Karnataka High Court
The Reliance General Ins. Co.Ltd. vs Gundamma W/O : Deveppa on 8 November, 2017
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
Dated this the 8th day of November 2017
Before
THE HON'BLE MR. JUSTICE B.A. PATIL
Miscellaneous First Appeal No.21102/2010 (MV)
c/w Miscellaneous First Appeal No.21103/2010 (MV)
In MFA No.21102/2010
BETWEEN
THE RELIANCE GENERAL INS. CO.LTD.
BELLARY REP. BY ITS DEPUTY MANAGER,
LEGAL NO.28, EAST WING, 5TH FLOOR,
CENTENARY BUILDING, M. G. ROAD,
BANGALORE. ...APPELLANT
(BY SRI. G. N. RAICHUR, ADVOCATE)
AND
1. GUNDAMMA, W/O : DEVEPPA
AGE : 36 YEARS, OCC : HOUSEHOLD
R/O : BUDAGUMPA,
TQ : GANGAVATHI
DIST : KOPPAL
2. HULAGAPPA, S/O : DEVEPPA
AGE : 20 YEARS, OCC : STUDENT
R/O : BUDAGUMPA,
TQ : GANGAVATHI
DIST : KOPPAL
3. TIPPAMMA, D/O : DEVEPPA
AGE : 19 YEARS, OCC : STUDENT
R/O : BUDAGUMPA,
TQ GANGAVATHI
DIST : KOPPAL
2
4. HANAMANTHAPPA,
S/O : DEVEPPA
AGE : 13 YEARS, OCC : STUDENT
R/O : BUDAGUMPA,
TQ : GANGAVATHI
DIST : KOPPAL
5. LAXMI, D/O : DEVEPPA
AGE : 10 YEARS, OCC : STUDENT,
R/O : BUDAGUMPA,
TQ : GANGAVATHI, DIST : KOPPAL
6. JADIYEMMA, D/O : DEVEPPA
AGE : 07 YEARS, OCC : STUDENT
R/O : BUDAGUMPA, TQ : GANGAVATHI
DIST : KOPPAL
(RESPONDENT NO.4 TO 6 ARE MINORS
REPRESENTED BY RESPONDENT NO.1
NATURAL MOTHER)
7. GANGAMMA,
W/O HIREHULIGEPPA,
AGE : 68 YEARS, OCC : HOUSEHOLD
R/O : BUDAGUMPA, TQ : GANGAVATHI
DIST : KOPPAL
8. AMARESH,
S/O JADIYAPPA SIRIGERI,
AGE : 46 YEARS, OCC : DRIVER OF TATA
ACE-KA-37/7305, R/O: BUDAGUMPA,
TQ : GANGAVATHI, DIST KOPPAL
9. SHARANAPPA S/O : HAMPANNA
AGE : 49 YEARS,
OCC : OWNER OF TATA
ACE NO.KA-37/7305
R/O : BUDAGUMPA
TQ : GANGAVATHI, DIST : KOPPAL. ...RESPONDENTS
(BY SRI. RAJASHEKAR GUNJALLI, ADVOCATE FOR R1 & R2)
(R4 TO R6 ARE MINORS REP. BY R1)
(R3, R7, R8 & R9 ARE SRVED)
3
THIS MFA IS FILED UNDER SECTION 173(1)OF THE
MOTOR VEHICLES ACT, AGAINST THE JUDGMENT AND AWARD
DATED:04-02-2010 PASSED IN M.V.C.NO.63/2009 ON THE FILE
OF THE CIVIL JUDGE(SR.DN.) AND MEMBER, MACT, AT
GANGAVATHI, AWARDING COMPENSATION OF RS.4,74,200/-
ALONG WITH INTEREST AT THE RATE OF 6% P.A.FROM THE
DATE OF PETITION TILL DEPOSIT.
