- 1 - NC: 2025:KHC:9894-DB MFA No. 1309 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF MARCH, 2025 PRESENT THE HON'BLE MRS JUSTICE K.S.MUDAGAL AND THE HON'BLE MR JUSTICE C.M. POONACHA MISCELLANEOUS FIRST APPEAL NO. 1309 OF 2022 (MV-D) BETWEEN THE MANAGER RELIANCE GENERAL INSURANCE CO.LTD, KRUTHIKA ARCADE, N.R.CIRCLE, HOLENARASIPURA ROAD, HASSAN 573201. REP. BY ITS MANAGER LEGAL, NO.28, EAST WING, 5TH FLOOR, CENTENARY BUILDING, M.G.ROAD, BENGALURU-560001. ...APPELLANT (BY SRI D VIJAYAKUMAR, ADVOCATE) AND 1 . SMT NAGARATHNA W/O LATE K.P.DEVARAJ, AGED ABOUT 41 YEARS, R/AT NO.391/7, DAR POLICE TRAINING CENTER, PENSION MOHALLA, HOSLINE ROAD, HASSAN CITY 573116. 2 . SAHANA D/O LATE K.P.DEVARAJ, AGED ABOUT 21 YEARS, R/AT NO.391/7, DAR POLICE TRAINING CENTER, PENSION MOHALLA, HOSLINE ROAD, Digitally signed by NIRMALA DEVI Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:9894-DB MFA No. 1309 of 2022 HASSAN CITY 573116. 3 . SMT RANGAMMA W/O.LATE PUTTEGOWDA, AGED ABOUT 68 YEARS, R/AT KYATANAHALLI VILLAGE, HARADANAHALLI POST, HALEKOTE HOBLI, HOLENARASIPURA TALUK, HASSAN DISTRICT 573211. PRESENTLY R/AT DAR QUARTERS, HASSAN CITY 573201. 4 . SRI YOGISH K P S/O PUTTASWAMYGOWDA, MAJOR, R/AT KYATANAHALLI VILLAGE, HARDANAHALLI POST, HALEKOTE HOBLI, HOLENARASIPURA TALUK, HASSAN DISTRICT 573211. (OWNER OF MOTOR CYCLE BEARING REG.No.KA-13-ED-5657) …RESPONDENTS (BY SRI VIJAY KUMAR T, ADVOCATE FOR R1 TO R3 R4 SERVED) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 30.11.2021 PASSED IN MVC NO.767/2019 ON THE FILE OF THE PRL. DISTRICT AND SESSIONS JUDGE AND MACT-I, HASSAN, AWARDING COMPENSATION OF RS.64,94,600/- WITH INTEREST AT 7 PERCENT P.A. FROM THE DATE OF PETITION TILL REALIZATION AND ETC. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 17.02.2025, COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY, POONACHA.J., DELIVERED THE FOLLOWING: CORAM: HON'BLE MRS JUSTICE K.S.MUDAGAL and HON'BLE MR JUSTICE C.M. POONACHA - 3 - NC: 2025:KHC:9894-DB MFA No. 1309 of 2022 CAV JUDGMENT (PER: HON'BLE MR JUSTICE C.M. POONACHA) The above appeal is filed by the insurer challenging the judgement and award dated 30.11.2021 passed in MVC No.767/2019 by the Principal District and Sessions Judge and MACT-I, Hassan1. 2. For the sake of convenience, the parties herein are referred as per their ranks before the Trial Court. 3. It is the case of the claimants that on 10.2.2019 at about 10.30 p.m., one Devaraju K.P,2 was travelling as a pillion rider in motorcycle bearing No.KA-13-ED-5657 and his son Sanjay Kumar was riding the said vehicle. That when they were going from Salagame towards Dairy Circle, near Chamundeshwari Temple on the ring road, the rider of the motorcycle rode the same in a rash and negligent manner and went over road humps, due to which Devaraju fell down from the motorcycle, sustained severe injuries and was shifted to the hospital for treatment. That due to the injuries sustained in the said accident, he died on 9.3.2019. Claiming compensation for his death, his wife, daughter and mother instituted claim 1 Hereinafter referred to as ‘Tribunal’ 2 Hereinafter referred to as ‘deceased’ - 4 - NC: 2025:KHC:9894-DB MFA No. 1309 of 2022 proceedings arraying the owner and insurer of the motorcycle as respondent Nos.1 and 2 before the Tribunal. 4. The respondents entered appearance before the Tribunal and filed their statement of objections. The first respondent - owner in his statement of objections denied the averments made in the claim petition. Further, it is stated that the vehicle was insured with the second respondent - insurer and hence, the compensation, if any, is liable to be paid by the second respondent - insurer. 5. The second respondent-insurer in its statement of objections denied the various averments made in the claim petition. It is further specifically denied that the accident occurred due to rash and negligent driving of the son of the deceased. The insurer also denied the manner in which the accident has occurred. 6. Claimant No.1 was examined as PW1 and an eye- witness Puttaswamygowda has been examined as PW 2. Exs. P1 to P14 have been marked in evidence. The representative of the insurer has been examined as RW.1. Exs.R1 and R2 have been marked in evidence. The Tribunal has recorded a finding that the claimants have proved the occurrence of the accident - 5 - NC: 2025:KHC:9894-DB MFA No. 1309 of 2022 as averred in the claim petition and that the rider of the motorcycle was responsible for causing the accident. Further, the Tribunal has awarded a total compensation of ₹64,94,600/- together with interest @ 7% per annum. Being aggrieved the present appeal is filed by the insurer. 