Karnataka High Court
Sri. Fawaz Ahmed Khan vs Sri. Mohammed Ajmal on 16 June, 2023
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NC: 2023:KHC:20777-DB
MFA No.3695/2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF JUNE, 2023
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
MISCELLANEOUS FIRST APPEAL No.3695/2015 (MV-I)
BETWEEN:
SRI FAWAZ AHMED KHAN
S/O MOHAMMED SHAFIQ AHMED
AGED ABOUT 26 YEARS
R/AT NO.1716/135
EAST END 'A' MAIN ROAD
9TH BLOCK, JAYANAGAR
BANGALORE - 560 009 ...APPELLANT
(BY SRI VIVEK SUBBA REDDY, SENIOR COUNSEL FOR
SRI K N SUBBA REDDY, ADVOCATE)
AND:
1. SRI MOHAMMED AJMAL
S/O MOHAMMED HANIF
Digitally R/AT NO.22/1, 4TH MAIN ROAD
signed by K S NEW GURAPPANA PALYA
RENUKAMBA
Location: JAYANAGAR
High Court of BANGALORE - 560 076
Karnataka
2. BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.
NEW NO.31, TBR TOWER
1ST CROSS, NEW MISSION ROAD
ADJACENT TO JAIN COLLEGE
AND BANGALORE STOCK EXCHANGE
BANGALORE - 560 027
3. SRI VIJAY I RANGAPURI
S/O IRAPPA RANGAPURI
R/AT C C NO. 1474
MAL MARUTHI EXTENSION
VANTAMURI CROSS
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NC: 2023:KHC:20777-DB
MFA No.3695/2015
BELGAUM DISTRICT
PANJIM - 403 507 ...RESPONDENTS
(BY SRI A.N.KRISHNA SWAMY, ADVOCATE FOR R2;
NOTICE TO R1 IS HELD SUFFICIENT V/O/DT:04.04.2022;
R3 SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT PRAYING TO SET ASIDE THE
JUDGMENT AND AWARD DATED 28.03.2015 PASSED BY THE VIII
ADDITIONAL SMALL CAUSES JUDGE AND XXXIII ACMM, MEMBER,
MACT, BENGALURU, IN MVC NO.5692/2009 DISMISSING THE
CLAIM PETITION FOR COMPENSATION.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
FURTHER ARGUMENTS, THIS DAY, K.S.MUDAGAL J., DELIVERED
THE FOLLOWING:
JUDGMENT
Challenging dismissal of his petition, the claimant in M.V.C.No.5692/2009 on the file of VIII Additional Small Causes Judge & XXXIII Additional Chief Metropolitan Magistrate, MACT, Bangalore has preferred this appeal.
2. The appellant was the claimant and the respondents were respondent Nos.1 to 3 before the Tribunal. For the purpose of convenience, the parties will be referred to henceforth according to their ranks before the Tribunal.
3. On 13.02.2009 at 4.30 p.m. when the claimant was proceeding on motorcycle bearing Registration No.KA-05-EU-6188 near East End, Sangam Circle, 8th Block, Jayanagar, he met with the accident. In the accident, he suffered grievous injuries.
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4. Regarding the accident, the claimant's father Mohamed Shafiq Ahmed filed the complaint on 26.02.2009 before Mico Layout Traffic Police alleging that when the claimant was proceeding on motorcycle, the luggage auto hit him. Consequently he was thrown to the other side of the road and by that time the mini lorry bearing Registration No.KA-34-3524 which was coming from the opposite side rashly and negligently dashed against the claimant and sped away causing him grievous injuries. On the very same day Mohamed Shafiq Ahmed purportedly gave further statement as per Ex.P1(a), to the effect that soon after the accident, his son was unconscious and he was not eyewitness, he had given complaint implicating goods auto under misconception, later one Ramesh eyewitness to the incident revealed to him that goods auto was not involved in the accident, it was lorry bearing No.KA-34-3524 which alone hit his son and caused him grievous injuries.
