falsely implicated. The court modified the award to fix liability on the motorcycle owner and enhanced the compensation awarded to the claimant.

What did the court decide?

Insurance company exonerated; liability shifted to motorcycle owner; compensation enhanced to Rs. 5,48,480; deposit refunded to insurer.

The Divisional Manager Vs Eshwar — Motor Accident Claims | Karnataka HC (2022)

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1 MFA NO.1171/2018 c/w MFA NO.1173/2018, MFA NO.1174/2018 & MFA CROB.40/2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 01^ST DAY OF AUGUST, 2022

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BEFORE

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THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

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M.F.A NO.1171/2018 C/W M.F.A NO.1173/2018, M.F.A NO.1174/2018 & M.F.A CROB. NO.40/2019

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IN MFA NO.1171/2018

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BETWEEN:

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THE DIVISIONAL MANAGER NATIONAL INSURANCE CO.LTD., OPP:DENTAL COLLEGE, II FLOOR, MELAGIRI PLAZA, DAVANGERE. BY NATIONAL INSURANCE CO.LTD., REGIONAL OFFICE, NO.144, SUBHARAM COMPLEX, M.G.ROAD, BANGALORE-560001. BY IT’S MANAGER.

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...APPELLANT

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(BY SRI. O MAHESH, ADVOCATE THROUGH V/C)

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AND:

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1 . ASHOKA S/O UJJAPPA, AGED ABOUT 47 YEARS, AGRICULTURIST,R/O PUNAJURU VILLAGE, HOLALKERE TQ. CHITRADURGA DISTRICT-577501.

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2 MFA NO.1171/2018 c/w MFA NO.1173/2018, MFA NO.1174/2018 & MFA CROB.40/2019

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2 . NAYAZULLA MAJOR, S/O FAKRUDDIN, R/O CHIKKAJAJUR VILLAGE, HOLALKERE TQ, CHITRADURGA DISTRICT-577501.

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RESPONDENTS (BY SRI.B.M.SIDDAPPA, ADVOCATE FOR R1 R2-SERVED)

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MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:01.09.2017 PASSED IN MVC NO.788/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, M.A.C.T., HOLALKERE, AWARDING COMPENSATION OF RS.4,65,040/-WITH INTEREST AT THE RATE OF 6% P.A. FROM THE DATE OF PETITION TILL DEPOSIT.

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IN MFA NO.1173/2018

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BETWEEN:

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THE DIVISIONAL MANAGER NATIONAL INSURANCE CO LTD., OPP: DENTAL COLLEGE, II FLOOR, MELAGIRI PLAZA, DAVANAGERE BY NATIONAL INSURANCE CO. LTD., REGIONAL OFFICE, NO.144, SUBHARAM COMPLEX, M.G.ROAD, BANGALORE - 560 001. BY IT’S MANAGER.

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...APPELLANT

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(BY SRI. O MAHESH, ADVOCATE APPEARING THROUGH V/C)

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3 MFA NO.1171/2018 c/w MFA NO.1173/2018, MFA NO.1174/2018 & MFA CROB.40/2019 AND:

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1 . ESHWAR S/O MAHASWAMY, AGED ABOUT 24 YEARS, MILK VENDOR, R/O CHIKKAJAJUR VILLAGE, HOLALKER TQ, CHITRADURGA DISTRICT - 577 501.

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2 . NAYAZULLA MAJOR, S/O FAKRUDDIN, R/O CHIKKAJAJUR VILLAGE, HOLALKER TQ, CHITRADURGA DISTRICT - 577 5013.

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RESPONDENTS

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(BY SRI.B.M.SIDDAPPA, ADVOCATE FOR R1, R2 SERVED)

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MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:01.09.2017 PASSED IN MVC NO.787/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE & MACT, HOLALKERE, AWARDING COMPENSATION OF RS.20,000/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL DEPOSIT ANDETC.,

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IN MFA NO.1174/2018

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BETWEEN:

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THE DIVISIONAL MANAGER NATIONAL INSURANCE CO.LTD.,

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4 MFA NO.1171/2018 c/w MFA NO.1173/2018, MFA NO.1174/2018 & MFA CROB.40/2019 OPP:DENTAL COLLEGE, II FLOOR, MELAGIRI PLAZA, DAVANAGERE. BY NATIONAL INSURANCE CO.LTD., REGIONAL OFFICE NO.144, SUBHARAM COMPLEX, M.G.ROAD, BANGALORE-560001. BY IT’S MANAGER.

