Allowed

Ramesh S/O. Rayappa Bagewadi v. the Divisional Manager

Karnataka HC6 Dec 2023MFA/20374/2012

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed the insurance company's first appeal, setting aside the lower tribunal's award. The court held that the claimant failed to prove the accident facts due to inconsistent versions regarding the motorcycle's ownership found in other evidence. The claimant's appeal for enhanced compensation was dismissed.

What did the court decide?

The judgment and award dated 06.07.2011 in MVC No.680/2009 are set aside. The insurance company's appeal is allowed, and the claimant's appeal is dismissed. Deposited amount is to be refunded.

Ramesh S/O. Rayappa Bagewadi Vs the… — Contract and Commercial Disputes | Karnataka HC (2023)

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NC: 2023:KHC-D:14329 MFA No. 25646 of 2011 C/W MFA No. 20374 of 2012

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 6^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR

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MISCELLANEOUS FIRST APPEAL NO.25646/2011(MV-I) C/W MISCELLANEOUS FIRST APPEAL NO.20374/2012(MV-I) IN MFA.NO.25646/2011:

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BETWEEN:

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Digitally signed by BHARATHI H M

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DIVISIONAL MANAGER, BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LIMITED, GE PLAZE, AIRPORT ROAD, YERWADE, PUNE – 411 006, BRANCH AT BAILHONGAL, DT: BELAGAVI, REPRESENTED BY ITS DEPUTY MANAGER, BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LIMITED, KALBURGI COMPLEX, LAMINGOTN ROAD, HUBBALLI, NOW R/BY ITS AUTHORISED OFFICER.

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…APPELLANT

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(BY SRI S. K. KAYAKAMATH, ADVOCATE)

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AND:

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1. SRI RAMESH

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S/O. RAYAPPA BAGEWADI, AGE: 32 YEARS, OCC: NIL, R/O: KALLOLI, TALUK: GOKAK, DIST: BELAGAVI.

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NC: 2023:KHC-D:14329 MFA No. 25646 of 2011 C/W MFA No. 20374 of 2012

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SRI SANTOSH DUNDAPPA HEBBAL,

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AGE: 27 YEARS, OCC: OWNER OF MOTOR CYCLE BEARING REG. NO.KA-49/H-2761, R/O: KALLOLI, TALUK: GOKAK.

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…RESPONDENTS

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(BY SRI SANTOSH S. HATTIKATAGI, ADVOCATE FOR R1; SRI M.J. PEERJADE, ADVOCATE FOR R2)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO SETTING ASIDE THE JUDGMENT AND AWARD DATED 06.07.2011 PASSED BY THE PRL.SENIOR CIVIL JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, GOKAK IN MVC NO.680/2009 AND ETC.,

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IN MFA.NO.20374/2012:

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BETWEEN:

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SRI RAMESH S/O. RAYAPPA BAGEWADI, AGE: 31 YEARS, OCC: NIL, R/O: KALLOLI, TALUK: GOKAK, DIST: BELAGAVI.

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…APPELLANT

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(BY SRI SANTOSH S. HATTIKATAGI, ADVOCATE)

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AND:

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THE DIVISIONAL MANAGER, THE BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LIMITED, GE PLAZE, AIRPORT ROAD, YERWADE, PUNE – 411 006, BRANCH OFFICE AT BAILHONGAL, DIST: BELAGAVI.

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…RESPONDENT

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(BY SRI S.K.KAYAKAMATH, ADVOCATE)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO JUDGMENT AND AWARD DATED 06.07.2011 IN MVC NO.680/2009 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, GOKAK MAY KINDLY BE MODIFIED BY AWARDING THE COMPENSATION AS PRAYED FOR IN THE CLAIM PETITION AND ETC.,

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NC: 2023:KHC-D:14329 MFA No. 25646 of 2011 C/W MFA No. 20374 of 2012

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THESE APPEALS, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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MFA No.25646/2011 is filed by the insurance company questioning the liability fastened on it.

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MFA No.20374/2012 is filed by the claimant for

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seeking enhancement of compensation.

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It is the case of the claimant that on 18.01.2008, the claimant got down from the jeep near Chougala house to go to house of one Siddappa Mugali on Sangankeri-Kalloli road, while he was proceeding as a pedestrian, a motor cycle bearing Reg.No.KA-49H 2761 dashed the claimant, due to which the claimant sustained injuries. The tribunal has awarded compensation and fastened the liability on the appellant-insurance company.