----------
IN MFA NO 21103 OF 2010
BETWEEN
THE RELIANCE GENERAL
INSURANCE COMP LTD
BELLARY REP BY ITS DEPUTY MANAGER
LEGAL NO.28 EAST WING, 5TH FLOOR,
CENTENARY BUILDING
M.G.ROAD, BANGALORE. ...APPELLANT
(BY SRI. G. N. RAICHUR, ADVOCATE)
AND
1. SHARANAMMA,
W/O BASAVARAJ
AGE 32 YEARS, OCC:HOUSEHOLD
R/O BUDAGUMPA
TQ:GANGAVATHI DIST:KOPPAL
2. DODDABASAVA, S/O BASAVARAJ
AGE 14 YEARS, OCC:STUDENT
R/O BUDAGUMPA
TQ:GANGAVATHI DIST:KOPPAL
3. SHIVAKUMAR,
S/O BASAVARAJ
AGE 10 YEARS, OCC:STUDENT
R/O BUDAGUMPA
TQ:GANGAVATHI DIST:KOPPAL
RESPONDENTS 2 & 3 ARE MINORS
REPTD BY NATURAL
MOTHER RESPONDENT NO.1
4
4. SHARANAPPA,
S/O BASAPPA
AGE 56 YEARS, OCC: AGRICULTURE
R/O BUDAGUMPA
TQ: GANGAVATHI DIST:KOPPAL
5. SHIVAMMA,
W/O SHARANAPPA
AGE 49 YEARS, OCC: AGRICULTURE
R/O BUDAGUMPA
TQ:GANGAVATHI DIST:KOPPAL
6. AMERESH,
S/O JADIYEPPA SIRIGERI
AGE 46 YEARS,
OCC:DRIVER OF TATA ACE
KA-37/7305, R/O BUDAGUMPA
TQ: GANGAVATHI, DIST: KOPPAL.
7. SHARANAPPA,
S/O HAMAPANNA
AGE 49 YEARS,
OCC:OWNER OF TATA ACE
KA-37/7305, R/O BUDAGUMPA
TQ: GANGAVATHI DIST: KOPPAL. ...RESPONDENTS
(BY SRI. RAJSHEKHAR GUNJALLI, ADVOCATE FOR R1, R4 & R5)
(R2 & R3 ARE MINORS REP. BY R1)
(R6 & R7 ARE SRVED)
THIS MFA IS FILED UNDER SECTION 173(1)OF THE
MOTOR VEHICLES ACT, AGAINST THE JUDGMENT AND AWARD
DATED:04-02-2010 PASSED IN M.V.C.NO.64/2009 ON THE FILE
OF THE CIVIL JUDGE(SR.DN.) AND MEMBER, MACT, AT
GANGAVATHI, AWARDING COMPENSATION OF RS.5,33,000/-
ALONG WITH INTEREST AT THE RATE OF 6% P.A.FROM THE
DATE OF PETITION TILL DEPOSIT.
THESE MFAs COMING ON FOR ADMISSION THIS DAY,
THE COURT, DELIVERED THE FOLLOWING:
5
JUDGMENT
These two appeals have been preferred by the appellants-insurer being aggrieved by the judgment and award, dated 04.02.2010 passed by the Civil Judge (Sr. Dn.) & M.A.C.T., Gangavathi (hereinafter referred to as 'the Tribunal', for short), in MVC Nos.63/2009 & 64/2009.
2. Though the appeals are listed for Admission, with the consent of the learned counsel appearing for the parties, they are taken up for final hearing and disposed of by this judgment.
3. For the sake of convenience, the parties are referred to as per their rankings before the Tribunal.
4. Brief facts of the case are that on 07.01.2009, at about 1.30 p.m., one Devappa and Basavaraj were proceeding on a motor cycle bearing No.KA-37/E-8889 from Marlanahalli to Budagumpa and when they came, near Yaradona Kere, on Marlanahalli-Yaradona road, a TATA ACE vehicle bearing No.KA-37/7305 came rashly and negligently 6 and dashed against the motor cycle on which Devappa and Basavaraj were proceeding. Due to said impact, they fell down, sustained grievous injuries and died on the spot. Having lost the bread-earners, the dependants of both the deceased persons filed claim petitions under Section 166 of the Motor Vehicles Act seeking compensation by contending that deceased persons were doing agricultural and hamali work and were earning Rs.15,000/- per month.