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...APPELLANT

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(BY SRI. O MAHESH, ADVOCATE THROUGH V/C)

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AND:

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1 . GOWRAMMA W/O ASHOK AGED ABOUT 37 YEARS, HOUSE HOLD, R/O PUNAJURU VILLAGE, HOLALAKERE TQ, CHITRADURGA DISTRICT 577501.

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2 . NAYAZULLA MAJOR, S/O FAKRUDDIN, R/O CHIKKAJAJUR VILLAGE, HOLALKERE TQ, CHITRADURGA DISTRICT-577501.

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RESPONDENTS

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(BY SRI.B.M. SIDDAPPA, ADVOCATE FOR R1 R2-SERVED)

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MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:01.09.2017 PASSED IN MVC NO.795/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, M.A.C.T.,

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5 MFA NO.1171/2018 c/w MFA NO.1173/2018, MFA NO.1174/2018 & MFA CROB.40/2019

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HOLALKERE, AWARDING COMPENSATION OF RS.20,000/-WITH INTEREST AT THE RATE OF 6% P.A. FROM THE DATE OF PETITION TILL DEPOSIT AND ETC.,

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IN MFA CROB.NO.40/2019

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BETWEEN:

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1 . SRI ASHOKA S/O UJJAPPA, AGED ABOUT 48 YEARS, AGRICULTURIST, R/O PUNAJURU VILLAGE, HOLALKERE TALUK-577526, CHITRADURGA DISTRICT.

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...CROSS OBJECTOR

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(BY SRI.SIDDAPPA B M., ADVOCATE)

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AND:

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1 . SRI NAYAZULLA S/O FAKRUDDIN, R/O CHIKKAJAJUR VILLAGE, HOLALKERE TALUK-577526, CHITRADURGA DISTRICT.

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2 . THE DIVISIONAL MANAGER NATIONAL INSURANCE CO.LTD., OPP:DENTAL COLLEGE, 2^ND FLOOR, MELAGIRI PLAZA, DAVANGERE.577001 BY IT’S

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NATIONAL INSURANCE CO.LTD., REGIONAL OFFICE, NO.144, SUBHARAM COMPLEX, M.G.ROAD, BANGALORE-560001.

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6 MFA NO.1171/2018 c/w MFA NO.1173/2018, MFA NO.1174/2018 & MFA CROB.40/2019

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RESPONDENTS

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(BY SRI. O MAHESH, ADVOCATE FOR R2 THROUGH V/C, R1 NOTICE DISPENSED WITH V/O DATED:18/11/2021 IN MFA NO.1173/2018)

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MFA FILED U/O.41 RULE 22 OF CPC, AGAINST THE JUDGMENT AND AWARD DT.01.09.2017 PASSED ON MVC NO.788/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE & MACT, HOLALKERE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC.,

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M.F.A.NO.11711/2018, M.F.A.NO.1173/2018, M.F.A.NO.1174/2018 AND MFA CROB.NO.40/2019 IN MFA NO.40/2019 COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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These appeals are filed under Section-173(1) of the Motor Vehicles Act, 1988, (hereinafter referred to as ‘MV Act’ for brevity).

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MFA Nos.1171, 1173 and 1174/2018 are filed by the appellant – insurance company challenging the judgment and award dated 01.09.2017, passed in MVC No.787/2016 connected with MVC No.788/2016,

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7 MFA NO.1171/2018 c/w MFA NO.1173/2018, MFA NO.1174/2018 & MFA CROB.40/2019 795/2016, on the file of Senior Civil Judge & MACT, at Holalkere, (hereinafter referred to as ‘the Tribunal’ for brevity) questioning the liability of the insurance company to pay the compensation.

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MFA Crob No.40/2019 is filed by the appellantclaimant in MVC No.788/2016 challenging the aforesaid judgment and award, seeking enhancement of the compensation awarded by the Tribunal.

