Karnataka High Court
Bajaj Allianz General Insurance Co Ltd vs Rachappa on 28 August, 2012
Author: Ashok B.Hinchigeri
Bench: Ashok B. Hinchigeri
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 28TH DAY OF AUGUST, 2012
BEFORE
THE HON'BLE MR. JUSTICE ASHOK B. HINCHIGERI
M.F.A.No.5476/2007 (MV)
BETWEEN:
Bajaj Allianz General Insurance Co.Ltd.,
Vivekananda Corner, Club Road Cross,
Hubli-29.
By Bajaj Allianz General Insurance Co.Ltd.,
No.105A, Cears Plaza, 1st Floor,
136, Residency Road,
Bangalore-560 025.
By its Manager. ... Appellant
(By Sri M.K. Soudagar, Advocate)
AND:
1. Rachappa,
Aged 25 years,
S/o Sangappa Angadi,
Occ: Goundi & Agri. Cooli,
R/o Bola - Chikkalaki,
Bijapur Taluk and District.
2. Sangappa,
Aged 31 years,
S/o Shankareppa, Vani,
R/o Bola - Chikkalaki,
Bijapur Taluk and District. ... Respondents
(By Sri Harish S.Maigur, Advocate for R-1,
R-2 served and unrepresented)
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This MFA is filed under Section 173(1) of MV Act against
the judgment and award dated 3.2.2007 passed in MVC
No.235/2004 on the file of the Prl.Civil Judge (Sr. Dn.) and
JMFC, Member, MACT-V, Jamakandi, awarding a compensation
of `1,28,800/- with interest at 6% p.a. from the date of petition
till deposit.
This MFA coming on for hearing this day, the Court
delivered the following:
JUDGMENT
This appeal is filed by the Insurance Company against the award, dated 3.2.2007 passed by the Motor Accident Claims Tribunal No.V, Jamakhandi in MVC No.235/2004. The first respondent sustained the fracture of left leg tibia and other grievous injuries in the road traffic accident, which took place on 14.2.2004. The Tribunal granted the compensation of `1,28,800/-, the break up of which is as follows:
1. Pain and Agony Rs.30,000/-
2. Loss of income during treatment Rs. 9,000/-
3. Medical Expenses Rs.10,000/-
4. Loss of income on account of permanent disability Rs.64,800/-
5. Loss of Aminities Rs.15,000/-
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Total Awardable Compensation Rs.1,28,800/-
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2. Sri M.K.Soudagar, the learned counsel for the appellant submits that the vehicle in question, namely, the jeep bearing 3 No.KA.29/M.1381 was never involved in the accident. He submits that the first respondent, though a claimant by himself, has taken 7 days to file the complaint. He relies on this Court's decision in the case of NEW INDIA ASSURANCE CO.LTD. v. G.N.GOPALAGOWDA AND ANOTHER reported in 2006 ACJ 2771, wherein the granting of the compensation was set aside, as the narration of the accident was not what was found in the FIR. In the complaint he gives the name of the driver as Kumar Basalingappa Katti. Later he says that the driver of the jeep is its owner, namely, Sangappa Shankrappa Vani. He also brings to my notice this Court's decision in the case of NATIONAL INSURANCE CO. LTD. AND OTHERS v. GOVINDAMMA AND OTHERS reported in III (2005) ACC 851, wherein the evidentiary value of the FIR fell for consideration. It was held that the FIR cannot be accepted for one purpose and ignored for another purpose.
3. He submits that neither the owner nor the driver of the vehicle has lodged any complaint with the police. Mere admission of the guilt by the payment of fine does not ipso facto entitle the claimant to compensation, so submits Sri Sougadar. He sought to draw support from this Court's decision in the case 4 of BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD. v. B.C. KUMAR AND ANOTHER reported in 2010 ACJ 1667. He read out the Head Note portion extracted hereinbelow:
"Motor Vehicles Act, 1988, section 166 - Claim application - Fraud - Criminal trial - Transformation of self accident of hitting roadside tree to an accident involving another insured vehicle in order to claim compensation from insurance company - Driver of insured vehicle pleaded guilty before criminal court and was convicted - Discrepancies pointed out by insurance company are : (i) alleged accident occurred on 27.6.2006 whereas the complaint was lodged by claimant's father on 6.8.2006, after about 1½ months; (ii) injured was discharged from Sanjay Gandhi Hospital on 28.7.2006 but complaint was lodged on 6.8.2006; (iii) all the other police documents like I.M.V. report, mahazar, sketch map came to picture on the very day the report was lodged;
(iv) claimant did not whisper in his evidence that at the time of accident his father was with him but complaint lodged by father indicates that he was present there; (v) according to claimant he was taken to Government Hospital at Mandya after the accident but no document has been produced in proof of the claimant having been treated there; (vi) history of the accident as given by the claimant in Sanjay Gandhi Hospital is that he hit roadside tree near zoo on Bannerghatta Road and sustained injuries whereas he has claimed in his claim application that he was dashed by another vehicle on Pandavapura -
Srirangapatna Road, the document produced by witness 5 of insurance company in this regard contained thumb mark of the claimant - Document evidencing pleading guilty by driver was not marked in evidence and there is no legal evidence to support claimant's case that driver pleaded guilty - Whether the Tribunal without examining other circumstances of the case and solely relying on the driver of offending vehicle pleading guilty in criminal trial was justified in accepting the claim and allowing compensation - Held: no; Tribunal has to assess the evidence before it independent of any finding of the criminal court; claim dismissed."
