Karnataka High Court
Akkanagamma W/O Mahadevappa ... vs Siddanna S/O Subhash & Ors on 18 November, 2016
Bench: B.S Patil, B.V.Nagarathna
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 18TH DAY OF NOVEMBER, 2016
PRESENT
THE HON'BLE MR. JUSTICE B.S.PATIL
AND
THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA
M.F.A.NO.32075/2012 (MVC)
BETWEEN:
1. AKKANAGAMMA
W/O MAHADEVAPPA MOTAKAPALLI
AGE: 45 YEARS
OCC: HOUSEHOLD
2. ANILKUMAR
S/O MAHADEVAPPA MOTAKAPALLI
AGE: 23 YEARS
OCC: STUDENT
3. ARUNKUMAR
S/O MAHADEVAPPA MOTAKAPALLI
AGE: 21 YEARS
OCC: STUDENT
4. SANGAMMA
W/O JAGADEVAPPA MOTAKAPALLI
AGE: 71 YEARS
OCC: HOUSEHOLD
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ALL ARE R/O KONDAMPUR
TQ. CHONCHOLI
...APPELLANTS
(BY SRI. BASAVARAJ R. MATH, ADVOCATE)
AND:
1. SIDDANNA
S/O SUBHASH
AGE: MAJOR
OCC: OWNER OF MAHINDRA JEEP
NO.KA.38/M-470,
R/O GADILINGADALLI
TQ. CHINCHOLI
DIST. GULBARGA
2. THE ORIENTAL INSURANCE CO. LTD.,
REPRESENTED BY DIVISIONAL MANAGER
OPP. MINI VIDHANA SOUDHA
MAIN ROAD, GULBARGA- 585 102
3. MALLIKARJUN
S/O VENKATAYYA GUTTEDAR
AGE: MAJOR
OCC: OWNER OF MAHINDRA JEEP
NO.KA.38/M-470, R/O BHUTAPUR
TQ. CHINCHOLI
DIST. GULBARGA
...RESPONDENTS
(BY SRI. S.S. ASPALLI, ADVOCATE FOR R2; R1 & R3 ARE
SERVED BUT UNREPRESENTED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED: 25.2.2012
PASSED IN MVC NO.19/2009 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND MACT AT CHINCHOLI, WHEREIN DISMISSED
THE CLAIM PETITION AND HEREIN SEEKING ENHANCEMENT OF
COMPENSATION.
THIS MFA BEING RESERVED ON 25-10-2016 AND
COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY,
NAGARATHNA, J., DELIVERED THE FOLLOWING:
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JUDGMENT
The claimants in M.V.C.No.19/2009 have called in question the judgment and award of the Senior Civil Judge & MACT, Chincholi, dated 25/02/2012 (hereinafter referred to as "the Tribunal" for the sake of brevity).
2. For the sake of convenience, the parties shall be referred to, in terms of their status before the Tribunal.
3. The appellant-claimants filed the claim petition seeking compensation on account of the death of Mahadevappa Motakapalli (Mahadevappa). The first claimant is the widow, the second and third claimants are the children and the fourth and fifth claimants are parents of the deceased. According to the claimants, the deceased was working as a -4- contractor and was also having income from agriculture.
4. According to the claimants, on 02/11/2007, at about 7.45 p.m., when the deceased was returning to Gulbarga on his motorcycle bearing No.KA-32/L- 509, when he was near Sulepeth in front of Meghu Rathod Saw Mill, a Mahindra Commander Jeep bearing No.KA-38/M-470, was driven by its driver in a rash and negligent manner from behind and hit the slow moving motorcycle at its rear portion on which the deceased was riding. As a result, he fell down on the road and sustained grievous injuries to his head and other parts of the body and he was immediately taken to Primary Health Centre, Sulepeth and thereafter, he was referred to Yashodhara Hospital, Solapur, wherein he was an in-patient from 03/11/2007 to 05/01/2008. Despite best medical treatment being given to him, Mahadevappa did not recover from the injuries -5- sustained by him in the accident. On 19/02/2008, he was again admitted to Sarojini Modi Hospital for treatment, where he succumbed to the injuries on 20/02/2008 at about 1.00 p.m. The claimants have averred that the deceased Mahadevappa was the only earning member of the family and on account of his death, the family is put to dire straits and in the lurch. The claimants filed the claim petition seeking compensation on various heads amounting to Rs.45,50,000/-.