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2. Brief facts:

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On 01.01.2016, the claimants were proceeding on a motor cycle bearing No. KA-16-X-9860, from Sirigere village to Punajuru; in front of Government School at Adanuru village, Holalkere Taluk at 8.30 p.m., the driver of the motor cycle bearing No.KA-16EB-1786, drove it in a rash and negligent manner and dashed against the motor cycle. As a result they fell down and sustained simple and grievous injuries. The claimant in MVC No.787/2016, being pillion rider of

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8 MFA NO.1171/2018 c/w MFA NO.1173/2018, MFA NO.1174/2018 & MFA CROB.40/2019 the motor cycle bearing No.KA-16-EB-1786, also fell down from the motor cycle and sustained simple and grievous injuries. Immediately he was shifted to the Government Hospital, Holalkere. The claimant in MVC No.788/2016 was shifted to Narayana Multi Specialty Hospital, Shivamogga where he took treatment as an inpatient for two months and spent around Rs.5,00,000/- towards medical expenses. Claimant in MVC No.795/2016 spent Rs.20,000/- towards medical expenses and the claimant in MVC No.787/2016 was shifted to Holalkere Government Hospital, immediately after the accident and then shifted to SS Hospital, Davanagere where he took treatment as an inpatient and spent Rs.50,000/- towards medical treatment.

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Hence, a claim petition was filed by the claimants under Section-166 of the M.V. Act, claiming compensation for the injuries sustained in the accident. The Tribunal on appreciating the materials on record, allowed the petitions in part, and awarded

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9 MFA NO.1171/2018 c/w MFA NO.1173/2018, MFA NO.1174/2018 & MFA CROB.40/2019 a compensation of Rs.4,65,040/- in respect of claimant in MVC No.788/2016 and Rs.20,000/- each to claimants in MVC Nos.795/2016 and MVC No.787/2016, along with interest at 6% per annum from the date of petition till the date of deposit. The Tribunal held respondent Nos.1 and 2 therein, jointly and severally liable to pay the compensation.

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4. Heard arguments of the learned counsel for the parties and perused the materials on record.

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Sri. O. Mahesh, learned counsel appearing

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for the insurance company submitted that the rider of motor cycle bearing No.KA-16-EB-1786, was falsely implicated as rider of the said motorcycle. That in fact one Nayazulla, who is stated to be the rider of motor cycle bearing No.KA-16-EB-1786, was not riding the motor cycle. But the claimant, Eshwar, in MVC No.787/2016, was riding aforesaid motorcycle. But he was not holding driving license. Hence, Nayazulla was

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10 MFA NO.1171/2018 c/w MFA NO.1173/2018, MFA NO.1174/2018 & MFA CROB.40/2019 falsely implicated as rider of the motorcycle, just to avoid his liability and trying to fasten the liability on the insurance company. Therefore, submitted there is a fraud played in the case by false implication by showing that Nayazulla was riding motor cycle bearing No.KA-16-EB-1786. Further, submitted that upon considering the case on its preponderance of probabilities the claimants in the claim petitions have not stated that Nayazulla was riding the motor cycle bearing No.KA-16-EB-1786 also in the evidence in examination-in-chief affidavit, it is not stated that Nayazulla was riding the said motor cycle. Therefore, submitted, what was the impediment for the claimants to state the name of Nayazulla in the chief examination and in claim petition is not known.

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Further, submitted that in the course of cross-examination, PW 1 & PW-2 who were rider and pillion rider of motor cycle bearing No. KA-16-X-9860 have deposed that only one person was on motor

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11 MFA NO.1171/2018 c/w MFA NO.1173/2018, MFA NO.1174/2018 & MFA CROB.40/2019 cycle bearing No.KA-16-EB-1786. Therefore, in considering these evidences it is proved that Eshwara who is claimant in MVC No.787/2016, was riding the motorcycle as on the date and time of the accident, but he was not holding the driving license. Hence, in order to escape liability by the owner of the motorcycle bearing No.KA-16-EB-1786, therefore Nayazulla was implicated as the rider of the motor cycle. Thus, in this way argued that there is a fraud played in the case and at the most, since it is proved on all preponderance of probabilities, Eshwara has driven the motor cycle bearing No.KA-16-EB-1786, therefore the owner has to pay the compensation and not the insurance company. Therefore, prays to allow the appeal to exonerate the insurance company to pay the compensation.

