Karnataka High Court
Bajaj Allianz General Insurance Co Ltd vs Kumari.G.M.Neelamma on 30 January, 2013
Equivalent citations: 2013 AAC 2619 (KAR), 2013 (3) AKR 663
Author: S.N.Satyanarayana
Bench: S.N.Satyanarayana
1
®
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 30TH DAY OF JANUARY 2013
BEFORE
THE HON'BLE MR. JUSTICE S.N.SATYANARAYANA
M.F.A.NO.4231/2009 (MV) c/w
M.F.A.NO.4624/2009 (MV)
In M.F.A.NO.4231/2009:
BETWEEN:
Bajaj Allianz General Insurance Co. Ltd.,
NO.105A to 107/A, Cears Plaza,
136, Residency Road,
Bangalore560 025.
By its Manager. ... Appellant
[By Sri.O.Mahesh, Adv.,]
AND:
1. Kumari G.M.Neelamma
D/o Late Munivenkatappa
Aged 20 years,
R/o Guttahalli Village,
Vokkaleri Post,
Kolar Tq & District
2. K.Balachandra,
S/o Krishnappa
Major,
R/at No.185, Immadahalli,
White Field Main Road,
Bangalore-560 025. ... Respondents
[By Sri.N.Gopal Krishna, Adv. for R-1
R-2 is served.]
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This MFA is filed under Section 173(1) of MV Act
against the judgment and award dated 3.3.2009 passed
in MVC No.7322/2007 on the file of XVI Additional
Judge and Member, MACT, Bangalore, awarding
compensation of Rs.3,72,400/- with interest @ 6% per
annum from the date of petition till realisation.
In M.F.A.NO.4624/2009:
BETWEEN:
Kumari G.M.Neelamma
D/o Late Munivenkatappa
Aged 20 years,
R/o Guttahalli Village,
Vokkaleri Post,
Kolar Tq & District. ... Appellant
[By Sri.N.Gopal Krishna, Adv.]
AND:
1. K.Balachandra,
S/o Krishnappa
Major,
R/at No.185, Immadahalli,
White Field Main Road,
Bangalore-560 025.
2. Bajaj Allianz General Insurance Co. Ltd.,
NO.105A to 107/A, Cears Plaza,
136, Residency Road,
Bangalore560 025.
By its Manager. ... Respondents
[By Sri.O.Mahesh, Adv. for R-2. R-1 is served.]
This MFA is filed under Section 173(1) of MV Act
against the judgment and award dated 3.3.2009 passed
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in MVC No.7322/2007 on the file of XVI Additional
Judge and Member, MACT, Bangalore, partly allowing
the claim petition for compensation and seeking
enhancement of compensation.
These MFAs coming on for hearing this day, the
court delivered the following:
JUDGMENT
Claimant and second respondent Insurance Company in MVC No.7322/2007 on the file of MACT, Bangalore have come up in these two appeals. Appeal in MFA.NO.4231/2009 is filed by second respondent - Insurance Company challenging its liability on the ground that the vehicle insured with the said Insurance Company is planted in the proceedings before Tribunal with the connivance of Police and the persons who caused the accident. So far as MFA.NO.4624/2009 is concerned, it is filed by claimant in MVC No.7322/2007 seeking enhancement of compensation.
2. Brief facts leading to these two appeals are as under:
Claimant before the Tribunal filed petition contending that on 14.2.2007 at about 7.00 p.m. she 4 was going towards Bangalore from Belaganahalli in a goods Tempo bearing Registration No.KA-03-AC-1069 as Coolie in the said vehicle after loading coriander leaves bundles at Belaganahalli village and to unload the same in Bangalore, along with other coolies. It is stated that on the way to Bangalore near Ajjappanahalli Gate on NH-4, said goods Tempo capsized and fell to the right side ditch causing grievous injuries to claimant who was sitting in the cabin of the said tempo. As a result of the said accident, her left hand got crushed. Immediately she was shifted to Bangalore for treatment where her injuries were treated. However, five fingers of the left hand of the injured were totally damaged and then removed at the time of treating the injury and to that extent she was crippled. It is also stated that immediately thereafter a complaint was lodged by her with Kolar Rural Police who after investigation, filed charge sheet against first respondent-driver of the aforesaid tempo. Subsequently, claimant filed petition seeking compensation for the injuries suffered in the said accident against owner and insurer of the offending 5 goods Tempo bearing Registration No. KA-03-AC-1069. In the proceedings before Tribunal, claimant adduced evidence as PW.1 and also adduced evidence through Doctor as PW.2. In support of her case, she produced in all, 10 documents which were marked as Exs.P.1 to P.10. On behalf of respondent, an Officer of the Insurance Company was examined as RW.1. Policy copy was marked as Ex.R.1.
