Karnataka High Court
Savithramma vs Eqrar @ Eqrar Pasha on 1 October, 2020
Author: S. Sujatha
Bench: S. Sujatha
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 01ST DAY OF OCTOBER, 2020
PRESENT
THE HON'BLE MRS. JUSTICE S. SUJATHA
AND
THE HON'BLE MR. JUSTICE E.S. INDIRESH
MISCELLANEOUS FIRST APPEAL NO.776 OF 2017 (MV)
a/w
MFAs NO.167, 168 of 2017
&
MFA No.483 OF 2017
In MFA No.776 of 2017
BETWEEN
1. Savithramma
W/o Javaraiah
Aged 45 years
2. Javaraiah
S/o late Rangaiah
Aged about 50 years
Both are residing at
Kindipura Village
Kasaba Hobli
Hassan Taluk-573 201.
...Appellants
(By Smt. Kavitha H C., Advocate)
AND
1. Eqrar @ Eqrar Pasha
S/o late H S Khaleel
Ambedkar Nagar
4th Cross Hassan
(owner of lorry bearing
2
Reg No.AP-04-U-5526)
2. Reliance General Insurance
Company Limited
Office at I Floor
Kruithika Arcade, N R Circle
Holenarasipura Road
Hassan-573 201.
Policy No. 1408552334000244
Valid from 23.01.2015 to 22.01.2016
...Respondents
(By Shri H N Keshava Prashanth, Advocate for R-2;
R-1 served)
This Miscellaneous First Appeal is filed under Section 173(1) of
Motor Vehicles Act, 1988 against the judgment and award dated
17.10.2016 passed in MVC No.1257 of 2015 on the file of the II
Additional District and Sessions Judge and Additional MACT, Hassan,
partly allowing the claim petition for compensation and seeking
enhancement of compensation.
In MFA No. 167 of 2017
BETWEEN
The Manager
Reliance General Insurance Company Ltd,
1st Floor, Krutika Arcade,
Holenarasipura Road,
Hassan.
Now Rep By Its Manager,
M/S Reliance General Insurance Co Ltd,
No. 28, 5th Floor,
Centenar Building,
M.G. Road, Bengaluru 560001
...Appellant
(By Shri H N Keshava Prashanth, Advocate)
AND
1. Savithramma
W/o Javaraiah
3
Aged about 45 years
2. Javaraiah
S/o late Rangaiah
Aged about 50 years
Both are residing at
Kindipura Village
Kasaba Hobli
Hassan Taluk-573 201.
3. Eqrar @ eqrar Pasha
S/o late H S Khaleel
Ambedkar Village
4th Cross Hassan-573 201
(owner of lorry bearing
Reg No.AP-04-U-5526)
...Respondents
(By Shri Chethan B., Advocate for R-3;
R-1 & R-2 are served)
This Miscellaneous First Appeal is filed under Section 173(1) of
Motor Vehicles Act, 1988 against the judgment and award dated
17.10.2016 passed in MVC No.1257 of 2015 on the file of the II
Additional District and Sessions Judge and Additional MACT, Hassan,
awarding compensation of Rs.10,17,000 with interest @ 6% per
annum from the date of petition till payment.
In MFA No.168 of 2017
BETWEEN
The Manager
Reliance General Insurance Company Ltd
1st Floor, Krutika Arcade
Holenarasipura Road
Hassan-573 201
Now Rep By Its Manager
M/S Reliance General Insurance Co Ltd,
No. 28, 5th Floor
Centenar Building
M.G. Road
Bengaluru-560001
4
...Appellant
(By Shri H N Keshava Prashanth, Advocate)
AND
1. Bhagyamma @ Bhagya
W/o Raja @ Rajaiah
Now aged about 41 years,
2. Raja @ Rajaiah
S/o late Rangaiah,
Now aged about 50 years,
3. Roopa
D/o Raja @ Rajaiah,
Now aged about 19 years,
R/at Kindipura Village,
Kasaba Hobli,
Hassan Taluk-573 201.
4. Eqrar @ eqrar Pasha
S/o late H S Khaleel
Ambedkar Village
4th Cross, Hassan-573 201.
