Karnataka High Court
Smt.Dilshad W/O Babu Shariff vs Vemareddy Vettagonala S/O ... on 3 August, 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF AUGUST 2017
BEFORE
THE HON'BLE MR. JUSTICE N.K. SUDHINDRARAO
M.F.A.No.1713/2010(MV)
BETWEEN
1. SMT.DILSHAD
W/O BABU SHARIFF
AGED 41 YEARS
2. KU SULTHAN
D/O BABU SHARIFF
AGED 21 YEARS
3. KU HUMREENA
D/O BABU SHARIFF
AGED 19 YEARS
4. KU THASEEMA
D/O BABU SHARIFF
AGED 17 YEARS
5. KU THABBUTHAZ
D/O BABU SHARIFF
AGED 15 YEARS
6. KU THABASAM
D/O BABU SHARIFF
AGED 13 YEARS
APPELLANTS 4 TO 6 ARE MINORS
REP. BY THEIR MOTHER, NATURAL GUARDIAN i.e., A1
DILSHAD
ALL ARE R/AT KYALNUR(V)
VEMAGAL (H)
KOLAR TALUK. ... APPELLANTS
(BY SRI C M VENKATA REDDY, ADVOCATE - ABSENT)
2
AND
1. VEMAREDDY VETTAGONALA
S/O NARAYANAREDDY
R/AT, D-11-34-1,6/6
NEHRUNAGAR, GUNTUR(D)
ANDRA PRADESH.
2. THE MANAGER,
ORIENTAL INSURANCE CO,LTD,
NO.11, 1/1, KANHUT ROAD,
QUENSE CROSS,
BANGALORE. ... RESPONDENTS
(BY SRI B C SEETHARAMA RAO, ADVOCATE FOR R2
R1 IS SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:04.12.2009
PASSED IN MVC NO.438/2007 ON THE FILE OF THE PRINCIPAL
DISTRICT JUDGE AND MEMBER, MACT, KOLAR, DISMISSING
THE PETITION FOR COMPENSATION.
THIS MFA COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The matter is listed under the cases falling for Admission at serial No.44.
2. Learned counsel for the appellants absent and the matter was passed over in the first session. Again the matter was called in the second session. In the second session, learned counsel for the appellants absent. 3 Learned counsel for 2nd respondent is present. The court considering the pendency of the appeal is from the year 2010, has directed the 2nd respondent's counsel to go ahead with the matter.
3. This appeal coming up for Admission is directed against the judgment and award dated 4/12/2009 passed by the learned Principal District Judge and MACT, Kolar, wherein, the claim petition filed by the claimants came to be dismissed.
4. In order to avoid confusion and overlapping, parties hereinafter are referred to with reference to their respective rankings as stood in the Tribunal.
5. The incident: On 10.5.2007 at 10.00 p.m., Babu Shariff, was on the way to Madiwala village by walk, near the village, a vehicle bearing Registration No.AP.07.X.7277 was driven in a rash and negligent manner and dashed Babu Shariff who sustained serious injuries and was admitted to SNR hospital. But he succumbed to injuries. 4 Thereafter, a criminal case came to be registered against the driver of the vehicle as stated above for the offences punishable under Sections 279, 337 and 304A of Indian Penal Code. Babu Shariff was said to be a businessman in Cocoons earning income of Rs.30,000/- per month and was maintaining his family by spending Rs.30,000/-.
6. The petitioner Nos. 1 to 6 in the petition before the Tribunal filed the petition for compensation claiming that they suffered loss of dependency by virtue of the death of Babu Shariff, who are said to be the wife and children and the claimant Nos. 4 to 6 being minors are represented by their natural guardian, mother, petitioner No.1
7. The respondent No.1 is the owner, respondent No.2 is the Insurance Company.
8. The respondents denied the claim of the petitioners regarding the accident, liability, involvement, 5 nexus, loss of dependency and entitlement for compensation.
9. The petitioners lead oral evidence of PW1 and Exs.P1 to 5 including copies of FIR, vehicle report, inquest mahazar, spot mahazar and postmortem report were produced. The respondent therein neither led oral evidence nor filed documents.
