Karnataka High Court
The Divisional Manager, Iffco Tokio ... vs Smt. Somavva, W/O.Nagappa Babli on 10 March, 2022
Author: N.S.Sanjay Gowda
Bench: N.S.Sanjay Gowda
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 10 T H DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA
M.F.A.No.22000/2009 (MV D)
BETWEEN:
THE DIVISIONAL MANAGER,
IFFCO TOKIO GENERAL INSURANCE CO. LTD.,
BUSINESS UNIT KSCMF BUILDING, V-FLOOR,
IIIRD BLOCK, 4TH CROSS, CUNNINGHAM ROAD,
BANGALORE-52,
REPRESENTED BY ITS MANAGER,
IFFCO HOUSE, 3RD FLOOR, 34, NEHRU PLACE,
NEW DELHI-110 019.
....APPELLANT
(BY SRI G.N.RAICHUR, ADVOCATE)
AND :
1. SMT. SOMAVVA W/O.NAGAPPA BABLI,
AGE- 51 YEARS, OCC:COOLIE/ AGRICULTURE,
R/O.KAVALOOR VILLAGE,
NOW RESIDING AT MITTIKERI STREET,
KOPPAL, TAL. AND DIST. KOPPAL.
SINCE DECEASED BY HER LRS.
1A. SHRI BASAVRAJ S/O.NINGAPPA BABLI,
AGE-MAJOR, OCC-COOLIE,
R/O.MITTIKERI STREET, KOPPAL,
DIST-KOPPAL.
:2:
1B. SHRI PRABHU S/O.NINGAPPA BABLI,
AGE-MAJOR, OCC-COOLIE,
R/O.MITTIKERI STREET, KOPPAL,
DIST.KOPPAL.
1C. SHRI YANKAPPA S/O.NAGAPPA BABLI,
AGE-MAJOR OCC-DRIVER-CUM-CONDUCTOR,
R/O.KSRTC DEPARTMENT, MYSORE DEPOT,
MYSORE.
2. SRI BASAVRAJ S/O ANNALAPPA HUNESEMARA,
OCC: OWNER OF AUTO RIKSHAWA,
NO. KA-25/ 4676, R/O.BHYGYANAGAR,
TAL. AND DIST.KOPPAL.
..RESPONDENTS
(BY SMT CHITRA M.GOUNDELKAR, ADVOCATE FOR
SMT. GIRIJA S.HIREMATH, ADVOCATE FOR RESPONDENT NO.2)
(BY SMT.PADMAJA S.TADAPATRI, ADVOCATE FOR RESPONDENT
NOS.1(A) TO 1(C))
THIS M.F.A. IS FILED U/S.173(1) OF MV.ACT, 1988,
AGAINST THE JUDGEMENT AND AWARD DATED:04-03-2009,
PASSED IN MVC NO.196/2007 ON THE FILE OF THE ADDL. MACT
AND FAST TRACK COURT-I, KOPPAL, AWARDING THE
COMPENSATION OF RS.1,28,200/- ALONG WITH THE INTEREST
AT THE RATE OF 6% P.A., FROM THE DATE OF PETITION TILL IT
IS DEPOSITED.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
:3:
JUDGMENT
This is an appeal filed by the Insurance Company challenging the award of Rs.1,28,200/- granted in favour of the claimant for the injuries sustained by her.
2. In this case the fact that the accident occurred is not in serious dispute. However, the serious dispute raised by the Insurance Company is regarding to the involvement of the vehicle which caused the accident.
3. According to the Insurer, when lodging the FIR, the claimant's son had stated in his comp laint that the motorcycle that he was riding was hit from b ehind by a auto rickshaw bearing registration No.KA-37/3942. But subsequently, he had changed his statement and stated that it was actually the auto rickshaw bearing registration No.KA-25/4676 which had hit from behind .
4. Learned counsel for the appellant-Insurance Company contends that since at the earliest point of time, the claimant-Smt.Sommavva's son had clearly stated that the accident was caused by an auto rickshaw bearing registration No.KA-37/H-4599, the :4: Tribunal could not have foisted liability on the auto rickshaw bearing registration No.KA-25/4676.
5. It is no doubt true that in the FIR lodged by the claimant's son it has been stated that the auto rickshaw which hit the motorcycle was b earing registration No.KA-37/H-4599.