(owner of lorry bearing
Reg No.AP-04-U-5526)
...Respondents
(By Shri Chethan B, Advocate for R-4;
R-1 to R-3 served)
This Miscellaneous First Appeal is filed under Section 173(1) of
Motor Vehicles Act, 1988 against the judgment and award dated
17.10.2016 passed in MVC No.1256 of 2015 on the file of the II
Additional District and Sessions Judge and Additional MACT at Hassan,
awarding compensation of Rs.10,17,000/- with interest @ 6% per
annum from the date of petition till payment.
In MFA No.483 of 2017
BETWEEN
1. Bhagyamma @ Bhagya
5
W/o Raja @ Rajaiah
aged about 42 years
2. Raja @ Rajaiah
S/o late Rangaiah
Now aged about 51 year
3. Roopa
D/O Raja @ Rajaiah
Now aged about 20 years
All are residing at
Kindipura Village
Kasaba Hobli
Hassan Taluk.
...Appellants
(By Smt. Kavitha H C, Advocate)
AND
1. Eqrar @ eqrar Pasha
S/o late H S Khaleel
Ambedkar Nagar
4th Cross Hassan
(owner of lorry bearing
Reg No.AP-04-U-5526)
2. Reliance General Insurance
Company Limited
Office at I Floor, Kruithika Arcade,
N R Circle, Holenarasipura Road
Hassan-573 201.
...Respondents
(By Shri H N Keshava Prashanth, Advocate for R-2;
Notice to R-1 is dispensed with)
This Miscellaneous First Appeal is filed under Section 173(1) of
Motor Vehicles Act, 1988 against the judgment and award dated
17.10.2016 passed in MVC No.1256 of 2015 on the file of the II
Additional District and Sessions Judge and Additional MACT, Hassan,
partly allowing the claim petition for compensation and seeking
enhancement of compensation.
6
These Miscellaneous First appeals coming on for hearing, this
day, INDIRESH J., delivered the following:
JUDGMENT
These appeals are arising out of the judgment and award passed dated 17th October, 2016 passed in MVC No.1256 and 1257 of 2015 on the file of the II District and Sessions Judge and Additional Motor Accident Claims Tribunal, Hassan, (for brevity, hereinafter referred to as 'Tribunal'). By the said judgment and award, the Tribunal allowed the claim petitions in part.
2. Miscellaneous First Appeals No.776 and 483 of 2017 are filed by the claimants seeking enhancement of compensation; and Miscellaneous First Appeals No.167 and 168 of 2017 are filed by the Insurance Company challenging the liability and the quantum of compensation awarded by the Tribunal.
3. For the sake of convenience, the parties in these appeals are referred to as per their rank before the Tribunal.
4. The facts in brief in these appeals are that on 08th May, 2015 at about 7.15 pm, Ganesh and Devaraju were proceeding in motorcycle bearing registration No.KA-13-R-9677 near Tank bund of Hanachihalli Bridge, Bangalore-Mangalore Road Hassan Taluk and at that time, the driver of lorry bearing registration No.AP-04-U-5526 7 came in high speed and dashed against the motorcycle, as a result of which Ganesh and Devaraju sustained grievous injuries and thereafter succumbed to injuries during the course of treatment. The claimants in MVC No.1256 and 1257 of 2015 are the legal representatives of the deceased Ganesh and Devaraju respectively. It is the case of the claimants that the said accident occurred due to actionable negligence on the part of the driver of the offending lorry and accordingly, Hassan Traffic Police have registered FIR in Crime No.115 of 2015 as against the driver of the offending lorry for the offences punishable under Section 279, 304(A) of Indian Penal Code read with Section 187 of the Motor Vehicles Act, 1988 and the claimants have filed claim petitions before the Tribunal and sought for compensation from the respondents.
5. After service of notice, the respondents have appeared before the Tribunal and filed written statement. The first respondent, being the owner of the lorry bearing registration No.AP-04-U-5526 resisted the claim petition stating that the date, time, place and cause of accident stated in the claim petitions are false and accordingly, the averments made in the claim petition were denied. Further, the first respondent have denied that deceased met with accident as narrated in the claim petition and accordingly contended that the compensation claimed by the petitioner in both the claim petitions are exorbitant and 8 as such, sought for dismissal of claim petition. It is the case of the Insurance Company that the claim petitions are liable to the dismissed as not maintainable as the lorry bearing registration No.AP-04-U-5526 was not involved in the alleged accident and hence sought for dismissal of the claim petitions.
