Karnataka High Court
H M Nandish @ Bantwalkar S/Oh N Ningaiah, vs Ghouse Mohiddin @ Ghouse Mohiddin ... on 1 October, 2020
Bench: P.S.Dinesh Kumar, S.Vishwajith Shetty
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 1 S T DAY OF OCTOBER, 2020
PRESENT
THE HON'BLE MR.JUSTICE P.S.DINESH KUMAR
AND
THE HON'BLE MR.JUSTICE S.VISHWAJITH SHETTY
M.F.A.No.100110/2015
C/W
M.F.A.No.100851/2015 (MV)
IN M.F.A.No.100110/2015
BETWEEN:
1. H M NANDISH @ BANTWALKAR ,
S/O H N NINGAIAH,
AGE: 33 YEARS, OCC: BUSINESS,
2. H M SURAJ,
S/O H M NANDISH @ BANTWALKAR,
AGE: 8 YEARS, OCC: STUDENT,
SINCE MINOR R/BY HIS
NATURAL GUARDIAN FATHER,
H M NANDISH @ BANTWALKAR,
BOTH ARE R/O. VIDYA NAGAR,
SIRSI,
PRESENTLY RESIDING AT
3RD CROSS, S N PET, BALLARI. ... APPELLANTS
(BY SRI Y.LAKSHMIKANT REDDY, ADVOCATE)
AND
1. GHOUSE MOHIDDIN
@ GHOUSE MOHIDDIN CHIKKABASAPURA,
S/O KHADER SAB, AGE: 47 YEARS,
OCC: DRIVER, R/O. HIREHALLI,
CHIKKABASAM POST, TQ: BYADAGI,
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DIST: HAVERI.
2. SANGAPPA MURUGAPPA REDDY,
S/O MURUGAPPA,
AGE: MAJOR, OCC: OWNER,
R/O. ESALUR VILLAGE,
TQ: SIRSI, DIST: UK.
3. THE MANAGER,
M/S.NATIONAL INSURANCE CO.LTD.
BALLARI. ... RESPONDENTS
(BY SHRI HANAMANT R.LA TUR, ADV. FOR R1 AND R2,
SHRI S.K.KAYAKAMATH, ADV. FOR R3)
THIS APPEA L IS FILED UNDER SECTION 173(1) OF
THE MOTOR VEHICLES ACT, 1988, AGAINST THE JUDGMENT &
AWARD DATED:01.10.2014, PASSED IN MVC.NO.649/2010, ON
THE FILE OF THE MEMBER, MOTOR ACCIDENT CLAIMS
TRIBUNAL-XII, BELLARY, PARTLY ALLOWING THE CLAIMS
PETITION FOR COMPENSATION & SEEKING ENHANCEMENT OF
COMPENSATION.
IN M.F.A.No.100851/2015
THE MANAGER,
M/S.NATIONAL INSURANCE COMPANY LIMITED,
BALLARI,
NOW REP. BY ITS DEPUTY MANAGER,
NATIONAL INSURANCE CO., LTD.,
REGIONAL OFFICE, II FLOOR,
ARIHANT PLAZA, KUSUGAL ROAD,
KESHWAPUR, HUBBALLI - 23. ... APPELLANT
(BY SHRI S K KAYAKAMATH, ADV.)
AND
1. H.M. NANDISH @ BANTWALKAR,
S/O H.N.NINGAIAH, AGE: 34 YEARS,
COMPUTER BUSINESS,
2. MINOR H.M. SURAJ,
S/O H.M.NANDISH @ BANTWALKAR,
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AGE: 9 YEARS,
SINCE MINOR REP. BY HIS FATHER
AND NATURAL GUARDIAN.
BOTH ARE R/O. VIDYA NAGAR,
SIRSI,
PRESENTLY AT 3RD CROSS,
S.N. PET, BALLARI.
3. GHOUSE MOHIDDIN @
GHOUSE MOHIDDIN CHIKKABASAPURA,
S/O KHADER SAB, AGE: 48 YEARS,
DRIVER OF THE TRACTOR
AND TRAILER BEARING REG. NO.
KA-31/T-1878 & 1879,
R/O HIREHALLI, CHIKKABASAM POST,
BYADIGI TALUKA, OF HAVERI DISTRICT.