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On other hand, the learner counsel for the claimant, who has also filed the cross-objection, submitted that Nayazulla was riding the motor cycle

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12 MFA NO.1171/2018 c/w MFA NO.1173/2018, MFA NO.1174/2018 & MFA CROB.40/2019 bearing No.KA-16-EB-1786 and who was having driving license therefore the insurance company has to indemnify the owner as the insurance police was in effect. Further, submitted during the course of investigation it is revealed while collecting evidence that Nayazulla was riding the motor cycle and accordingly the charge sheet is filed against the Nayazulla respondent No.1. Hence, it is proved that Nayazulla was riding the offending motor cycle. Therefore, submitted that the insurance company is liable to pay the compensation.

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Further, the claimant Ashoka in MFA No. 1171/2018, had suffered grievous injuries in the accident, but has been awarded very less compensation. Therefore, prays for enhancement of the compensation by allowing MFA Cross objection No.40/2019.

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13 MFA NO.1171/2018 c/w MFA NO.1173/2018, MFA NO.1174/2018 & MFA CROB.40/2019 9. Upon considering the rival contentions of

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the learner counsel appearing for the claimant and the insurance company and specifically the grounds urged by the learner counsel for the insurance company that Nayazulla, respondent No. 1 was falsely implicated as riding the motor cycle bearing No.KA-16-EB-1786, the documentary and oral evidence ought to be appreciated. Exhibit-P2 is the complaint Exhibit-P1 is the FIR and there is no delay in lodging the complaint as the accident has occurred at 8.30 pm on 01.01.2016, and on the next day 02.01.2016 the complaint was filed. Under these circumstances, it cannot be said that there is a delay in lodging the complaint. It is also true that quite naturally, the complainant did not know the name of the rider of the motor cycle bearing No. KA-16-X-9860,. Therefore, he did not state the name of the rider offending motor cycle. But upon considering the contentions of the claim petitions, all the three claimants have not stated

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14 MFA NO.1171/2018 c/w MFA NO.1173/2018, MFA NO.1174/2018 & MFA CROB.40/2019 in the claim petitions, as to who is rider of the motor cycle bearing No.KA-16-EB-1786. The claimants have not stated name of respondent no.1 Nayazulla that he was riding motor cycle bearing No.KA-16-EB-1786.

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The learned counsel for the claimant submitted that in the charge sheet, offences are foisted against respondent No.1 Nayazulla. Therefore, it is proved that Nayazulla, was riding the motorcycle. I have perused charge sheet and found that statement under Section–161 / 162 of Cr.P.C., stated to have been given by the claimants before Investigating Officer stating that Nayazulla was riding motor cycle bearing No.KA-16-EB-1786. Therefore, based on the evidence collected and statements recorded, the I.O. has filed charge sheet against Nayazulla. Charge sheet was filed in the month of April’2016 but claim petitions were filed after nearly three months. Therefore, when the claimants gave their statements before the Police by mentioning the name of Nayazulla, but what was

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15 MFA NO.1171/2018 c/w MFA NO.1173/2018, MFA NO.1174/2018 & MFA CROB.40/2019 impediment for them to state in the claim petition is

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not convinced by the learned counsel for the claimants. Also the claimants in their examination in chief affidavit in their evidence have not stated that Respondent No.1 Nayazulla was riding motor cycle bearing No.KA-16-EB-1786. Therefore, under these circumstances, the question of probabilities raised by the insurance company is more probable in the case compared to the evidence of the claimants regarding this aspect i.e, to find out who was riding the motor cycle bearing No.KA-16-EB-1786 and the implication of Nayazulla as rider of the said motor cycle. Furthermore, upon considering the cross-examination of PW-1 and PW-2 who was rider and pillion rider motor cycle bearing No. KA-16-X-9860, have admitted in the cross-examination that there was only one person riding motor cycle bearing No.KA-16-EB1786, therefore it probablises the fact as contended by the insurance company that there was only a single

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16 MFA NO.1171/2018 c/w MFA NO.1173/2018, MFA NO.1174/2018 & MFA CROB.40/2019 person who was on motor cycle bearing No.KA-16-EB1786 and caused accident. Even the claimant Eashwar, who was stated to be a pillion rider, but the question is who was riding the motor cycle bearing No.KA-16-EB-1786, whether it was claimant Eshwar or Respondent No.1 Nayazulla. But upon considering the evidence on record, claim petitions as discussed above, it is doubtful respondent No.1 Nayazulla was riding motor cycle bearing No.KA-16-EB-1786, then it is presumed that Eshwara must have been riding the motor cycle bearing No.KA-16-EB-1786.