6. The Tribunal, after considering the pleadings on record, framed issues in both the claim petitions. In order to substantiate the averments made in the claim petition, claimant No.1 in MVC 1256 of 2015 got examined as PW1 and the claimant No.1 in MVC No.1257 of 2015 got examined as PW2. The claimants have examined one witness by name Jagadish as PW3 and produced 14 documents which are marked as Exhibits P1 and P14. The Insurance Company has examined RW1 and produced documents and same were marked as Exhibits R1 and R2. The Tribunal, after considering the material on record and submissions made by the learned counsel for the parties, allowed the claim petitions in part and awarded compensation of Rs.10,17,000/- in both the appeals with interest at 6% per annum from the date of claim petition till the date of realisation. Being aggrieved by the impugned judgment and award passed by the Tribunal, both the claimants and Insurance Company have preferred these appeals.
9
7. We have heard Smt. Kavita H.C., learned counel appearing for the appellant-claimants and Shri H.N.Keshava Prashant, learned counsel appearing for the Insurance Company.
8. Shri H.N. Keshav Prashant, learned counsel for the Insurance Company submitted that the Tribunal has failed to appreciate the contents of the complaint and FIR-Exhibit P1 in the right perspective, as the complainant has stated that some unknown vehicle had dashed to the motorcycle on 08th May, 2015. First Information Report was registered on 09th May, 2015. One Prakash, who is the brother of the deceased Devaraju has lodged complaint before the police stating that some unknown vehicle dashed to the motorcycle and as a result of the same, both the rider and the pillion fell down and succumbed to the injuries. The said fact would clearly demonstrate the fact that the complainant is not an eye-witness to the incident and accordingly, he submitted that the lorry bearing Registration No.AP-04-U-5526 is falsely implicated in the case and as such, he sought for setting aside the judgment and award passed by the Tribunal. He further submitted that, as per the charge sheet Exhibit P7, one Mr. Jagadish also claims to be eye-witness to the alleged accident. The said Jagadish has stated that one Ramesh has called him and informed that some unknown vehicle dashed to the motorcycle and, if that being so, the Tribunal ought to have seen that if the said Jagadish was the eye-witness to 10 the accident and if he had seen the offending vehicle, he ought to have noted down the vehicle number which had caused the accident and intimated to complainant while lodging the complaint. In that view of the matter, he submitted that the documents produced by the claimants do not demonstrate the presence of the offending vehicle in the incident. He further submitted that the police authorities have seized the offending vehicle on 17th July, 2015 despite the fact that the accident occurred on 08th May, 2015 and FIR was registered on 09th May, 2015 and accordingly, learned counsel for the Insurance Company disputed the involvement of the offending lorry in question in the accident. He, further, submitted that the negligence of the particular vehicle involved in the accident is different from the involvement of the vehicle in the accident, and as such, the said aspect of the matter was not considered by the Tribunal. He further contended that the award of compensation made by the Tribunal is unjust, which requires to be interfered with by this Court. Learned Counsel for the Insurance Company filed application under Order XLI Rule 27 read with Section 151 of Code of Civil Procedure and produced the documents pertaining to Criminal case No.5890 of 2015 involving the case on hand in Crime No.115 of 2015 pertaining to the very same accident. Hence, sought for setting aside of the impugned judgment and award.
11
9. Per contra Smt. Kavita H.C., learned counsel appearing for the appellant-claimants submitted that the perusal of Exhibits P1 to P7 would establish that the offending lorry dashed against the motorcycle of the deceased. She further submitted that the finding recorded by the Tribunal on issue No.1 with regard to involvement of vehicle cannot be disturbed as the Tribunal has rightly appreciated the documents on record and as such, passed the impugned judgment and award and the same is just and proper. She further submitted that the standard of proof required under Section 166 of the Motor Vehicles Act is to determine fair compensation due to negligence of driver of the offending vehicle in question and the Tribunal cannot appreciate strict pleadings by the parties and holistic view is required to be given while considering the pleadings and evidence by applying the principles of probable preponderance and as such, she submitted that the finding recorded by the Tribunal on issue No.1 is just and proper. She further submitted that the award of compensation made by the Tribunal is to be modified by enhancing the same and by awarding just and proper compensation as enunciated by the Hon'ble Supreme Court in a catena of decisions. Accordingly, she submitted for dismissal of the appeals preferred by the Insurance Company.