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Heard the learned counsel for the parties and perused the material on record.

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4 - NC: 2023:KHC-D:14329 MFA No. 25646 of 2011 C/W MFA No. 20374 of 2012

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It is the case of claimant that he was pedestrian and

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the motorcycle has hit the claimant. Thus, claimant has sustained injuries.

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The learned counsel for the appellant–insurance company submitted that case of the claimant is not believable for the reason that he was pillion rider on some other motorcycle belongs to his uncle Mahadev Shivappa Madabavi. But, the respondent No.1 is not the owner of the vehicle on which the claimant either has dashed or he was pillion rider. He placed reliance on the Ex.R1statement stated to have been given by the claimant before the investigating officer. Therefore, this Ex.R1 proves different version as stated by the claimant in the claim petition. Therefore, prays to allow the appeal filed by the insurance company.

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In the complaint-Ex.P1, the complainant gave complaint before Police that he was pedestrian and hit by the motorcycle bearing Reg.No.KA-49H 2761. As per complaint, the accident was happened on 18.01.2008.

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- 5 - NC: 2023:KHC-D:14329 MFA No. 25646 of 2011 C/W MFA No. 20374 of 2012

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But, complaint is lodged on 19.01.2008. Ex.R1 is statement given before the investigating officer by the claimant and claimant has admitted during the course of cross examination that he has given such statement as per Ex.R1 before the Police. It is proved that Ex.R1-statement was given by the claimant himself before the Police. In the said Ex.R1, the claimant himself has stated that he was pillion rider on the motorcycle belonging to his uncle Mahadev Shivappa Madabavi and met with accident. In the Ex.R1, the date of accident is mentioned earlier as 18.01.2008, later it is overwritten as 19.01.2008. But, what the claimant has stated in Ex.R1 statement in the claim petition regarding accident occurred to him, the complainant in the evidence has admitted that he has given Ex.R1-statement before the investigating officer and also admitted his signature. But, the averments in the claim petition and in the Ex.R1 are considered, it is found that there were two different versions. In the Ex.R1statement, the claimant has stated that motorcycle belongs to his uncle Mahadeva Shivappa Madabavi. But, in

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the claim petition, the owner-respondent No.1 is different person. Hence, what the averments made at the earliest point of time that can be considered for appreciation. If the claimant was pillion rider on the motorcycle belonging to his uncle Mahadev Sihivappa Madabavi, then the said uncle Mahadev Shivappa Madabavi ought to have been made as a respondent-owner. But, some other person is arraigned as respondent-owner in the claim petition.

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Therefore, upon considering the evidence on record on all its preponderance of probability, it is proved that claimant might have travelled in the motorcycle as pillion rider in some other motorcycle but for the best reasons known to him, he has fixed another motorcycle for the purpose of making claim. Therefore, there is a merit found in the arguments canvassed by the counsel for the appellant-insurance company. Hence, the insurance company is not liable to pay the compensation.

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The respondent No.1 denied the fact of accident and his motorcycle is involved in the accident. Therefore, from

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7 - NC: 2023:KHC-D:14329 MFA No. 25646 of 2011 C/W MFA No. 20374 of 2012

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the reasoning as above discussed, the claimant had failed to prove the involvement of motorcycle bearing No.KA49/H-2761 and hit by the said motorcycle when he was a pedestrian. Therefore, claimant failed to prove the factum of accident and involvement of motorcycle what he has pleaded in the claim petition and in his evidence. Therefore, judgment and award passed by the Tribunal is liable to be set aside.

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10. Accordingly, I pass the following:

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ORDER

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i) Appeal filed by the insurance company is allowed.

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ii) Judgment and award passed in MVC No.680/2009 dated 06.07.2011 passed by the Prl. Senior Civil Judge and Addl. MACT., Gokak is set aside.

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iii) Claimant’s appeal is dismissed.

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NC: 2023:KHC-D:14329 MFA No. 25646 of 2011 C/W MFA No. 20374 of 2012

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iv) Refund the deposited amount to appellant insurance company.

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v) No order cost.

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vi) Draw decree accordingly.

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SD/JUDGE

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HMB List No.: 1 Sl No.: 71 CT-ASC

Ramesh S/O. Rayappa Bagewadi v. the Divisional Manager

Case brief

What is this about?

What did the court decide?

Ramesh S/O. Rayappa Bagewadi v. the Divisional Manager

Case brief

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