Karnataka High Court
New India Assurance Co Ltd vs Sri Mahadev S/O Late Shivalingaiah on 13 December, 2012
Author: S.N.Satyanarayana
Bench: S.N.Satyanarayana
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 13TH DAY OF DECEMBER 2012
BEFORE
THE HON'BLE MR. JUSTICE S.N.SATYANARAYANA
MISCELLANEOUS FIRST APPEAL NO.8825 OF 2008 (MV)
BETWEEN:
New India Assurance Co. Ltd.,
Represented by Divisional
Manager, No.40,
Lakshmi Complex,
Opp. Vanivilas Hospital,
K.R. Road,
BANGALORE - 560 002. .. APPELLANT.
(By Sri.R.Jai Prakash, Adv.)
AND:
1. Sri.Mahadev,
S/o late Shivalingaiah,
Major, Vandarguppe Village,
Silk Farm Post,
CHANNAPATNA.
2. Smt.P.V.Poornima,
Major.
3. Smt.P.V.Padmashree,
Minor.
4. P.V.Chandana, Minor.
5. Smt.Chikkatayamma, Major.
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Respondent Nos.3 & 4 are
Minors represented by
II Respondent,
All are R/at
Pavolidoddi Village,
Silk Farm Post,
Channapatna Taluk,
BANGALORE DISTRICT. .. RESPONDENTS.
(By Sri.M.G.Sateesh,
Adv. for R-2 to R-4,
R-5 - Notice dispensed
with vide order
dated 24.01.2012,
R-1 - Served)
*-*-*-*-*-*
This appeal is filed under Section 173(1) of Motor
Vehicles Act, against the Judgment and Award dated
19.12.2007 passed in MVC No.14/2006 on the file of the
Additional Civil Judge (Sr.Dn.) and MACT, Ramanagar,
awarding compensation of Rs.4,01,000/- with interest at
6% p.a., from the date of petition till deposit in the Tribunal.
This Appeal coming on for Final Hearing this day, the
Court delivered the following:
JUDGMENT
Second respondent - Insurance Company in MVC No.14/2006 on the file of MACT, Ramanagar, has come up in 3 this appeal challenging the Judgment and Award dated 19.12.2007 passed therein.
2. Brief facts leading to this appeal are as under:
Claimants before the Tribunal are the widow, daughters and mother of deceased V.H.Venkateshaiah. The case of the claimants before the Tribunal is that on 10.10.2004 at about 7.45 p.m., deceased V.H.Venkateshaiah was proceeding from B.M.Road, Channapatna Town, towards Irish Lodge, Hanumanthanagar, while he was walking on the footbath, rider of Bajaj Pulsar bearing No.KA-05/EP-0644 came in a rash and negligent manner and dashed against him resulting in grievous injuries to him. Hence he was immediately taken to Government Hospital at Channapatna and thereafter to Malya Hospital at Bangalore. It is stated that subsequently on 13.10.2004 the said V.H.Venkateshaiah succumbed to injuries suffered in the accident dated 10.10.2004. Hence claim petition was filed by his widow, minor daughters and mother seeking compensation for his death.4
3. In the said proceedings, claimants produced several documents which are marked as Exs.P-1 to P-9 and on behalf of respondents no document was produced. The first claimant adduced evidence as P.W.1, examined an eye witness, namely Nagesh as P.W.2 and complainant as P.W.3. The Tribunal on appreciation of oral and documentary evidence available on record, proceeded to hold that the accident as stated in the Claim Petition has taken place on 10.10.2004 at about 7.45 p.m., involving Bajaj Pulsar bearing No.KA-05/EP-0644 belonging to first respondent and insured with second respondent and proceeded to award compensation in a sum of Rs.4,01,000/- payable with interest at 6% p.a., from the date of petition till realisation.