5. Based on such complaint, Mico Layout police registered first information report in Crime No.38/2009 against the driver of the lorry bearing No.KA-34-3524. After investigation, Mico Layout police said to have filed the charge sheet as per Ex.P7 on 20.06.2009 against respondent No.1 -4- NC: 2023:KHC:20777-DB MFA No.3695/2015 Azmal Pasha (after four months of the accident) for the offences punishable under Sections 279, 338 of IPC and Section 134(a)(b) read with Section 187 of the Indian Motor Vehicles Act, 1988 ('MV Act' for short) imputing actionable negligence to him.
6. As per Ex.P8 the order of the learned Magistrate respondent No.1 pleaded guilty and he was sentenced to fine. At the relevant time, respondent Nos.2 and 3 were the insurer and registered owner of vehicle No.KA-34-3524.
7. The claimant filed M.V.C.No.5692/2009 before the Tribunal claiming that the accident occurred due to actionable negligence on the part of respondent No.1. He further contended that due to the injuries suffered in the accident, he suffered permanent physical disability thereby he has lost his future earning capacity. He claimed compensation of Rs.50,00,000/- from the respondents.
8. Respondent Nos.1 and 3 did not contest the petition. Respondent No.2 Insurer alone contested the petition denying occurrence of the accident involving lorry bearing registration No.KA-34-3524, the injuries suffered by the claimant, his age, occupation, income and its liability to -5- NC: 2023:KHC:20777-DB MFA No.3695/2015 pay the compensation. Respondent No.2 contended that the vehicle is falsely planted in the case.
9. In support of claimant's case, PWs.1 to 3 were examined and Exs.P1 to P13 were marked. On behalf of the respondents, the Official of respondent No.2 was examined as RW.1 and Exs.R1 to R4 were marked.
10. The Tribunal on hearing the parties, by the impugned award dismissed the petition holding that the involvement of the vehicle in the accident was not proved and the vehicle is planted in the case subsequently.
11. Sri Vivek Subba Reddy, learned Senior Counsel appearing for Sri K.N.Subba Reddy, learned Counsel on record for the claimant vehemently contended that respondent Nos.1 and 3 the driver and owner of the vehicle themselves have not denied occurrence of the accident involving lorry bearing registration No.KA-34-3524. Further respondent No.1 pleaded guilty of the offences. As against such evidence, the Tribunal picked up minor inconsistencies here and there and held that the involvement of the vehicle is not proved which is illegal. He further submits that soon after the accident, the claimant fell unconscious and he did -6- NC: 2023:KHC:20777-DB MFA No.3695/2015 not regain consciousness for about 2½ months. Therefore there are variations in the complaint regarding occurrence of the accident and it should not have been blown out of proportion by the Tribunal. Referring to the medical records and further evidence, he submits that filing of the charge sheet and respondent No.1 pleading guilty is prima facie proof of involvement of the lorry bearing No.KA-34-3524. To rebut that, no evidence was adduced by the respondents. Therefore the impugned order is liable to be set aside. He further submits that the claimant was hardly aged 17 years and was working in Patel Sweets in Kalasipalyam and earning Rs.5,000/- per month. The medical records show that he had suffered major permanent physical disability disentitling him to earn any future income. Therefore compensation as claimed should have been granted.
12. Per contra, Sri A.N.Krishna Swamy, learned Counsel for respondent No.2 submits that the claimant's own documents clearly show that the vehicle was planted on due deliberations in the case. That was rightly noted by the Tribunal. Filing of the charge sheet or the accused pleading guilty are not conclusive proof of involvement of the vehicle in the accident. The claimant has to prove the same by -7- NC: 2023:KHC:20777-DB MFA No.3695/2015 leading acceptable evidence before the Tribunal which was not done. Thus he seeks dismissal of the appeal.
