Karnataka High Court
New India Assurance Co Ltd vs Gopal @ Gopalkrishna on 25 June, 2012
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 25TH DAY OF JUNE 2012
BEFORE
THE HON'BLE MR.JUSTICE K.N.KESHAVANARAYANA
MFA.No.8578 OF 2008 (MV)
BETWEEN:
New India Assurance Co. Ltd.,
Branch Office, 1st Floor,
Mayur Complex, Next to PIA Bhavan,
Peenya,
Bangalore-560 058.
By New India Assurance Co. Ltd.,
Divisional Office,
Mayur Complex, Next to PIA Bhavan,
Peenya,
Bangalore-560 058.
By its Manager. ... Appellant
[By Sri.O.Mahesh, Advocate]
AND:
1. Gopal @ Gopalkrishna,
S/o Munivenkatappa,
Aged 36 years,
Residing at Kalyanapura,
Magadi Taluk,
Bangalore Rural District.
2. Prakash S/o Govindaiah,
Aged Major,
Residing at No.44, Harthi,
Magadi Taluk,
Bangalore Rural District. ...Respondents
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[By Sri.K.V.Naik for Sri.Shripad.V.Shastri,
Advocate for R-1;
Notice to R-2 held sufficient vide order dated 14.3.2012]
This Miscellaneous First Appeal is filed under
Section 173 (1) of MV Act, against the judgment and
award dated 29.2.2008 passed in MVC No.3883/2007
on the file of the I Additional Judge, Member, Motor
Accident Claims Tribunal, Metropolitan Area, Bangalore
(SCCH-11), awarding a compensation of Rs.2,87,300/-
from the date of petition till realisation.
This Appeal coming for hearing on this day, the
court delivered the following:
JUDGMENT
This appeal by the insurer is directed against the judgment and award dated 29.2.2008 passed by the I Additional Judge & MACT, Bangalore in MVC.No.3883/07.
2. Respondent No.1- filed the above said claim petition under Section 166 of the Motor Vehicles Act seeking compensation of Rs.3 Lakhs for the personal injuries said to have been sustained by him in a motor vehicle accident that occurred at about 2.30 p.m. on 22.10.2006 near Lekkanahalli colony of Nelamangala- Kunigal Road (NH-48). In the claim petition, the claimant averred that on the date of the accident, he :3: was proceeding as a pillion rider on the motor cycle bearing registration No.KA-04-ER-8056 ridden by his friend one Ananth Kumar from Solur towards Kalayanapura and when they reached near Lekkenahalli Colony, a Maxi Cab bearing registration No.KA-03-B- 252 driven by its driver in a rash and negligent manner came from opposite direction and dashed against the motor cycle as a result he sustained fracture of right femur, dislocation of the right ankle joint, fracture of both bones of right leg etc. and immediately he was shifted to Government Hospital at Nelamangala from where after the first aid treatment, he was shifted to Sanjay Gandhi Hospital, Bangalore, where he was treated as inpatient. The claim petition was filed against the owner and insurer of Maxi Cab bearing registration No.KA-03-B-252.
3. The owner of Maxi Cab arrayed as respondent No.1 before the Tribunal though appeared through his counsel, however did not file any objections nor contested the petition. The insurer of the said Maxi Cab :4: arrayed as respondent No.2 before the Tribunal contested the petition and disputed the involvement of Maxi Cab bearing registration No.KA-03-B-252 in the accident. It further contended that according to the complaint and the First Information Report, the vehicle which caused the accident was a Tempo Traveler bearing registration No.KA-52-253 but subsequently in collusion with the police, charge sheet came to be filed against the driver of the Maxi Cab bearing registration No.KA-03-B-252 and thereby they have falsely implicated the vehicle in question though it had not been involved in the alleged accident. The appellant - insurer admitted issuance of policy in respect of the said vehicle and its validity as on the date of the accident. In the light of the said contention, the insurer sought for dismissal of the claim petition.