4. Being aggrieved by the same, second respondent - Insurance Company has come up in this appeal contending that the vehicle belonging to first respondent, namely Bajaj Pulsar bearing No.KA-05/EP-0644 was not involved in the accident resulting in the death of V.H.Venkateshaiah and the 5 said vehicle is implicated in the said proceedings with the connivance of police and other members of the family of deceased. For that they rely upon Ex.P-2 which is the first FIR which came to be recorded on 10.10.2004 at about 8.45 p.m., i.e., within one hour of accident. The said FIR, which is at Ex.P-2 is based on a complaint given by one Ravi, who is examined as P.W.3 before the Tribunal. According to his complaint, at about 7.45 p.m., he was standing near Irish Lodge at Hanumanthanagar on Mysore - Bangalore Highway, at that time V.H.Venkateshaiah came towards Irish Lodge. While he was reaching the said place, a Bajaj Pulsar Motor Cycle bearing No.KA-11/K-5164 came in a rash and negligent manner, hit against V.H.Venkateshaiah and thereafter rider of the Motor Cycle left the Motor Cycle in the place of accident and ran away from the place. It is stated that after the accident, V.H.Venkateshaiah was taken to Government Hospital and on the advice of doctor, thereafter sent to Malya Hospital, Bangalore, for further treatment. It is seen that this complaint is lodged on the same day, i.e., within one hour 6 from the time of accident, based on that Ex.P-2 has come into existence.
5. Subsequently on 15.10.2004 a complaint is given by one Hanumantharayappa, i.e., brother of the deceased V.H.Venkateshaiah contending that on 10.10.2004 at about 7.45 p.m., while his brother, V.H.Venkateshaiah was proceeding towards Irish Lodge, his brother was hit by Bajaj Pulsar bearing No.KA-05/EP-0644 and has suffered injuries and succumbed to the same on 13.10.2004 at about 12.30 p.m. Hence the same should be taken on record and proper proceedings should be initiated against the person who has caused the accident. This FIR is at Ex.P-3. Ex.P-4 is the sketch, which is prepared immediately after the accident. However, while filing of charge sheet on 19.10.2004 the entire recitals regarding the manner in which the accident has taken place has totally given different twist.
6. The police after recording further statement from the complainant Ravi on 19.10.2004, charge sheet is filed against 7 the owner and insurer of Motor Cycle bearing No.KA-05/EP- 0644, another Bajaj Pulsar Motor Cycle. In the further statement which is recorded at Ex.P-8, it indicates that he gave the complaint based on the information given by one Hariprasad and Venugopal and subsequently he was informed by other witnesses Mohan Kumar, Raghavendra Murthy, Ashwath, Madhu, Nagesh and Puttaswamy. The vehicle which caused the accident is Bajaj Pulsar Motor Cycle bearing No.KA-05/EP-0644 and its driver is one Guljar of Perfect Garage, Hanumanthanagar and the said statement is given on 19.10.2004. Based on which, charge sheet at Ex.P-5 is prepared.
7. Incidentally in the said charge, both the vehicles, i.e., original vehicle which was seized bearing No.KA-11/K-5164 and the subsequent vehicle, which is apprehended, i.e., KA.- 05/EP-0644 is also included and suitable changes are made to show that the accident has taken place involving the Motor Cycle bearing No.KA-05/EP-0644 instead of KA-11/K-5164. The entire exercise reeks of fraud, manipulation, implication 8 of vehicle and creating of documents for the sake of helping the claimants. Admittedly the complainant Ravi is a B.A., Graduate, he clearly states in the complaint that within one hour from the occurrence of accident, he lodged the complaint, he is the eye witness to the incident as could be seen from Ex.P-2 and he clearly in unequivocal terms states that the accident has taken place in his presence and he is the eye witness to that. He also state that immediately after hitting V.H.Venkateshaiah, the rider of the Motor Cycle bearing No.KA-11/K-5164 ran away from the place leaving the Motor Cycle at the place of accident and the police have taken the same to their custody. However, it is only after the death of V.H.Venkateshaiah on 13.10.2004, the entire exercise to switch the vehicle to see that the vehicle having insurance coverage being brought into picture. Further the original complainant Ravi giving further statement on 19.10.2004, based on which charge sheet was filed vide Ex.P-5 dated 19.10.2004.