5. In response to the claim petition, respondent No.1, owner of Mahindra Jeep filed his counter statement denying that on account of rash and negligent driving of the jeep, its driver had dashed against the motorcycle bearing No.KA-32/L-
509. It is contended that the jeep was driven in a normal speed and carefully and that the accident had occurred on account of the rider of the motorcycle -6- riding in a zigzag manner and thereby confusing the drivers of the vehicles in the rear. That the rider of the vehicle died due to his own negligence when the motorcycle came in contact with the jeep. Therefore, the claimants are not entitled to any compensation from respondent No.1. It was also submitted that, if at all the Tribunal is to award compensation, then the same would have to be recovered from respondent No.2/insurance company.
6. The insurance company also filed its statement denying the averments made in the claim petition and specifically denying that the jeep was driven in a rash and negligent manner and as a result, its driver caused the accident resulting in Mahadevappa sustaining grievous injuries and succumbing to the same. The insurance company also contended that the claim made by the claimants was inflated and without any basis. Additionally it is -7- contended that the driver of the jeep was not having any valid and effective driving licence and that the driver was driving the vehicle unauthorisedly and there was a gross violation of the policy condition. It is also, without prejudice, contended that the jeep was not insured with the insurance company.
7. On the basis of the aforesaid rival pleadings and contentions, the Tribunal raised the following issues for its consideration:
1. Whether the petitioners prove that accident stated in the case was occurred due to rash and negligent driving of driver of offending vehicle?
2. Whether petitioners prove that due to impact of accident, deceased succumbed to injuries as alleged?-8-
3. Whether petitioners are entitled for compensation? If yes, to what extent and from whom?
8. The Tribunal, after considering the documents and oral evidence on record let-in by claimant No.1 as well as another witness by name Tippanna who deposed as PW.2 as well as the evidence let-in on behalf of the insurance company, dismissed the claim petition by its judgment dated 25/02/2012. Being aggrieved by the dismissal of the claim petition, the claimants have preferred this miscellaneous first appeal.
9. We have heard learned counsel for the appellants and learned counsel for respondent No.2/insurance company. Respondent Nos.1 and 2 are served and are not represented.
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10. Appellants' counsel contended that the Tribunal was not right in dismissing the claim petition by holding that the claimants had failed to prove that the jeep was involved in the accident. He contended that, Ex.P-1/complaint was filed by the brother-in-law of the deceased who spotted the deceased who had fallen on the road. He was not an eyewitness to the accident and was not aware of the fact that the jeep had caused the accident by hitting the motorcycle at its rear portion and as a result Mahadevappa had sustained grievous injuries. He drew our attention to the fact that during the course of investigation, the police found that Mahadevappa was admitted in the hospital and recorded his statement to the effect that the jeep in question had caused the accident on account of it being driven in a rash and negligent manner. That in support of the statement given by the deceased himself, PW.2 was examined. He is -10- none other than the pillion rider on motorcycle. He had categorically deposed that soon after the accident, he was resting near a nearby bush and that after sometime, a relation of Mahadevappa arrived at the spot and took Mahadevappa in a vehicle. After a few days, PW.2 learnt that Mahadevappa was shifted to Solapur and he died thereafter. According to appellants' counsel, PW.2 being an eyewitness to the accident and being a pillion rider, had categorically stated that the driver of the jeep in question was the cause for the accident. The involvement of the jeep in causing the accident resulting in the death of Mahadevappa was evident.