7. Learned counsel Sri Ashok N. Patil appearing for the appellant – insurer assailing the findings of the Tribunal contends that the deceased himself was riding the insured motorcycle and met with the accident due to his own negligence and that the claimants, in collusion with the owner of the motorcycle, who is the younger brother of the deceased and his son have fabricated the story as set out in the claim petition only for the purpose of claiming compensation. It is further contended that the claimants have not produced any material on record to demonstrate that the alleged rider of the vehicle, Sanjay Kumar has sustained any injuries in the accident and it is highly unbelievable that the deceased who was allegedly a pillion rider alone sustains grievous injuries and no injuries have been caused to the rider of the vehicle. It is further contended that the alleged eye-witness, PW.2 is only a panch witness and not an eye witness. It is contended that the - 6 - NC: 2025:KHC:9894-DB MFA No. 1309 of 2022 present case is one of self-fall and the claimants in collusion with the police authorities have fabricated story in the claim petition only for the purpose of claiming compensation. Hence, he seeks for allowing of the above appeal, setting aside of the judgment and award of the Tribunal and for dismissal of the claim petition. Alternatively, it is contended that the quantum of compensation awarded is on the higher side. 8. Per contra, learned counsel Sri Vijay Kumar T., appearing for the claimants justifying the order passed by the Tribunal on negligence contends that an eye-witness has been examined as PW.2 who has been cross-examined and the police authorities, after investigation have filed a charge sheet. That there is no error in the investigation that has been pointed out by the appellant - insurer and that the insurer has also not independently got any investigator appointed for the purpose of demonstrating that the charge sheet is fabricated. It is further contended that the Tribunal has rightly appreciated the oral and documentary evidence on record and held that the claimants have proved the occurrence of the accident as averred in the claim petition. It is further contended that the quantum of - 7 - NC: 2025:KHC:9894-DB MFA No. 1309 of 2022 compensation awarded by the Tribunal is just and proper. Hence, the learned counsel seeks for dismissal of the appeal. 9. The Submissions of both the learned counsels have been considered and the material on record including the records of the Tribunal have been perused. The points that arise for consideration are: i) Whether the Tribunal was justified in recording a finding that the claimants have proved that the accident has occurred on 10.02.2019 as averred in the claim petition while the deceased was travelling as a pillion rider in the motor cycle bearing Reg.No.KA-13- ED-5657? ii) Whether the quantum of compensation awarded by the Tribunal is just and proper? Reg.point No.(i):- 10. The claimants, who are the wife, daughter and mother of the deceased have averred in the claim petition that when K.P.Devaraju was travelling as a pillion rider on motor cycle bearing No.KA-13-ED-5657 which was being ridden by his son – Sanjay Kumar from Salagame side towards dairy circle, near Chamundeshwari temple on the ring road, Sanjay Kumar rode the same in a rash and negligent manner and jumped over the humps of the road, due to which Devaraju K P fell down - 8 - NC: 2025:KHC:9894-DB MFA No. 1309 of 2022 from the motor cycle, sustained grievous injuries and died on 09.03.2019. 11. 11. To prove the said averments, claimant No.1 has examined herself as PW.1 and a witness Puttaswamaygowda as PW.2. PW.1 has deposed as per the averments made in the claim petition. However, since she is not an eye witnesses to the accident, her testimony will not aid the case of the claimants to prove the manner of accident as alleged. 12. The documents produced by PW.1 disclose that pursuant to the complaint (Ex.P.1), the police authorities registered FIR (Ex.P.2). After conducting investigation, charge sheet (Ex.P.5) has been filed which discloses that the police authorities have filed the charge sheet against Sanjay Kumar. 13. One Puttaswamygowda has been examined as PW.2 and he is stated to be an eye witness. PW.2 has deposed as to the manner of the occurrence of the accident as averred in the claim proceedings and has supported the case put forth by the claimants. PW.2 has also been cross-examined. It is relevant to note here that based on the very same charge sheet in Crime No.40/2019, Sanjay Kumar was tried in CC No.2215/2019 before the III Addl.Civil Judge and JMFC., - 9 - NC: 2025:KHC:9894-DB MFA No. 1309 of 2022 Hassan. The copy of Judgment and depositions of C.C. No.2215/2019 are fetched from e-court website. In that case, present PW.2 - Puttaswamy Gowda has been examined as PW.2/CW.2. In his testimony in the criminal proceedings, PW.2 has categorically stated that he does not know who was riding the motorcycle and as to the manner of occurrence of the accident. He has further stated that he has not seen the accused (Sanjay Kumar) prior to the date of giving evidence in the said proceedings. In the said criminal proceedings PW.2 has not supported the case of the prosecution and was treated as hostile and was cross-examined. 