13. Considering the submissions of both side and on examination of the materials on record, the question that arises for consideration is "whether the impugned order of dismissal of the claim petition of the appellant suffers illegality/perversity?"
Analysis
14. It is true that on 13.02.2009 at 4.30 p.m. the claimant met with an accident when he was driving on the motorcycle bearing Registration No.KA-05-EU-6188 near Sangam Circle, 8th Block of Jayanagar. The question is whether lorry bearing No.KA-34-3524 was the offending vehicle.
15. While considering whether filing of the charge sheet or the accused pleading guilty is the conclusive proof barring the Tribunal/Courts to examine the other evidence on record, the Coordinate Bench of this Court in Veerappa v. Siddappa1 taking note of the rampant malpractices in the 1 ILR 2009 KAR 3562 -8- NC: 2023:KHC:20777-DB MFA No.3695/2015 field of motor accident cases, in paras 15 and 16 held as follows:
""15. Fraus et jus munquam cohabitant, Fraud and justice never dwell together, is a pristine maxim which has never lost its temper over all these centuries. Fraud avoids all judicial acts, ecclesiastical or temporal. A judgment or decree obtained by playing fraud on the Courts is a nullity and non est in the eyes of law. Since fraud affects the solemnity, regularity and orderliness of the proceedings of the Court and also amounts to an abuse of the process of Court, the Courts have been held to have inherent power to set aside an order obtained by fraud practiced upon that Court. Similarly, where the Court is misled by a party or the Court itself commits a mistake which prejudices a party, the Court has the inherent power to recall its order.
16. Sub-Section (2) of Section 149 provides the grounds on which the insurance company can avoid the liability to pay the compensation under the Act. One such ground is, if a policy is obtained by a representation of fact which was false in some material particular. Section 172 confers on the Claims Tribunal a power to award compensatory costs, if it is satisfied that the policy of insurance is void on the ground that it was obtained by representation of fact which was false in any material particular or any party or insured has put forward a false or vexatious claim or defence. Sub-Section (3) of Section 172 also speaks of criminal liability in respect of such misrepresentation. However, -9- NC: 2023:KHC:20777-DB MFA No.3695/2015 it restricts the compensatory costs to be awarded to only Rs.1,000/-. Therefore, the Act provides for taking action against a party who sets up a false or vexatious defence. However, the cost of Rs.1,000/- prescribed under the aforesaid provision, has failed to act as a sufficient deterrent to the parties setting up false claim or defence. The experience has shown that this branch of law is slowly getting into the hands of unscrupulous people who are making a mockery of judicial process. A disturbing trend of unholy alliance among the police, the doctors, the lawyers and some times even the Insurance Company, to siphon out the public money, and make an unlawful gain is fast emerging. It is also gaining respectability and persons who indulge in such practices are acclaimed as most successful in their respective profession. This is a dangerous trend, if unchecked would undermine the judicial process. As the existing law is inadequate to check this malady, the Court not only have to be careful in adjudicating such claims but also find ways to prevent such abuse.
They have to balance the interest of these accident victims and their legal heirs on one side, by giving them just compensation at the earliest, thus giving effect to the mandate of the parliament, and on the other hand, to see that the very process is not abused and exploited by a handful of persons, who have attained specialization in this field, to make personal gains at the cost of the exchequer. An onerous responsibility lies on the Courts. Therefore, it is imperative that a strong message is to be sent to the abusers of the judicial process to discourage them from indulging in such practices as well as the consequences of such abuse may result in foisting the
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NC: 2023:KHC:20777-DB MFA No.3695/2015 liability exclusively on the insured-owner of the vehicle."
(Emphasis supplied)
16. Similarly, in Bajaj Allianz General Insurance Co. Ltd. vs. B.C.Kumar2 the learned Single Judge of this Court taking the same view held that the accused pleading guilty cannot be sole criteria to allow the claim petition. It was further held that the Tribunal has to assess the evidence before it, independent of any findings of the criminal Court on the question of driver pleading guilty. At the most, the same may become a piece of evidence to support the case of the claimant.