11. Further, the statement given to the police by none other than Mahadevappa to the effect that he had sustained grievous injuries on account of rash and negligent driving of the jeep in question ought to have been the basis for holding that there was negligence -11- on the part of the driver of the jeep and thereby granting compensation to the claimants. But the Tribunal has observed that the statement of Mahadevappa was relevant only for the purpose of the criminal case and the Tribunal ignored the said statement of Mahadevappa given prior to his death, while dismissing the claim petition. The Tribunal has further observed that the claimants have filed a false petition colluding with the police and they have failed to prove issue No.1. As a result, the Tribunal dismissed the claim petition. Learned counsel contended that having regard to the evidence on record, the claim petition ought to have been allowed and compensation ought to have been granted to the claimants. He submitted that the said exercise could be made by this court, by reversing the judgment of the Tribunal.
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12. Per contra, learned counsel for the insurer, supporting the judgment of the Tribunal contended that one of the relatives of the deceased Mahadevappa is stated to have found him fallen on the road had filed a complaint. In that complaint, there is no reference to the jeep in question at all. It is only after forty two days, as an after thought that the police have recorded the statement of Mahadevappa, which is prior to his death, to the effect that the jeep in question had hit the motorcycle at the rear and on that basis, the claim petition was filed.
13. Learned counsel for the insurance company contended that on a perusal of the spot panchnama and the motor vehicle report, it would become clear that the jeep in question was not involved in the accident. That there was no damage caused to the rear portion of the motorcycle and that Ex.P-5 the motor vehicle report would clearly indicate that the -13- cause of the accident was not on account of the jeep in question ramming the motorcycle on its hind portion. He further submitted that Ex.P-4 is the spot panchnama, which also would not support the case of the claimants. Learned counsel also contended that there is no infirmity in the judgment of the Tribunal and that the appeal may be dismissed.
14. Having heard learned counsel for the parties and on perusal of the material on record as well as the original records, the following points would arise for our consideration:
1) Whether the Tribunal was justified in dismissing the claim petition?
2) If the answer to point No.1 is in the
negative, whether the claimants are
entitled to any compensation for the
death of Mahadevappa in the road traffic accident that occurred on 02/11/2007, involving jeep bearing No.KA-38/M-470? -14-
3) What order?
15. The widow of the deceased i.e., claimant No.1 examined herself as PW.1. She has reiterated the averments made in the claim statement by stating that on 02/11/2007, when her husband Mahadevappa was returning to Gulbarga on his motorcycle, the driver of the jeep bearing No.KA-38/M-470 drove in a rash and negligent manner and hit the motorcycle from behind. As a result, her husband fell down and sustained grievous injuries on his head and other parts of the body. He was immediately shifted to Primary Health Centre, Sulepeth, and thereafter taken to Yashodhara Super Speciality Hospital, Solapur, where he was treated as an in-patient from 03/11/2007 to 05/01/2008. That he succumbed to his injuries on 20/02/2008 at Sarojini Modi Hospital, wherein he was admitted the previous day. During the course of her deposition, she has produced certain -15- documents. She has been cross-examined by the insurer only, but the owner of the offending vehicle did not cross-examine her. As she is not the eyewitness, no question regarding the cause of accident or regarding involvement of the jeep has been put to her.
