Dismissed

The Legal Manager v. Bagyamma

Karnataka HC18 Sept 2024MFA/4847/2016

Case brief

AI extract

What is this about?

Insurer appealed an MACT award alleging false implication of its insured Canter lorry in a fatal accident, citing date discrepancies in photographs and blanks in the spot mahazar. The court found no specific cross-examination disputing the claimed accident date or evidence substantiating fabrication and upheld the Tribunal's liability finding.

What the court decided

AI extract

The Legal Manager Vs Bagyamma — Insurance | Karnataka HC (2024)

¶1

¶2

NC: 2024:KHC:38277 MFA No. 4847 of 2016

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶4

DATED THIS THE 18^TH DAY OF SEPTEMBER, 2024

¶5

BEFORE

¶6

THE HON'BLE MR JUSTICE RAVI V HOSMANI

¶7

MISCELLANEOUS FIRST APPEAL NO.4847 OF 2016 (MV-I)

¶8

BETWEEN:

¶9

THE LEGAL MANAGER, SHRIRAM GENERAL INSURANCE COMPANY LIMITED, 1003 – E - 8, RICO INDUSTRIAL AREA, SITA PURA-JAIPUR, RAJASTHAN.

¶10

¶11

SHRIRAM GENERAL INSURANCE CO. LTD., 5/4, 3^RD CROSS, S. V. ARCADE, BELAKANAHALLI, MAIN ROAD, OPP: BANNERGHATTA MAIN ROAD, II M. B. POST, BANGALORE – 560 076.

¶12

…APPELLANT

¶13

[BY SRI O. MAHESH, ADVOCATE (VC)]

¶14

Digitally signed by CHANDRASHEKAR LAXMAN KATTIMANI Location: High Court of Karnataka

¶15

AND:

¶16

BAGYAMMA S/O. LATE GOPALAPPA @ GOPALA GOWDA, AGE: 44 YEARS.

¶17

SHOBA D/O. LATE GOPALAPPA @GOPALA GOWDA, AGE: 27 YEARS.

¶18

G. KRISHNA S/O. LATE GOPALAPPA @GOPALA GOWDA, AGE: 26 YEARS,

¶19

¶20

NC: 2024:KHC:38277 MFA No. 4847 of 2016

¶21

ALL ARE R/AT NO.672, THIRUPALYA, JIGANI CIRCLE, ANEKAL – 562 106,

¶22

NOW AT R/AT NO.3, II CROSS, KAMALANAGAR, BANGAORE – 560 079.

¶23

HALLIMABI W/O. HAMEED KHAN, MAJOR, NO.267/2, ANWAR COLONY, BHADRAVATHI, SHIMOGA DISTRICT – 577 201.

¶24

…RESPONDENTS

¶25

[BY SRI NAGALINGAPPA K., ADVOCATE FOR R1 TO R3; NOTICE TO R4 IS HELD SUFFICIENT V/O DTD 10.01.2024]

¶26

THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT, 1988, PRAYING TO SETTING ASIDE THE JUDGMENT AND AWARD DATED 26.02.2016 PASSED BY MOTOR ACCIDENT CLAIMS TRIBUNAL, BENGALURU CITY SCCH-14 IN M.V.C.NO.7591/2012 WITH COSTS IN THE INTEREST OF JUSTICE AND EQUITY AND ETC.,

¶27

THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 22.08.2024, COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY, THROUGH VIDEO CONFERENCE, THE COURT PRONOUNCED THE FOLLOWING:

¶28

3 - NC: 2024:KHC:38277 MFA No. 4847 of 2016

¶29

CAV JUDGMENT

¶30

Challenging judgment and award dated 26.02.2016 passed by MACT, XVI Addl. Judge, Court of Small Causes, Bengaluru, in MVC.no.7591/2012 (for short 'Tribunal'), this appeal is filed.

¶31

Sri O.Mahesh, learned counsel for appellant submitted appeal was by insurer challenging award on liability on ground of false implication of insured vehicle for purposes of claim. It was submitted, as per claimant on 29.07.2011, when Sri Gopalappa was working as security guard in R.D.Industry at about 10.30 a.m., driver of Canter Lorry bearing registration no.KA-35-5701 was taking lorry out of factory premises in reverse in rash and negligent manner, without noticing Gopalappa. As a result, lorry dashed against Gopalappa leading to his death on spot. A complaint for causing fatal accident by rash and negligent driving was filed before Hebbagodi Police Station. And alleging loss of dependency on account of untimely death, claim petition was filed under Section 166 of Motor Vehicles Act, 1988 against owner and insurer of Canter Lorry.

