Dismissed

The Divisional Manager, v. R Chandrappa

Karnataka HC6 Jun 2022MFA/6595/2012

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed two appeals filed by an insurance company challenging awards of compensation for a motor vehicle accident. The court rejected claims of fraud regarding the change in the rider's name and reaffirmed the insurance company's liability.

What did the court decide?

The appeals were dismissed and the original judgment and award of compensation were confirmed.

The Divisional Manager, Vs R Chandrappa — Motor Accident Claims | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 06^TH DAY OF JUNE, 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.6595/2012 CW M.F.A.NO.6597/2012 (MV-I)

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IN MFA NO.6595/2012

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BETWEEN:

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THE DIVISIONAL MANAGER, NATIONAL INSURANCE COMPANY LTD., CHIGATERI MERCANTILE BUILDING, CHAMARAJAPET, DAVANAGERE, BY ITS REGIONAL OFFICE, NO.144, SHUBHA RAM COMPLEX, M.G.ROAD, BANGALORE, BY ITS MANAGER.

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… APPELLANT

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(BY SRI S.V.HEGDE MULKHAND, ADVOCATE, APPEARING THROUGH V/C)

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AND:

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R. CHANDRAPPA, S/O N.RAMAPPA, AGED ABOUT 48 YEARS, LINEMAN, BESCOM, HOSADURGA TOWN,

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M.C. VEENA, D/O R. CHANDRAPPA, AGED ABOUT 19 YEARS, 2^ND PUC STUDENT,

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M.C. CHITRA, D/O R. CHANDRAPPA, AGED ABOUT 17 YEARS, 1^ST PUC STUDENT.

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M.C. ROOPA, D/O R. CHANDRAPPA, AGED ABOUT 13 YEARS, 5^TH STD. STUDENT

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RESPONDENTS 3 & 4 ARE MINORS, REPRESENTED BY THEIR NATURAL GUARDIAN, FATHER RESPONDENT NO.1

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K.M.SHEKHARAPPA, S/O MAHALINGAPPA, MAJOR, R/O KARTHIKERE VILLAGE, KANGUVALLI POST, HOSADURGA TALUK, OWNER OF MOTOR CYCLE BEARING, REGN. NO.KA-16-U-886.

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ANNAPPA SWAMI, S/O K.B. RAMESHAPPA, AGED ABOUT 26 YEARS, R/O KANGUVALLI VILLAGE, HOSDURGA TALUK.

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... RESPONDENTS

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(BY SMT. SHRUTI PHONDE, ADVOCATE FOR SRI.H.KANTHARAJA, ADVOCATE FOR R1, R2 & R6-SERVED, R3 & R4 ARE MINORS REPRESENTED BY R1, SRI. H. LAKSHMINARAYAN, ADVOCATE FOR R5)

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THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 27.03.2012 PASSED IN MVC NO.372/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE, ADDITIONAL MACT, HOLALKERE, AWARDING A COMPENSATION OF

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Rs.5,78,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION AND ETC.,

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IN MFA NO.6597/2012

BETWEEN:

… APPELLANT

AND :

ANJENAPPA, S/O BASAPPA, AGED ABOUT 47 YEARS, L.P.S. TEACHER, SIDDAPPANAHATTY VILLLAGE, HOSADURGA TALUK, R/O M.G. DIBBA VILLAGE, HOSADURGA TALUK, NOW R/O DUMMI VILLAGE, HOLALKERE TALUK.

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K.M. SHEKHARAPPA, S/O MAHALINGAPPA, MAJOR, R/O KARTHIKERE VILLAGE, KANGUVALLI POST, HOSADURGA TALUK, OWNER OF MOTOR CYCLE BEARING REGN. NO.KA-16-U-886.

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ANNAPPA SWAMI, S/O K.B. RAMESHAPPA, AGED ABOUT 26 YEARS, R/O KANGUVALLI VILLAGE, HOSADURGA TALUK.

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…RESPONDENTS

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(R1, R2 & R3-ARE SERVED)

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THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 27.03.2012 PASSED IN MVC NO.374/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE AND ADDITIONAL MACT, HOLALKERE, AWARDING A COMPENSATION OF Rs.29,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION AND ETC.,

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THESE M.F.As. COMING ON FOR HEARING 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 No.6595/2012 is filed by the appellant - insurance company, challenging the judgment and award dated 27.03.2012, passed in MVC No.372/2010, on the file of Senior Civil Judge and Addl. MACT, at Holalkere (hereinafter referred to as ‘the Tribunal’ for brevity).

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MFA No.6597/2012 is filed by the appellant - insurance company, challenging the judgment and award dated 27.03.2012, passed in MVC No.374/2010, on the file of Senior Civil Judge and Addl. MACT, at Holalkere (hereinafter referred to as ‘the Tribunal’ for brevity).