In pursuance of the notices issued by the Tribunal, respondent Nos.1 to 3 appeared through their counsel. However, only respondent No.3 filed its written statement. While denying the contents of the claim petition, respondent No.3 further contended that the accident in question had taken place due to the fault of the rider of the motor cycle himself. It is further contended that the driver of the offending vehicle was not having a valid and effective driving licence as on the date of the accident and as such there was violation of conditions of the policy. Insurer further contended that the vehicle in question was not involved in 7 the accident. On the said grounds, the insurer prayed for dismissal of the claim petition.
On the basis of the above pleadings, the Tribunal framed the following issues for its consideration: In M.V.C. No.63/2009
"1. Whether the petitioner proves that on 07-01-2009 at about 1-30 p.m., on Marlanahalli-Yaradona main road, near Yaradona Kere, Devappa S/o Hulugapa was died in a motor vehicle accident i.e., on account of the rash and negligent driving of the TATA ACE bearing No.KA-37/7305 by the respondent No.1?
2. Whether the petitioners prove that he is entitled for the compensation? From whom, to what extent?
3. What order?"In M.V.C. No.64/2009
"1. Whether the petitioner proves that on 07-01-2009 at about 1-30 p.m., on Marlanahalli-Yaradona main road, near Yaradona Kere, Basavaraj S/o Sharanappa was died in a motor vehicle accident i.e., on account of the rash and negligent driving of the TATA ACE bearing No.KA-37/7305 by the respondent No.1?8
2. Whether the petitioners prove that he is entitled for the compensation? From whom, to what extent?
3. What order?"
In order to prove their case, petitioner No.1 in M.V.C. No.63/2009 got examined himself as P.W.1 and got marked Exs.P.1 to P.8, and petitioner No.1 in M.V.C. No.64/2009 got examined himself as P.W.1 and got marked Exs.P.1 to P.8. One Basavaraj, an eye witness, came to be examined as P.W.2 in both the cases. On behalf of the respondents, the Assistant Manager of respondent No.3 came to be examined as R.W.1 and got marked Exs.P.1 to P.21. After hearing the parties to the lis, the impugned judgment and award came to be passed by the Tribunal. Assailing the judgment and award, the respondent No.3-insurer is before this Court.
5. The main grounds urged by learned counsel for the appellant/respondent No.3 is that the impugned judgment and award passed by the Tribunal is not sustainable in law. He further contended that the driver of the offending vehicle was not holding a valid and effective driving licence and as 9 such, fastening of the liability on the insurer is not justifiable. He further contended that the offending vehicle TATA ACE bearing No.KA-37/7305 was not at all involved in the accident and the driver, owner and the villagers colluded with the claimants and only with an intention to claim compensation a false case has been registered involving the said vehicle in the alleged accident. By referring to Ex.R.4 and the complaint-Ex.P.13, he also contended that there are contradictions with regard to the date of accident in the statements given by the complainant as well as the eyewitness. He further contended that the date of the accident is mentioned in the complaint as 07.01.2009, but in the statement (Ex.R.4) given by Basavaraj before the Police, it is mentioned as 08.01.2009 night at about 1.30 a.m. He contended that the vehicle TATA ACE was not at all there at the spot and the vehicle has been taken to the village immediately after the incident. He further contended that the statement clearly goes to show that the witnesses have come to the place of the incident after the accident and subsequently they have also deposed that they did not know 10 the driver and the vehicle number and that subsequently, they have involved the vehicle in the said accident. By relying on Exs.R.5 and R.12, he further contended that the witness have turned hostile before the criminal court by giving go-bye to the statements given by them before the police. He further contended that the documents produced shows that the said vehicle was not involved in the alleged accident, but subsequently, the vehicle in question has been planted only with an intention to claim compensation. On these grounds, he prayed for allowing the appeals by setting aside the impugned judgment and award.