4. SANGAPPA MURUGAPPA REDDY,
S/O MURUGAPPA,
OWNER OF THE TRACTOR
AND TRAILER BEARING REG. NO.
KA-31/T-1878 & 1879,
R/O. ESALUR VILLAGE IN
SIRSI TALUK OF U.K DISTRICT. ... RESPONDENTS
(BY SHRI Y LAKSHMIKANTH REDDY, ADV. FOR R1 AND R2,
SHRI HANAMANT R.LATUR, ADV. FOR R3 AND R4)
THIS MFA IS FILED U/S 173(1) OF MV ACT, 1988, AGAINST
THE JUDGMENT AND AWARD DATED:01.10.2014, PASSED IN MVC
NO.649/2010, ON THE FILE OF THE MEMBER, MOTOR ACCIDENT
CLAIMS TRIBUNAL-XII, BELLARY, AWARDING COMPENSATION OF
Rs.16,89,640/- ALONG WITH THE INTEREST AT THE RATE OF 7%
P.A FROM THE DATE OF PETITION TILL THE DEPOSIT.
THESE APPEALS COMING ON FOR ADMISSION ON
22.09.2020 AND THE SAME HAVING BEEN HEARD AND
RESERVED FOR PRONOUNCEMENT OF JUDGEMENT, THIS
DAY, P.S.DINESH KUMAR, J., DELIVERED THE FOLLOWING:
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JUDGMENT
These two appeals are presented by the claimants and the Insurer challenging the judgment and award dated 01.10.2014 in M.V.C. No.649/2010 on the file of MACT-XII, Ballari. M.F.A.No.100110/2015 is filed by the claimants with a prayer to hold insurer liable to indemnify the owner of the alleged offending vehicle. M.F.A.No.100851/2015 is filed by the Insurer with a prayer to reverse the finding given on issue No.1 and additional issue No.3.
2. We have heard Shri Lakshmikant Reddy for claimants, Shri Kayakamath for Insurer and Shri Hanumant R.Latur, for the owner and driver of the tractor and trailer.
3. For the sake of convenience, parties shall be referred as per their ranking before the Tribunal.
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4. Brief facts of the case are, claimants have presented the instant claim under Section 166 of the Motor Vehicles Act, seeking compensation from the owner and driver of a tractor and trailer bearing registration No.31/T- 1878 and 1879 (for short 'TT 1878') and its insurer namely the National Insurance Company Limited, Ballari, pleading inter alia that;
• on 21.08.2009, Smt.Suvarna, wife of 1 s t
claimant was riding TVS scooty
motorcycle bearing registration No.KA- 31/Q-1499 on Sirsi-Yellapur road. The TT 1878 driven in a rash and negligent manner dashed against victim's motorcycle on the hind side. Victim sustained grievous injuries. She was shifted to the hospital and declared dead;
• by judgment and award dated 07.12.2011, the Tribunal awarded a sum :6: of Rs.13,90,700/- and directed the owner and driver of TT-1878 to pay compensation. Feeling aggrieved, claimants challenged the said judgment in this Court in MFA No.20786/2012;
• by judgment and order dated
10.10.2013, this Court set aside the
judgment and award passed by the
Tribunal and remanded the matter for fresh consideration after providing opportunity to both parties to produce additional documents;
• after remand, claimants got examined PW-1 and produced Ex.P.16 as an additional document;
• on behalf of Insurer, RWs-7 to 10 were examined and Exs.P.13(a), Ex.P.15 to 18 and Ex.P.18(a) were marked as additional documents;
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5. Based on the pleadings, Tribunal has framed following issues and additional issues:
"1) Whether petitioners prove the death of one Smt. Suvarna Bantawalkar in RTA that was occurred on 21.08.2009 at about 1 p. m. on Sirsi -
Yell apur road on Sirsi, due to rash and negl igent driving of the Tractor-Trailer bearing Regn.No.KA-31/T.1878 and 1879 by f irst respondent?
2) Whether third respondent proves that, the f irst respondent was not holding val id and eff ective DL to drive such category of vehicle as on the date of accident?