16. PW.2 is Tippanna who has deposed that on 02/11/2007, he and the deceased Mahadevappa were proceeding on the motorcycle. That Mahadevappa was riding the motorcycle and that he was the pillion rider. That at about 7.45 p.m., when they were on Sulepeth-Gulbarga Road, the driver of the jeep bearing No.KA-38/M-470 drove the said vehicle in a rash and negligent manner and came from the rear and dashed against the motorcycle. As a result, Mahadevappa fell to the ground. The jeep stopped for a while and then fled away. That Mahadevappa sustained head injuries and he sustained internal -16- injuries. That PW.2 was in pain and agony. He went to a nearby bush and rested there. According to him, sometime later, a relation of Mahadevappa came near the spot, put him in a vehicle and took him away. As he had internal pain, he rested for a few days and thereafter learnt that Mahadevappa was shifted to Solapur and he died in Gulbarga. He has stated that police have recorded his statement and he has narrated all the facts. In his cross-examination, PW.2 has admitted that the offending jeep hit the motorcycle from the rear and although he was a pillion rider, he had sustained only minor injuries. That whatever statement he had made before the police is true. He also stated that he has no knowledge about the contents of the First Information Report (FIR) to the effect that the accident had occurred on account of driving of the motorcycle at a great speed by the deceased Mahadevappa.-17-
17. On behalf of the respondents, the Administrative Officer of the insurer has deposed as RW.1 to the effect that the jeep bearing No.KA-38/M-
470 was not at all involved in the accident. That the involvement of the vehicle is created with the active connivance of the owner of the vehicle with the claimants and Tippanna (PW.2). He has further stated that, soon after the accident, one Channabasappa, son of Neelkanthappa has given the statement before the concerned police to the effect that accident was caused on account of high speed, rash and negligent driving of the deceased Mahadevappa. That Channabasappa is none other than the elder brother of claimant No.1. On the basis of his complaint, police has registered a complaint against Mahadevappa, the deceased. This is disclosed in the FIR, the statement of panchas along with motor vehicle report. According to this witness, PW.2 Tippanna claims to be an -18- eyewitness to the accident as he has deposed that he was a pillion rider of the motorcycle. RW.1 has stated in the cross-examination that the jeep and hit the motorcycle at the rear; as a result, Mahadevappa fell down and sustained head injuries. According to RW.1, PW.2 has been examined in order to create a false case in support of the claim petition. According to RW.1, Ex.P-5/Motor Vehicle Inspector's Report would disclose that there is no damage caused to the jeep and as per the Motor Vehicles Inspector's Report, no damage was caused to the rear of the motorcycle. RW.1 has stated that the claim petition is false and fake and therefore, sought dismissal of the claim petition. In his cross-examination, while admitting that the alleged offending vehicle was insured by his company, he has stated that he has no knowledge about PW.2 being the pillion rider on the motorcycle. -19-
18. The documentary evidence in support of the claim petition could be considered as under:
Ex.P-1 is the FIR. The complainant is Channabasappa, who is the brother-in-law of the deceased. The complaint was received on 03/11/2007 at about 8.30 p.m., while Ex.P-3 is the charge sheet and case diary is Ex.P-2. Spot panchnama is marked as Ex.P-4 and the motor vehicle accident report is Ex.P-5, the post-mortem report is marked as Ex.P-6. The statement of the deceased recorded on 20/12/2007, while at Yashodara Hospital is at Ex.P-7 and the statement of PW.2, Tippanna recorded on 02/01/2008 is marked as Ex.P-8. Another statement of PW.2, Tippanna recorded on 23/03/2008 is marked as Ex.P-9.
19. On considering the said evidence, the Tribunal held that Ex.P-1, FIR was lodged by Channabasappa, the brother-in-law of deceased -20- Mahadevappa. In the complaint, Channabasappa had stated that the deceased had died on account of rash and negligent riding of the motorcycle by the deceased. The grievance of the appellants is that, the Tribunal, while considering Ex.P-1, FIR and giving credence to it disbelieved Ex.P-7, which is the statement of the deceased given prior to his death. The said statement was made to the police. According to the appellants, though it has not been endorsed by the doctor, the police had filed the charge sheet on the driver of the offending jeep on the basis of the statement of the deceased. According to the claimants, merely because the statement was not endorsed by the doctor, it could not have been disbelieved by the Tribunal. The question is, as to whether the deceased was able to make a statement before the police or not. The same would not be required to be considered with the same standard of -21- proof that is required as a dying declaration. According to the learned counsel for the claimant/appellants, the