Karnataka High Court
Rama Mastappa Naik, vs Sharif Abdul Rahiman, on 7 July, 2020
Bench: S G Pandit, V.Srishananda
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 07TH DAY OF JULY 2020
PRESENT
THE HON'BLE MR. JUSTICE S.G. PANDIT
AND
THE HON'BLE MR. JUSTICE V. SRISHANANDA
MFA NO.101454/2015(MV)
BETWEEN
RAMA MASTAPPA NAIK
SINCE DECEASED BY HIS LR'S
1. SMT. LAXMI RAMA NAIK,
AGE: 46 YEARS, W/O LATE RAMA NAIK,
2. RAJESHWAR RAMA NAIK,
AGE: 31 YEARS, BIN LATE RAMA NAIK,
3. KUSUMA RAMA NAIK,
AGE: 30 YEARS, BIN LATE RAMA NAIK,
4. RAJEEV RAMA NAIK,
AGE: 28 YEARS, BIN LATE RAMA NAIK,
ALL ARE R/O: MURDESHWAR,
TERNAMAKKI VILLAGE,
TALUK:BHATKAL,
U.K. DISTRICT.
...APPELLANTS
(BY SRI. P.G. CHIKKANARAGUND, ADV.)
2
AND
1. SHARIF ABDUL RAHIMAN,
AGE: 48 YEARS, BIN ABDUL RAHIMAN,
GANDHINAGAR, POST: MARAVANTE,
KUNDAPUR TALUK.
2. BAJAJ ALLIANZ GENERAL INSURANCE CO.LTD.,
G.E. PLAZA, AIRPORT ROAD,
AIRVAD, PUNE, MAHARASTRA-411006
COVER NOTE NO.CW0610035139
...RESPONDENTS
(BY SRI. SURESH S. GUNDI, ADV. FOR R2,
R1- NOTICE HELD SUFFICIENT
THESE MFAs ARE FILED UNDER SECTION 173(1) OF
THE MOTOR VEHICLES ACT, 1988, AGAINST THE
JUDGMENT AND AWARD DATED 09.01.2015, PASSED IN
MVC NO.20/2009, ON THE FILE OF THE MEMBER,
ADDL.MACT, HONAVAR, DISMISSING THE PETITION FILED
U/S.166 OF MOTOR VEHICLES ACT.
THESE APPEALS ARE COMING ON FOR HEARING,
THIS DAY, V. SRISHANANDA, J DELIVERED THE
FOLLOWING:
JUDGMENT
Unsuccessful claimants are before this court in this appeal challenging the judgment and award dated 09.01.2015 in MVC No.20/2009 on the file of MACT, Honnavar.
2. The necessary facts in brief for the disposal of the appeal are as under :
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The claim petition came to be filed under Section 166 of M.V. Act claiming compensation to the tune of Rs.15.00 lakhs alleging that on 30.09.2007, one Rama Naik was proceeding on his bullock cart along with his neighbor Manjunath Somayya Naik from his house at Mallikan in Bhatkal taluk towards Murudeshwar on N.H.17 at about 4.45 a.m. in front of Ternamakki Church, a goods lorry bearing No.KA-20/B-0512 belonging to respondent No.1 came from Bhatkal towards Murudeshwar in rash and negligent manner and hit the bullock cart from the hind side and as a result, bullock cart fell down along with one bullock and another bullock was dragged by the said lorry for about 2 kms till Bailur gate and the lorry driver did not stop his vehicle and fled away with the vehicle. It is further contended that Rama Naik sustained injuries to his back, chest and head. Manjunath Somayya Naik also sustained injuries on his face and limb. Bullock cart also was damaged and both the bullocks died. 4
3. It was further contended that said Rama Naik was shifted to RNS Hospital, Murudeshwar by one Ramachandra Naik and Honnappa Naik and then to KMC hospital, Manipal and he took treatment from 30.09.2007 to 20.12.2007 and from 13.02.2008 to 18.02.2008. Thereafter, he has taken treatment as an inpatient at Father Muller Medical College and Hospital at Mangalore from 29.08.2008 to 15.09.2008 and has undergone surgery to his spinal cord at KMC hospital, Manipal. He has spent more than Rs.4.00 lakhs for his treatment.