3) Whether petitioners are entitle f or compensation as prayed f or?
4) What order or an award?
ADDITIONAL ISSUES:
1) Whether the respondent no.2
proves that, in vie w of the petition f iled by the petitioners bef ore the MACT, Sirsi (U.K.District) at MVC No.75/201 arising out of the very same accident, :8: the present claim petition is not maintainable?
2) Whether the respondent No.3 proves that, accident was due to negl igent driving of the scooter by the deceased herself and she has contributed f or the cause of accident, if so, what is its percentage?
3) Whether the respondent No.3 proves that, the vehicle tractor and trailer bearing Regn.No.KA-31/T.1878 and 1879 was not at all involved in the accident as such Insurance Comp any is not liable to pay any compensation?
6. Answering issues No.1 and 2 in the affirmative, issue No.3 partly in the affirmative, additional issue No.2 and 3 in the negative, the Tribunal has passed the impugned judgment holding that claimants shall be entitled to receive compensation of 16,89,640/- from the owner and driver of the tractor with interest @ 7 p.a. Insurer has been absolved by holding that the driver had :9: licence to drive an LMV and not authorized to drive tractor. Hence, these appeals.
7. In its appeal, the Insurer has mainly contended that TT 1878 in respect of which claim petition has been filed is not involved in the accident. The tractor-trailer which actually caused the accident bears registration No.KA- 31/T-720-721 (for short 'TT 720').
8. Shri Kayakamath, arguing in support of insurer's appeal submitted that FIR No.54/2009 dated 21.08.2009 has been registered in new market police station, Sirsi, for offences punishable under Sections 279 and 304-(A) IPC and 187 of the Motor Vehicles Act, at 2 p.m. by one Shri Ganapathi who appeared in the police station and got the complaint registered stating that at 13.00 hours on the same day, the driver of TT 720 had caused the accident. On 23.08.2009, police have recorded the statement of Khaleel Ahmed Khadersab, driver of TT 720. He has : 10 : stated that the accident was caused on 21.08.2009 by the driver of TT 1878. Based on the said statement recorded after two days, police have filed the charge-sheet against the driver of TT 1878.
9. Thus, in substance, Shri Kayakamath submitted that based on the statement given by the driver of the tractor, which has, in fact caused the accident, the vehicle number has been manipulated and substituted. He relied upon various documents to which we will refer during the course of judgment.
10. Shri Lakshmikant Reddy, arguing in support of claimants' appeal mainly contended that the contention urged on behalf of the insurer that the registration number of the offending tractor has been manipulated is an afterthought. Insurer did not raise this contention in the earlier round of litigation in M.F.A.No.20786/2012 wherein this Court has remanded the matter for : 11 : the limited purpose of consideration of additional document and computation of future prospects. Therefore, Insurer is hit by the doctrine of res judicata and is estopped from raising the contention with regard to false implication of the offending vehicle. Shri Reddy further submitted that the only question which remains for consideration is "whether the driver of the offending vehicle was having a valid licence to drive a tractor-trailer?".
11. Mr.Reddy further submitted that Tribunal has erred in absolving the insurer on the ground that the driver was having licence to drive a LMV and not authorized to drive the tractor- trailer. He argued that the LMV licence authorised him to drive the tractor-trailer also. Accordingly, he prayed for dismissing the appeal filed by the insurer and to allow claimant's appeal by suitably increasing the compensation and holding the insurer liable to indemnify the owner. : 12 :
12. In the light of contentions urged on behalf of the parties, following points arise for our consideration:
i) Whether the TT 1878 is involved in the accident?
ii) Whether insurer is liable to indemnify the owner
iii) Whether claimants are entitled for enhancement?
Re: Point No.1:
13. The specific case of the Insurer is that the TT 1878 is not involved in the accident. To support this contention, Shri Kayakamath has placed reliance on:
i) Ex.P.1, the FIR, the statement of Khaleel Ahmed Khadersab, driver of TT 720 which is appended to Ex.P.1; : 13 :
ii) Ex.R.8, letter written by the Circle Inspector of Police, Sirsi, to the Regional Transport Officer, Sirsi, for inspection of vehicle TT 720;
iii) Ex.R.7, (wrongly mentioned as Ex.P.7),
also dated 22.08.2009 seeking
inspection of vehicle TT 1878;
iv) Ex.R.9, MLC register extract, and
Ex.R.10, extract of register maintained in the RTO office.