6. Per contra, learned counsel appearing on behalf of the respondents/claimants, by referring to the evidence of P.W.2, the eyewitness, vehemently argued and contended that the said witness has clearly sated that the said vehicle met with an accident and subsequently, a complaint came to be filed. He also contended that the accident has taken place in the intervening night of 07.01.2009 and 08.01.2009 as the witnesses are rustic villagers, they might have stated that the accident had taken place in the night of 07.01.2009 11 and 08.01.2009 and, in that light, the said contradiction is not of much importance. He also contended that the insurer had not produced any material in order to substantiate their contention about the fraud played by the claimants and the owner of the vehicle. In the absence of any such material, the Tribunal has rightly come to the conclusion that the said vehicle is involved in the accident and rightly fixed the liability on the appellant-insurer. On these grounds, he prayed for dismissal of the appeals.
7. I have carefully considered the submissions made by the learned counsel appearing for the appellant and learned counsel for the respondent/claimant. I have also perused the original records.
8. It is not in dispute that if a fraud has been played on the Court, then under no stretch of imagination the Court will assist such type of fraud and allow the petition. This proposition of law is with reference to the Latin maxim Fraus et just munquam cohabitant, which means fraud and justice never dwell together, a pristine maxim which has never lost 12 its temper over all thee 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. With that background let me consider whether the appellant has established the fact that a fraud has been played by planting the vehicle though the vehicle is not involved in the accident.
9. As could be seen from the records, in order to establish the fact that the said vehicle is involved in the alleged accident, the petitioners have got examined P.W.2, an eye-witness to the incident and have also got produced Exs.P.1 to P.5, which are the certified copies of the FIR, the charge-sheet, the crime details, the IMV report and the P.M. report.
10. In his evidence, P.W.2 has deposed that on 07.01.2009 at about 01.30 a.m., both the deceased persons i.e., Basavaraj and Devappa were going on a motor cycle bearing No.KA 37/E 8889 and at that time, respondent no.1 was driving TATA ACE No.37/7305 and dashed to the motor 13 cycle on which the deceased were proceeding. He has further deposed that due to the accident Basavaraj and Devappa sustained injuries and died on the spot. Though, during the course of cross-examination, he has deposed that he has seen the accident at a distance of 10 to 15 feet away from the place, he also deposed that he did not come to know who were the deceased person; to whom the said TATA ACE vehicle belongs to and where it went. It is the specific contention of the learned counsel for the appellant that there are contradictions in the statement of said Basavaraj and the complainant. It is specifically brought to the notice of this Court that the date which has been stated by the complainant is 07.01.2009, whereas the statement of Basavaraj given before the police indicates the date of accident as 08.01.2009. Though the date of the accident differs in the above said documents, admittedly, the accident has taken place in the intervening night i.e., in the mid night of 07.01.2009 and 08.01.2009. Under the facts and circumstances of the case, it may be stated that the witnesses might have misunderstood the date and they 14 might have given different date with regard to the happening of the accident while giving statement before the police or before the Court. The said contradiction brought to the notice of this Court does not appear to be a major defect that too, when the statements given before the police are by the rustic villagers. He has also brought to the notice of this Court Exs.R.5, R6 and R.12, which are the statements/evidence given by the witnesses before the jurisdictional Criminal Court, wherein the said witness have treated as hostile and have given a go-bye to their earlier statements given before the police. Merely because they have turned hostile before the criminal court, it does not change the situation which was existing as on the date of the accident. The circumstances might have prevailed upon them to turn hostile. Merely, on the count that the said witnesses turned hostile, it cannot be held that a fraud has been played.
11. Learned counsel for the appellant/respondent No.3, the insurer, relied upon a Division Bench decision of this Court in the case of Veerappa and Another vs. Siddappa 15 and Another reported in ILR 2009 KAR 3562 and contended that if a fraud has been played, then under such circumstances, no Court can grant any compensation. He further contended that the Court can insist upon to satisfy itself about the involvement of the vehicle and the accident in question is concerned. Insofar as the ratio laid down in the said decision is concerned, there can be no difference of opinion as in that case fraud had been played and even though the owner admitted something about the accident the claimants did not prove the fact of accident and the involvement of the vehicle in the said accident. But, on going through all the records which are placed before this Court in the instant case on hand, they clearly indicate the fact that the said vehicle was involved in the accident and there is no falsity in involving the said vehicle in the accident. No doubt, there are some minor contradictions or omissions, but they are not going to take away the case of the petitioners.