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8. This Court is doubtful regarding the date on which further statement is taken. Admittedly this statement is not in any register or in any ledger, they are taken on white paper and included in the file by putting the date on the said document, which give sufficient scope for manipulation to show as if it is taken on a particular date when it is factually not so. Therefore, in the instant case, recording of further statement and filing of charge sheet appears to be under suspicious circumstances and highly manipulative in nature. In that view of the matter, the Tribunal ought to have been more cautious while looking into the documents and before looking into the rights of the parties and before saddling liability on the parties.
9. In the proceedings before the Criminal Court as could be seen from the evidence, which is furnished to the Court, it is seen that the complainant Ravi, said to be a Graduate, takes 'U' turn from the statement he has given before the police on 10.10.2004 and also on 19.10.2004 and tried to 10 substantiate his involvement in giving false statement. This clearly indicates the dishonesty of the complainant and also the police officers, who have not even bothered to verify the same while filing false charge sheet. It is relevant to place on record, particularly with reference to accidents taking place on Mysore - Bangalore Road, involvement of police in creating and manipulating documents and trying to implicate wrong vehicle and creating fake documents is infact high. On an earlier occasion, this Court while deciding an appeal under the Workman's Compensation Act, directed Superintendent of Police, Mandya, to investigate into the manner in which the accident has taken place in the said proceedings and also falsification and forging of documents and manipulation of record by the police officers and to submit his report to this Court. Though this direction was issued about 1 ½ years back, till this day no steps are taken by the Superintendent of Police, Mandya, in that behalf. In fact this appears to be another such case among series of such cases, where manipulation of documents and implication of wrong vehicles 11 to secure compensation from Insurance Company is resorted to by the police for extraneous reason. This Court has no hesitation to hold that this particular claim petition is yet another of that elk.
10. In this proceedings, respondents - claimants before the Tribunal tried to justify their fraudulent act committed with connivance of police by relying upon unreported decision of this Court in the matter of New India Assurance Co. Ltd., Vs. Samandaiah and others in MFA No.5794/2008 disposed of on 02.09.2010 and also in the matter of National Insurance Co. Ltd., Vs. Moses Dindannavar and others reported in 1996 ACJ 938 in trying to establish that the claimants are not bound by the contents of FIR and also the mahazar, which is drawn by the police on 11.10.2004. This Court do accept that where there are slight variations inasmuch as not giving minute details regarding the manner in which accident has taken place and other particulars, which are not relevant, the same may be ignored. However, these two judgments will not 12 enure to the benefits of the claimants in this proceedings, for the reason that here there is deliberate attempt on the part of police in implicating totally different vehicle into the proceedings without there being reference to the said vehicle in the F.I.R., or any other documents which have come into existence immediately after accident and the same being included based on the further statement said to have taken place prior to filing of charge sheet. When the vehicle which was seized at the place of accident being very much present, question of bringing another vehicle and try to demonstrate that the accident is caused by the said other vehicle, does not stand to reason. In that view of the matter, the ratio laid down in the aforesaid Judgment will have no bearing on the facts and circumstances of the present case.
11. With the aforesaid discussions, this Court hold that the Tribunal has deliberately ignored these things before deciding the Claim Petition filed by the claimants and has erroneously allowed the Claim Petition by awarding compensation in a sum of Rs.4,01,000/- which is required to be set aside. 13
12. Accordingly this appeal is allowed. The Judgment and Award dated 19.12.2007 passed in MVC No.14/2006 on the file of MACT, Ramanagar, is set aside.
13. While doing so, a direction is issued to the Superintendent of Police, Ramanagar, to hold an independent enquiry into the matter and take appropriate action against the concerned officer, who is involved in manipulation of documents to support the case of the claimants and the said enquiry will have to be initiated within two weeks from the date of receipt of copy of Judgment in this proceedings and the same shall be completed within three months thereon and report should be sent to this Court within four weeks from the date of completion of enquiry.
14. Registry is directed to send a copy of this judgment to the Superintendent of Police, Ramanagar, to comply with the directions issued at paragraph 13 of the judgment and 14 necessary instructions be given to him to comply with the same on time bound basis.
In view of appeal being allowed, amount in deposit is ordered to be released in favour of the appellant.
Sd/-
JUDGE AGV.