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Applying even though there is strict rules of evidence is not applicable also the theory of beyond reasonable doubt to prove the facts is not applicable, but when considering these types of claim petitions, the principle of preponderance of probabilities is applicable. While applying this principle of preponderance of probabilities also this Court has drawn some presumptions, which ‘may presume’ or

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17 MFA NO.1171/2018 c/w MFA NO.1173/2018, MFA NO.1174/2018 & MFA CROB.40/2019 ‘shall presume’ but such presumption can be taken unless and until, it is disproved or calls for proof of it. But there is no evidence, on behalf of the claimants to prove that respondent No.1 - Nayazulla was riding motor cycle bearing No.KA-16-EB-1786. Therefore, the theory put forward by the insurance company in the present case that Nayazulla was not riding motor cycle bearing No.KA-16-EB-1786 is not disproved by the claimants. Therefore, under these circumstances, a necessary presumption shall be raised upon its preponderance of the probabilities, because of want of proof of evidence by the claimants, that the respondent No.1 - Nayasula was not riding the motorcycle bearing No.KA-16-EB-1786.

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The learned counsel for the claimants relied on the judgment of the Honorable Supreme Court in the case of Bimla Devi & Ors Vs. Himachal Road Transport Corpn. & Others , in Civil Appeal 2538/2009 and brought to the notice of the court

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18 MFA NO.1171/2018 c/w MFA NO.1173/2018, MFA NO.1174/2018 & MFA CROB.40/2019 that the claim petitions can be considered on its preponderance of probabilities, but not beyond reasonable doubt. The principle of law laid down in Para-15 of the above judgment is applied in the present case and this case can be considered only on its preponderance of probabilities, but not adopting beyond reasonable doubt theory. Therefore, on its preponderance of the probabilities as above discussed, it is proved that respondent No.1 Nayasulla was not riding the motor cycle bearing No.KA-16-EB-1786. Furthermore, PW1 & PW-2 who were rider and pillion rider of the motor cycle bearing No. KA-16-X-9860 have admitted during the cross examination there were not two persons in the motor cycle bearing No.KA-16-EB-1786 and only one person was there on the motorcycle. Therefore, it corroborates the submissions made by the learned counsel for the insurance company that respondent No.1 Nayazulla was not riding the motor cycle bearing No.KA-16-EB-

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19 MFA NO.1171/2018 c/w MFA NO.1173/2018, MFA NO.1174/2018 & MFA CROB.40/2019 1786 and when the claimant that he was claiming pillion rider, it proves the fact as false and probabilises the fact that the claimant Eshwar might have been the riding the motor cycle bearing No.KA-16-EB-1786 but he was not having the driving license. Therefore, the respondent No.1 - Nayasulla was implicated as the rider of the motorcycle.

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Therefore, upon considering the entire evidences on record as above discussed, there is no proper explanation offered by the learned counsel for the claimants as to why the name of respondent No.1 Nayazulla was not mentioned in the claim petitions as well as in the examination-in-chief affidavit that respondent no.1 - Nayasula was riding the motorcycle bearing No.KA-16-EB-1786. Therefore, the defense of the insurance company is proved that only one person was riding the motor cycle bearing No.KA-16-EB1786, either by Nayasulla or by Eshwar. But riding of the motor cycle by Nayasulla is ruled out from re-

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20 MFA NO.1171/2018 c/w MFA NO.1173/2018, MFA NO.1174/2018 & MFA CROB.40/2019 appreciating the material on record as above discussed. Then question remains who was riding the motor cycle bearing No.KA-16-EB-1786 and as per the evidence of PW1 & PW-2, they have deposed the cross examination that only one person was riding the said motorcycle and that there was not two persons. But the claimant Eshwar was not holding the driving license, hence respondent No.1 - Nayasulla might have been implicated into the case as the rider of the motor cycle bearing No.KA-16-EB-1786. Therefore, the insurance company has successfully proved that the respondent No.1 Nayasula was not riding the motor cycle bearing No.KA-16-EB-1786 and in this regard the Tribunal has failed to appreciate the material on record properly and in true perspective manner. Therefore, the insurance company is not liable to pay compensation for the reasons above stated and thus is liable to be exonerated. Since the insurance company is not liable to indemnify.

