- 1 - HC-KAR NC: 2025:KHC:19058 MFA No. 7589 of 2017 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE C.M. POONACHA MISCELLANEOUS FIRST APPEAL NO.7589 OF 2017 (MV-I) BETWEEN: THE NEW INDIA ASSURANCE CO. LTD., DIVISIONAL OFFICE, CHANDAN COMPLEX, HARSHAMAHAL ROAD, HASSAN. THROUGH MOTOR THIRD PARTY CLAIMS HUB, M.G. ROAD, BANGALORE-560001 BY DULY CONSTITUTED ATTORNEY. ... APPELLANT (BY SRI K. SURYANARAYANA RAO., ADVOCATE) AND: 1. PAVAN KUMAR @ PAVAN S/O. P. KANTHARAJU, AGED ABOUT 22 YEARS, R/O DEVARAJANAHALLI, KUNDURU HOBLI & POST ALUR TALUK, HASSAN DISTRICT. 2. SWAROOP .S S/O SWAMYGOWDA MAJOR IN AGE R/O SANENAHALLY, KUNDUR HOBLI & POST, ALUR TALUK, HASSAN DISTRICT. ... RESPONDENTS (R-1 & R-2 ARE SERVED & UNREPRESENTED) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 04.04.2017 PASSED IN MVC NO.1325/2015 ON THE FILE OF THE II ADDITIONAL DISTRICT & SESSIONS JUDGE, & ADDITIONAL MACT, HASSAN, AWARDING COMPENSATION OF Rs.65,293/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL PAYMENT. Digitally signed by BHARATHI S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:19058 MFA No. 7589 of 2017 THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE C.M. POONACHA ORAL JUDGMENT The present appeal is filed by the insurer under Section 173(1) of the Motor Vehicle Act, 19801 calling in question the judgment and award dated 4.4.2017 passed in MVC No.1325/2015 by the II Addl. District and Sessions Judge and Addl. MACT, Hassan2. 2. For the sake of convenience, the parties herein are referred as per their ranking before the Tribunal. 3. It is the case of the claimant that on 31.12.2014 when he was proceeding as a pillion rider on a motorbike, the rider of the said motor bike drove the same in a rash and negligent manner and hit a car causing the accident in question. Claiming compensation for the injuries sustained in the said accident, the claimant instituted claim proceedings arraying the owner and insurer of the 1 Hereinafter referred to as ‘M.V. Act’ 2 Hereinafter referred to as the ‘Tribunal’ - 3 - HC-KAR NC: 2025:KHC:19058 MFA No. 7589 of 2017 motorcycle as respondents. The respondents entered appearance before the Tribunal and contested the claim proceedings. The Tribunal by its judgment and award dated 04.04.2017 partly allowed the claim petition and awarded compensation of Rs.65,293/- together with interest at 6% p.a. and held that the respondents are jointly and severally liable to pay the compensation awarded. Being aggrieved the present appeal is filed by the insurer. 4. It is the vehement contention of learned counsel Sri Ravishankar appearing on behalf of the appellant insurer that the claimant himself was riding the motorcycle in question and that only for the purpose of claiming compensation, in the claim proceedings it is averred that he was riding in the motorcycle as a pillion rider. In support of his contentions he relies upon the fact that the name of the rider of the motorcycle was Pawan Kumar, as also the name of the claimant. Reliance is also placed by the learned counsel on EX.R2 and EX.R7 which are the medical records from the hospital which indicate that Pawan Kumar sustained - 4 - HC-KAR NC: 2025:KHC:19058 MFA No. 7589 of 2017 injuries in a road traffic accident. By placing reliance on the said EXs.R2 and R7, it is further contended that the rider of the motorcycle was riding the same when he is under the influence of alcohol. Hence it is contended that the Tribunal erred in fastening the liability on the insurer. 5. The respondents are served and unrepresented. 6. The contentions of the leaned counsel for the appellant having been considered and the material on record have been perused including the records of the Tribunal. 7. The question arises for consideration is, whether the judgment and award passed by the Tribunal fastening the liability to pay the compensation on the insurer is erroneous and liable to be interfered with? 8. It is forthcoming that, to the claim proceedings, the first respondent owner as well as second respondent insurer has filed separate statement of objections. In the statement of objections filed by the insurer at the first instance the defence that the rider of the motorcycle and the - 5 - HC-KAR NC: 2025:KHC:19058 MFA No. 7589 of 2017 claimant are one and the same person has not been taken. However, subsequently the statement of objections have been amended and pursuant to the order of the Tribunal permitting the amendment, a specific defence has been taken. 