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2022 Supreme(Online)(Kar) 33497
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 10TH DAY OF MARCH, 2022
BEFORE
THE HON9BLE MR.JUSTICE N.S.SANJAY GOWDA
M.F.A.No.22000/2009 (MV D)
BETWEEN:
THE DIVISIONAL MANAGER,
IFFCO TOKIO GENERAL INSURANCE CO. LTD.,
BUSINESS UNIT KSCMF BUILDING, V-FLOOR,
IIIRD BLOCK, 4TH CROSS, CUNNINGHAM ROAD,
BANGALORE-52,
REPRESENTED BY ITS MANAGER,
IFFCO HOUSE, 3RD FLOOR, 34, NEHRU PLACE,
NEW DELHI-110 019.
....APPELLANT
(BY SRI G.N.RAICHUR, ADVOCATE)
AND :
1.
SMT. SOMAVVA W/O.NAGAPPA BABLI,
AGE- 51 YEARS, OCC:COOLIE/ AGRICULTURE,
R/O.KAVALOOR VILLAGE,
NOW RESIDING AT MITTIKERI STREET,
KOPPAL, TAL. AND DIST. KOPPAL.
SINCE DECEASED BY HER LRS.
1A. SHRI BASAVRAJ S/O.NINGAPPA BABLI,
AGE-MAJOR, OCC-COOLIE,
R/O.MITTIKERI STREET, KOPPAL,
DIST-KOPPAL.
: 2 :
1B.
SHRI PRABHU S/O.NINGAPPA BABLI,
AGE-MAJOR, OCC-COOLIE,
R/O.MITTIKERI STREET, KOPPAL,
DIST.KOPPAL.
1C.
SHRI YANKAPPA S/O.NAGAPPA BABLI,
AGE-MAJOR OCC-DRIVER-CUM-CONDUCTOR,
R/O.KSRTC DEPARTMENT, MYSORE DEPOT,
MYSORE.
2.
SRI BASAVRAJ S/O ANNALAPPA HUNESEMARA,
OCC: OWNER OF AUTO RIKSHAWA,
NO. KA-25/ 4676, R/O.BHYGYANAGAR,
TAL. AND DIST.KOPPAL.
..RESPONDENTS
(BY SMT CHITRA M.GOUNDELKAR, ADVOCATE FOR
SMT. GIRIJA S.HIREMATH, ADVOCATE FOR RESPONDENT NO.2)
(BY SMT.PADMAJA S.TADAPATRI, ADVOCATE FOR RESPONDENT
NOS.1(A) TO 1(C))
THIS M.F.A. IS FILED U/S.173(1) OF MV.ACT, 1988,
AGAINST THE JUDGEMENT AND AWARD DATED:04-03-2009,
PASSED IN MVC NO.196/2007 ON THE FILE OF THE ADDL. MACT
AND
FAST
TRACK
COURT-I,
KOPPAL,
AWARDING
THE
COMPENSATION OF RS.1,28,200/- ALONG WITH THE INTEREST
AT THE RATE OF 6% P.A., FROM THE DATE OF PETITION TILL IT
IS DEPOSITED.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
: 3 :
This is an appeal filed by the Insurance Company
challenging the award of Rs.1,28,200/- granted in favour of the
claimant for the injuries sustained by her.
2.
In
this
case the fact that
the
accident
occurred is not in serious dispute. However, the serious
dispute raised by the Insurance Company is regarding
to the involvement of the vehicle which caused the
accident.
3.
According to the Insurer, when lodging the
FIR, the claimant9s son had stated in his complaint that
the motorcycle that he was riding was hit from behind
by a auto rickshaw bearing registration No.KA-37/3942.
But subsequently, he had changed his statement and
stated that it was actually the auto rickshaw bearing
registration No.KA-25/4676 which had hit from behind.
4.
Learned counsel for the appellant-Insurance
Company contends that since at the earliest point of
time, the claimant-Smt.Sommavva9s son had clearly
stated that the accident was caused by an auto
rickshaw bearing registration No.KA-37/H-4599, the
: 4 :
Tribunal could not have foisted liability on the auto
rickshaw bearing registration No.KA-25/4676.
5.
It is no doubt true that in the FIR lodged by
the claimant9s son it has been stated that the auto
rickshaw
which
hit
the
motorcycle
was
bearing
registration No.KA-37/H-4599.
6.
Ex.P.3 is a statement given by the claimant9s
son stating that he had committed a mistake in
mentioning
the
auto
rickshaw
bearing
registration
number as KA.No.37/3942 and it was actually auto
rickshaw bearing registration No.KA-25/4676, which had
caused the accident. It is not in dispute that the police
investigated the case and ultimately laid a charge sheet
against the driver of auto rickshaw bearing registration
No.25/4676. It is not in dispute that the driver of the
said auto rickshaw pleaded guilty to the offence to
which he was charged.
7.
As
stated
above,
the
only
contention
advanced by the Insurance Company was that the
change in registration of number of the auto rickshaw
clearly indicated the implication of a wrong vehicle and
: 5 :
therefore, it could not be made liable. In cases of such
nature, when the Insurance Company questions the
investigation made by the police and contends that the
vehicle involved in the accident as stated in the charge
sheet was incorrect, the onus of proving the said
contention
would
lay
entirely
on
the
Insurance
Company. In order to discharge this burden, the
Insurance Company would be required to summon the
particulars of the vehicle mentioned in the FIR and
thereafter establish that the said vehicle had not been
insured, thereby establishing mother9s to lay a false
claim.
The
Insurance
Company
will
also
have
to
summon the Investigating Officer and question him
regarding his decision to charge sheet the driver of
vehicle
which
was
not
involved
in
the
accident.
Admittedly, no such exercise has been taken by the
Insurance Company in this case.
8.
The Insurance Company basically relies upon
an investigation report which was prepared at its behest
by one Sri Anand S.Kalaghatgi, who is stated to be an
Investigation
Consultant
and
Provider
of
Auxillary
: 6 :
Services. The Insurance Company, for reasons best
known to it did not even examine this investigation
consultant. It also did not choose to summon the
complainant, who had lodged the FIR in order to
ascertain the actual vehicle that had been involved. In
my view, the Tribunal was therefore justified in coming
to the conclusion that the vehicle bearing registration
No.KA-25/4676 was involved since a charge sheet had
been laid against the driver of the said auto rickshaw
and he had also pleaded guilty.
9. The learned counsel for the appellant places
reliance on the decision of the Hon9ble Apex Court
rendered in the case of Oriental Insurance Company
Ltd., vs. Premalata Shukla, reported in (2007) 13
SCC 476 to contend that the statements found in the
FIR are to be accepted in its totality and also the
decision rendered by a Division Bench of this Court in
the case of Veerappa and Another vs. S
