Karnataka High Court
The United India Insurance Co Ltd vs Vidyawati W/O Mallikarjuna Changleri on 18 July, 2018
Author: L Narayana Swamy
Bench: L.Narayana Swamy
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 18TH DAY OF JULY 2018
BEFORE
THE HON'BLE MR. JUSTICE L.NARAYANA SWAMY
MISCELLANEOUS FIRST APPEAL NO.2965 OF 2008 (MV)
Between
The United India Insurance Co. Ltd.
Divisional Manager
Jawali Complex
Super Market
Gulbarga
...Appellant
(By Shri Shivanand Patil, Advocate, Advocate)
And
1. Vidyawati
W/o Mallikarjuna Changleri
Now aged about 44 years
2. Gamgamma
W/o Siddappa Changleri
Aged about 69 years
Occ: Household
3. Siddappa
S/o Late Mallikarjuna
Now aged about 24 years
All R/o Humanabad (Chetti Galli)
District Bidar
Now residing at Shastri Chowk
2
Near S.B. Temple
Barmapur, Gulbarga
4. Sri Silar Ahmed
S/o Syed Sab
Age major
Occ: Divery of lorry
R/o Chitguppa, Humanabad
Bidar District
5. M. Mallappa
S/o Bandeppa
Major
Occ: Owner of the Vehicle
R/o Snehapuri Colony
Borabanda
Hyderabad, A P
...Respondents
(By Shri Babu H. Metagudda, Advocate for R1-R3;
Notice to R4 dispensed with vide order
Dated 05.01.2018)
This Miscellaneous First Appeal is filed under Section
173(1) of the Motor Vehicles Act, praying to call for records and
set aside the judgement and award dated 11.12.2017 passed by
the Principal Civil Judge (Sr. Dn.) and MACT, Gulbarga in MVC
No.1238 of 2004.
This MFA coming on for final hearing this day, the Court
delivered the following:
JUDGMENT
Wife, mother and son of the deceased have registered a claim petition in MVC No.1238 of 2004 on the file of Principal Civil Judge (Sr.Dn.) and Motor Accident Claims Tribunal, 3 Gulbarga. In the plaint it is stated that on 14th May 2004 the deceased succumbed to the motor vehicle accident within Humanabad Police Station limits registered in Crime No.154 of 2004. The deceased was proceeding on TVS Sports vehicle bearing registration No.KA 39 E 6243 for supervising the distribution of Kerosene and when he came near land of one Jaganath Chidri, at that time, the respondent No.1-the offending vehicle came in a rash and negligent manner and dashed the vehicle in which the deceased was proceeding, the impact of which he suffered injuries and died on the spot. In the claim petition made by the claimants seeking compensation of Rs.11,30,000/-, the Tribunal by its judgement and award dated 11th December 2007, awarded a compensation of Rs.2,60,000/- with interest at 6% per annum. Challenging the award, the Insurance is in appeal before this Court.
2. The learned counsel appearing for the appellant- Insurance submits that the offending vehicle has been falsely implicated in order to make an illegal claim. To substantiate the same, the learned counsel referred Exhibit P1-First Information 4 Report registered in Crime No.154 of 2004 on 14th May 2004 for the offence punishable under Sections 279 and 304A of the Indian Penal Code and the case was registered against the deceased himself. Upon registering the case, after completion of investigation, charge sheet has been filed and the deceased himself was charged for the said offence. When the registration of the case and the charge sheet goes against the deceased himself, it is legally presumable that the deceased himself has committed the accident and died for his own fault. There is also no mention about the involvement of lorry in the accident. On this ground, the learned counsel for the appellant submits that the Tribunal has committed an error in awarding compensation by accepting the case of the claimants. The learned counsel also relied upon Exhibit P2-IMV report dated 28th May 2004. This is in respect of the vehicle in which the deceased was travelling and the nature of damage caused to the vehicle itself shows that it is because of the wrong action on the part of the deceased. Though it is a clear case of accident and registration of case against the deceased himself, after a gap of five months from the date of accident and the registration of the case against the 5 deceased, a complaint has been lodged alleging that the offending vehicle, lorry bearing registration No.ABT 1774 driven by one Silar Ahmed in a rash and negligent manner caused the accident. Though this complaint was made after a gap of five months, the case was not registered. Under the circumstance, the complaint made by the wife of the deceased has not been established for the purpose of setting the law into motion. By the time the complaint was made, First Information Report was already registered against the petitioner and subsequently, charge sheet was also filed. If at all it is the case of the complainant that though complaint was made but was not registered, the complainant should have approached the competent Court for registration of the case. On the available documents as per Exhibits P5 and P4 - First Information Report and Charge sheet, it summarily concludes that the deceased alone has committed the accident and succumbed to the injuries. These aspects, though was made available to the learned Judge, but the same has not been considered and hence it is an error on the part of the Tribunal. The claimants, in order to prove their case, examined PW1 who is the wife of the deceased, but 6 she is not the eye-witness to the accident. PW2 one Mallikarjuna claims that he was not the eye-witness to the accident. But, the fact remains that he is witness to spot inspection and panchnama and his name is figured at Sl.No.3 in the charge sheet. When a person himself claims as a witness only for spot inspection and panchnama, styling himself as an outright witness is an error committed by the claimants as also by the Tribunal. Hence, the learned counsel submits that, in total, a false claim has been made by the claimants. He further submits that initially compliant was made by the brother of the deceased and that was registered for the purpose of First Information Report. It is submitted that, unfortunately, that is not available in the records, but in place of the said complaint, subsequent complaint dated 24th August 2004 made by the wife is available. RW1 driver of the lorry has been examined on behalf owner and he admits that there was an accident, but it was his further evidence that the accident was caused on account of negligence on the part of the deceased. The very witness is corroborated and no sufficient materials have been placed in addition to his evidence. Though that should have been rejected by the 7 tribunal, it committed an error in accepting the evidence of RW1. On the basis of all these materials and evidences, the learned counsel for the appellant submits that the Tribunal Committed an error and prays for modifying the judgement.
