Karnataka High Court
The Branch Manager vs Kavitha W/O Keshwaw Sawant & Ors on 10 September, 2020
Author: Krishna S.Dixit
Bench: Krishna S.Dixit
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 10TH DAY OF SEPTEMBER, 2020
PRESENT
THE HON'BLE MR.JUSTICE KRISHNA S.DIXIT
AND
THE HON'BLE MR.JUSTICE P.N.DESAI
MFA No.31906/2012 (MV)
Between:
The Branch Manager
Oriental Insurance Co. Ltd.,
Bidari Complex, S.S. Front Road
Bijapur
Now represented by
The Senior Divisional Manager
Oriental Insurance Co. Ltd.,
N.G. Complex,
Opp: Mini Vidhan Soudha
Gulbarga.
... Appellant
(By Sri Sanjay M. Joshi, Advocate)
And:
1. Kavitha W/o Keshwaw Sawant
Age: 42 years, Occ: Household
2. Nikhil S/o Keshav Sawant
Age: 20 years, Occ: Student
2
3. Kumari Swapna D/o Keshav Sawant
Age: 12 years, Occ: Student
(Since minor represented by her natural
mother respondent No.1 herein as
minor guardian)
All R/o Basavan Bagewadi
Tq. Basavan Bagewadi,
Dist: Bijapur-586203
4. Yellappa S Patil
Age: Major, Occ: Business &
Owner of Tempo Tracks
KA-28/M-3791
At post Kannur
Tq. & Dist: Bijapur-586101
... Respondents
(By Sri S.S.Mamadapur, Advocate for R1 & R2;
R3 is minor, represented by R1;
R4 is served)
This Miscellaneous First Appeal is filed under Section
173 (1) of Motor Vehicles Act, praying to call for the records
and set aside the impugned judgment and award dated
27.06.2012 passed by the Senior Civil Judge & Member,
Motor Accident Claims Tribunal No.IX, Basawan Bagewadi in
MVC No.133/2020.
This appeal coming on for final hearing this day,
Krishna S. Dixit J., delivered the following:-
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JUDGMENT
This appeal by the Insurer seeks to lay a challenge to the Judgment & Award dated 27.06.2012 allowing MVC No.133/2010 whereby, the claimants have been awarded a compensation of Rs.19,28,235/- with interest at the rate of 6% per annum subject to apportionment of compensation and also a usual condition for bank deposit. After service of notice, the respondent-claimants having entered appearance through their counsel, and oppose the appeal making submission in justification of the Award.
2. Brief version of the parties:
(a) In a vehicular accident that happened on 15.09.2008, because of rash & negligent driving of the offending Tempo Trax bearing Reg.No.KA-28 M 3791 one Mr. Keshav Sawant who was riding the motor bike bearing Reg.No.MH-10 AA 8366 was knocked down and he breathed his last succumbing to the fatal injuries, 4 later; the claim petition by the widow and children of the deceased in MVC No.133/2010 was stoutly opposed by the Insurer by filing the Written Statement; and
(b) To prove the claim, widow of the deceased was examined as PW-1 and one Mr. Dinakar Hira Bansode an eyewitness was examined as PW-2; in their evidence 10 documents came to be marked as per Exs.P-1 to P-
10; from the side of the Insurer, its employee Mr. Paramanand Bhimappa Gundannavar was examined as RW-1 and in his deposition, the Insurance Policy was got marked as Ex.R-1; the MACT having considered the pleadings of the parties and evidence borne out by record has entered made the impugned Award of compensation.
3. Having heard the learned counsel for the parties & having perused the appeal papers and TCR, we are inclined to grant indulgence in the matter for the following reasons:
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(i) The accident happened on 15.09.2008 and the victim having sustained fatal injuries succumbed thereto, may be true; the FIR was lodged only on 01.10.2008 with no plausible explanation for the long delay, brooked; the FIR is structured on "hit & run"
case, and thus the identity of the vehicle was not known; the version of PW-2 Dinakar that he was following the motor bike of the victim from behind and that he saw the accident happen is bit difficult to believe; had he seen the vehicle and known its registration number, there is no reason for the FIR being the one of "hit & run" case.
