Allowed

Sri. Anandachari v. Sri. P. Sampathu

Karnataka HC1 Aug 2024MFA/9446/2015

Case brief

AI extract

What is this about?

This miscellaneous first appeal challenged the dismissal of a compensation claim for a fatal road accident. The High Court found the Tribunal erred in fact regarding the rider's identity and did not assess compensation. The appeal was allowed, the judgment set aside, and the matter remanded to assess compensation and insurance liability.

What did the court decide?

Appeal allowed; judgment set aside; matter remanded to Tribunal to assess compensation and determine insurance company liability.

Sri. Anandachari Vs Sri. P. Sampathu — Insurance | Karnataka HC (2024)

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1 - NC: 2024:KHC:30491 MFA No. 9446 of 2015

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 1^ST DAY OF AUGUST, 2024

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BEFORE

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THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA MISCELLANEOUS FIRST APPEAL NO.9446 OF 2015(MV-D)

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BETWEEN:

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SRI. ANANDACHARI S/O SRI. PUTTASWAMACHAR AGEDA BUT 48 YEARS, R/AT VILAVAGILU VILLAGE, KOPPA HOBLI, MADDUR TALUK MANDYA DISTRICT 571 425.

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SMT. LINGAMMA W/O SRI. PUTTASWAMACHARI AGED ABOUT 57 YEARS, R/AT VILAVAGILU VILLAGE, KOPPA HOBLI, MADDUR TALUK, MANDYA DISTRICT 571 425.

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…APPELLANTS

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Digitally signed by PRAJWAL A Location: HIGH COURT OF KARNATAKA

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(BY SMT. BHUSHANI KUMAR., ADVOCATE)

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AND:

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SRI. P. SAMPATHU, S/O PAPANNA, R/AT VILAVAGILU VILLAGE, KOPPA HOBLI, MADDUR TALUK, MANDYA DISTRICT 571 425.

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BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LIMITED, NO.105/A107-A,

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2 - NC: 2024:KHC:30491 MFA No. 9446 of 2015

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CEARS PLAZA, 136, RESIDENCY ROAD, BANGALORE-560 025, REP. BY ITS BRANCH MANAGER.

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A. MOHAN NAIDU, S/O LATE MUNISWAMY NAIDU, NO.10/99, 3^RD MAIN, 3^RD CROSS, SRINIVASA NAGARA, B.S.K 3^RD STAGE, BANGALORE-560 026

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…RESPONDENTS

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(BY SRI. ESHWAR P.S., ADVOCATE FOR SRI. SHARATH S GOWDA, ADVOCATE FOR R1; SRI. O. MAHESH, ADVOCATE FOR R2; V/O DATED 18.06.2021, NOTICE TO R3 IS DISPENSED WITH)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 27.12.2014 PASSED IN MVC NO.686/04 ON THE FILE OF THE SENIOR CIVIL JUDGE, MACT, MADDUR DISMISSING THE CLAIM PETITION FOR COMPENSATION.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA

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3 - NC: 2024:KHC:30491 MFA No. 9446 of 2015

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ORAL JUDGMENT

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In this appeal, the petitioners have challenged

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the judgment and award dated 27.12.2014 passed in M.V.C.No.686/2004 on the file of the Court of Senior Civil Judge & MACT, Maddur ('the Tribunal' for short).

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For the sake of convenience, the rank of the parties shall be referred to as per their status before the Tribunal.

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Brief facts of the case are, on 27.03.2004, at about 1.30 p.m., the father of the first petitioner and husband of the second petitioner by name Puttaswamachari, the deceased, while riding his bicycle on Besagarahalli to Nilavugilu Village, a Hero Honda motorcycle bearing No.KA-05/EK-8149 rided by the first respondent was hit against him, due to which he fell down and sustained injuries. He was treated at Government Hospital at Maddur and thereafter shifted to NIMHANS at Bengaluru. But he died on 06.04.2004. The petitioners

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claiming to be the dependants of the deceased have approached the Tribunal for grant of compensation of Rs.6,85,000/-. The claim was opposed by the respondents. The Tribunal by taking the evidence and hearing the arguments on both sides, by impugned judgment dismissed the claim petition. Aggrieved by the same, the petitioners have filed this appeal on various grounds.