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Brief facts:

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On 16.04.2010, at about 11.00 a.m., when the claimants–respondents were riding the motor cycle bearing registration No.KA-16-668, from M.G. Dibba to Kurubarahally Village, taking the claimant in MVC 372/2010, as a pillion rider near his land at Kanguvalli – M.G. Dibba road at Hosadurga Taluk, the rider of the motorcycle bearing registration No.KA-16-886 rode the same in a rash and negligent manner and dashed to the motorcycle bearing registration No.KA-16-668 and to the pedestrian i.e., deceased Meenakshamma in MVC No.372/2010, due to which the claimant in MVC No.373/2010 and 374/2010, have sustained injuries and have suffered pain and agony. The deceased Meenakshamma in MVC No.372/2010, had succumbed to

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the injuries. The petitioners in MVC No.372/2011 are the legal heirs of the deceased.

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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 petition in MVC No.374/2010 in part, and awarded compensation of Rs.29,000/- along with interest at 6% per annum, from the date of petition till the date of deposit. The Tribunal held the appellant - insurance company, liable to pay the compensation.

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Further, the Tribunal on appreciating the materials on record, allowed the petition in MVC No.372/2010 in part, and awarded a compensation of Rs.5,78,000/- along with interest at 6% per annum, from the date of petition till the date of deposit. The Tribunal held the appellant - insurance company, liable to pay the compensation.

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The learned counsel for the appellant – insurance company submitted that in the complaint and FIR, it is stated that one person by name Sri.Shekarappa was riding the motor cycle bearing registration No.KA-16U-886 and caused the accident and therefore his name was shown as against the offending vehicle. But while filing the charge-sheet, the name of the accused was changed showing there upon that one Sri.A.B.Ramesh was riding the offending Motor Cycle bearing registration No. KA-16U-886. Therefore, submitted that there is a fraud played while changing the name of the accused and due to this fact, perhaps Sri.Shekarappa did not have driving licence. Therefore, in order to escape from the liability, subsequently the name of the rider was changed. Therefore, submitted in this regard fraud is played just to make the insurance company to pay the compensation. Therefore, on this ground submitted that the insurance company is not liable to pay the compensation.

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Further, submitted that after 40 days from the date of the accident both the vehicles have been examined

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by the Motor Vehicle Inspector and Inspection Report is prepared, which is not correct. Further, submitted there is no physical damage to the vehicle. Therefore, questioned the factum of accident itself. Therefore, prayed for allowing the appeal and setting-aside the judgment and award of the Tribunal.

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On the other hand, the learned counsel for the respondent Nos.1 and 2 submitted that claimants are third parties and during the course of investigation, the Investigating Officer had found that one Sri.A.B.Ramesh was riding the offending Motor cycle KA-16-U-886. Therefore, the said rider of the offending vehicle was holding driving licence at the time of accident and also the Driving License was much in force. Therefore, the appellant – insurance company is liable to pay the compensation to the appellant.

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Further, submitted that the complainant had stated the name of Somashekar as the rider of the offending motor cycle and thereafter stated as Sri.M.B.Ramesh. Therefore, this is nothing but a natural

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circumstance, which occurs in most of the cases while mentioning the name of the rider/driver of the offending vehicle.

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During the course of the investigation, the Investigating Officer i.e., Police Inspector, Hosadurga Police Station was examined as RW-2, but he has specifically deposed that one Sri.M.B.Ramesh was riding the offending motor cycle and after conducting proper investigation, he has submitted the charge-sheet against Sri.M.B.Ramesh. According to RW-1, the Investigating Officer of Respondent No.2 – Insurance Company has investigated about the incident and became aware that, three persons were traveling in the motorcycle and Sri. M.B.Ramesh was the rider of the offending vehicle. Therefore, submitted that there is no ground for the appellant – insurance company to make submission and prays for dismissal of the appeal.

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It is true that in the FIR, the complainant has mentioned the name of one Shekarappa, but later the name was changed. According to the learned counsel for

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the appellant - insurance company, the name is changed to claim liability from the insurance company. At the time of investigation, the truth was revealed that one Sri.A.B.Ramesh was riding the offending motor cycle bearing No.KA-16-U-886. It is pertinent to mention that the Investigation to be conducted by the Police Officer is statutory investigation as recognized in Cr.P.C. and the Investigating Officer is statutorily empowered to make investigation of crime and file a final report. Upon considering the complaint averments that the name of one Shekarappa was mentioned, it is stated in the very complaint that the rider of the offending motor cycle ran away from the spot of accident. Therefore, the complainant came to know the name of the rider from other persons. If the rider of the offending motor cycle was found in the spot of the accident, then the correct name of the rider of the offending vehicle could have been gathered. But as per complaint averments, the rider of the offending Motor Cycle ran away from the spot after the accident. Thereafter, during the course of investigation as

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discussed above RW-2, Investigating Officer filed chargesheet against Sri.A.B.Ramesh.