4. In the light of the pleadings of the parties, the Tribunal framed the following issues:
1. Whether the petitioner proves that on 22.10.2006 at about 2.30 p.m. near Lekkenahalli Colony on NH-48 :5: Nelamangala -Kunigal Road he being the pillion rider in the Hero Honda motor cycle bearing registration No.KA-04-ER-
8056 had met with an accident due to rash and negligent driving of Maxi Cab bearing registration No.KA-03-B-252 by its driver and he had sustained injuries. in the accident as averred?
2. Whether the petitioner is entitled for compensation and if so, what amount and from whom?
3. What order and award?
5. In support of his case, the claimant examined himself as PW.1 and also examined Dr.Prakashappa, as PW.2. He placed reliance on the documentary evidence placed on record marked as Ex.P.1 to P.78. On behalf of the insurer, one of its Officer was examined as RW.1 and the insurer relied on documentary evidence marked as Exs.R.1 to R.4.
6. After hearing both sides and on assessment of the oral and documentary evidence, by the judgment :6: under appeal, the Tribunal answered issue No.1 regarding actionable negligence in the affirmative in favour of the claimant, holding that the claimant has proved the accident alleged involving Maxi Cab bearing registration No.KA-03-B-252 and his sustaining the injuries in the said accident. In that view of the matter, the Tribunal held that both the owner and insurer of the said vehicle are responsible to compensate the claimant.
7. Having regard to the nature of the injuries sustained by the claimant as well as the duration of the treatment, the Tribunal awarded a sum of Rs.2,97,300/- as compensation under different heads as under:
1. Towards pain and agony Rs. 70,000/-
2. Towards medical expenses, conveyance, nourishment and attendant charges Rs. 42,300/-
3. Towards future medical treatment Rs. 10,000/-
4. Towards loss of future earning capacity Rs.1,35,000/- due to permanent disability
5. Towards Loss of income during the period of treatment Rs. 15,000/-
6. Towards future unhappiness and Rs. 25,000/-
loss of amenities . .
Total Rs.2,97,300/- .
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The Tribunal directed the appellant - insurer to pay the entire compensation with interest at 6% per annum from the date of the petition till the date of payment. Aggrieved by the said judgment and award, the insurer is in appeal before this Court.
8. I have heard Sri.O.Mahesh, learned counsel appearing for the appellant-insurer as well as Sri.K.V.Naik for Sri.Sripad V. Shastri, learned counsel appearing for the respondent-claimant. Perused the records made available.
9. The main contention urged by the learned counsel for the appellant is that the finding recorded by the Tribunal on issue No.1 with regard to the actionable negligence and involvement of the vehicle in question, is highly perverse and is without any basis. It is his contention that the Tribunal has failed to notice that there is a clear attempt on the part of the claimant in collusion with the officials of law enforcing agencies to falsely implicate the vehicle in question in the accident though it was not responsible for the alleged accident. :8: Drawing the attention of this Court to the contents of the complaint lodged at the earliest point of time by the younger brother of the rider of the motor cycle on which the claimant stated to have been proceeded as pillion rider, the learned counsel contended that in the said complaint, there is clear indication that the accident occurred as a result of Tempo Traveler bearing registration No.KA-52-253 dashing against the motor cycle and subsequently without any basis, charge sheet came to be filed against the driver of the vehicle in question. He also pointed out that though as per the complaint allegations, immediately after the accident, the claimant was shifted to Government Hospital at Nelamangala where he was treated initially before he was shifted to Sanjay Gandhi Hospital, Bangalore, the claimant deliberately has not produced any document from the Government Hospital at Nelamangala. According to the learned counsel, had the MLC Register extract from the Government Hospital at Nelamangala been produced, it would have thrown light as to what kind of history had been furnished before the said :9: Hospital, therefore, non-production of such document entails drawing of an adverse inference against the claimant about subsequent conduct of attempt to implicate the vehicle which was not involved in the alleged accident. Therefore, he sought for setting aside the judgment and award and dismissal of the claim petition against the Insurance Company.