3. Per contra, the learned counsel for the respondent- claimants submits to dismiss the appeal. He submits that the claimants in MVC No.1238 of 2004, against which the present appeal is filed by the insurance, have approached this Court in MFA No.6923 of 2008 for enhancement of compensation and this Court, by its order dated 05th February 2015, allowed the appeal in part by enhancing the compensation to Rs.4,15,896/-. He submits that when an enhancement is made, it is presumable that the version of the respondent therein questioning the liability has been expressly rejected by this Court. Secondly, the learned counsel submits that the evidence of RW1 is sufficient to fasten the liability on the owner of the vehicle for having committed the act of accident and causing death of the husband of PW1. RW1-driver has deposed in his chief-examination that the accident took place on account of negligence on the part of 8 the deceased, that itself shows that there shall be an accident and that is sufficient for the purpose of making a claim. Though RW1 who has deposed that the accident took place because of the negligence of the deceased, but that has not been rebutted or contravened by the respondent-Insurance. Secondly, complaint was made on 24th August 2004 to the jurisdictional police by the wife of the deceased but the same has not been registered. When that itself is a ground to reject the claim, at the most it is the dereliction on the part of the police in not registering the complaint. The registration of First Information Report and filing of charge sheet is not fundamental in making claim petition and it is sufficient if the claimants are successful in establishing the accident. In the instant case also, PW1 wife of the deceased who has made a complaint to the jurisdictional police; secondly, PW2 who has been examined claims that he is the eye-witness to the accident; and thirdly, RW1-driver who is examined on behalf of the owner also admits the accident. These materials are sufficient for the purpose of proving the accident. The accidental death was reported in daily newspaper. To substantiate his submissions, the learned counsel referred to 9 the judgement of Hon'ble Supreme Court in the case of MINU RAUT AND ANOTHER v. SATYA PRADYUMNA MOHAPATRA AND OTHERS reported in 2013(7) SCJ 940 and refers to paragraphs 11 and 12 of the judgement in which the Hon'ble Supreme Court has reversed the judgment of the High Court by referring to the evidence of PW3 and 4 therein, who have deposed that they saw the accident from a little distance from the market place where about 10-20 persons were present. The learned counsel also referred to the judgement of this Court in the case of MUTTEPPA NAGAPPA KAREGAR v. G.B. ATTAR AND OTHERS reported in 2003(3) KAR.L.J. 387 (DB) in which it has been held that "but the fact remains that the very respondent having admitted the involvement of the vehicle in the accident, nothing more is required to be proved about the accident." He also relied upon the judgement of the Hon'ble Supreme Court in the case of SAROJ AND OTHERS v. HET LAL AND OTHERS reported in 2011 ACJ 552 and refers to paragraph 12 of the judgement.
4. Heard the learned counsel for the parties. The contents of the claim petition is that the lorry bearing 10 registration No.ABT 1774 has caused the accident resulting in the death. The respondent-Insurance filed written statement. In the Written statement the respondent has specifically denied the pleadings of the claimant about the involvement of the vehicle. It has been stated therein that the lorry bearing registration No.ABT 1774 has not at all involved in the accident. Respondent No.1 who is the owner and has made a written statement had admitted the accident. RW1-driver has been cross-examined by the petitioner. The submission of the respondent-insurance is that the affidavit evidence was filed on 27th March 2007 and he was subjected to cross-examination on the very same date, this copy was not served on the respondent-insurance. By doing so, the respondent-insurance has been deprived from cross-examining RW1.