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21 MFA NO.1171/2018 c/w MFA NO.1173/2018, MFA NO.1174/2018 & MFA CROB.40/2019

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Under these circumstances, the liability shall be fixed on respondent No.1 - owner of the motorcycle to pay the compensation to the claimants. Accordingly, the judgment and award passed by the Tribunal in this regard is liable to be modified, by holding that respondent No.1- Nayasulla being the owner of motorcycle bearing No.KA-16-EB-1786 as he has authorized Eashwar to ride the motorcycle but was not holding the driving license. Therefore, respondent No.1 Nayasulla is liable to pay the compensation to the claimants viz., Ashoka and Gowramma who are third parties to motor cycle bearing No.KA-16-EB-1786.

¶91

Under these circumstances, as discussed above the claimant in MFA No.1173/2018, has played fraud while filing the claim petition by falsely implicating respondent No.1 - Nayasulla as rider of motor cycle bearing No.KA-16-EB-1786. Therefore,

¶92

22 MFA NO.1171/2018 c/w MFA NO.1173/2018, MFA NO.1174/2018 & MFA CROB.40/2019 fraud vitiates the entire proceedings. Thus, the claimants Eshwar in MFA 1173/2018 is not entitled for any compensation and therefore his claim petition is liable to be dismissed.

¶93

So far as the claimants, in MFA No.1171/2018 and in MFA No.1174/2018 and also claimants in MFA CROB 40/2019 are third parties to motor cycle bearing No.KA-16-EB-1786 and they are entitled for receiving compensation, from respondent No.1 - Naysulla and not from the respondent No. 2 - insurance company. To this extent, the judgment and award of the Tribunal is liable to be modified.

¶94

Regarding The Quantum Of Compensation:

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In MFA No.1171/2013 and MFA Crob No.40/2019 (MVC No.788/2016), the Tribunal has awarded compensation under various heads as follows:

¶96

23 MFA NO.1171/2018 c/w MFA NO.1173/2018, MFA NO.1174/2018 & MFA CROB.40/2019

¶97

1	Medical expenses and hospital charges	: Rs.	2,07,000/-
2	Pain and Suffering	: Rs.	55,000/-
3	Loss of amenities, Happiness and frustration of Life	: Rs.	45,000/-
4	Loss of earning during Laid up period	: Rs.	12,000/-
5	Loss of future earnings	: Rs.	1,31,040/-
6	Vehicle Hire Charges	: Rs.	10,000/-
7	Attendant, Food, Nourishment	: Rs.	5,000/-
	Charges
	Total Compensation	: Rs.	4,65,040/-

¶98

In the present case the claimant - Ashoka

¶99

had sustained injuries as revealed from Exhibit-P5, Wound Certificate, which are as follows-:

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i) Deformity at left leg upper 1/3^rd ii) Dorsum swelling at left hand iii) Superficial abrasion at left elbow iv) Superficial abrasion left great toe v) Fracture of VI schatzkers tibial plateu fracture

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vi) Left 5^th metalarsal bone fracture.

¶102

As per the doctors opinion, the above said

¶103

wound 1 and 5 are grievous in nature and 2, 3 and 4

¶104

are simple in nature. Therefore, the compensation

¶105

under the head ‘pain and suffering’ at Rs.55,000/ - is correct and needs no interference.

¶106

24 MFA NO.1171/2018 c/w MFA NO.1173/2018, MFA NO.1174/2018 & MFA CROB.40/2019

¶107

Further, the compensation awarded under

¶108

the head ‘Medical expense and hospitalization

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charges’ at Rs.2,07,000/- is as per actual medical bills produced and therefore there is no need to make any modification in this regard.

¶110

Further, the compensation awarded under the other conventional heads namely, Loss Of Happiness In Life, Conveyance Attendant Charges, Food And Nourishment ’, are found to be

¶111

just and proper and there is to need to make any disturbance in this regard.

¶112

The Tribunal considered the notional income of the claimant at Rs.6,000/- per month and accordingly awarded compensation under the ‘head loss of future earnings’. The accident has occurred during the year 2016. Therefore, considering the year of the accident, the notional monthly income of Rs.9,500/- per month is to be taken as per the chart

¶113

25 MFA NO.1171/2018 c/w MFA NO.1173/2018, MFA NO.1174/2018 & MFA CROB.40/2019

¶114

of Karnataka State Legal Services Authority. The age

¶115

of the claimant at the time of the accident was 46, therefore the appropriate multiplier applicable as per the judgment of the Hon’ble Supreme Court, in the case of Smt.Sarla Verma & Others. Vs. Delhi Transport Corpn And Another reported in AIR 2009 SC 3104 , is ‘13’. The Tribunal has considered the claimant has suffered 14% disability, which is not disputed. Therefore, the compensation under the head ‘Loss Of Future Earning Capacity’ is recalculated and quantified as follows:

¶116

Rs.9,500 x 14% x 13 x 12 = Rs.2,07,480 /-

¶117

Therefore, the claimant is entitled for the compensation under the head ‘ Loss Of Future Earning due to disability’ at Rs.2,07,480/- .