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Heard Smt.Bhushani Kumar, learned counsel for

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the petitioner, Sri.Eshwar P.S., learned counsel for respondent No.1-rider of the motor cycle and Sri.O.Mahesh, learned counsel appearing for the

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respondent - insurance company.

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It is the contention of the learned counsel for

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the petitioners that the accident is witnessed by the eye witnesses, the deceased was taken to NIMHANS, his family members were attending to the deceased and the complaint was filed on 04.04.2004. There is a specific mention that the first respondent was the rider of the

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motorcycle which caused the accident. After investigation, a charge-sheet was also filed against him and the first respondent was tried before the learned JMFC, Maddur, in C.C.No.522/2004. Nowhere in the records it is brought on the record that the first respondent was not the rider of the motorcycle.

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The contention of the first respondent is that one N.D.Ashoka was the rider of the motorcycle. It has

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been explained in the FIR that N.D.Ashoka was not the rider and he was a surety to the rider of the motorcycle for Police Station bail. The deposition of the witnesses and the copy of a judgment in C.C.No.522/2004 is made available. Both the learned Magistrate, as well as the Tribunal, have under a wrong assumption that the motorcycle was ridden by N.D.Ashok have acquitted the first respondent and the claim petition was erroneously dismissed. The petitioners have explained the accident involving the motorcycle rided by the first respondent and owned by the third

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respondent. Policy of insurance is valid and therefore the petitioners are entitled to claim the compensation.

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It is the contention of the learned counsel for

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the first respondent that he was not the rider of the motorcycle, N.D.Ashoka was riding the motorcycle at the time of the accident. He has just lent the motorcycle to N.D.Ashoka, it was N.D.Ashoka who has caused the accident and he has no liability to pay any compensation as the motorcycle stands in the name of the third respondent. For the reason that N.D.Ashoka was riding the motorcycle, he was acquitted in CC No.522/2004 and the Tribunal has rightly considered that he was not the rider of the motorcycle while dismissing the claim petition.

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The learned counsel for the insurance company

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has contended that the accident took place on 27.03.2004, the complaint was filed on 04.04.2004. There is a delay of eight days in filing the complaint. The Investigating Officer has reported to the Court that one N.D.Ashoka was the

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rider of the motorcycle in the second FIR, which is marked as Exhibit-R6. For the reason that the N.D.Ashoka was the rider of the motorcycle, the criminal prosecution against the first respondent was ended in acquittal and the Tribunal has rightly considered that the first respondent was not the rider of the motorcycle. There is no question of fastening the liability against him and thereby the insurance company cannot indemnify the first respondent.

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It is further contended that two eye-witnesses were examined before the learned Magistrate as PW-3 and PW-4. The deposition of these two witnesses recorded by the learned Magistrate clearly points out that they were not eye-witnesses to the accident. When the petitioners are making claim for compensation, it is their bounded duty to prove the accident. Since the accident is not proved, so also the first respondent as the rider of the motorcycle the order of the dismissal by the Tribunal is

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just and proper and supported the impugned judgment.

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8 - NC: 2024:KHC:30491 MFA No. 9446 of 2015

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I gave my anxious consideration to the

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arguments addressed on behalf of both the sides and perused the material on record.

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The oral and documentary evidence placed on record goes to show that there was an accident occurred on 27.03.2004 in which the deceased had sustained injury, was treated at Government Hospital, Maddur and then at NIMHANS Bengaluru and where he succumbed to the death on 06.04.2004. Police complaint came to be filed as per Exhibit-P1 on 04.04.2004. There is a specific mention in the complaint that the first respondent was the rider of the motorcycle at the time of the accident. Copy of the charge-sheet in the criminal trial is made available as per Exhibit-R5, wherein the first respondent was tried as an accused and the case was ended in acquittal.