5. I have also gone through the lower Court records and also the judgments referred to by the learned counsel for the parties. The occurrence of accident is not in dispute. The disputed area is whether the deceased succumbed to the injuries caused in the motor vehicle accident caused by lorry bearing 11 registration number ABT 1774? In this regard, a complaint was made by the brother of the deceased. It is submitted by the learned counsel for the appellant Insurance (copy is not available in the lower Court records) that on the basis of the complaint, a case was registered under sections 279 and 304A of the Indian Penal Code, in which the deceased has been named as accused for having committed the accident on account of his negligence. The matter was further investigated and charge sheet has been filed. Till then, no claim petition has been made by the claimants. Only on 28th August 2004 a complaint was made to the jurisdictional police, but the same has not been registered for any offence and no crime number has been given. In this regard, the submission of the learned counsel for the claimants is that it is the dereliction on the part of the police in not registering the complaint. Though the said submission looks appropriate, but the same cannot be considered since no steps have been taken by the claimants as to they making a petition before the appropriate Court for registering a case under Section 200 of the Code of Criminal Procedure as a private complaint. Under the circumstance, the accident caused by the lorry has not 12 been established and law has not been set into motion. Exhibits P1 and P4 First Information Report and the charge sheet respectively, are against the deceased. After the accident, the vehicle in which the deceased was travelling was subjected to inspection by the Motor Vehicle Inspector and the report shows as to damage caused to the front portion of the TVS Sports vehicle and if at all it was dashed or hit by the lorry, corresponding damage should have been visible, but nothing is found from the report. PW1, who is the wife of the deceased, has deposed only to the extent that the deceased was her husband and bread-winner to the family. Naturally, she is not an eye-witness to the incident. Respondent No.1, who claims to the owner of the vehicle, has appeared and he has examined his driver on his behalf. RW1-driver has admitted the accident, however, in his cross-examination it was deposed that the negligence was attributed on the deceased. This could be used for the purpose of establishing the accident. Even if it was to be considered as if there was an accident caused by the lorry, but no cogent materials were placed to that extent. IMV report is not there in respect of the vehicle; there was no seizure, no 13 release has been established, even no papers are available. Only portion of cross-examination evidence of RW1 is available, which reveals that the date of affidavit evidence and cross- examination are on the same date and absolutely there was no occasion for the insurance to cross-examine the witness. In this regard the evidence of RW1 is of no use.
6. In the case of VEERAPPA AND ANOTHER v.
SIDDAPPA AND ANOTHER reported in ILR 2009 KAR 3562, wherein it is observed, "in the instant case although Respondent No.1-owner of the lorry has filed a statement admitting the accident and contended that his vehicle was insured with the second respondent-Insurance, and therefore, if at all any compensation is payable, it is the second respondent who is liable to pay the compensation." This case was gone into in the judgement and it has been held that Insurance is not liable to indemnify the owner of the vehicle who has played a fraud and is not liable to pay any compensation to the claimant who are also party to the fraud. Further, it is held that "here is the case that 14 the claimants have played fraud on the Court with the connivance of Respondent No.1".
7. When these are all the materials available before the Tribunal, despite examining the case of Insurance, the impugned action on the part of the claimants has not been examined. The Tribunal has framed the issue as to whether (1) the petitioner proves that the deceased Mallikarjun S/o Siddappa Changleri died in a road traffic accident on 14.05.2004 at about 2.10 p.m. near the land of Jaganath Chidri on Humanabad rad within the jurisdiction of Humanabad Police Station, due to rash and negligent driving of vehicle No.ABT 1774 by its driver of the respondent No.1; and the same has been answered in the affirmative. For the said purpose, the Tribunal has considered again the evidence of RW1 and exhibit R1 the Driving Licence. Though these materials were not available either in Exhibit P1- First Information Report, Exhibit P2-Motor Vehicle report; Exhibit P4-Charge sheet, Exhibits P5 and P6-spot mahazar and inquest panchanama respectively; and Exhibit P7-Form 'D', always to be borne in mind that the evidence, if any to be considered, should 15 be corroborative evidence in response to the exhibits produced and marked. In the case on hand, document produced by claimant is a piece of evidence to disbelieve the case. The First Information Report-Exhibit P1 does not disclose about the involvement of the lorry in the accident. It is true that the First Information Report is a minimum document for setting the law into motion, and normally, it may not contain the offender's name and address. But, Exhibit P4-charge sheet was filed and it further fortifies the case of Insurance that either RW1 who is the driver and Exhibit R1 the Driving Licence are not at all considered. PW2 who claims to be eye-witness has been examined and in support of the claimants, but he is not an eye- witness. On the other hand, he is charge sheet witness to spot mahazar and panchnama. Under the circumstance, neither PW1 nor PW2 are eye-witness who support the claim of the claimants. Naturally, claimants have taken the assistance of R1 who is the owner of the lorry who naturally supports the case of claimants and examined his driver as RW1. If that is the case, under the Motor Vehicles Act it should have been the duty on the part of the owner to report immediately to the insurance or to the police 16 about the accident. Neither the driver nor the owner has done the same. Under the circumstance, at the initial stage as per Exhibit P1 and at the stage of investigation as per Exhibit P4, it was not the case of the prosecution or the claimants that either the Lorry bearing Registration No.ABT 1774 or RW1 the driver of the said lorry, caused the accident resulting the death of the deceased. Under these circumstances, as it is held by this Court in the case of VEERAPPA (supra), in the instant case also, it is to be held that it is an attempt made to defraud the Court in order to make a false claim.