4. It is further contended that during the pendency of the petition, he succumbed to the accidental injuries and his legal representatives pursued the claim petition.
5. In pursuance of the notice issued, the first respondent filed his written statement denying the claim petition averments in toto. The second respondent also denied the claim petition averments in toto and after the 5 death of the original claimant, respondent No.2 filed additional written statement, wherein they specifically contended that there is no nexus between death of Rama Naik and accidental injuries sustained by Rama Naik.
6. Based on the rival pleadings, the tribunal initially raised the following issues and subsequent to the death of Rama Naik, the legal representatives of the deceased are brought on record and raised two more additional issues as under :
1. Whether the petitioner proves that on 30.09.2007 at about 4.20 a.m. on NH- 17 road in front of Therenamakki Church in Kaikini village he being rider of bullock cart had met with an accident due to rash and negligent driving of the Goods Lorry bearing No.KA-20/B-0512 by its driver and he sustained injuries in the accident as averred?6
2. Whether the petitioner is entitled for compensation and if so, what amount and from whom?
3. What order and award?
Additional issues
1. Whether the LRs of the deceased petitioner prove that the petitioner died of injuries suffered in the accident as averred?
2. Whether the LRs of the deceased petitioner are entitled to compensation in this petition?
7. In order to prove the case of the claimants, claimant No.4 got himself examined as PW1 and two more witnesses as PW2 and 3 and relied on 412 documentary evidence as Ex.P1 to 412.
8. On behalf of respondents, one Pavan S.Chougala is examined as RW1 and two documents were got marked as Ex.R1 and R2.
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9. On cumulative consideration of the oral and documentary evidence on record, after hearing the parties, the tribunal dismissed the claim petition by recording the finding on the above issues as under.
Issue No.1 : In the negative
Issue No.2 : In the negative
Addl.Issue No.1 : In the negative
Addl.Issue No.2 : In the negative
10. It is that judgment which is under challenge in this appeal.
11. The learned counsel for the appellants- claimants Sri. P.G. Chikkanaragund vehemently contended that the tribunal grossly erred in dismissing the claim petition. He further submits that the medical records before the tribunal clearly establishes the fact that Rama Naik sustained grievous injuries when he was proceeding on the bullock cart. It is his case that the deceased was under continuous treatment and ultimately succumbed to the accidental injuries and 8 therefore, the tribunal ought to have allowed the claim petition.
12. It is his further submission that recording of a finding that a goods lorry bearing reg.No.KA-20/B- 0512 was not involved in the accident, while answering issue No.1 is perverse and the same is not based on the material on record and sought for setting aside the said finding and prayed for allowing the appeal.
13. Per contra, learned counsel appearing for the Insurance company vehemently contended that the tribunal has rightly assessed the entire material on record and has come to the conclusion that the legal representatives of Rama Naik have failed to establish the nexus between the death of Rama Naik and the accidental injuries and they prayed for dismissal of the appeal.
14. He also points out that the goods lorry said to have been involved in the accident, is also not proved 9 with cogent and convincing evidence on record. Therefore, finding recorded by the tribunal that the claimants have failed to establish Rama Naik sustained injuries in the accident that occurred between bullock cart and goods lorry bearing No. KA-20/B-0512 being not proved, is well reasoned finding and requires no interference and sought for dismissal of the appeal.
15. On hearing both sides and after perusal of the entire material on record, the following points would arise for consideration.
1. Whether the appellants-claimants prove that Rama Naik died on account of accidental injuries?
2. Whether the appellants-claimants prove that the lorry bearing No.KA-
20/B-0512 is the offending lorry which is responsible for the accident, resulting in Rama Naik sustained grievous injuries? If so
3. Whether the appellants-claimants are entitled for compensation?
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16. On record, in the complaint which is marked as Ex.P1, there is no mention about the vehicle registration number or the type of the vehicle i.e., the make of the vehicle or other details. The Police after thorough investigating the matter, filed 'C' report at the first instance. Very surprisingly on 10.09.2008, a year later, the one of person present in the bullock cart namely Manjunath S. Naik finds the lorry in the market of Bhatkal town and identifies the driver and lorry said to have caused the accident.
