Karnataka High Court
National Insurance Co Ltd vs Smt Fakkiramma Udachappa Chigari @ ... on 21 July, 2017
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
M.F.A.No.20483/2009
:1:
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 21ST DAY OF JULY, 2017
BEFORE
THE HON'BLE DR.JUSTICE H.B.PRABHAKARA SASTRY
MFA No.20483/2009(MV)
BETWEEN:
NATIONAL INSURANCE CO, LTD.,
REPTD. BY DIVISIONAL MANAGER,
DIVISIONAL OFFICE, SUJATA COMPLEX,
P.B.ROAD, HUBBALLI, NO.III, PORWAL BUILDING,
SIDDESHWAR CROSS ROAD, BIJAPUR.
... APPELLANT
(BY SRI. S.K.KAYAKMATH, ADV.)
AND:
1 SMT. FAKKIRAMMA UDACHAPPA CHIGARI
@ TALAWAR, AGE 73 YEARS, OCC: NIL,
2 SMT. PARAWWA W/O. YALLAPPA CHIGARI
@ TALAWAR, AGE: 43 YEARS,
OCC: HOUSEHOLD WORK.
3 SMT. YALLAWWA D/O. RAMAPPA SAKRAPPANAVAR,
AGE 25 YEARS, OCC: HOUSEHOLD WORK,
4 MAHANTESH S/O. YALLAPPA CHIGARI
@ TALAWAR, AGE: 24 YEARS, OCC: AGRICULTURE,
5 UDACHAPPA YALLAPPA CHIGARI @ TALAWAR,
AGE 21 YEARS, OCC: STUDENT,
6 UMESH YALLAPPA CHIGARI @ TALAWAR,
AGE 19 YEARS,
ALL ARE R/O. MAGADI, TQ. SHIRAHATTI.
M.F.A.No.20483/2009
:2:
7 RAJASHEKHAR SHIVANNA PATIL,
AGE MAJOR, OCC: OWNER OF MAXICAB
NO.KA-28/A-1660,
R/O. NO.1, TADDEWADI, TQ. INDI,
DIST. BIJAPUR.
... RESPONDENTS
(BY SRI. SHRINIVAS K. NANDIMANI, ADV. FOR
SRI MALLIKARJUN B. HIREMATH, ADV. FOR R1 TO R6;
NOTICE TO RESPONDENT NO.7 HELD SUFFICIENT)
---
THIS APPEAL IS FILED UNDER SECTION 173(1) OF THE MV
ACT AGAINST THE JUDGMENT AND AWARD DATED 28.07.2008,
PASSED IN MVC NO.36/2005, ON THE FILE OF DISTRICT &
SESSIONS JUDGE & MEMBER, MACT, GADAG, AWARDING
COMPENSATION OF `5,27,000/- WITH INTEREST @ 6% P.A. FROM
THE DATE OF PETITION TILL THE DATE OF DEPOSIT.
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The Insurance Company, which was respondent No.2 in the Tribunal below has preferred this appeal challenging the judgment and award dated 28.07.2008 passed by the District and Sessions Judge and Member, MACT, Gadag (hereinafter referred to as 'Tribunal below' for short) in MVC No.36/2005. Under the said judgment and award, the Tribunal below was pleased to allow the claim petition in part filed by the present respondent M.F.A.No.20483/2009 :3: Nos.1 to 6 awarding compensation of a sum of `5,27,000/- with interest thereupon.
2. The main ground of the appellant is that the primary burden of proving the occurrence of the accident and involvement of a motor vehicle, Maxicab bearing reg.No.KA-28/A-1660 was on the part of the claimants, which they did not discharge. However, the Tribunal below by giving its finding that the said vehicle was the offending vehicle and the accident has been caused due to rash and negligent driving of the said vehicle by its driver has committed an error. Further stating that the quantum awarded as compensation is also on the higher side, the appellant has prayed for setting aside the judgment and award under appeal.
3. During the pendency of this appeal, the appellant had filed I.A.No.1/2016 under Order 41 Rule 27 of CPC seeking permission to produce 11 documents as additional documents in their support. The said M.F.A.No.20483/2009 :4: application was also taken up along with the main matter for disposal.
4. The learned counsel for the appellant in his detailed argument took the Court to several of the documents proposed to be produced and submitted that those documents if produced have the capacity of changing the finding of the Tribunal below. As such, the appellant may be permitted to produce those documents. He further contended that the alleged eye-witnesses in the criminal case have turned hostile and not supported the case of the prosecution. As such, there is serious doubt about the involvement of the alleged vehicle bearing reg.No.KA-28/A-1660 in the accident.