¶118

Therefore, by taking income Rs.9,500/- per month and calculating the laid up period for two months, the claimant is entitled for a sum of

¶119

26 MFA NO.1171/2018 c/w MFA NO.1173/2018, MFA NO.1174/2018 & MFA CROB.40/2019 Rs.19,000/- (Rs.9,500 x 2 months) , under the

¶120

head ‘Loss Of Earning During Laid Up Period’.

¶121

1	Medical expenses and hospital charges	: Rs.	2,07,000/-	Kept in tact
2	Pain and Suffering	: Rs.	55,000/-	Kept in tact
3	Loss of amenities, Happiness and frustration of Life	: Rs.	45,000/-	Kept in tact
4	Loss of earning during Laid up period (9,500 x 2)	: Rs.	19,000/-
5	Loss of future earnings 9,500 x 14% x 13 x 12	: Rs.	2,07,480/-
6	Vehicle Hire Charges	: Rs.	10,000/-	Kept in tact
7	Attendant, Food, Nourishment Charges	: Rs.	5,000/-	Kept in tact
	Total Compensation	: Rs.	5,48,480/-

¶122

Therefore, the cross-objector in MFA Crob No.40/2019, Ashok is entitled for a total compensation of Rs.5,48,480/- as against the compensation awarded by the Tribunal at Rs.4,65,040/-. Hence, the appellant is entitled for an additional compensation of Rs.83,440/- (Rs.5,48,480 – Rs.4,65,040), along with interest at 6% per annum from the date of filing of the petition till deposit. The said compensation shall be recovered from Respondent No.1 Nayazulla.

¶123

27 MFA NO.1171/2018 c/w MFA NO.1173/2018, MFA NO.1174/2018 & MFA CROB.40/2019

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Accordingly, I proceed to pass the

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following:

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ORDER

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i. MFA No.1171/2018, 1173/2018 and 1174/2018 are hereby allowed.

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ii. MFA Crob. No.40/2019 filed by the claimant is allowed in part.

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iii. The judgment and award dated 01.09.2017, passed in MVC No.787/2016 connected with MVC No.788/2016, 795/2016, on the file of Senior Civil Judge & MACT, at Holalkere, is modified to the extent that respondent No.1 Nayazulla shall pay the compensation to the claimants, by exonerating the insurance company .

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iv. Further, the cross-objector in MFA Crob No.40/2019, Sri.Ashok is entitled for a total compensation of Rs.5,48,480/- as against the compensation awarded by the Tribunal

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28 MFA NO.1171/2018 c/w MFA NO.1173/2018, MFA NO.1174/2018 & MFA CROB.40/2019 at Rs.4,65,040/-, along with interest at

¶132

6% per annum from the date of filing of the petition till deposit.

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v. The appellant is entitled for an additional compensation of Rs.83,440/- (Rs.5,48,480 – Rs.4,65,040), along with interest at 6% per annum from the date of filing of the petition till deposit.

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vi. To the above terms, the judgment and award of the Tribunal is modified.

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vii. The amount in deposit made by the Insurance Company shall transferred to the Tribunal and in turn the Tribunal shall refund the deposited amount of the insurance company to the respondent No.2 – insurance company.

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viii. There is a delay of 268 days in filing MFA Crob No.40/2019. Therefore, the cross-

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29 MFA NO.1171/2018 c/w MFA NO.1173/2018, MFA NO.1174/2018 & MFA CROB.40/2019 objector – claimant is not entitled for interest for the delayed period of 268 days.

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ix. Registry is directed to return the Trial Court Records to the Tribunal, along with certified copy of the order passed by this Court forthwith without any delay.

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x. Draw award accordingly.

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Sd/JUDGE

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The Divisional Manager v. Eshwar

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The Divisional Manager v. Eshwar

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