(ii) The whole case is sought to be established by the circumstantial evidence with too many missing links; the version of PW-2 who claimed that he was an acquaintant of the deceased and that he left the deceased to his fate after the accident and went to his work again, has a thick ring of doubt; no reasonable 6 person leaves the fatally injured acquaintant that way;
his deposition that after the offending vehicle after hitting the bike of victim was stopped for a while, further thickens the ring of doubt; the same does not fit into a case of "hit & run"; he claims to have seen the vehicle for the first time after the Police had shown to him within one month of the accident; in fact, the vehicle was not seized by the Police at all; it was claimed to have been produced by the offending Driver on his own and voluntarily before the Police on 01.01.2010; this witness appears to be untrustworthy.
(iii) There is yet another reason for doubting the credibility of PW-2 on whose version the claim petition was mainly founded; had he been an eyewitness, he would have revealed the accident to the widow of the deceased and given the registration number of the offending vehicle to the widow or the police as well; the widow who was examined as PW-1 has admitted in her 7 cross-examination that she came to know of the offending vehicle more than a year after accident.
(iv) The case sought to be made out by the claimants, to which the MACT fell a prey is cinematic in appearance; it sounds stranger than a fiction that the driver Mr. Tukaram one year & three months after the accident, took the vehicle to the Police Station on 01.01.2010 and revealed about the accident confessing the guilt; men being what they are, such incidents being rarest of the rare would not generate confidence, in the absence of cogent corroboration; such a conduct on the part of the driver namely taking the offending vehicle to the Police Station appears to be too far-fetched; his statement recorded by the Police under section 161 of Cr.P.C. could not have been believed by the MACT without he being examined from the claimant's side; no explanation is offered for not examining him, either; if the registered owner had produced the vehicle before 8 the Police, on being informed of the accident by the driver, it would have been different; however, that is not the case here.
(v) The vehement contention of the counsel for the claimants that the Police having investigated into the matter, have filed charge sheet and therefore, the same needs to be treated with presumptive value would have gained our acceptance if either the Investigating Officer was put to witness box or all the case papers in the prosecution were made part of the record before the MACT; a bare three page Report filed under section 173 of Cr.P.C. sans the statement of any of the witnesses, does not serve the purpose.
(vi) The vehement contention of the learned counsel for the claimants that the statement of offending driver of the vehicle was recorded by the Police under section 161 and that the same was produced as Ex.P-4 before the MACT again does not come to the 9 rescue of respondents; admittedly, the driver of the vehicle was not made a party to the claim petition and no explanation is offered for not making him, one; he was not even examined as a witness of the claimants, as already mentioned above; had he been examined, the Insurer could have cross-examined him and that would have helped in eliciting the truth of his so called admission before the Police; after all, admission is not a conclusive evidence, states section 31 of the Indian Evidence Act, 1872; this apart, the alleged admission is not by a party to the claim proceedings and therefore, much milk cannot be drawn from Ex.P-4.
(vii) The Insurer could not furnish the particulars of the vehicle seizure & its release by the Police or the Criminal Court, in terms of direction of this Court is true; but what prevented the claimant from producing the same when they were capable of producing other records of the criminal case i.e. the statement of 10 offending driver of the vehicle at Ex.P-4, is not forthcoming; viewed from any angle, the findings recorded by the MACT as to involvement of the so called offending vehicle in the accident cannot be sustained, in the totality of the circumstances and thus, a strong case is made out by the Insurer for allowing the appeal.
In the above circumstances, this appeal succeeds; the impugned Judgment & Award are set at naught; the Registry shall refund the amount in deposit to the Insurer, forthwith.
No costs.
Sd/-
JUDGE Sd/-
JUDGE swk