5. On the other hand, the learned counsel for the respondents/claimants in his argument submitted that filing of I.A.No.1/2016 is purely after thought and the appellant has failed to convince the Court that despite his due diligence, he could not secure those documents. M.F.A.No.20483/2009 :5: Stating that the finding given by the Tribunal below does not warrant any interference at the hands of this Court, he submitted to reject the application and dismiss the appeal.
6. The summary of the case of the claimants in the Tribunal below was that, on 02.11.2004 while the deceased Yallappa was returning to his village from Laxmeshwar on his motorcycle Bajaj-M-80, near Panchappa's land on Magadi-Laxmeshwar road, a Maxicab bearing reg.No.KA-28/A-1660 being driven by its driver in a rash and negligent manner dashed to the said motorcycle on its back causing the accident. Due to the said accident, the deceased Yallappa sustained injuries and died. Respondent No.2-Insurance Company in the Tribunal below, who is appellant herein in its written statement has seriously disputed the occurrence of the accident in the manner stated by the claimants. M.F.A.No.20483/2009 :6:
7. Based on the pleadings, the Tribunal below among six issues framed by it, reserved two issues about the occurrence of the accident in the manner agitated by the claimants and the defence taken by the respondent- insurer before it. Those two issues are reproduced herein:
Issue No.1: Do the claimants prove that Yallappa Udachappa Chigari @ Talawar had died in the accident dated 02.11.2004 on Laxmeshwar Magadi road, near Panchappa Varad's land, due to the rash and negligent driving of Maxi cab No.KA-28/A-1660 by its driver?
Issue No.5: Does the respondent No.2 prove that the accident was caused due to the rash and negligent riding of the Bajaj M-80 motorcycle by the deceased?
It answered issue No.1 in the affirmative and issue No.5 in the negative. For answering those issues, the Tribunal below relied upon the evidence of P.Ws.1 and 2 and the documents produced and marked by them as M.F.A.No.20483/2009 :7: Exs.P1 to P6 and P13. Those documents include copies of FIR, complaint, seizure mahazer, postmortem report, two MVI reports and a charge sheet. Admittedly, the respondents did not enter into the witness box, but a copy of the Insurance Policy was marked as Ex.R1 as consent document.
8. P.W.1 stated to be clamant No.5 and son of the deceased led evidence as P.W.1 and examined one Sri.Mallikarjun S.Turakani as P.W.2. P.W.1 though has stated that he was not an eye-witness to the incident, but based on the information received by him, he concluded that the death of his father was due to a Road Traffic Accident and the alleged offending vehicle was a Maxicab bearing reg.No.KA-28/A-1660. P.W.2 claimed to be an eye- witness to the incident also a traveller in the alleged offending vehicle at the time of accident. He supported the case of the claimants stating that the said Maxicab bearing reg.NoKA-28/A-1660 was the offending vehicle M.F.A.No.20483/2009 :8: and the accident has taken place due to rash and negligent driving of the driver of the said vehicle. Noticing those points and taking the criminal case pertaining to the accident in question at Exs.P1 to P6 and P13, the Tribunal below opined that the police after due investigation have filed charge sheet against one Prakash Koujageri, driver of the Maxicab, who did not challenge the said charge sheet, as such, it was established that the alleged offending vehicle was the guilty vehicle in causing the accident.
9. The learned counsel for the appellant in his argument while referring to the proposed documents sought to be produced by him submitted that the Insurance Company made correspondences with the Community Health Centre, Laxmeshwar where the deceased was initially said to have taken and found that no Medico Legal Case was recorded or registered by them in that regard. Further, the deposition of several charge sheet witnesses, more particularly P.W.1 and P.W.5 in the M.F.A.No.20483/2009 :9: said criminal case who were claimant Nos.4 and 2 respectively in the Tribunal below also shows that they have not supported the case of the prosecution and pleaded their ignorance about the identity/registration number of the alleged offending vehicle. No doubt, one more document which is stated to be a deposition of one of the alleged eye-witnesses to the incident also shows that, he also turned hostile in the criminal case. However, the point to be noticed herein is, all those documents which are now sought to be produced by the appellant herein have come into existence in the first half of the year 2005 itself, whereas the judgment and award under appeal came to be delivered three years later, i.e., on 28.07.2008. Thus, all those documents pertaining to the accident in question though being in existence for a long time before disposal of the case under consideration, the appellant, i.e., respondent No.2 in the Court below did not take any steps to secure copies of those documents and to rely upon in his defence in the Tribunal below.