17. Another coordinate Bench of this Court in paras 13, 14 and 15 of the judgment in Mahadevi W/o. Shrishail Kore and Others vs. Shivaputra and Another3 while considering the evidentiary value of the charge sheet and whether the Court is barred from traversing beyond charge sheet held as follows:
" 13. We have, with great respect, perused the entire judgment. From a perusal of the same, we do not find any law laid down in the said judgment of universal application that in all cases where charge 2 ILR 2009 KAR 2921 3 M.F.A.No.201689/2016 DD 20.11.2020
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NC: 2023:KHC:20777-DB MFA No.3695/2015 sheets were filed, unless Insurance Company challenges the same and obtains writ of mandamus, MACTs are required to act upon the same and proceed to come to a conclusion that the vehicles named as offending vehicles in the charge sheet, without any further proof, are to be taken as the motor vehicles involved in causing the accident, even in cases where evidence produced points to the contrary.
14. Further, we find that in the said judgment, there is no discussion of the relevant provisions of Code of Criminal Procedure or other cognate provisions of law under which the police authorities would investigate and file charge sheets and on the probative value of the charge sheets vis-a-vis the involvement of a motor vehicle in causing the accident before the Tribunals trying the compensation cases. Experience of the recent past shows that instances of fraudulent/collusive involvement of motor vehicles duly covered by insurance policy in accident cases are burgeoning and if the insurance companies are saddled with the burden of challenging the charge sheets filed throughout the country without there being no clear legal mandate to do so, their work would be seriously crippled and they would not be able to do their insurance business without enhancing the premium, thereby further burdening the ever suffering owners of motor vehicles. Even the most liberal reading of the provisions of the Motor Vehicles Act, 1988 does not spell out such a requirement.
15. The question is one of fundamental importance - what is the standard of proof applicable in these proceedings? On whom is the initial burden of proving the accident or, as in this case, involvement of
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NC: 2023:KHC:20777-DB MFA No.3695/2015 the offending motor vehicle cast? Is not still the standard of proof one of "preponderance of probabilities"? Is a mere charge sheet, which in this case is shown to be deficient in truth sufficient to tip the balance only on the premise that insurance company has not dipped deep into its pockets to challenge the charge sheet- what with the toxic nexus between the black sheep among the police, medical professionals and touts of every kind masquerading the field which has become a notorious fact of life. We are afraid, we would be muddling the field further for the already befuddled members of MACT by accepting the arguments of learned counsel for the appellants."
(Emphasis supplied)
18. Reading of the above judgments makes it clear that filing of the charge sheet or the accused pleading guilty are not the conclusive proof in a proceeding under Section 166 of the MV Act. When the claimant comes before the Court imputing actionable negligence to a particular vehicle he has to prove that, on that day the said person was the driver of the said vehicle and the accident took place involving such vehicle. This Court has to examine the evidence in that context.
19. Admittedly the accident took place on 13.02.2009 at 4.30 p.m. The complaint was filed on 26.02.2009. There was delay of 13 days. For that it was contended that the
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NC: 2023:KHC:20777-DB MFA No.3695/2015 complainant who is the father of the claimant was concerned and involved in attending the medical needs of the claimant, therefore delay occurred. To substantiate that, he did not enter the witness box. Ex.P11 shows that the claimant was accompanied to the hospital by his mother Sameena Ahmed. Though the claimant contended that soon after the accident, he was treated in Reddy Hospital, Jayanagar, Bangalore, those documents were not produced. In Ex.P11 the history of the accident was given as follows:
"History of alleged RTA while riding his bike at around 5.00 p.m.".
20. At the earliest point of time, the involvement of another lorry was not mentioned in the history. Ex.P11 contains Emergency Room Assessment Form. In that the history was mentioned as follows:
"History of alleged RTA at around 5.05 p.m. while riding bike hit the road median".