Tribunal could not have discarded Ex.P-7, which is the statement of the deceased in which it is categorically recorded that he had sustained grievance injuries on account of negligent driving of the jeep by its driver. The Tribunal has also reasoned to the effect that PW.2 Tippanna had not given any complaint to the police although he claimed to be a pillion rider on the fateful day and had received only simple injuries. The contention of the appellants' counsel is that merely because PW.2, the eyewitness had not given complaint and the complaint was given by a person who was not an eyewitness, much weight could not be given to Ex.P-1 complaint as opposed to the statement given by the deceased at Ex.P-7 and also the statements made by PW.2 before the police. -22-
20. The aforesaid documents are considered in light of the submissions of the learned counsel for the appellants. Ex.P-1, which is the certified copy of the FIR filed on the basis of the complaint given by Channabasappa, the brother-in-law of the deceased. According to the complainant, on account of a death in the family on 30/10/2007 and the funeral took place on 02/11/2007. That when the complainant was returning after attending the funeral at Sulepeth, on Gulbarga road he found that a person had lost control of the vehicle and had fallen down from the motorcycle. He had head injury and other injuries and was in an unconscious state. When the complainant went near the rider of the motorcycle who had fallen down, he found that it was his brother-in-law i.e., the husband of claimant No.1. The motorcycle bearing No.KA-32/L-509 was driven by him. The accident occurred on account of the fast driving of the -23- motorcycle. This was about 7.55 p.m. The complainant does not speak about there being any other vehicle, which was involved in causing the accident resulting in injuries to the rider of the motorcycle. The complaint does not also mention about PW.2 being at a nearby bush. If indeed PW.2 was the pillion rider of the motorcycle and the rider who had fallen from the motorcycle, then the natural course of action for him would have been to interact with the complainant. Also, PW.2 would not have left the side the injured-rider and taken recuse near a bush. He would have been near the injured so as to revive or atleast try to seek help from any person near the spot. Therefore, the complainant has categorically stated that the accident had occurred on 02/11/2007 on account of the rider of the motorcycle losing control of the vehicle. He gave the complaint at -24- about 8.30 p.m. and it was registered and FIR was filed at 9.15 p.m. on the same day.
21. Ex.P-3 is the charge sheet filed in respect of the accident, which states that the rider of the motorcycle died on account of jeep bearing No.KA-38- M-470 being driven in a rash and negligent manner and hitting the motorcycle from behind. That while the motorcycle was seized on 03/11/2007, the jeep was seized only on 02/01/2008. The variation between the FIR and the charge sheet are two fold:
firstly, the FIR does not refer to the jeep being involved in the accident and the jeep hitting the motorcycle being the cause of accident. Secondly, it is noted that the motorcycle was seized on 03/11/2007, but the jeep was not seized until 02/01/2008. The charge sheet is filed against the driver of the jeep invoking Sections 279, 338, 304A of the IPC. -25-
22. The spot panchnama conducted on 03/11/2007 at about 7.10 to 7.50 a.m. is at Ex.P-4, which reiterates the contents of the complaint to the effect that the rider of the motorcycle lost control of the same and as a result, had fallen down. They found that the motorcycle was damaged. But there is no reference as to whatsoever to there being any other vehicle, which was the cause of accident resulting in the injury sustained by the deceased.
23. On perusal of Ex.P-5, the motor vehicle accident report, the Motor Vehicle Inspector has found damage to only front portion of the motorcycle. The report is dated 04/01/2008. There is absolutely no recording of the fact that the rear portion of the motorcycle was damaged. It is difficult to believe that if the driver of the jeep had dashed to the motorcycle from the rear, then it is only the front portion of the vehicle, which would have got damaged and there -26- would not even be any damage caused to the rear portion of the motor vehicle. Also no inspection report of the jeep has been filed. If indeed the jeep in question had hit the motorcycle from behind, there would have been some impact on the jeep. The same not being filed leads us to infer that the jeep in question was not involved in the accident. Similarly, it is difficult to believe that PW.2 who claims to be the pillion rider at the time of accident, did not sustain any injury as such and in fact, was able to walk to a nearby bush and rest there, while the rider of the motorcycle fell down from the motorcycle and sustained grievous head injuries. The rider of the motorcycle died on 20/02/2008 and as per the post- mortem report at Ex.P-6, the death has occurred due to respiratory distress following the head injury.