12. It is well established principles of law that the petitioners have to prove the involvement of the vehicle and the accident had taken place due to rash and negligent act of 16 the driver of the said vehicle. In this behalf, the petitioners have led oral evidence as well as they have produced Exs.P.1 to P.5. The said documents clearly indicate that the driver has been prosecuted and the said vehicle was involved in the accident.
13. Be that as it may, whenever the petitioner proves that a vehicle has been involved and if the insurer takes up a specific defence by saying that the said vehicle is not involved in the accident and intentionally the said vehicle has been involved or planted in the said accident, then under such circumstances, heavy burden lies upon the insurer to substantiate the said fact. In order to prove the said fact, though the insurer has got examined R.W.1, the Assistant Manager of the Insurance Company, the said witness was neither a eyewitness to the incident nor he was present at the time of the alleged accident, and only on the basis of the documents, which were produced by the insurer, it cannot be held that fraud has been played.
14. It is well established principles of law that whenever criminal documents are to be relied upon by the 17 Court or Tribunal, then under such circumstances, the Police Officer, who investigated the case, has to be summoned in accordance with law and same has to be proved as contemplated under law. In the instant case, the police officer or any other witness, who was concerned with the said records, were not called upon and not examined. Even nothing prevented the appellant-insurer to call upon those witness who have not been examined by the petitioner and to substantiate the said fact to establish the contention taken up by them. In the absence of any proof it cannot be held that the said vehicle was not involved in the said accident. When it is held by the Hon'ble Apex Court that to avoid the liability, the insurance company must establish the defence of breach of policy condition. Keeping in view the above said facts and circumstances of the case, though the learned counsel for the appellant has seriously and vehemently argued by referring to various aspect of the criminal papers, the fact remains that the said fact has not been substantiated and proved in accordance with law and 18 as such, the same cannot be accepted and as such the said contention is rejected.
15. The second contention raised by the learned counsel for the appellant is that the driver of the vehicle was not having a valid and effective driving licence and as such the liability which has been fixed on it is erroneous and not correct in the eye of law. As could be seen from the notarized copy of the driving licence which has been produced as Ex.P.6, the said driving licence authorizes the driver to drive the light motor vehicle and it was valid from 01.03.2006 to 31.05.2016 and even the RC book which has been produced at Ex.R.7 the gross vehicle weight is 1550 kgs. When that being the case, the driver was holding a valid and effective driving licence. Though the said documents were produced, the Tribunal erroneously has come to the conclusion that the copy of the driving licence of respondent No.1 shows that respondent No.1 was holding LMV valid from 01.03.2006 to 31.05.2016 and there is no endorsement regarding LMV (NT). Therefore, respondent No.1 was not holding a valid and effective driving licence. The said observation of the Tribunal 19 is not just and proper, that too, in view of the decision of the Hon'ble Apex Court in the case of Mukund Dewangan vs. Oriental Insurance Company Limited reported in AIR 2017 SC 3668. In the said decision, the Apex Court, at para Nos.45 and 46, has observed as under:
"45. Transport vehicle has been defined in section 2(47) of the Act, to mean a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle. Public service vehicle has been defined in section 2(35) to mean any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward and includes a maxicab, a motor cab, contract carriage, and stage carriage. Goods carriage which is also a transport vehicle is defined in section 2(14) to mean a motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods. It was rightly submitted that a person holding licence to drive light motor vehicle registered for private use, who is driving a similar vehicle which is registered or insured, for the purpose of carrying passengers for hire or reward, would not require an endorsement as to drive a transport vehicle, as the same is not contemplated by the provisions of the Act. It was also rightly contended that there are several vehicles which can be used for private use as 20 well as for carrying passengers for hire or reward. When a driver is authorised to drive a vehicle, he can drive it irrespective of the fact whether it is used for a private purpose or for purpose of hire or reward or for carrying the goods in the said vehicle. It is what is intended by the provision of the Act, and the Amendment Act 54/1994.