6. Ex.P.3 is a statement given by the claimant's son stating that he had committed a mistake in mentioning the auto rickshaw bearing registration number as KA.No.37/3942 and it was actually auto rickshaw bearing registration No.KA-25/4676, which had caused the accid ent. It is not in dispute that the police investigated the case and ultimately laid a charge sheet against the driver of auto rickshaw bearing registration No.25/4676. It is not in d isp ute that the driver of the said auto rickshaw pleaded guilty to the offence to which he was charged.
7. As stated above, the only contention advanced by the Insurance Company was that the change in registration of number of the auto rickshaw clearly indicated the imp lication of a wrong vehicle and :5: therefore, it could not be made liable. In cases of such nature, when the Insurance Company questions the investigation made by the police and contends that the vehicle involved in the accident as stated in the charge sheet was incorrect, the onus of proving the said contention would lay entirely on the Insurance Company. In order to d ischarge this burden, the Insurance Company would be required to summon the particulars of the vehicle mentioned in the FIR and thereafter establish that the said vehicle had not been insured , thereby establishing mother's to lay a false claim. The Insurance Company will also have to summon the Investigating Officer and question him regarding his decision to charge sheet the driver of vehicle which was not involved in the accident. Admitted ly, no such exercise has been taken by the Insurance Company in this case.
8. The Insurance Company basically relies upon an investigation report which was prepared at its behest by one Sri Anand S.Kalaghatg i, who is stated to be an Investigation Consultant and Provider of Auxillary :6: Services. The Insurance Company, for reasons best known to it did not even examine this investigation consultant. It also did not choose to summon the complainant, who had lodged the FIR in order to ascertain the actual vehicle that had been involved. In my view, the Tribunal was therefore justified in coming to the conclusion that the vehicle bearing registration No.KA-25/4676 was involved since a charge sheet had been laid against the driver of the said auto rickshaw and he had also pleaded guilty.
9. The learned counsel for the appellant places reliance on the decision of the Hon'ble Apex Court rendered in the case of Oriental Insurance Company Ltd., vs. Premalata Shukla, reported in (2007) 13 SCC 476 to contend that the statements found in the FIR are to be accepted in its totality and also the decision rendered by a Division Bench of this Court in the case of Veerappa and Another vs. Siddappa and Another, reported in ILR 2009 Kar. 3562.
10. In the decision rendered by the Hon'ble Supreme Court, the Supreme Court has basically stated :7: that once an FIR was ad mitted in evidence, the question of relying upon only a part of the FIR and not upon the remaining part of the FIR would be incorrect. In the instant case. It is not the case of the claimant that she intending to rely only upon a part of the FIR. The case put forth by the claimant was that the FIR that had been lodged was incorrect and the only error committed was the incorrect mentioning of the registration number of the auto rickshaw.
11. It is also the specific case of the claimant that this error was rectified by giving a statement thereafter. The Police on investigation have found that the vehicle involved in the accident was the vehicle in respect of which a further statement had been given. The decision of the Hon'b le Supreme Court therefore would have no ap plication.
12. As far as the decision of the Division Bench of our High Court is concerned, in that case, the Court was dealing with the situation where there was an earlier complaint lodged to the Police and a charge sheet filed by the Police and thereafter a separate private :8: complaint had been lodged in respect of the very same accident by suppressing the earlier comp laint. In that context, this Court had stated that it was a case of clear fraud and hence, the Insurance Company could not be liable. However that is not the present case. As stated above, the Police have, infact, after investigation charge sheeted the driver of the auto rickshaw bearing registration No.KA-25/4676 and this establishes the involvement of that vehicle.
13. It may also be relevant to state here that this Court in the case of Bajaj Allianz General Insurance Co. Ltd. v. Smt.Lakshmamma and Others, reported in 2008 Kant. M.A.C. 145 has held that in a case where the Insurance Company put forth the contention that the owner had colluded with claimants, it was for the Insurance Company to challenge the charge sheet and seek for its quashing and for a direction to investigate the case properly.
14. In the instant case, admittedly neither a challenge has been made by the Insurance Company to the charge sheet nor steps have been taken to :9: challenge the investigation made by the Police by summoning the Investigating Officer. I am therefore of the view that the contention advanced by the Insurance Company that the vehicle involved in the accident was not the vehicle that it had insured cannot be accepted. No other grounds are raised regarding quantum and therefore this appeal is dismissed .
SD JUDGE ckk