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2020 DIGILAW 1075 (KAR)

Oriental Insurance Co, Ltd. v. Fakkirappa

2020-06-15

S.G.PANDIT

body2020
JUDGMENT S.G. Pandit, J. - The Insurance Company is in appeal being aggrieved by the judgment and award dated 23.10.2010 in MVC No.2514/2005 on the file of Additional MACT, Saundatti praying for dismissal of the claim petition. 2. Brief facts of the case are that the claim petition was filed under Section 166 of the Motor Vehicles Act claiming compensation for the injuries sustained by him in a road traffic accident. It is stated that on 27.02.2003 when the claimant was proceeding in a cart along with his grandfather and family members and when they reached Saundatti-Dharwad road, the claimant alighted from the cart, was standing by the side of the road. At that time one Hero Honda motorcycle came in a rash and negligent manner and dashed to the claimant, on account of which the claimant fell down and sustained grievous injuries. Initially the claimant was taken to the Government hospital, Saundatti and thereafter shifted to KIMS hospital, Hubballi for further treatment. 3. On issuance of notice of the claim petition, respondents No.2 and 3 appeared. Respondent No.2 filed its written statement denying the claim petition averments. Further, the Insurance Company contended that the accident had not taken place due to the rash and negligent riding of the motorcycle and also it denied the accident involving the motorcycle. The Insurance Company also contended that the motorcycle was not at all insured on the date of the accident. By filing additional written statement, the Insurance Company also contended that the motorcycle bearing No.KA- 24/E-8637 not at all plied on the said road on the alleged date and time of the accident. Thus, he prayed for dismissal of the claim petition. 4. The natural guardian of the claimant was examined as PW.1 and two independent witnesses have been examined as PWs.2 and 3 apart from marking Exs.P.1 to P.14. The officer of the Insurance Company examined himself as RW.1 and got marked Exs.R.1 to R.11. 5. The Tribunal based on the material on record, awarded total compensation of Rs.92,000/- with interest at the rate of 6% p.a. from the date of petition till realization and fastened the liability on the Insurance Company holding respondents No.1 and 2 jointly and severally liable to the compensation. Aggrieved by the same, the Insurance Company is before this court in this appeal. 6. Aggrieved by the same, the Insurance Company is before this court in this appeal. 6. The learned counsel for the Insurance Company would submit that on the material placed on record, the Tribunal committed a grave error in fastening the liability on the Insurance Company. It is his submission that initially the complaint was lodged against the motorcycle bearing No.KA-25/E-8637 and subsequently during investigation and drawing panchanama the vehicle number KA-24/E-8637 is inserted. Further, relying on Ex.R.1 judgment in C.C.No.692/2003 on the file of the JMFC, Saundatti submits that the owner himself has denied the accident. Further, he submits that RW.2 in the above C.C.No.692/2003 has stated that the owner respondent No.3 was working in the office on the time and date of accident. Further, he invites attention of this Court to Ex.R.10, wherein the respondent No.3 owner had issued a letter to respondent Insurance Company stating that no accident involving his motorcycle had taken place on 27.02.2003. Thus, he submits that over all circumstances would suggest that the vehicle bearing No.KA-24/E-8637 was not involved in the accident and on that ground itself the Insurance Company is liable to be absolved of its liability. 7. Per contra, the learned counsel for the claimant would submit that the claimant was a minor boy aged about 9 years as on the date of the accident. The grandfather of the injured filed complaint and in the complaint by mistake the number of the vehicle was written as KA-25/E-8637 instead of KA-24/E-8637. But he submits that on the same day while drawing the panchanama the vehicle number is properly mentioned as KA-24/E-8637. Moreover he submits that charge sheet has been filed against respondent No.3 and respondent No.3 even though appeared through the counsel, he has not entered the witness box. Ex.R.10 cannot be looked into since the same is not marked through the author of the said letter, who is respondent No.3. Thus, he submits that the Tribunal has rightly held that respondents No.1 and 2 are jointly and severally liable to pay the compensation and directed respondent No.2 Insurance Company to pay the compensation amount. Thus, he prays for dismissal of the appeal. 8. Thus, he submits that the Tribunal has rightly held that respondents No.1 and 2 are jointly and severally liable to pay the compensation and directed respondent No.2 Insurance Company to pay the compensation amount. Thus, he prays for dismissal of the appeal. 8. Having heard the learned counsels for the parties and on perusal of the material on record, the only point which would arise for consideration of this Court is whether the Tribunal is justified in fastening the liability on the appellant- Insurance Company? The answer to the above point would be in the affirmative for the following reasons: 9. The Insurance Company is before this Court in this appeal challenging the liability fastened on it contending that the insured vehicle bearing No.KA- 24/E-8637 is not involved in the accident. Further, the appellant relies upon the Ex.R.1 judgment in C.C.No.692/2003 and Ex.R.10 the letter issued by respondent No.3 owner of the motorcycle. It is to be noted that the injured was a minor boy aged about 9 years. He was proceeding in a bullock cart along with his grandfather and family members on the date of the accident. The grandfather of the minor child lodged a complaint before the police. The police noted the vehicle number initially as KA-25/E-8637 instead of KA-24/E- 8637, but when the panchanama was drawn as per Ex.P.3 on the same day, the vehicle number was properly noted as KA-24/E-8637. Further, Ex.P.4 MVI report also indicates damage caused to the motorcycle bearing No.KA-24/E-8637. In the proceedings in C.C.No.692/2003 filed against respondent No.3 owner of the motorcycle, according to the learned counsel for the appellant the accused had contended that the alleged accident has not taken place involving his motorcycle. But according to the prosecution after causing the accident, the accused had fled away from the spot. Ex.R.10 is a letter said to have been written by respondent No.3 to the Insurance Company. The letter would not bear any date or time. Moreover, the author of Ex.R.10 is not examined. Even though respondent No.3 owner had contested the claim petition by filing objections but had not entered the witness box to prove that his vehicle was not involved in the accident. 10. The letter would not bear any date or time. Moreover, the author of Ex.R.10 is not examined. Even though respondent No.3 owner had contested the claim petition by filing objections but had not entered the witness box to prove that his vehicle was not involved in the accident. 10. From the material on record, I am of the view that the Tribunal has rightly come to the conclusion that the claimant has proved the accident occurred due to the rash and negligent riding of the motorcycle by respondent No.3. Thus, I find no reason to interfere with the impugned judgment and award. Accordingly, the appeal stands dismissed. The amount in deposit, if any, made by the Insurance Company shall be transmitted to the jurisdictional Tribunal forthwith for disbursement.