46. Section 10 of the Act requires a driver to hold a licence with respect to the class of vehicles and not with respect to the type of vehicles. In one class of vehicles, there may be different kinds of vehicles. If they fall in the same class of vehicles, no separate endorsement is required to drive such vehicles. As light motor vehicle includes transport vehicle also, a holder of light motor vehicle licence can drive all the vehicles of the class including transport vehicles. It was pre-amended position as well the post-amended position of Form 4 as amended on 28.3.2001. Any other interpretation would be repugnant to the definition of "light motor vehicle" in section 2(21) and the provisions of section 10(2)(d), Rule 8 of the Rules of 1989, other provisions and also the forms which are in tune with the provisions. Even otherwise the forms never intended to exclude transport vehicles from the category of 'light motor vehicles' and for light motor vehicle, the validity period of such licence hold good and apply for the transport vehicle of such class also and the expression in Section 10(2)(e) of the Act 'Transport Vehicle' would include medium 21 goods vehicle, medium passenger motor vehicle, heavy goods vehicle, heavy passenger motor vehicle which earlier found place in section 10(2)(e) to (h) and our conclusion is fortified by the syllabus and rules which we have discussed. Thus we answer the questions which are referred to us thus:
(i) 'Light motor vehicle' as defined in section 2(21) of the Act would include a transport vehicle as per the weight prescribed in section 2(21) read with section 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act No.54/1994.
(ii) A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg. would be a light motor vehicle and also motor car or tractor or a road roller, 'unladen weight' of which does not exceed 7500 kg. and holder of a driving licence to drive class of "light motor vehicle" as provided in section 10(2)(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg. or a motor car or tractor or road-roller, the "unladen weight" of which does not exceed 7500 kg. That is to say, no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class as enumerated above. A licence issued under section 10(2)(d) continues to be valid after Amendment Act 54/1994 and 28.3.2001 in the form.
(iii) The effect of the amendment made by virtue of Act No.54/1994 w.e.f. 14.11.1994 while substituting clauses (e) to (h) of section 10(2) which contained "medium goods vehicle" in section 10(2)(e), medium passenger motor vehicle in section 10(2)(f), heavy goods vehicle in section 10(2)(g) and "heavy passenger motor vehicle" in section 10(2)(h) with expression 'transport vehicle' 22 as substituted in section 10(2)(e) related only to the aforesaid substituted classes only. It does not exclude transport vehicle, from the purview of section 10(2)(d) and section 2(41) of the Act i.e. light motor vehicle.
(iv) The effect of amendment of Form 4 by insertion of "transport vehicle" is related only to the categories which were substituted in the year 1994 and the procedure to obtain driving licence for transport vehicle of class of "light motor vehicle" continues to be the same as it was and has not been changed and there is no requirement to obtain separate endorsement to drive transport vehicle, and if a driver is holding licence to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect."
On going through the said decision, the Apex Court has clarified the fact that if a person holding licence to drive light motor vehicle registered for private use, who is driving a similar vehicle which is registered or insured, for the purpose of carrying passengers for hire or reward, would not require an endorsement as to drive a transport vehicle, as the same is not contemplated by the provisions of the Act. In that light, if the document Ex.P.6 is perused the driver is having a valid and effective driving licence to drive the light motor vehicle and the vehicle involved is light motor vehicle, as such, the observation of the Tribunal is not correct. Even 23 the Tribunal has taken note of the same, but, ultimately, by relying upon the decision of the Hon'ble Apex Court, it has come to a right conclusion by fastening the liability on respondent No.3 and, as such, the contention raised by the learned counsel for the appellant-insurer is not acceptable and the same is hereby rejected.
16. Keeping in view the above said facts and circumstances that the appellant-insurer has not made out any good ground so as to interfere with the impugned judgment and award of the Tribunal, the appeals, being devoid of merits, are hereby dismissed.
The amount in deposit before this court may be transmitted to the jurisdictional Tribunal for being disbursed to the claimant in accordance with the order of the Tribunal.
Registry is directed to draw the award accordingly and also to send back the lower court records forthwith.
Sd/-
JUDGE Kms