9. The claimant examined himself as PW.1. He has been cross examined by the learned counsel for the insurer. However, apart from putting suggestions that the claimant is riding the vehicle, which suggestions have been denied, there is no other material on record to disbelieve the testimony of PW.1. Further the representative of the insurer has been examined as RW.1 and has deposed that the vehicle is fixed and the narration and version of the alleged accident is changed by playing fraud against the insurer in collusion with the police authorities. It is further deposed by RW.1 that the claimant was the rider of the vehicle and that he was under the influence of alcohol. A doctor has also been examined by the insurer as RW.2. - 6 - HC-KAR NC: 2025:KHC:19058 MFA No. 7589 of 2017 10. The Tribunal while considering the material on record has noticed the cross examination of RW.2, wherein he has stated that he does not know the name of father of the rider and the pillion rider of the motorcycle. Further, the Tribunal while examining the contents of EXs.R2 and R7 has recorded a finding that the claimant’s name as mentioned in the said documents and as mentioned in the cause title completely tallies. Further noticing the complaint (EX.P1), it is noticed that the name of the pillion rider is “Pawan Kumar M K” and the father’s name is shown as “Kantharaj”. Hence the Tribunal has recorded a finding that the evidence of RW.2 coupled with EX.R7 and EX.P1 clearly goes to show that the claimant was the pillion rider of the motorcycle at the time of the accident and has sustained injuries all over body. The Tribunal has also noticed the documents produced by the claimants as EXs.P1 to P5 and EX.P10 and recorded a finding that the accident has occurred due to the rash and negligent riding on the part of the rider of the motorcycle. - 7 - HC-KAR NC: 2025:KHC:19058 MFA No. 7589 of 2017 11. It is pertinent to note here that although the insurer has alleged that the vehicle in question is fixed and narration and version of the accident is changed playing fraud against the insurer in collusion with the police authorities, the insurer has not appointed any investigator to investigate the said aspect of the matter and no evidence of such investigator has been adduced. Further the police authorities have carried out investigation pursuant to the complaint (EX.P1) lodged consequent to the occurrence of the accident and the charge sheet (EX.P2) has been filed. The insurer has not adduced any evidence to show that the investigation carried out by the police authorities are in any manner irregular and ought not to be relied upon by this Court. 12. Further although the insurer has taken a specific contention that the claimant himself was riding the vehicle, the claimant has been examined himself as PW.1 and having marked the police documents i.e., complaint (EX.P1), charge sheet (EX.P2) and other documents to prove the averments - 8 - HC-KAR NC: 2025:KHC:19058 MFA No. 7589 of 2017 made in the claim petition as to the occurrence of the accident, the onus shifts on the insurer to prove the assertions made by it with regard to the manner of the occurrence of the accident. The evidence adduced by the insurer is that of its officer (RW.1) and doctor (RW.2) who has treated the claimant. No evidence has been adduced by the insurer of any witness to the accident or any other material has been placed on record to demonstrate that the investigation carried out by the police authorities is in any manner irregular. In the absence of the insurer adducing any evidence to discharge the onus of demonstrating that the accident has not been caused as contended in the statement of objections, it is required to be held that the claimant had discharged its burden proving the manner of the occurrence of the accident as averred in the claim petition. 13. The Tribunal, considering the said aspect of the matter has adequately appreciated the oral and documentary evidence and has recorded the finding on issue No.1 which is just and proper. - 9 - HC-KAR NC: 2025:KHC:19058 MFA No. 7589 of 2017 14. The contention of the appellant - insurer that the award of the Tribunal is required to be interfered with since the driver of the motorcycle was under the influence of alcohol at the time of the accident, is also not liable to be accepted since the pillion rider being the third party, the Tribunal was justified in fastening the liability on the insurer of the motorcycle to pay the compensation. 15. The appellant has failed in demonstrating that the finding of the Tribunal is in any manner erroneous and liable to be interfered with by this Court. Hence, the question framed for consideration is answered in the negative. 16. Accordingly, the above appeal is dismissed being devoid of merits. No costs. 17. The amount in deposit and the records be transmitted to the Tribunal for disbursement in terms of the award of the Tribunal forthwith. SD/- (C.M. POONACHA) JUDGE ykl/List No.: 1 Sl No.: 72