17. It is pertinent to note that in the accident, Manjunath Somayya Naik also sustained injuries and the accident has occurred around 4.45 a.m. The incident has occurred in a splash of a movement and having regard to the time of accident, hardly any chance would have been there for PW2-Manjunath to note down the description of the lorry or its registration number thereof. If PW2 were to able to identify the lorry one 11 year after, nothing prevented him from informing the Police immediately the type or make or other details of the vehicle.
18. Having regard to the fact that the accident has occurred on 30.09.2007 at 4.45 a.m., PW2 identifying the lorry driver after one year later and the Police filing the charge sheet against the driver of the lorry bearing No.KA-20/B-0512 cannot be countenanced in law.
19. However, the medical records produced before the court clearly establishes that Rama Naik sustained injuries in the accident that has occurred on 30.09.2007 at about 4.45 a.m. when he was proceeding on the bullock cart, immediately he was shifted to different hospitals and he has been under continuous medical treatment. The medical records produced and marked before the tribunal to establish the fact that Rama Naik sustained grievous injuries and ultimately 12 succumbed to those injuries. The medical records produced and coupled with the oral evidence of claimant No.4 who is examined as PW1 and clearly establishes the fact that Ram Naik died on account of the accidental injuries.
20. No contra evidence available on record either to hold that there is no nexus between the death of Rama Naik and accidental injuries sustained by him.
21. Under the circumstances, the finding recorded by the tribunal that there is no nexus between the accidental injuries and the death of Rama Naik, cannot be sustained. Therefore after reappreciation of the entire evidence on record, we set aside the finding on additional issue No.1 and hold that the death of Rama Naik is solely on account of accidental injuries sustained by him in the accident that has taken place on 30.09.2007 at about 4.45 a.m. near Ternamakki church.
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22. This takes us to the next important aspect of the matter. Having recorded a finding that the death of Rama Naik is on account of accidental injuries, it's now the task of this court to find out whether the appellants prove that the lorry bearing No. KA-20/B-0512 was the offending lorry as on the date of accident and if so, whether the insurer of the lorry liable to pay the compensation.
23. It is pertinent to note that in complaint Ex.P1 there is no mention as to vehicle number or description of the vehicle. There is vague statement that truck came from Bhatkal to Honnavar side and dashed the bullock cart from hind side and in the accident Rama Naik and PW2 sustained injuries and bullock also sustained injuries. One bullock died on spot and another bullock was dragged by offending vehicle for about 2 kms and ultimately died. It is also 14 mentioned in the complaint that the driver of the lorry did not stop the lorry at the spot.
24. The time of accident is at 4.45 a.m. If the lorry is came from hind side and ran over bullock cart hardly there was any scope for PW2 to look at the driver of the lorry in question. PW2 is also injured in the very same incident and PW3 who is complainant, came to know about the incident through somebody else and immediately rushes to the spot and enquires PW2 and Rama Naik. It is specifically mentioned in the complaint that Rama Naik was not in a position to speak. Had PW2 known about details of the number of the vehicle, what is prevented PW2 to reveal the same to PW3 is not explained. Even before this court, learned counsel for the appellant is not able to offer any explanation in this regard.
25. It is also pertinent to note that the Police after investigation ultimately filed 'C' report. 15
26. When the matter stood thus, all of a sudden on 10.09.2008 PW2 finds the offending lorry in the market of Bhatkal town and identifies the lorry as well as the driver and based on that statement, criminal court registered the case against the first respondent.
27. In the further statement, PW2 had identified the lorry driver and the lorry, which was parked in the market at Bhatkal.
28. PW2 in his evidence before tribunal has stated that after the accident lorry was parked and the lorry driver came to them and saw the injured persons and later he escaped away with the lorry. It is his say that at that point of time, he has noted the lorry number as KA-20/B.0512. But, it is pertinent to note that he did not say so before the Police at the first instance nor to PW3 so as to incorporate the lorry number in the complaint, to PW3 so as to incorporate the lorry number.
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29. But, surprisingly, on 10.09.2008 he found the lorry in market at Bhatkal and he has also identified the lorry driver as Mohammad Ashraf.
