Karnataka High Court
Manjamma @ Manjula W/O Late D Muniraju @ ... vs National Insurance Co.Ltd., on 20 November, 2020
Author: Nataraj Rangaswamy
Bench: Nataraj Rangaswamy
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF NOVEMBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE NATARAJ RANGASWAMY
MISCELLANEOUS FIRST APPEAL NO.8307 OF 2011 (MV)
BETWEEN:
1. MANJAMMA @ MANJULA,
W/O LATE D.MUNIRAJU @
MUNIRAJAPPA,
AGED ABOUT 28 YEARS
2. KUMAR,
S/O LATE D.MUNIRAJU @
MUNIRAJAPPA,
AGED ABOUT 7 YEARS
3. CHETHAN,
S/O LATE D.MUNIRAJU @
MUNIRAJAPPA,
AGED ABOUT 6 YEARS
THE APPELLANT'S NO.2 AND 3 ARE MINORS
REPRESENTED BY THEIR MOTHER
MANJAMMA @ MANJULA,
THE NATURAL GUARDIAN.
4. DASAPPA,
S/O LATE PILLA MUNIYAPPA,
AGED ABOUT 76 YEARS
ALL THE ABOVE APPELLANTS ARE
R/AT KUDUGERE, CHIKKAJALA HOBLI,
BANGALORE.
... APPELLANTS
[BY SRI. SHRIPAD V. SHASTRI, ADVOCATE(THROUGH VC)]
2
AND:
1. NATIONAL INSURANCE CO. LTD.,
DO IV, NO.16,
SHIVANANDA CIRCLE,
KUMARAKRUPA ROAD,
BANGALORE - 01.
BY ITS MANAGER.
2. BACHANNA,
S/O ANJANAPPA,
MAJOR,
R/AT MEENAKUNTE HOSUR VILLAGE,
DODDAJALA POST,
BANGALORE NORTH TALUK.
... RESPONDENTS
(BY SRI.O.MAHESH, ADVOCATE FOR R1;
SRI.CHENNAKESHAVA B.S., ADVOCATE FOR R2)
THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT, 1988 AGAINST THE JUDGMENT
AND AWARD DATED 30.04.2011 PASSED IN MVC
NO.7748/2008 ON THE FILE OF PRINCIPAL MACT AND
CHIEF JUDGE, COURT OF SMALL CAUSES, BANGALORE
DISMISSING THE CLAIM PETITION FOR COMPENSATION.
THIS APPEAL COMING ON FOR HEARING THIS DAY,
THE COURT THROUGH VIDEO CONFERENCE DELIVERED
THE FOLLOWING:
JUDGMENT
This is an appeal filed by the claimants challenging the Judgment and Award passed by the Principal MACT and Chief Judge, Court of Small Causes, Bengaluru (henceforth referred as 'Tribunal') in MVC No.7748/2008, by which the claim petition filed by the claimants was dismissed. 3
2. The parties shall be referred as they were arrayed before the Tribunal.
3. The claim petition filed before the Tribunal would disclose that:
On 21.05.2008 a person named D.Muniraju was riding pillion on a motorcycle bearing registration No.KA- 04/EJ-7359. At about 4.30 p.m., the driver of a tractor bearing registration No.KA-04/T-1701 (henceforth referred as 'offending vehicle') drove it at a very high speed and in a rash and negligent manner on NH-7 and dashed against the motorcycle. As a result, the said Sri.D.Muniraju, fell down and suffered serious injuries which were grievous. The deceased was initially shifted to N.R.V. Hospital where he was administered first aid and thereafter shifted to M.S. Ramaiah Hospital, Bengaluru where he was treated as an inpatient for 10 days between 21.05.2008 to 30.05.2008. However, he succumbed to the injuries on 30.05.2008. The claimants being the legal representatives and dependants of the deceased have filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 and 4 claimed compensation of Rs.8 lakhs against the owner and the insurer of the offending vehicle.