3. Tribunal on appreciation of the oral and documentary evidence available on record, allowed the claim petition and proceeded to award compensation of Rs.3,72,400/- payable with interest at 8% per annum from the date of the petition till date of realisation. Being aggrieved by the finding of the Tribunal in holding that tempo bearing Registration No.KA-03-AC-1069 has caused the accident resulting in injuries to claimant, Bajaj Allianz General Insurance Co. Ltd., being insurer of the said vehicle has come up in appeal in MFA.NO.4231/2009 and being aggrieved by the quantum of compensation awarded by Tribunal, 6 claimant has come up in appeal in MFA.NO.4624/2009. These two appeals were taken up for final disposal this day.
4. It is seen that subsequent to filing of the appeals and before these appeal could come up for final hearing, an application is filed by Insurance Company in MFA.NO.4231/2009 in I.A.1/12 for producing additional evidence by way of documents. Said application is allowed by this Court before taking up of these two appeals and documents produced along with the application is taken on record to consider the contents of the same for the purpose of deciding these two appeals.
5. On going through the same, it is seen that accident has occurred on 14.2.2007 at 7.00 p.m. causing injuries to claimant before Tribunal and several others is true. But the said accident is not caused by goods Tempo bearing Registration No. KA-03-AC-1069. On the other hand, the said accident is caused by tempo bearing Registration No.KA-02-B-5856 which is 7 said to be owned by one Shivanna of Korachanuru village, Malur Taluk, Kolar District and at the relevant time it is said to be driven by his elder brother Siddaraju @ Siddananjaiah and this aspect has come to light only after a thorough investigation is done by Sri.V.Govindaiah, Deputy Superintendent of Police, Chintamani Sub-Division, Chintamani pursuant to the direction issued to him by Inspector General of Police, Central Range, Bangalore vide office communication No.H/application/97/2008-09 dated 7.11.2009 which was issued in pursuance to the complaint lodged by Senior Manager, Bajaj Allianz General Insurance Co. Ltd., through their letter dated 13.10.2009. In the said investigation, it is found out by Deputy Superintendent of Police that the accident as stated by claimant has taken place on 14.2.2007 involving goods vehicle bearing Registration No. KA-02-B-5856 belonging to Shivanna and driven by his elder brother Siddaraju. However, as on that day as driver of the said vehicle had no valid driving license and no subsisting Insurance policy, in that view of the matter, with the connivance of 8 Chandrappa - complainant, owner of tempo bearing Registration No. KA-02-B-5856-Shivanna, driver - Siddaraju, Siddarangaswamy - Sub-Inspector of Police and also G.Tirupathi - Head Constable No.149 of Kolar Rural Police, implicated the present vehicle (bearing Registration No.KA-03-AC-1069) and also managed to create documents to show as if it was driven by one Venkategowda by planting this vehicle, documents are manipulated and charge sheet is created resulting in claim petition being filed by injured Neelamma against vehicle which is not involved in causing the accident and also Insurance Company which has no liability to pay compensation for the injuries suffered by her. The said fact has come to light only after the report is filed by Deputy Superintendent of Police. In this behalf, it is also seen from the records that police is contemplating to initiate proceedings against the persons who have perpetrated this crime. In the meanwhile, because of the finding of the said investigating squad created by Inspector General of Police, the liability of second respondent Insurance Company before the Tribunal and 9 appellant in MFA.NO.4231/2009 will come to an end in so far as the liability to pay compensation to claimant Neelamma and other injured persons namely Muniyamma, Manjunatha, Lakshmamma and others who are said to have sustained injuries in the motor vehicle accident involving the aforesaid tempo bearing Registration No. KA-02-B-5856.
6. No doubt, based on this document available on record, this Court would allow the appeal filed by Insurance Company in MFA.NO.4231/2009 and exonerate the said Insurance Company and also the alleged owner of tempo bearing Registration No. KA-03- AC-1069 from making any payment either to claimant Neelamma or to any other injured in the accident which is said to have occurred on 14.2.2007 by allowing this appeal, but that itself would not put an end to the misery of Neelamma, appellant in MFA.NO.4624/2009 and claimant in MVC No.7322/2007 and six other claimants who are similarly placed and who are misled by the owner of the tempo bearing Registration No.KA- 10 02-B-5856 and also the aforesaid two appeals by creating the documents and driving them to court with the assistance of such false and fabricated documents to seek compensation against the persons who are not liable to pay compensation for the injuries suffered by them.