10. We have perused the impugned judgment and award made by the Tribunal and examined the original records carefully. The 12 perusal of documents referred to by the learned counsel appearing for the claimants at Exhibits P1 to P7 would make it clear that on 08th May, 2015 at about 7.15 pm deceased Ganesh and Devaraju were proceeding on the motorcycle bearing registration No.KA-13-R-9677 near Tank bund Hanachihalli, Hassan Taluk, however, at that time, the driver of the lorry bearing registration No.AP-04-U-5526 came in a high speed and dashed against the motorcycle is disputed by the respondent Insurance Company and as a result of which, the said Ganesh and Devaraju fell down and succumbed to injuries sustained in the road traffic accident. Accordingly, the claimants have made claim petitions before the Tribunal seeking compensation.
11. We have carefully examined the documents referred to by the learned counsel appearing for the Insurance Company in MFA No.167 of 2017 with regard to IA. 1/2020 with reference to Crime No.115 of 2015. The contents of Exhibit P1-complaint along with First Information Report reveals as follows:
"CzÀgÀAvÉ £É£Éß ¢ªÀ¸À CAzÀgÉ ¢£ÁAPÀ 08/05/2015 gÀAzÀÄ £À£Àß vÀªÀÄä ªÀÄvÀÄÛ UÀuÉñÀ E§âgÀÆ PÉ®¸ÀPÉÌ ºÉÆÃVzÀÝgÀÄ. gÁwæ ¸ÀĪÀiÁgÀÄ 7.15 UÀAmÉ ¸ÀªÀÄAiÀÄzÀ°è £ÀªÀÄÆäj£À gÀªÉÄñÀ £À£ÀUÉ ¥ÉÆÃ£ï ªÀiÁr ¤£Àß vÀªÀÄä zÉêÀgÁdÄ ªÀÄvÀÄÛ UÀuÉñÀgÀªÀgÀÄ ºÉÆÃUÀÄwÛzÀÝ ¨ÉÊQUÉ CtaºÀ½î ¸ÉÃvÀÄªÉ ºÀwÛgÀ ©.JA. gÀ¸ÉÛAiÀÄ°è AiÀiÁªÀÅzÉÆà ªÁºÀ£À rQÌAiÀiÁV ¸ÀܼÀzÀ°è E§âgÀÄ wêÀæ gÀPÀÛUÁAiÀÄUÀ¼ÁV ©¢ÝgÀÄvÁÛgÉ. vÀPÀët ¨Á JAzÀÄ 13 w½¹zÁUÀ £Á£ÀÄ ¸ÀܼÀPÉÌ ºÉÆÃV £ÉÆÃqÀ¯ÁV E§âjUÀÆ wêÀæ ¸ÀégÀÆ¥ÀzÀ gÀPÀÛ UÁAiÀÄUÀ¼ÁVzÀÄÝ, ºÁUÀÆ £Á£ÀÄ ªÀÄvÀÄÛ gÀªÉÄñÀ ºÁUÀÆ gÀªÉÄñÀ£À ¸ÉßûvÀ dUÀ¢Ã±ÀgÀªÀgÀ ¸ÀºÁAiÀÄzÉÆA¢UÉ E§âgÀ£ÀÄß ºÁ¸À£À ¸ÀPÁðj D¸ÀàvÉæUÉ PÀgÉzÀÄPÉÆAqÀÄ §AzÀÄ ªÉÊzÀåjUÉ vÉÆÃj¹zÁUÀ ªÉÊzÀågÀÄ ¥ÀjÃQë¹ zÉêÀgÁdÄ ªÀÄÈvÀ¥ÀnÖgÀÄvÁÛgÉ JAzÀÄ w½¹zÀgÀÄ. UÀuÉñÀ£À£ÀÄß aQvÉìUÉ zÁR®Ä ªÀiÁrzÀÄÝ UÀuÉñÀ gÁwæ 11.45 UÀAmÉ ¸ÀªÀÄAiÀÄzÀ°è aQvÉì ¥sÀ®PÁjAiÀiÁUÀzÉ ªÀÄÈvÀ¥ÀnÖgÀÄvÁÛgÉ.DzÀÝjAzÀ £À£Àß vÀªÀÄä zÉêÀgÁdÄ ªÀÄvÀÄÛ UÀuÉñÀgÀªÀjUÉ C¥ÀWÁvÀ ¥Àr¹ CªÀgÀ ¸Á«UÉ PÁgÀtªÁzÀ ªÁºÀ£ÀªÀ£ÀÄß ¥ÀvÉÛ ªÀiÁr PÁ£ÀÆ£ÀÄ jÃw PÀæªÀÄ PÉÊUÉƼÀî¨ÉÃPÁV PÉÆÃjPÉ."