¶32

¶33

NC: 2024:KHC:38277 MFA No. 4847 of 2016

¶34

On service of notice, owner and insurer filed separate written statements and opposed claim petition on all counts. While owner denied rash and negligent driving by driver of Lorry, insurer admitted issuance of policy in respect of said lorry and its coverage on date of accident, but denied liability on account of violation of terms and conditions of policy. False implication of insured vehicle in collusion with owner was also specifically alleged.

¶35

4. Based on pleadings, Tribunal framed following

¶36

issues :

¶37

Whether the petitioners prove that the deceased died in an accident arising out of the negligence of the driver of Canter bearing No.KA-35-5701 occurred on 29.07.2011 at about 10.30 a.m.,?

¶38

Whether the petitioners proves that they are LR's of the deceased Gopalappa @ Gopala Gowda?

¶39

Whether the petitioners are entitled for compensation? If so, how much and from whom?

¶40

What Order?

¶41

Thereafter, Tribunal recorded evidence, wherein

¶42

claimant no.3 was examined as PW-1 and an eye-witness as PW-2. Exs.P1 to P12 were marked. Insurer examined two witnesses as RW-1 and RW-2 and got marked Exs.R1 to R3.

¶43

¶44

NC: 2024:KHC:38277 MFA No. 4847 of 2016

¶45

On consideration, Tribunal answered issues no.1 to 3 in affirmative and issue no.4 by allowing claim petition in part, determining compensation of Rs.8,01,000/- with interest at rate of 9% per annum and holding respondents jointly and severally liable to pay same. Aggrieved by award, insurer was in appeal.

¶46

It was submitted, allegedly accident occurred on 29.07.2011 at 10:30 a.m., but complaint was filed at 2:35 p.m. by son of deceased Gopalappa. In complaint, there was no mention about any ocular witness. Denial to carry dead body in 108 ambulance is stated to be reason for filing complaint after delay.

¶47

It was submitted PW-2 examined as eye-witness stated that she was also working as helper at R.D.Industries and knew deceased. In cross-examination, she admitted that she had not filed complaint. She admitted she was illiterate and was unable to state registration number of vehicle involved in accident. She also states that as part of investigation, police had enquired with her and taken her signature.

¶48

¶49

NC: 2024:KHC:38277 MFA No. 4847 of 2016

¶50

It was submitted, spot mahazar marked as Ex.P3 showed unfilled blanks left at space for filling date and time, without any explanation either by claimant or by I.O. examined as RW.1. He deposed on same day of occurrence of accident crime was registered by PSI and he took charge of said case. He stated that canter was involved in accident and its R.C. book was collected after obtaining Indemnity Bond from Haleema Bi, its owner, vehicle was released. He admitted that PW.2 Gowramma was not included as eye-witness in charge-sheet. It was elicited that photographs of canter was taken at place of accident showing date as 28.07.2011 which were got marked as Exs.R1 to R3. Suggestion about occurrence of accident at about 28.07.2011 and records being manipulated to imply accident occurred as 29.07.2011 was denied. It was submitted overall examination of Exs.P1 to Ex.P6 and Ex.P8 indicated an unusual efficiency as timely investigation when photographs showed date when they were taken as 28.07.2011. But same were without any explanation by claimants or I.O. which would probabilize contentions of insurer that there was false implication of insured vehicle for purposes of claim. However Tribunal failed to take note of same.

¶51

¶52

NC: 2024:KHC:38277 MFA No. 4847 of 2016

¶53

On other hand, Sri Nagalingappa, learned counsel

¶54

for respondents no.1 to 3 - claimants sought to oppose appeal. It was submitted, there was absolutely no concoction or manipulation of evidence as alleged. Insofar as blanks in spot mahazar, it was submitted copies of documents were obtained by filing application before S.P. There was no objection at time of marking. It was submitted even insofar as discrepancy regarding date mentioned in Exs.R1 to Ex.R3 photographs, it was submitted same were taken by investigating authorities on date of accident 29.07.2011 and error regarding date was possibly due to inadvertence. It was submitted on overall consideration all other documents and investigation records being consistent, Tribunal had arrived at just and proper conclusion and same did not call for interference. It was alternatively submitted, since claimants did not avail opportunity to cross examination of I.O. in case of remand, liberty to cross-examination may be reserved.