7. In view of the above, appeal filed by Insurance Company in MFA.NO.4231/2009 is allowed and appeal filed by claimant in MFA.NO.4624/2009 is disposed of on the following terms:
(i) Disposal of the appeal filed by claimant-
Neelamma in MFA.NO.4624/2009 will not take away her right to pursue proceedings in MVC No.7322/2007 on the file of MACT, Bangalore.
She is at liberty to seek deletion of
K.Balachandra and Bajaj Allianz General
Insurance Co. Ltd., owner and insurer of tempo bearing Registration No. KA-03-AC-1069 from the said proceedings and in their place to seek impleading of Shivanna of Korachanuru village, 11 Malur Taluk, Kolar District, as owner of KA-02- B-5856 and also his elder brother Siddaraju who was driving the said vehicle at the relevant time. She is also at liberty to implead Siddarangaswamy - Sub-Inspector of Police of Kolar Rural Police and also G.Tirupathi-Head Constable No.149 of Karnataka Police Department who have caused sufficient inconvenience and damage to claimant Neelamma and other six injured in the accident which took place on 14.2.2007 involving vehicle bearing Registration No. KA-02-B-5856 belonging to Shivanna. Claimant-Neelamma and other injured persons are at liberty to seek impleading of these four persons.
(ii) Permission is also given to the claimant-Neelamma to make necessary
amendment not only in the cause title but also in the body of the claim petition so that number of the vehicle which has caused the accident 12 and name of its owner and driver should be reflected in the relevant portion of claim petition.
(iii) While awarding compensation, in addition to compensation to be awarded in the said accident, claimants shall also be awarded damages for the inconvenience caused to them because of the fraudulent act committed by Siddarangaswamy- Sub-Inspector of Police of Kolar Rural Police and also G.Tirupathi, Head Constable No.149. But for their interference, claimants would have secured just and proper compensation without there being further delay in getting claim petition suffered.
(iv) When such an application is filed by them, Tribunal shall allow said application, make them as parties and treat report dated 9.2.2010 submitted by Sri.V.Govindaiah, Deputy Superintendent of Police, Chintamani Sub-Division, Chintamani pursuant to the 13 direction issued by Inspector General of Police, Central Range, Bangalore vide his letter dated No.H/application/97/2008-09 dated 7.11.2009 as basic document in substitution to complaint, charge sheet, IMV report, mahazars and all other police documents which are required to substantiate the accident caused involving tempo bearing Registration No. KA-02-B-5856 on 14.2.2007, for the reason that the said report has come into place after making thorough investigation by an Officer of the rank of Deputy Superintendent of Police which this Court is not willing to disbelieve and the said report also clearly demonstrates the involvement of Siddarangaswamy - Sub- Inspector of Police of Kolar Rural Police and also G.Tirupathi-Head Constable No.149 in perpetrating the crime of suppressing the original vehicle involved in the accident being brought before the court and person who has caused the accident while driving the said 14 vehicle is allowed to escape from the clutches of law by implanting persons of their choice only to see that owner of the offending vehicle Shivanna and driver of the said vehicle his elder brother Siddaraju to escape the liability is a heinous crime. While doing so, they have not even thought of the claimant-Neelamma in MVC No.7322/2007 and other six coolies who were travelling in KA-02-B-5856 on 14.2.2007 and sustained injuries in the road traffic accident caused by the said vehicle.
(v) The Tribunal shall take up the claim petition filed by Neelamma and other injured person in the said accident as if they are on file and decide the said claim petitions based on the injuries suffered by each one of them and award just compensation while deciding the case after recording fresh evidence. In that regard, while recording evidence, the Tribunal shall not get influenced by evidence of Neelamma and other 15 injured wherein they have stated that they have suffered injuries while travelling in tempo bearing Registration No.KA-03-AC-1069 which is factually incorrect since they being coolies and illiterates and not being in a position to understand correctness or otherwise of any of their statements for which their thumb impression to the statement recorded in vernacular language is collected for the reason they are not in a position to read any document. In that view of the matter, the document should not be held against them to deny heir legitimate claim to seek just and proper compensation for the injuries suffered by them in the said accident.
(vi) Therefore, while awarding damages along with compensation to them, liability to pay damages should be exclusively saddled on Siddarangaswamy- Sub-Inspector of Police of Kolar Rural Police and also G.Tirupathi, Head 16 Constable No.149 and said damages should be in addition to the compensation which could be awarded to claimants for the injuries suffered by them and
(vii) Since the appeal filed in MFA.NO.4231/2009 is allowed, the amount in deposit is ordered to be released to the Insurance Company.
SD/-
JUDGE RS/*