10. The learned Member of the Tribunal has found lack of credibility in the petition and in the conduct of the claimants insofar as registration of criminal case is concerned, which is registered against vehicle bearing No.AP.07.X.7277. The said vehicle is said to be offending one. The claim of the petitioners is that when Babu Shariff fell down, his dead body was abandoned at the middle of the road. Learned Member also found absence of blood stains on the road or the clothes of the deceased at the time of death is seized.
6
11. The learned counsel for the appellants was supposed to discharge his responsibility of presenting before the Court to prosecute the matter which did not happen. Learned counsel for Insurance Company appeared in the second session. Court being conscious of the stage of the case is Admission, directed the learned counsel for respondent to go ahead with the case.
12. Insofar as the death of Babu Shariff is not disputed. However, the accident and death there was no clear picture is considered by the learned Member. It is not uncommon that death of a person due to negligence or recklessness of anybody. The dependents in case of death and injuries are liable to make good the loss insofar as bringing back the economic situation of the person. Invariably there will be joint and several liability between Insurance Company and owner of the vehicle to make good of compensation. Regard being had to the fact that the owner when gets the vehicle insured his part of responsibility would be considered by the court to be 7 payable by the Insurance Company. However, this is subject to non violation of norms of the policy and the terms and conditions laid down in the driving licence which is to be possessed by the operator of the vehicle.
13. Here, Ex.P1, copy of the FIR that is registered under Sections 277, 279, 337 of IPC and Section 187 of MV Act in Crime No.73/2007. Regard being had to the fact that accused person's name is not mentioned nor the registration number of the vehicle. Thus the offence was not reported and insofar as the driver and the vehicle identity was said to be not reported.
14. The complainant in the case is the Sub Inspector Prakash. In his complaint he records that information was passed on to him by PC 271 of Vemgal PS on 10.5.2007 regarding abandonment of dead body on the road at thereafter aforesaid case was registered in Crime No.73/2007. In her evidence, PW1 the widow of Babu Shariff has stated that her husband died on 10.5.2007 in 8 road traffic accident as the lorry bearing No.AP.07.X.7277 dashed against her husband who ultimately died because of the injuries sustained in the accident.
15. This is in the affidavit sworn by her and she does not whisper about the source of information to her regarding the accident or the death. Regard being had to the fact that claim petition filed by her and offsprings for claiming compensation. Insofar as chargesheet is concerned, it is filed against Adam khan the driver of the said vehicle and that is the offending vehicle in the accident.
16. It is also a fact that there are no eye witnesses to the accident. The complainant is not an eye witness. The learned Member found that there were no blood stains on the road where the dead body was found abandoned and the source of information regarding accident has not been specifically stated. The learned Member also finds that the place where the dead body 9 was found abandoned in the middle of the road and Ex.P4 is silent about the clothes are already stained. The dead body of Babu Shariff was sent for postmortem on 12.5.2007 at 3.30 p.m. and the Doctor who conducted autopsy reports that post mortem was conducted on 11.5.2007 between 6.00 p.m. to 8.00 p.m. Thus, the learned Member also finds suspicious circumstances and collusion between petitioners, police, lorry driver and the Medical officer. At the same time, there was no material to indicate that at the said road accident occurred.
17. The learned Member in his well assigned reasons not only finds the accident, death, loss of dependency, entitlement for compensation were stage managed only for the purpose of claiming compensation. Further, the appreciable circumstance is he had directed for investigation in the matter to take action by police inspector and dismissed the claim petition. The observation by the learned member is as under. 10
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18. The basic person who would have been at loss is Insurance Company. Though the Insurance Company would not take further steps, it is the just decision of the learned Member in not waiting for the nod of the Insurance Company to issue direction to investigate the matter.
19. Thus, when this matter is staged for Admission, the Court does not find any of the ingredients to admit and to dispose of the same in accordance with Motor Vehicles Act. Thus, the appeal preferred is liable to be rejected.
20. Hence, the appeal preferred which is set down for admission is rejected.
Sd/-
JUDGE tsn*