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Further, the evidence of the appellantinsurance company are to be considered. Exhibit-R6 is the report of insurance company – Investigator, who is appointed by the appellant-insurance company to investigate into the case. Even though it is the internal affairs of the insurance company to appoint its own Investigator, after the accident, but the report is produced by the insurance company only. Therefore, it has to be relied on while appreciating the evidence to ascertain who was the rider of the Motor Cycle bearing registration KA16-U-886 at the time of the accident.

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In Exhibit-P6, the Investigator had reported that initially one Shekarappa, S/o. Mahalingappa, was owner of the motor cycle bearing number KA-16-U-886, and respondent No.3, Annappa Swami had purchased the said motor cycle in the month of February’2010. Further, reported that upon making enquiry with the Annappa Swami, he had stated that he purchased motor cycle

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bearing number KA-16-U-886 and on 16.04.2010, his friend one A.B.Ramesh has taken the motorcycle and caused the accident. This report made by the Investigating Officer of the insurance company stating that the first respondent had sold the vehicle much prior to the accident to respondent No.3. As per the report, one Sri.A.B.Ramesh, has taken offending Motor Cycle bearing registration No. KA-16-U-886 and caused the accident. Even though the investigator was not examined but the said report at Exhibit-R6 is produced by the Insurance Company itself. Considering all these preponderance of probabilities involved in the case, it is proved that one Sri.A.B.Ramesh was riding the Motor Cycle bearing registration KA-16-U-886.

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Under these circumstances, there may be some difference in the communication either number of the vehicle or name of the driver / rider of the offending vehicle. Therefore, just because, the name of the rider is altered that cannot be always considered as fraud is played in the case. As observed above, RW-2 had deposed during

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the course of investigation and revealed the name as Sri.A.B. Ramesh who was riding the Motor Cycle bearing registration No. KA-16-U-886. Further, from the evidence produced the insurance company report as per Exhibit-R6, it is revealed that the third respondent had purchased the motor cycle in the month of February’2010 and thereafter the accident was caused. Therefore, at the time of accident one Annappa Swami, the third respondent herein was the owner and it is further revealed that at the time of the accident, Sri.A.B. Ramesh was riding the motor cycle and caused the accident. Therefore, from the evidence of the insurance company itself it is proved that one Sri.A.B. Ramesh was riding the offending Motor Cycle bearing registration No. KA-16-U-886. Therefore, I do not find that any fraud is played in this case while mentioning the name of the accused.

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Just because, respondent No.3 was examined and did not say that A.B. Ramesh was riding the motor cycle and caused the accident that cannot be made fatal to say that A.B. Ramesh was not riding the motor cycle.

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Further, even though in Exhibit-P12 inquest report the statement is said to have been given by the brother of the deceased that one Shekerappa was riding the motor cycle but based on the complaint and FIR the inquest report was prepared soon after lodging the complaint and receiving the FIR. Therefore, based on the FIR he might have stated the name of Shekarappa that said investigation was not completed and further investigation is to be carried out. Further, during investigation it is revealed that A.B. Ramesh is the rider of the motor cycle. This is not only the one circumstance that A.B. Ramesh was only riding the motor cycle and caused the accident but also it is fortified by Exhibit-R6, report of the investigator of the insurance company and in the said report it is revealed that as per enquiry in the investigation that one A.B.Ramesh was riding the offending motor cycle and caused the accident. Therefore, I do not find any merit in the appeal.

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Further, it is not disputed that one Sri.A.B.Ramesh was holding valid and effective Driving Licence and Insurance Policy was in existence as on the

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date and therefore the Tribunal has correctly held that respondent Nos.1 and 2 are jointly and severally liable to pay the compensation and it is the responsibility of the insurance company to satisfy the award. Therefore, I do not find any perversity or illegality in the approach of the Tribunal while coming to the conclusion and passing the judgment and awarding compensation. Therefore, there is no merit found in the appeal. Hence, the appeals are liable to be dismissed.

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Accordingly, I proceed to pass the following:

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ORDER

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i. The appeals are hereby dismissed.

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ii. The common judgment and award the judgment and award dated 27.03.2012, passed in MVC No.372/2010 and connected matters, on the file of Senior Civil Judge and Addl. MACT, at Holalkere is hereby confirmed.

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iii. The amount in deposit shall be transmitted to the Tribunal along with the TCR along with the copy of the order forthwith.

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iv. I.A.No.2/2012 in MFA No.6587/2012, does not survive for consideration and accordingly dismissed.

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Sd/JUDGE

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The Divisional Manager, v. R Chandrappa

Case brief

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The Divisional Manager, v. R Chandrappa

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