14. It is clear from the aforementioned that in the claim proceedings PW.2 has supported the case of the claimants and has deposed regarding the manner of occurrence of the accident, whereas in the criminal proceedings he has deposed contrary to the testimony adduced by him in the claim proceedings, as has been noticed above and has not supported the case of the prosecution. That goes to show that PW.2 with an intention to help claimants and accused, has deposed in a self contradictory manner, obviously to make wrongful gain. - 10 - NC: 2025:KHC:9894-DB MFA No. 1309 of 2022 15. Although, it is the vehement contention of the learned counsel for the claimants that insurer has not specifically disputed that motorcycle was not driven by Sanjay Kumar, it is forthcoming from para No.21 of the statement of objections filed by insurer before the Tribunal that the insurer has specifically denied the fact of Sanjay Kumar riding the motorcycle and that the deceased was a pillion rider on the date of the accident. It is further relevant to note that the insurer having specifically disputed the case of the claimants that the deceased was riding as a pillion rider in the motorcycle and that his son Sanjay Kumar was riding the motorcycle as on the date of the accident, as averred in the claim petition, the counsel for the insurer before the Tribunal has cross-examined PWs.1 and 2 regarding the said aspect of the matter. 16. Although it is the vehement contention of the learned counsel for the claimants that the insurer has not appointed any investigator nor independently conducted any investigation and that the evidence regarding the same has not been adduced before the Tribunal, it is pertinent to note here that from the material on record itself it is forthcoming that - 11 - NC: 2025:KHC:9894-DB MFA No. 1309 of 2022 PW.2 who has supported the case of the claimants has deposed contrary to his testimony in the criminal proceedings. The insurer has challenged the judgment and award of the Tribunal specifically contending, inter-alia, that the deceased himself was riding the motorcycle and the case was one of self-fall. It is the further specific contention of the insurer that the deceased being a Head Constable in the Police Department, the police authorities have filed the charge sheet only to help the claimants to claim compensation. 17. It is further relevant to note that while it is the case of the claimants that the deceased was riding as a pillion rider and sustained grievous injuries in the accident and died as a result of the same, there is no documentary material to demonstrate that the rider of the motorcycle – Sanjay Kumar also sustained any injury, as a result of the accident. This aspect of the matter has been specifically put to PW.1 in cross- examination by the insurer, for which she said that the rider of the vehicle sustained minor injuries and has taken treatment for the same. However, no documents have been produced to demonstrate the same. - 12 - NC: 2025:KHC:9894-DB MFA No. 1309 of 2022 18. It is further relevant to note that the first respondent who is the owner of the motorcycle is the younger brother of the deceased and that Sanjay Kumar is stated to be the son of the deceased. However, the son, Sanjay Kumar has not been made a party in the claim proceedings as the legal representative of the deceased. 19. It is clear from the aforementioned that the claimants have failed to demonstrate that the accident has occurred as averred by them in the claim proceedings. The Tribunal, on the ground that the charge sheet has been filed by the police authorities after investigation, that there was no specific defence in the statement of objections and that there are contradictions in the defence of the second respondent has, recorded a finding that the claimants have proved the occurrence of the accident. The Tribunal has failed to notice that the claimants have not demonstrated even to the satisfaction of the Rule of ‘preponderance of probability’ that the accident has occurred in the manner as averred in the claim proceedings. 20. The Tribunal has failed to notice that no material has been placed on record to demonstrate regarding injuries - 13 - NC: 2025:KHC:9894-DB MFA No. 1309 of 2022 caused to the rider of the vehicle. Also, having regard to the fact that the testimony of PW.2 is contrary to the testimony adduced by him in the criminal proceedings as has been noticed above, without any hesitation it can be concluded that the claimants have not proved the accident as alleged in the claim petition. Thus, the findings of the Tribunal that the claimants have proved the accident as alleged in the claim proceedings and that the compensation is liable to be paid by the insurer are unsustainable. 21. In view of the discussion as aforementioned, point No.(i) is answered in the Negative. Since point No.(i) has been answered in the Negative, point No.(ii) regarding the quantum of compensation does not survive for consideration. 22. In view of the aforementioned, the following: ORDER i. The appeal is allowed; ii. The judgment and award dated 30.11.2021 passed in MVC No.767/2019 by the Principal District and Sessions Judge and MACT-I, Hassan, is hereby set aside; - 14 - NC: 2025:KHC:9894-DB MFA No. 1309 of 2022 iii. Claim petition in MVC No.767/2019 on the file of the Principal District and Sessions Judge and MACT-I, Hassan, is dismissed with costs. SD/- (K.S.MUDAGAL) JUDGE SD/- (C.M. POONACHA) JUDGE ND,BS,PNV List No.: 19 Sl No.: 7