4. The owner - respondent No.2 herein contested the claim petition and denied the accident and involvement of the tractor. In so far as the insurer is concerned, it also denied the accident as well as the involvement of the offending vehicle. It alternatively contended that the driver of the tractor had no valid and effective driving licence as on the date of the accident and therefore, it was not liable to pay or indemnify the owner against the compensation that may be awarded by the Tribunal.
5. Based on the above contentions, the claim petition was set down for trial. The claimant No.1 was examined as PW-1 and a witness was examined as PW-2 and they marked Exhibits P1 to P12. In so far as the owner and the insurer are concerned, the alleged driver and the owner of the offending vehicle were examined as RW-1 and RW-2 respectively and marked Exhibits R1 to R7. The insurer did not mark any documents. 5
6. Based on the oral and documentary evidence, the Tribunal held issue No.1 against the claimants and held that the claimants had failed to prove the involvement of the offending vehicle in the alleged accident and therefore, rejected the petition. It is seen from the Judgment and Award of the Tribunal that the claim petition was rejected also on the following grounds:
(1) The complaint was registered with the police after seven days of the accident, though the deceased was admitted to N.R.V. Hospital and thereafter shifted to M.S.Ramaiah Hospital, Bengaluru. (2) Though the deceased was a pillion rider, the rider of the motorbike, namely Kumar, who was riding the motorcycle was not examined before the Court.
(3) The alleged driver of the offending vehicle who was examined as RW-1, stated that he was an LL.B student and he was writing Labour Law examination between 2.00 p.m., to 5.00 p.m., on 21.05.2008 and the place of accident was 35 kms away from the examination center.6
(4) That, the driver (RW-1) was acquitted of the charges leveled against him in CC No.762/2008 on the file of the JMFC, Devanahalli for the offence punishable under Sections 279 and 304A of IPC.
(5) There was no MLC intimation given by NRV Hospital, when the deceased was taken to the said hospital for first-aid.
The Tribunal therefore found it appropriate to dismiss the claim petition as the claimants had failed to prove the involvement of the tractor and that RW-1 was not the driver driving the offending vehicle at the time of accident.
7. The claimants aggrieved by the aforesaid Judgment and Award have filed this appeal.
8. The learned counsel for the appellants would contend that the involvement of the Tractor is not seriously disputed and that the claimants are not really concerned whether RW-1 was driving the vehicle at that point of time and they have also contended that the owner of the offending vehicle would have implicated his son only 7 to avoid the liability as the real driver may not have the driving licence to drive the offending vehicle. Therefore, the learned counsel contends that once he has proved that the offending vehicle was involved in the accident, then the liability to pay the compensation would arise.
9. The learned counsel for the appellants drew the attention of the court to Exs.P5 and 6 which are the mahazars drawn at the time of taking the custody of the offending vehicle which indicates damages to the bumper and corresponding damages to the motorcycle in question. He also took me through the Judgment of the Criminal Court in CC No.762/2008 where the Court has held that there is no dispute regarding the involvement of the Tractor in the accident. Therefore, the learned counsel for the claimants submits that case under Section 166 of the Motor Vehicles Act, 1988 have to be determined on the basis of preponderance of probabilities and not on the basis of strict proof. He therefore, submits that if there are traces to indicate that the offending vehicle was involved in the accident, the Court should not refrain itself from passing an order granting compensation. 8
10. Per contra, the learned counsel for the insurer contended that proof of the accident is sine qua non to maintain a petition for compensation. It is for this reason, the Courts are required to assess the evidence to ascertain whether the offending vehicle in question is involved in the accident or not? He also contended that incidents of fixing vehicles to claim compensation is rampant. Therefore, he contends that the Tribunal was right in dismissing the claim petition on the ground that the claimants had failed to prove the involvement of the offending vehicle in question. The learned counsel also brought to the notice of the Court through the evidence of RWs.1 & 2 which indicate that the driver who was chargesheeted by the police was not driving the vehicle as on the date of the accident. The learned counsel for the insurer also contended that there were gaping holes in the case of the claimants which proved the non-involvement of the Tractor in question, but on the contrary, indicated the fact that the vehicle was implicated in the case.