21. In the claim petition, it is stated that the lorry came from the opposite direction and hit him. PW.1 also deposed to the same effect. In the complaint, the first version was that the claimant was hit by luggage auto and he was thrown to the other side of the road, at that time, mini
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NC: 2023:KHC:20777-DB MFA No.3695/2015 lorry hit him. Subsequently, the further statement was purportedly given implicating only the insured lorry. Time and place of recording that further statement is not forthcoming. In the further statement it was stated that Ramesh eyewitness revealed the incident to the complainant. Neither the complainant was examined before the Court nor said Ramesh was examined. The claimant was admittedly minor at the time of the accident. In the cross-examination, though he claims that he was possessing learner's license, the same was not produced before the Court. In the cross- examination, he says that he has not given any statement before the police and he does not know who has lodged the complaint.
22. As per Ex.P6 the IMV Report relating to the two wheeler of the claimant i.e. KA-05-EU-6188, there were scratch marks on the front right side of the body and scratch marks on the right side of the silencer doom. Ex.P6 states that the driving license of the claimant was not produced even during inspection of the vehicle which was conducted on 27.02.2009.
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23. Ex.P5 the IMV report relating to lorry bearing No.KA-34-3524 dated 11.03.2009 states that there were no visible damages found on the vehicle. It was submitted that the said vehicle was inspected after one month. If the vehicle number was revealed in the complaint itself, why there was such delay in conducting the inspection was also not clarified. Conveniently, respondent Nos.1 and 3 did not contest the petition.
24. The Tribunal considering all the aforesaid aspects rightly held that the evidence on record probabilizes the defence of the insurer that the claimant himself without driving license drove the scooter bearing No.KA-05-EU-6188 rashly and negligently and hit the road median and suffered injuries. That further probabilizes the defence of the insurer that the lorry was planted in the case after deliberations. Therefore the Tribunal was justified in holding that the claimant has failed to discharge the initial burden of proving the fact that the lorry bearing No.KA-34-3524 hit him and caused the accident. The claimant's own documents referred to above improbabilize his case that he suffered the accident involving lorry bearing No.KA-34-3524. In his evidence,
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NC: 2023:KHC:20777-DB MFA No.3695/2015 there are inherent inconsistencies and improbabilities. Further the claimant cannot resile from the said document.
25. In the similar circumstances, in para 13 of the judgment, the Hon'ble Supreme Court in Oriental Insurance Co. Ltd. v. Premlata Shukla4 held as follows:
"13. However, the factum of an accident could also be proved from the first information report. It is also to be noted that once a part of the contents of the document is admitted in evidence, the party bringing the same on record cannot be permitted to turn round and contend that the other contents contained in the rest part thereof had not been proved. Both the parties have relied thereupon. It was marked as an exhibit as both the parties intended to rely upon them."
(Emphasis supplied)
26. Reading of the above judgment goes to show that the claimant having produced the document cannot ask the Court to rely only on one part of the document which is suitable to him and discard another part of the document which incriminates him. The claimant cannot approbate and reprobate simultaneously.
4 (2007) 13 SCC 476
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27. In the light of the above discussions, evidence and judicial pronouncements, this Court does not find any illegality or infirmity in the award of the Tribunal. Respondent Nos.1 and 3 in collusion with the police and other authorities have dragged respondent No.2 in the case and made respondent No.2 to fight litigation since 2009. Therefore the appeal is liable to be dismissed with compensatory costs payable by respondent Nos.1 and 3. Hence the following:
ORDER The appeal is dismissed with costs of Rs.25,000/-
payable by respondent Nos.1 and 3 to respondent No.2.
Respondent No.2 is entitled to recover the same in execution of this award.
Sd/-
JUDGE Sd/-
JUDGE KSR List No.: 1 Sl No.: 36