10. On the other hand, learned counsel for the respondent - claimant sought to justify the judgment and award passed by the Tribunal and contended that the finding recorded by the Tribunal as to the actionable negligence is based on the evidence placed on record and that the mistake in mentioning the registration number of the vehicle has been explained by the very complainant based on which the Investigating Officer subsequently filed charge sheet against the vehicle in question which caused the accident. Therefore, he contended that there are no grounds to interfere with the judgment passed by the Tribunal.
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11. In the facts and circumstances of the case and in the light of the submissions made on both sides, the points that arise for my consideration are,
1. Whether the Tribunal is justified in answering issue NO.1 in the affirmative?
2. Whether the vehicle in question was not involved in the accident alleged?
12. Even according to the allegations made in the claim petition, the claimant was proceeding as pillion rider on the motor cycle bearing registration No.KA-04- ER-8056 ridden by his friend Ananth Kumar. Ex.P.1 is the true copy of the FIR in Crime No. 215/2006 of Kudur Police Station. The said case was registered on the basis of the complaint lodged by one Kunthi Kumar son of Garuda Venkataiah resident of Kalyanapura at 3.00 p.m. on 23.10.2006. The accident said to have occurred at about 2.30 p.m. on 22.10.2006. From this it is clear that the complaint came to be lodged about 24 hours after the accident.
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13. As per the contents of the complaint, at about 2.30 p.m. on 22.10.2006, when the complainant was standing near Lekkenahalli Colony of NH-48 waiting for a bus to go to Mahadevapura, at that time he saw a Tempo Traveler coming from Bangalore side towards Kunigal driven by its driver in a rash and negligent manner and the driver swayed the vehicle to the extreme right side of the road and dashed against a Hero Honda motor cycle which came from the opposite direction, as a result, the rider and pillion rider of the motor cycle fell down; however, the driver of the Tempo Traveler did not stop the vehicle and fled away from the place and he noticed that the vehicle which caused the accident was bearing registration No.KA-52-253; that immediately when he came near the motor cycle, he noticed that the rider was none other than his elder brother Ananth Kumar and pillion rider was one Gopal of his village and the motor cycle had been damaged severely; that immediately he shifted both the rider and pillion rider who had sustained injuries in a vehicle to the Government Hospital at Nelamangala and admitted : 12 : them there; that as per the advice of the Doctor, Gopal was shifted to Sanjay Gandhi Hospital, Bangalore while Ananth Kumar continued to take treatment as inpatient in the Government Hospital at Nelamangala. Therefore, the complainant sought action against the erring driver of the vehicle bearing registration No.KA-52-253. Based on that complaint, case came to be registered against driver of Tempo Traveler bearing registration No.KA-52-
253.
14. Ex.P.3 is the true copy of the spot mahazar. According to the contents of this spot mahazar, drawn between 4.15 p.m. and 5.00 p.m. on 23.10.2006, the vehicle which caused the accident is shown as Tempo Traveler bearing registration No.KA-52-253. However according to the police, subsequently the complainant made further statement a copy of which is marked as Ex.P.73 on 23.10.2006 itself wherein he said to have disclosed that by mistake he has furnished the Registration No. of the vehicle which caused the accident as Tempo Traveler bearing registration No.KA- : 13 : 52-253, on the other hand, the vehicle which caused the accident was Maxi Cab bearing registration No.KA- 03-B-252. He said to have further clarified that his brother Ananth Kumar did not take treatment as inpatient in the Government Hospital at Nelamangala. On the basis of this alleged further statement said to have been made by the complainant, the police filed charge sheet against one Srinivasa Murthy son of Govindaiah as driver of the Tempo Traveler bearing registration No.KA-03-B-252.
As could be seen by Ex.P.74, certified copy of the order sheet in C.C.No.157/2007 on the file of the Civil Judge (Jr.Dn.) & JMFC, Magadi, said Srinivasa Murthy appeared before the court and pleaded guilty for the accusation made against him, based on which he was convicted and sentenced to pay fine.