24. Exs.P-7 to P-9 have been considered in detail. Ex.P-7 is the certified copy of the statement -27- made by the deceased before the police. The statement was recorded on 20/12/2007. According to the deceased, while he was riding his motorcycle along with PW.2, jeep bearing No.KA-38/M-470 came in a rash manner and dashed against the motorcycle. As a result, he sustained serious head injury and became unconscious. His brother-in-law admitted him to the Government Hospital. If, indeed, the deceased had sustained serious head injury and had become unconscious and was thereafter admitted to the hospital, then it is difficult to believe that the deceased was able to remember the number of the offending jeep namely, KA-38/M/470, particularly when the jeep hit the rear of the motorcycle. Although Ex.P-7 is the statement given by the deceased on 20/12/2007 before the police, the same is not certified by a doctor with regard to the medical condition of the deceased on the day he gave the -28- statement. Thus, Ex.P-7 cannot be given any credence as such and it is inferred that Ex.P-7 is a document, which has been prepared only for the purpose of the case, the contents of which cannot be believed.
25. Exs.P8 and P-9 are the statements given by PW.2-Tippanna on 02/01/2008 and 23/03/2008, one, prior to the death of Mahadevappa - the rider of the motorcycle and the other, subsequent to his death. It is recorded in Ex.P-8 that the jeep dashed against the motorcycle, as a result, Mahadevappa fell down and became unconscious. He has stated that the driver of the Jeep was Kadappa, son of Hanumanthappa Poojari. The source of this information is not stated. In Ex.P-9, PW.2 has stated that the complainant-Channabasappa gave a complaint after seeing Mahadevappa had sustained serious injuries and admitted him to the Government Hospital. If, indeed, PW.2 is an eyewitness to the -29- accident and had sustained only simple injuries, then the question would arise as to why he did not give complaint initially and secondly, as to why his statement was recorded only on 02/01/2008 in the first instance nearly two months after the accident.
26. A combined reading of Exs.P-7 to P-9 would clearly indicate that these documents containing the statements of the deceased and PW.2 have come into existence only for the purpose of the case and that they do not reveal the truth. It is also difficult to believe that PW.2 could have stated the number of the jeep when the jeep hit the motorcycle from the rear or, that he could recognize the complainant, when according to him, he went to a nearby bush to take rest at about 8.00 p.m. on the fateful date. Therefore, in our view, Exs.P-7 to P-9 contradict what has been produced by the claimants as Exs.P-1, P-2 and P-4. Those documents relate to -30- the period immediately after the accident, which do not refer to the jeep in question being involved in the accident. Ex.P-7 dated 20/12/2007, Ex.P-8 dated 02/01/2008 and Ex.P-9 dated 23/03/2008 recording the statement of deceased and PW.2 are of a later date. This would clearly establish the fact that involvement of jeep in the accident by the claimants is clearly an afterthought only for the purpose of claiming compensation. The contradiction between Exs.P-1 and P-7 to P-9 are glaring.
27. That apart, the motor vehicle inspection report clearly states that only the front portion of the motorcycle was damaged and not its rear portion, whereas the case of the claimants is that the offending jeep hit the motorcycle in the hind portion. If at all the jeep had hit the motorcycle at the rear, then the fact that PW.2 who claims to be the pillion rider at the time of the accident hardly sustained any -31- injury and that it was only the rider of the motorcycle who fell down and sustained serious head injury is also a significant fact. Thus, in our view, Exs.P-7 to P-9 have been got up by the claimants only for the purpose of seeking compensation.
28. Further, PW.2 who claims to be an eyewitness to the accident has deposed falsely and has given a false statement to the police so as to assist the claimants in seeking compensation in foisting a false case on the respondents. The fact that the owner of the jeep has not deposed in the matter would also lead us to infer collusion between the owner of the jeep and the claimants. Hence, in our view, the accident has occurred on account of negligence on the part of the deceased Mahadevappa in riding the motorcycle. The jeep in question was not at all involved in the accident. We answer point No.1 by holding that the Tribunal was right in dismissing the claim petition by not -32- accepting the case of the claimants. We do not find any merit in this appeal as in our view, there is no infirmity in the judgment of the Tribunal. Hence, the appeal is dismissed.
Parties to bear their respective costs.
Sd/-
JUDGE Sd/-
JUDGE S*