8. The cases referred to by the learned counsel for the appellant that registration of criminal case is not at all relevant for the purpose of making the claim cannot be accepted. It is true that in order to make a petition under Section 166 of the Motor Vehicles Act, there shall be a motor vehicle accident. In order to establish the motor vehicle accident, there should have been criminal case registered against the wrong doer or the tortfeaser. In the circumstance where it may not possible to register a criminal case, no doubt, as it is held by the Hon'ble 17 Supreme Court, cogent evidence and materials should be made available to the satisfaction of the Court. In the case on hand, First Information Report has been registered in Crime No.154 of 2004 and charge sheet is filed. At least, the claimants should have been examined the eye-witness to the incident or should have placed some materials like Motor Vehicle report, etc. Absolutely, no materials are forthcoming or placed before the Tribunal. Except evidence of PW1 and RW1, no other police documents are produced. Under these circumstances, it is to be held that the claimants have absolutely failed to prove the case of accidental death. In the complaint is made by the brother of the deceased (copy is not available in the record and it is the submission of the respondent-Insurance), he has stated that the case has been registered as a self-accident in which the driver of the TVS himself is a tortfeaser and has committed an offence under Section 279 and 304A of the Indian Penal Code, and investigation having been carried out, charge sheet being filed against the deceased himself, under all these circumstances, absolutely I do not find any material or evidence to believe the case of the claimants.
18
9. The submission of the learned counsel for the claimants that in the case filed before this Court by the claimants for enhancement of compensation, the same has been allowed is concerned, it is to be held that an appeal could be filed both by the claimants seeking enhancement of compensation as well as by the Insurance challenging the quantum or liability. In the case filed by the claimants for enhancement of compensation, though the Insurance was heard, but absolutely there is no discussion with regard to the contention advanced by the insurance. This Court, at paragraph four of the judgment has referred "heard the learned counsel for the parties", but the submission of the insurance has not been discussed may be for the reason that no representation was made on this behalf. That itself is not a ground to dismiss the case of the claimants. It is true and I am also aware that if the case for enhancement is allowed after contesting the matter, it is to be presumed that the rival contentions, if at all any taken by the insurance, have been negatived. But, in the instant case, no such stand has been taken by the Insurance nor the same has been negatived. Under the circumstance, I hold that the enhancement of compensation 19 in the case made by the claimants, in case if it is allowed or partly allowed, that is not a ground to automatically dismiss the appeal filed by the insurance.
10. In summing up, I hold that in order to make a claim petition under Section 140, 166, or 163 of the Motor Vehicles Act, there shall be a motor vehicle accident that has taken place. An injury in the motor vehicle accident or in case of death, there shall be a case filed by the victim/claimants, as the case may be, and in order to make a case and the victim/claimants shall prove the motor vehicle accident. In order to prove the same, the fundamental documents, viz. the complaint; First Information Report, in case, if the complaint is registered; crime number; IMV report; charge sheet; etc. are to be produced. In case if these things are not available, the burden is on the claimants to make out their case by adducing evidence of eye-witness, circumstances, etc.
11. On these grounds, I hold that the Tribunal has committed an error in answering issue No.1 against the Insurance and also committed an error in fastening the liability 20 on the Insurance to pay the compensation though accident is not established. Last but not the least, it is also to be observed that while disposing of the appeal MFA No.6923 of 2008 filed by the claimants seeking enhancement in compensation, the present appeal filed by the Insurance was also pending and the same put up along with this appeal. The Office records does not disclose as to whether the present appeal having been de-linked from the appeal or at what stage it was de-linked, etc.
12. Hence, I pass the following:
ORDER
1. Appeal allowed.
2. Judgement and award dated 11.12.2017 passed by the Principal Civil Judge (Sr. Dn.) and MACT, Gulbarga in MVC No.1238 of 2004 is set aside.
3. Amount in deposit, if any, is to be refunded to the Insurance.
Sd/-
JUDGE lnn