Ex.P.78 is B-register extract relating to the vehicle bearing registration No.KA-52-253, according to which the said vehicle is a luxury Taxi manufactured by Tata Motors.
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Ex.P.60 is the admission record and case sheet maintained in Sanjay Gandhi Hospital. According to Ex.P.60, the person who was admitted was Gopal aged 35 years son of Munivenkatappa, resident of Mahadevapura in Nelamangala Taluk, Bangalore District. However, the said particulars are subsequently changed to Gopalaiah resident of Basavenahalli, Magadi Taluk, Bangalore district on the basis of the affidavit and an application filed by the claimant before the RMO of the Hospital. As per the contents of the affidavit, which is available in the case sheet, the claimant who met with an accident on 22.10.2006 was admitted to Sanjay Gandhi Hospital by an unknown person and the said unknown person said to have furnished his address wrongly as resident of Mahadevapura of Nelamangala Taluk, Bangalore District. According to the said affidavit the claimant is a permanent resident of Basavenahalli village, Magadi Taluk, Bangalore District. Very strangely in the cause title of the claim petition, the petitioner is described as resident of Kalyanapura, Solur Hobli, Bangalore Rural District. In : 15 : the cross-examination, the claimant examined as PW.1 has admitted that the motor cycle was being ridden by his friend Ananth Kumar. It is further elicited from him that Kunthi Kumar referred to as complainant in Ex.P1 is his friend. He has admitted that in the complaint lodged in respect of the accident, Registration No. of the vehicle which caused the accident has been mentioned as Tempo Traveler bearing registration No.KA-52-253. According to PW.1, he does not know the Registration No. of the vehicle which caused the accident. According to him, he came to know from one Kumar who is the son of his elder brother that the vehicle, which caused the accident, was Maxi Cab bearing registration No.KA- 03-B-252. Very strangely, neither the complainant nor the rider Ananth Kumar nor the said Kumar referred to in the cross-examination of PW.1 who said to have disclosed the Registration No. of the vehicle which said to have caused the accident, have been examined before the Tribunal.
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15. Yet another very strong circumstance to doubt the case of the claimant is non-production of the document from the Government Hospital at Nelamangala. As noticed supra, even according to the claimant, immediately after the accident he was taken to the Government Hospital at Nelamangala. At that time, either the claimant himself or the person who took him to the Hospital would have disclosed the history to the Doctor. It is not forthcoming as to what history had been furnished before the Doctor in the Government Hospital at Nelamangala. The claimant has deliberately suppressed the said document. As noticed supra, in order to get the name and address changed in the case sheet maintained in Sanjay Gandhi Hospital, the claimant goes to the extent of filing an affidavit that some unknown person shifted him to the Hospital and gave improper particulars whereas according to the contents of the complaint-Ex.P.1, Kunthi Kumar, the younger brother of the rider of the motor cycle was an eye-witness and he shifted both the injured to the Hospital at Nelamangala and from there, the claimant : 17 : was shifted to Sanjay Gandhi Hospital. Therefore, it cannot be believed that some unknown person had taken him to Sanjay Gandhi Hospital. This circumstance creates great amount of doubt as to whether the case sheet Ex.P.60 pertains to this claimant at all and there appears to be an attempt on the part of the claimant to get his name introduced into the case sheet which perhaps pertains to a person by name Gopala son of Munivenkatappa, resident of Mahadevapura in Nelamangala Taluk. It is also interesting to note that in the admission record Ex.P.60, the father's name of the patient admitted was initially written in the pencil and thereafter it is over written in the ink pen as Munivenkatappa. Though the claimant is a resident of Kalyanapura village, in Ex.P.60 the altered village name is mentioned as Basavanahalli. The failure on the part of the claimant to produce the records from the Government Hospital at Nelamangala to which place he was taken immediately after the accident and non-examination of the complainant or the rider of the motor cycle or said Kumar mentioned by the : 18 : claimant in his