4. He submits that even when the respondent No.1 alleges that the vehicle has turned turtle, the vehicle has not received any damages. The motor vehicle inspector's report does not show any damages to the body of the vehicle. The learned counsel submits that even the panchanama discloses that the vehicle has fallen into a ditch measuring 8 ft. The vehicle that turns turtle and falls into such a deep ditch cannot go undamaged.
5. Sri Harish S.Maigur, the learned counsel for the respondent No.1 submits that the further statement is made immediately in the wake of lodging the complaint. As the complaint showed the name of the driver wrongly, the 6 respondent No.1 got it corrected within no time. He submits that the driver of the jeep has pleaded guilty. He also submits that no witnesses whatsoever is examined on behalf of the respondents.
6. Sri Maigur submits that the delay in filing the complaint does not militate against the claimant. As the claimant had to first take the medical treatment, there is a delay of 7 days in filing the complaint. In support of his submission, he relies on the Apex Court's judgment in the case of RAVI v. BADRINARAYAN AND OTHERS reported in (2011) 4 SCC 693, wherein it is held that the delay in lodging the FIR is not a ground for dismissing the claim petition.
7. He has also relied on the Division Bench's judgment of this Court in the case of BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD. v. SMT. LAKSHMAMMA AND OTHERS reported in 2008 Kant. M.A.C. 145 (Kant.), wherein it is held that if a vehicle is not involved in the accident and if a false case has been lodged by the claimant in collusion with the owner of the vehicle, the insurance company has to challenge the charge sheet. Paragraph No.6 of the said decision is extracted hereinbelow:
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"6. Then, coming to the question of involvement of the vehicle, admittedly charge-sheet is filed against the driver of the vehicle, the owner has not denied the accident. FIR is registered in Crime No.10/05 by the Malur Police. If really the vehicle was not involved, if a false case has been lodged and if the owner has colluded with the claimants, it was for the Insurance Company to challenge the same to quash the charge-sheet and to direct the police to investigate properly and file an appropriate case for having lodged a false case when there was no accident and vehicle in question had not been involved. The learned counsel for the appellant submits that after case was filed, the matter was entrusted to a private agency for investigation and according to the report of the investigation of a private agency, the vehicle in question had not been involved in the accident. But, we cannot place reliance on a report submitted by a private agency when a charge-sheet is filed by the police after a detailed Investigation and when the driver and owner of the vehicle have not disputed about the involvement of the vehicle in question. Therefore, this point is also answered against the appellant."
8. The submissions of the learned counsel have received my anxious consideration. I have browsed through the LCRs. In the written statement filed by the appellant in the MVC proceedings, there is no specific denial of the involvement of the vehicle in question in the accident. There is also no averment that the vehicle has not received any damages. On the other 8 hand, the averments are that the driver and others in the vehicle would not have gone unhurt, if the vehicle were to turn turtle and fall into 8 ft. ditch.
9. My perusal of the cross-examination part of PW1 reveals that no question or suggestion was put to the claimant regarding the non-involvement of the vehicle in question in the accident. No questions or suggestions are put on the circumstances leading to the delay in filing the complaint.
10. Only a general question is put that the claimant in collusion with the owner has manipulated the documents for the purpose of claiming the compensation. The appellant has not entered the witness box nor it has got the witness summons issued to the persons, who have witnessed the drawing of the panchanama.
11. The socio-economic status of the claimant also cannot be ignored. The claimant is a goundi. He has deposed in the course of cross-examination that he does not know how to read. He can only affix his signature. The delay of one week on the part of such an unlettered villager in lodging the complaint cannot militate against him.
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12. The authorities relied upon by the appellant's side are in the context of a different factual matrix altogether. The Apex Court in the case of Ravi (supra), relied upon by the claimant's side, formed the considered view that delay of 3½ months in lodging the complaint is no ground to dismiss the claim petition. Because, priority wise medical treatment is more pressing than lodging the FIR. The delay is not fatal in the genuine cases. Further, on hearing what was read out from the complaint, the claimant has made a further statement in the nature of clarification or correction. Appreciating that he is not in a position to read what was written and that he has issued the necessary oral corrections or clarifications. The claimant's version cannot be said to be of blemish or of loose ends. Thus, not finding any merit in this appeal, it is dismissed. No order as to costs.
13. The amount deposited by the appellant Insurance Company is ordered to be transferred to the Tribunal for being disbursed to the claimant in accordance with law.
Sd/-
JUDGE MD