11. I have given my anxious consideration to the arguments advanced by the learned counsel for the 9 appellant and the counsel for the claimants and the insurer. Before I consider the rival contentions of the parties, it is appropriate to notice that though the Tribunal had framed issues, it had rejected the claim petition based on the finding on issue No.1. The Tribunal has not noticed the mandate of Order XIV Rule 3 of the CPC which is to answer all issues. This mandate is only to ensure that the appellate Court has all the reasons before it to decide the appeal filed before it and to avoid remanding the case to secure the findings on the issues. As rightly contended by the learned counsel for the insurer, the claimants ought to have proved the accident if not to the fullest extent but to an extent to make it probable. In the case on hand, the accident occurred on 21.05.2008 and the deceased was treated at NRV Hospital and thereafter shifted to MS Ramaiah Hospital. The claimants have not attempted to secure the records from the NRV Hospital to indicate that the accident was due to the rash and negligent driving by the driver of offending vehicle in question.
12. Further, the deceased was a pillion rider on the motorcycle when it met with an accident. However, the 10 rider of the motorcycle was not examined before the Court. He perhaps would have been the best witness to speak about the involvement of the offending vehicle in question. In addition to the above, the complaint regarding the accident was lodged on 28..5.2008 i.e., after 7 days from the accident. PW-2 who was the eye-witness to the accident deposed that he saw the accident that occurred on 21.05.2008 at about 4.30 p.m. near Muneshwara Temple at Tarabanahalli Road, Jalla Hobli, Bengaluru North Taluk. However, he did not identify RW.1 who was the alleged driver of the offending vehicle.
13. It is noticed that though the complaint was lodged on 21.05.2008 by one K.H. Kumar, who was the rider of the motorcycle, but he was not examined before the Court. The claimants have also not placed on record the case sheet from M.S.Ramaiah Hospital which could have thrown light on the involvement of the offending vehicle.
14. The learned counsel for the claimants contended that the claimants may be given an opportunity to examine the rider of the motorcycle and also produce the 11 additional documents to establish the involvement of the vehicle in question. The learned counsel for the insurer however, countered this contention, contending that, if this Court remands the matter back to the Tribunal, then the insurer may be exonerated from the liability of paying interest for the period during which the appeal is pending before this Court.
15. The purpose of Section 166 of the Motor Vehicles Act, 1988 is to provide succour to the dependants of a person who died in a road accident. Thus, all efforts should be made to ascertain the truth so as to ensure that the dependants of the deceased do not go empty handed. Since the claimants had claimed that they would make an effort to examine the rider of the vehicle to justify their case, an opportunity should be granted to the claimants to establish their case. At the same time, the insurer cannot be held responsible for the lapse on the part of the claimants in not making enough efforts to prove the accident. Therefore, the insurer cannot be liable to pay the interest for the delayed period, in the event the Tribunal 12 were to hold that the claimants are entitled to compensation.
16. In that view of the matter, this Court would deem it appropriate to provide one more opportunity to the claimants to fully prove the involvement of the offending vehicle in question. Hence, I pass the following:
ORDER The appeal is allowed and the impugned Judgment and Award of the Tribunal dated 30.04.2011 passed in MVC No.7748/2008 by the Principal MACT and Chief Judge, Court of Small Causes, Bengaluru, is set aside and the case is remitted to the Tribunal to decide it afresh after giving opportunity to the claimant to lead additional evidence.
The Tribunal is directed to quantify the compensation and also indicate the liability of the person, who is liable to pay compensation. This shall be complied by the Tribunal within a period of six months from the date of receipt of the certified copy of this order. It is made clear that, if the Tribunal were to hold that the claimants are entitled for 13 compensation, then the claimants would not be entitled to interest between 12.09.2011 i.e., when this appeal is filed till today i.e., on 20.11.2020.
Sd/-
JUDGE PL*