M.F.A.No.20483/2009: 10 :
10. The submission of the learned counsel for the appellant that, it is only after the Insurance Company received an anonymous telephone call about the suspicion of the alleged offending vehicle involving in the accident, the Insurance Company started its investigation is also not acceptable for the simple reason that, once the Insurance Company comes to know about the occurrence of the accident and institution of the claim petition, it is expected to verify from all possible angles about the genuineness and correctness of the averments made in the claim petition. It is only after that it prepares its written statement and files it in the Tribunal below taking the available defence to it. As such, the Insurance Company is not expected to keep quite till it receives some anonymous call provoking it to look into the matter. It is to the knowledge of every Insurance Company that in case of motor vehicle accident claims petitions under Section 166 of M.V.Act, generally a criminal case would have been launched and the investigation would take place. In such M.F.A.No.20483/2009 : 11 : a situation, to co-relate the averments made in the claim petition, a prudent Insurance Company would follow up the criminal case also.
11. In the instant case, the Insurance Company having done nothing in that regard and not even entering the witness box to lead its evidence, at this highly belated stage has come up with these documents seeking permission to produce them. Under Order 41 Rule 27 (1)(aa) of CPC it is very clear that the party seeking to produce additional evidence, should establish that notwithstanding exercised of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed. In the instant case, as observed above, it can only be called inactiveness on the part of the Insurance Company that has resulted in not producing those documents. As such, the argument of the learned counsel for the appellant that M.F.A.No.20483/2009 : 12 : there are grounds to permit the appellant to produce those documents is not acceptable.
12. In addition to the above observation, one more point can be observed that, assuming that those documents are permitted to be produced, still prima facie on a superficial observation without going into the depth of those documents, it can be observed that in the case before the Tribunal below those witnesses who were examined as P.Ws.1 and 2 were not examined as witnesses in the criminal case. In spite of P.W.2- Mallikarjun being shown as a charge witness No.7 in the charge sheet, still for the reasons best known to the Investigating Officer, he was not examined. Even according to the charge sheet, the said C.W.7 (P.W.2 herein) was an eye-witness to the incident. Therefore, the very same eye-witness who was not examined in the criminal case was examined in the MVC case in the Tribunal below has supported the claimants and has M.F.A.No.20483/2009 : 13 : categorically stated that occurrence of the accident was solely due to rash and negligent driving of the vehicle bearing reg.No.KA-28/A-1660. As such, even if those documents are permitted to be produced, since none of these charge sheet witnesses were examined in MVC cases in the Tribunal below, they cannot be confronted with their contradictory statements. On the other hand, the very material witnesses who were not examined in the criminal case have been examined in MVC case in the Tribunal below and their evidence since remained undiluted even in their cross-examination, the Tribunal below has rightly relied upon the evidence of these witnesses and arrived at a conclusion that the accident in question has occurred on the date, time, place and in the manner averred by the claimants wherein the sole cause for the accident was rash and negligent driving of the vehicle bearing reg.No.KA-28/A-1660.
M.F.A.No.20483/2009: 14 :
13. The other grounds raised by the appellant is regarding reasonableness of quantum of compensation awarded by the Tribunal below. According to the learned counsel for the appellant, the income of the deceased which was taken at `3,000/- p.m. by the Tribunal below was on the higher side and that no deduction has been made towards personal expenses, as such, the compensation awarded deserves to be reduced. On the contrary, the learned counsel for the respondents/claimants in his argument submitted that the Tribunal below has taken the income of the deceased lesser than the notional income prevailing during the period and has applied a lesser multiplier than that was applicable and the compensation awarded under conventional heads is also a meager amount. As such, there is no scope for interference in the quantum of compensation awarded by the Tribunal below. M.F.A.No.20483/2009 : 15 :
14. After careful perusal, it is found that the Tribunal below has taken income of the deceased, who was an agriculturist at `3,000/- p.m. as against the income of `10,000/- agitated by the claimants. The year of accident was 2004, for the said relevant year, Co-ordinate Benches of this Court are taking annual income of a person who could not establish his exact income at `3,500/- p.m. According to the Tribunal below, the age of the deceased as could be noticed from the postmortem report was 45 years, it applied the multiplier of '13' instead of '14'. As such, if the proper multiplier is applied taking the annual income of the deceased at `3,500/- p.m., the quantum of compensation towards loss of dependency would not reduce. As such, I do not want to interfere in it. Further, the compensation awarded under conventional heads also not being on the higher side, I find no reason to reduce the quantum of compensation awarded by the Tribunal below. Accordingly, I proceed to pass the following:
M.F.A.No.20483/2009: 16 :
ORDER I.A.No.1/2016 filed by the appellant under Order 41 Rule 27 of CPC is rejected.
The appeal is dismissed.
No costs.
The amount in deposit, if any by the appellant in the registry be transferred to the concerned MACT without delay.
Sd/-
JUDGE MBS/-