cross-examination, entails drawing of an adverse inference against the claimant. The Tribunal, without considering these intrinsic evidence available on record, has merely proceeded to accept the case of the claimant on the premise that the police have filed charge sheet against the vehicle in question on the basis of the further statement of the complainant. Neither the police officer nor the complainant has been examined to explain the omission in this regard. The complainant is not an illiterate person. PW.1 admits that the complainant has studied up to SSLC and he is an employee in BESCOM. Therefore, he is a literate person and is in a position to identify the nature of the vehicle and the Registration Number. The complainant, at the earliest point of time in the complaint lodged about 24 hours after the accident, has mentioned the Registration No. of the vehicle which said to have caused the accident as Tempo Traveler bearing registration No.KA-52-253. There are no reasons for the complainant to wrongly mention the Registration No. of the vehicle which caused the accident. Having regard to : 19 : the evidence on record, I see considerable force in the contention of the learned counsel for the appellant that there is a clear attempt on the part of the claimant and other agencies in falsely implicating the vehicle, which was not involved in the accident. In this view of the matter, I am of the considered opinion that the finding of the Tribunal on issue No.1 is highly perverse and erroneous and this finding has been recorded as a result of non-consideration of materials available on record. Therefore, the finding recorded by the Tribunal in this regard is highly perverse and illegal. I am convinced that the evidence on record is sufficient to indicate that the vehicle in question against which the claim was made was not involved in the accident and the Tribunal is not justified in directing the insurer of the said vehicle to pay the compensation amount quantified by it. As noticed earlier, the owner of the said vehicle has remained absent without contesting the petition. This also lends support to the contention of the appellant with regard to collusion. : 20 :
16. In view of the above discussion, the appeal deserves to be allowed. Accordingly, the appeal is allowed. The judgment and award dated 29.2.2008 passed by the I Additional Judge & Member, MACT, Bangalore in MVC.No.3883/2007 is hereby set aside. The claim petition is dismissed with cost through out. The statutory amount in deposit before this Court by the appellant is ordered to be refunded to the appellant.
SD/-
JUDGE
RS/*
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KNKJ: MFA.NO.8578/2008(MV)
27.6.2012
Orders On Being Spoken To
This matter had been listed for hearing on
25.6.2012 and after hearing Sri.O.Mahesh learned counsel appearing for the appellant and Sri.K.V.Naik for Sri.Sripad V. Shastri, learned counsel appearing for the respondent- claimant, the judgment was dictated in the open court on 25.6.2012 dismissing the claim petition by recording a finding that the involvement of the Maxi Cab bearing registration No.KA-03-B-252 in the accident alleged is not established.
Before the judgment is transcribed and the autograph is signed, Sri.Sripad V. Shastri, moved a memo requesting this Court to post the matter for being spoken to with a view to make further submissions. It is on the said memo, the matter is listed today for being spoken to.
After hearing Sri.Sripad V. Shastri further, I find nothing for this Court to speak further in the matter. This court in the judgment has considered all the documents produced by the claimant as well as the insurer and also : 22 : the circumstances which made this Court to draw an adverse inference against the claimant and has held that the involvement of the vehicle bearing registration No.KA- 03-B-252 in the accident alleged is not established and that the finding of the Tribunal on issue No.1 is perverse. Therefore, this Court has set aside the said finding and has dismissed the claim petition, which was filed only against the owner and insurer of the aforesaid vehicle. The further submission made by Sri.Sripad V. Shastri is that the claimant be permitted to pursue his remedy against the owner and insurer of the vehicle mentioned in the FIR which is stated to be the vehicle responsible for the accident. If law permits such a course, the claimant is at liberty to pursue such remedy, for which leave from this court is not necessary.
In the light of the above, the judgment dated 25.6.2012 is maintained.
SD/-
JUDGE RS/*