(underlining supplied)
12. Admittedly, as per the records, the complaint was lodged on 09th May, 2015 and as per the contents of the complaint, accident was occurred on 08th May, 2015 at 7.15 pm. Records further reveal that the charge-sheet was filed on 11th August, 2015. Offending lorry was seized on 17th July, 2015 by the Police. Prima-facie, it appears that there is some force in the contentions raised by the learned counsel appearing for the Insurance Company. From the documents produced by the learned counsel appearing for the Insurance Company with regard to criminal case No.5890 of 2015, it is seen that the learned Magistrate, after conducting a detailed enquiry, acquitted the driver of the lorry bearing registration No.AP-04-U-5526 for the offences punishable under Sections 279 and 304(A) of Indian Penal Code read with Section 187 of the Motor Vehicles Act. The finding recorded by 14 the learned Magistrate at paragraph 15 of the judgment in Criminal Case No.5890 of 2015 indicate that the Complainant Witness No.1, who is the complainant also, not supported the case of the prosecution with regard to involvement of vehicle in qeustion. Under the circumstance, the claimants have not arrayed the driver of the offending vehicle as a party to the claim petition, and the evidence adduced by PW3 claiming to be the eye-witness to the alleged accident, cannot be accepted and accordingly, we are of the considered view that the finding recorded by the Tribunal on issue No.1 is required to be reconsidered with reference to documents filed by the learned counsel for the Insurance Company in this appeal.
13. We are also conscious of the fact that the arguments advanced by the learned counsel for the claimants that though the driver-accused was acquitted in the criminal case concerned the accident, cannot be a basis for denying the just compensation to the claimants. However, in the instant case, the Insurance Company and the owner of the offending vehicle have taken a plea in the written statement about the absence of involvement of the vehicle in question. When such being the case, the Tribunal ought to have framed issue relating to involvement of the alleged vehicle in the alleged accident and ought to have given a finding with respect to same. Suffice it say that, driver of the offending vehicle is not a party before the Tribunal 15 in the claim petition and accordingly in order to adjudicate the claim petition in the absence of such evidence with regard to involvement of vehicle in question would result in a defective decision and to pronounce effective judgment and accordingly, we have resorted to accept the application filed by the learned counsel for the Appellant- Insurance Company for production of additional documents and on consideration of material on record, the documents produced as additional evidence is necessary to pronounce a satisfactory judgment in the case.
14. Hon'ble Supreme Court in the case of MEERA DEVI v. HIMACHAL PRADESH ROAD TRANSPORT CORPORATION reported in (2014)4 SCC 511 while dealing with the case relating to proving of contributory negligence on the part of the parties, has held that if there is no specific evidence to prove that the accident has taken place due to rash and negligent driving of the deceased and in the absence of any cogent evidence to prove the plea of contributory negligence, the doctrine of common law cannot be applied, and in view of the same we are, thus, of a view that the reasoning given by the Tribunal has no basis and required to be revisited by the Tribunal.
15. Accordingly, in our view, it is a fit case to be remanded to the Tribunal for fresh consideration. Needless to say that, the Tribunal 16 shall consider the entire documents on record including the documents annexed along with Interlocutory Application in the Appeals preferred by the Insurance Company and after affording reasonable opportunity to both the parties and after appreciation of entire evidence on record in the manner known to law, shall pass appropriate orders. Hence the following:
ORDER
1. Appeals are disposed of;
2. Judgment and Award dated 17th October, 2016 passed in MVCs No.1256 and 1257 of 2015 on the file of the II Additional District and Sessions Judge and Motor Accident Claims Tribunal, Hassan is set aside and the matter is remanded to the Tribunal for fresh consideration;
3. All the rights and contentions of the parties are left open. The parties are at liberty to adduce fresh evidence, if any.
4. The amount in deposit shall be transmitted to the Tribunal. The said transferred amount shall be 17 deposited in fixed deposit in any nationalized bank till the disposal of the claim petitions.
5. The Registry shall transfer all the original records to the Tribunal.
6. It is made clear that the Tribunal shall dispose of the claim petitions without being influenced by any of the observations made herein above.
7. In view of disposal of the appeals, pending I.As., if any, stand disposed of.
Sd/-
JUDGE Sd/-
JUDGE lnn