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On perusal of the said judgment, it is pertinent to note that the learned Magistrate referred that N.D.Ashoka, son of Dasegowda was shown as the accused

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in the FIR and not P.Sampath (First respondent). FIR and charge-sheet are made available before this Court, which clearly points out that N.D.Ashoka was not the accused but shown P.Sampath was the rider of the motorcycle. Interesting to note, that in the charge-sheet the name of N.D.Ashoka is shown as surety for the Station Bail given to the accused. In view of the same, the finding recorded by the Tribunal is misconceived and wrong interpretation of Exhibit-R6.

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The subsequent report was submitted by the Investigating Officer to the learned JMFC reporting the death of the deceased requesting to incorporate Section304A of IPC. In Exhibit-R6, there is a reference that one N.D.Ashoka son of Dasegowda was riding the Hero Honda motorcycle, contrary to the FIR, the charge-sheet, as well as the trial of the accused did not indicate that N.D.Ashoka was the rider of the motorcycle at the time of the accident. The mistake in Exhibit-R6 committed by the Investigating

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Officer referring one N.D.Ashoka as rider of the motorcycle is the cause for the confusion.

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Before the Tribunal, the petitioners have

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examined both the eye-witnesses as PW-3 and PW-4. They have filed their affidavit-evidence explaining that they are the eye-witnesses. Their cross-examination clearly points out that by the time they reached the spot of the accident had already occurred. PW-4 one Sri.S.V.Bala Krishna in his cross-examination clearly stated that before he reaching the accident spot, he saw the riding of the motorcycle by

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the first respondent. Nowhere in the evidence they asserted that N.D.Ashoka was the rider of the motorcycle. The Tribunal in the impugned judgment also referred to that N.D.Ashoka was the rider of the motorcycle. The finding recorded by the Tribunal is based on judgment in C.C. No.522/2004. Both the Magistrate as well as the Tribunal were under the impression that one N.D.Ashoka was the rider of the motorcycle contra is no evidence on

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record to show that N.D.Ashoka was rider of the motorcycle.

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The respondents are mainly relying upon the evidence of the first respondent who quite naturally disowned that he was not the rider of the motorcycle. If really he was not the rider of the motorcycle, why he has not challenged the FIR or the charge-sheet. No application is filed by him seeking discharge nor the charge-sheet is questioned. He faced the trial on merit and was acquitted on the ground that N.D.Ashoka is the rider of the motorcycle. Such kind of evidence is misleading one and the evidence on record is persuasive that the first respondent is the rider of the motorcycle at the time of the accident.

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Hence, the finding recorded by the Tribunal that the accident was not proved is incorrect and the evidence on record establishes that there was an accident on 27.03.2004, involving the cyclist, who is deceased and the

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first respondent was the rider of the motorcycle in question. Hence, the finding recorded by the Tribunal is erroneous and calls for interference.

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As rightly contended by Sri.O.Mahesh, learned counsel for the insurance company that the Tribunal did not consider the assessment of compensation, so also the liability on the part of the insurance company. The material on record shows that the first respondent is holding the insurance policy, whereas the RC is standing in the name of the third respondent. The liability on the part of the insurance company to pay the compensation and the defence that there is a violation of the terms and condition of the policy is not examined by the Tribunal. Hence, the matter requires to be remanded to the Tribunal for considering the assessment of quantum of compensation and to determine the liability aspect.

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13 -

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NC: 2024:KHC:30491 MFA No. 9446 of 2015

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Accordingly, the appeal merits consideration, in the result, the following:

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ORDER

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i) The appeal is allowed .

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ii) The impugned judgment and award passed by the Tribunal is set aside.

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iii) The matter is remanded back to the Tribunal with a direction to hear the parties and to assess the compensation and also the liability on the part of the respondent - insurance company to pay the compensation in accordance with law.

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iv) Without further notice, the parties shall appear before the Tribunal on 28^TH August, 2024.

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SD/(T.G. SHIVASHANKARE GOWDA) JUDGE

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JJ List No.: 1 Sl No.: 1

Sri. Anandachari v. Sri. P. Sampathu

Case brief

What is this about?

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Sri. Anandachari v. Sri. P. Sampathu

Case brief

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