¶55

Heard learned counsel, perused impugned judgment and award and records.

¶56

¶57

NC: 2024:KHC:38277 MFA No. 4847 of 2016

¶58

From above, it is seen insurer is questioning finding of Tribunal insurer liable to pay compensation, ignoring discrepancy in date of accident. Appeal is only on liability, point that would arises is:

¶59

"Whether finding of Tribunal on liability of insurer contrary to material on record and calls for interference?"

¶60

From above, it is seen there is no dispute about occurrence of accident and death of Gopalappa in said accident. Insurer is questioning date of accident and involvement of insured vehicle in accident.

¶61

It is settled law that, in claim petition, burden would be on claimant to establish occurrence of accident due to rash and negligent driving of motor vehicle. In instant case claimant as pleaded that accident occurred on 29.07.2011 at 10:30 a.m. due to rash and negligent of canter Lorry insured by appellant. To substantiate same claimants produced copies of FIR, PM Report, Panchanama, Inquest report, IMV report, sketch and Charge-sheet at Exs.P1 to Ex.P6 and Ex.P8 respectively. During cross-examination, except making suggestions nothing material elicited. It is also seen that there

¶62

9 - NC: 2024:KHC:38277 MFA No. 4847 of 2016

¶63

are no specific suggestion about date of accident. Claimants also examined an eye-witness as PW-2. Material elicitation during her cross-examination are that she was unable to tell registration number of vehicle that she did not file complaint. But suggestion that accident was not caused by insured vehicle denied. Even though PW-2 there is no specific suggestion disputing date of occurrence of accident.

¶64

On other hand, insurer examined I.O. as RW-1. RW-1 who deposed about registration of crime no.393/2011 by Hebbagodi Police Station in respect of accident on 29.07.2011 and he taking over charge of investigation. Thereafter RW-1 deposed about progress of investigation insofar as verification of owner of vehicle, having vehicle inspected by motor vehicle Inspector filing of charge-sheet. After getting three photographs marked as Exs.R1 to R3 insurer sought permission to treat witness as hostile and sought permission to crossexamine. During cross-examination, it is suggested that death occurred on 28.07.2011 but records were created to show accident occurred on 29.07.2011 and insured vehicle was falsely implicated but said suggestion was denied. It is seen that there are no specific suggestion about blank left in Ex.P3

¶65

10 -

¶66

NC: 2024:KHC:38277 MFA No. 4847 of 2016

¶67

spot Mahazar. It is also seen there are no cross examination by reference to Exs.R1 to R3 photographs got marked through said witness.

¶68

Hon'ble Supreme Court as time and again held insurer cannot claim to be passive participant in claim proceedings and thereafter seek to take advantage of discrepancy in claimants case. In view of fact that there are no specific suggestion to claimants witness disputing date of accident and nor lead any specific evidence to substantiate alteration or fabrication of records, insurer cannot be permitted to take advantage of minor discrepancies. In view of fact that proceedings for deciding claim petition are summary in nature and when there is some material to substantiate findings there would be no scope for interference. Point for consideration is answered negative. Consequently, following:

¶69

ORDER

¶70

i. Appeal is dismissed with costs.

¶71

ii. Amount in deposit is ordered to be transmitted to Tribunal for payment.

¶72

SD/(RAVI V HOSMANI) JUDGE

¶73

GRD_CT-ASC/ List No.: 19 Sl No.: 1

The Legal Manager v. Bagyamma

Case brief

What is this about?

What the court decided

The Legal Manager v. Bagyamma

Case brief

What is this about?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sri Arun Kumar S N Vs Sri Deepak M R

Sri Arun Kumar S N Vs Sri Deepak M R

Sri G S Sudharshan Vs Grama Seva Sangha Trust

C M Appachchu S/O P.C.Muthanna Vs Rama Rao S/O Durgappa Jannu

M/S. Bangalore Turf Club Limited Vs Sri. S. Padmanabhan

Chethan Gowda L S Vs Gangadhara Patel H