14. Perusal of documents relied upon Shri Kayakamath, show that Ex.R.7 and Ex.R.8 are both signed by the Circle Inspector of Police, Sirsi. Ex.R.7 is the requisition for inspection of TT 1878. Ex.R.8 is requisition for inspection of TT 720. Surprisingly both are written on 28.08.2009 and bear outward number 54/2009. The requisition to inspect TT 720 bears inward number of RTO Office as '124' received on 25.08.2009 and the : 14 : requisition for inspection of TT 1878 bears inward number as '129' received on 01.09.2009. Both letters have been received and endorsed by the same Officer.
15. Ex.R.10, is the extract of inward register of RTO office. As rightly pointed out by Shri Kayakamath, serial number upto 129 in that page are in correct serial order. Requisition for inspection of TT 720 finds its place at Sl.No.124 on 25.08.2009. The requisitions received till 31.08.2009 have ended with inward number 128. The next requisition is received on 10.09.2009 and the same is numbered as 129. The page ends with original number 131. The next page starts at serial number 132. Interestingly, in order to include the requisition for inspection of TT 1878, the authorities have clearly inserted the said requisition in the space available between 128 and original 129 and numbered this requisition as
129. The original 129 has been corrected as 130. : 15 : Original 130 is corrected as 131 and original 131 has been corrected as 132. But, unfortunately, the next page starts at original 132. Truth has its own way of surfacing. Perhaps the person who manipulated did not realize that the requisition received on 17.09.2009 which was originally numbered 131 will not have a slot at all. Be that as it may. Suffice to record that requisition for TT 720 has been made at Sl.No.124 on 25.08.2009 and requisition for inspection of TT 1878 has been inserted as Sl.No.129. This manipulation has been admitted by RW-4, the Motor Vehicle Inspector in his evidence.
16. Ex.R.9 is the extract of MLC register. The history recorded in the MLC register extract is "fall of stone and mud while digging" (sic).
17. The requisition sent by the police inspector when compared with the requisition register maintained with the RTO office read with the MLC extract register clearly shows that : 16 : documents have been manipulated to portray the injuries sustained otherwise, as one suffered in a road traffic accident.
18. Now let us deal with the contention urged by Shri Lakshmikant Reddy that FIR is filed at a time when the accident takes place and therefore, it is a preliminary document and charge-sheet is filed after thorough investigation and therefore, it cannot be brushed aside. In normal circumstances, we would have been persuaded by this submission. But in the facts of this case, the submission made by Shri Lakshminknat Reddy, is untenable.
19. Shri Kayakamath, placing reliance on a division bench ruling of this Court in VEERAPPA AND ANOTHER VS. SIDDAPPA AND ANOTHER 1 submitted that fraud and justice cannot dwell together. He also placed reliance on the decision 1 ILR 2009 KAR 3562 : 17 : of this Court in BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LIMITED VS. B.C.KUMAR AND ANOTHER 2 and contended that Tribunal cannot rely upon the proceedings in the criminal court but will have to make assessment of the situation independently.
20. We are convinced that for the reasons recorded hereinabove, claimants have made a fraudulent attempt to claim compensation. Accordingly, we answer this point in the negative and hold that TT 1878 was not involved in the accident.
Re:Points No.2 and 3:
21. In view of our findings recorded on point No.1, these two points do not survive for consideration.
2 ILR 2009 KAR 2921 : 18 :
22. In the light of above discussion, the appeal filed by the claimants must fail and the appeal filed by the insurer merits consideration.
23. Hence, the following:
ORDER
i) M.F.A.No.100110/2015 filed by the claimants is dismissed;
ii) Claim petition in M.V.C.No.649/2010 on the file of the Motor Accident Claims Tribunal-XII, Ballari, is also dismissed.
iii) M.F.A.No.100851/2015 filed by the Insurance Company is allowed;
iv) Amount deposited in this Court by the insurer shall be refunded.
No costs.
Sd/-
JUDGE Sd/-
JUDGE Jm/-