30. When notice came to be issued as to the acceptance of 'C' report from the Jurisdictional Magistrate, the theory of PW2 finding the lorry on 10.09.2008 in the market of Bhatkal and also identifying the lorry driver as Mohammad Ashraf has come into picture. Admittedly, the injured Rama Naik died on 04.08.2009.
31. When PW3 complainant appeared before the criminal court and intimated about the finding of the lorry to the Police through RPAD and informed the Magistrate, the learned Magistrate took cognizance for the offences punishable under Section 279, 337, 338 and 429 of IPC and Sections 134A and 134 B r/w 187 of the M.V. Act against the driver of the lorry. The learned Magistrate also noted that the complainant has 17 only furnished the name of the driver and not other details namely address etc., of said Mohammad Ashraf. However, the learned Magistrate issued non-bailable warrant and the driver peculiarly appeared before the court on 02.09.2011 admitting the guilt.
32. On 04.08.2009 itself if the injured had died, what would prevented PW2 and PW3 to inform the Magistrate about the death of Rama Naik so as to invoke ingredients under Section 304A of IPC, is not forthcoming on record. When all these factors viewed cumulatively there is sufficient force in the argument advanced on behalf of the Insurance company that there was active collusion between PW2 and 3 and Mohammad Ashraf (driver of the lorry) in pleading guilty before the criminal court.
33. It is this evidence, which was disbelieved by the tribunal while passing the impugned award. 18
34. Before this court on reappreciation, we are unable to appreciate that the claimants have been able to establish the fact with plausible proof that it is the driver of the lorry bearing No.KA-20/B.0512, who is responsible for the accident; injury sustained by the deceased Rama Naik as well as death of two bullocks and the damage caused to the bullock cart. PW2 is the person, who is also injured in the very accident. If at all he remembered the lorry number, what prevented him to immediately disclose about the details including lorry number before the Police soon after the accident, is not explained by the learned counsel for the appellants. So also it is highly unbelievable, the person who said to have seen the driver of the lorry for a short span of time that too at 4.45 a.m., would be in a position to re- identifying the same person almost a year later that too in the market of Bhatkal. This statement of PW2 do not inspire the confidence in any person. 19
35. When the notice came to be issued from the learned Magistrate as to the acceptance of 'C' report, PW2 and PW3 realized of filing objections to the 'C' report and it is PW2 who said to have been seen on 10.09.2008 the lorry and the driver of the lorry namely Mohammad Ashraf in the market at Bhatkal. Filing of such a statement before the Magistrate and Magistrate after noting the same, registered the criminal case against Mohammad Ashraf. Mere taking out some persons name and that person appeared before the Magistrate Court and pleading guilty would not ipso- facto establish the fact that it is a lorry bearing No.KA- 20/B.0512, which is involved in the accident in question on the date of incident. It appears that there is an active collusion between Mohammad Ashraf and PW2 and PW3.
36. It is pertinent to note that Police did not take further action on the statement of PW2 which is sent to 20 them by RPAD and did not file any charge sheet, is also a factor that is significant to the facts and circumstances of the case.
37. At any rate, even after re-appreciation, we are unable to persuade the submission on behalf of the learned counsel for the appellants that the lorry bearing No. KA-20/B.0512 is the lorry which was involved in the accident resulting in Rama Naik sustaining grievous injuries and later succumbed to the death and two bullocks.
38. Mere filing of the charge sheet, further statement of PW2 and the driver of the lorry pleading guilty, would not be sufficient to prove that it is the lorry bearing No.KA-20/B.0512, which is actually involved in the accident on the date of incident.
39. Therefore, from the above discussions even though the appellants have been successful enough in establishing the fact that Rama Naik died out of the 21 injury sustained by him in a road traffic accident that occurred on 30.09.2007, they have failed to establish with cogent and convincing evidence on record as it is the lorry bearing No.KA-20/B.0512 which is responsible for the accident. Under circumstances, the dismissal of the claim petition by the tribunal, in our considered opinion, do not call for interference even after reappreciation of the entire material on record.
In view of the foregoing discussions, the points are answered in the negative and I pass the following :
ORDER Appeal sans merit and is hereby dismissed.
Sd/-
JUDGE Sd/-
JUDGE MNS/