IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE B.M. SHYAM PRASAD MISCELLANEOUS FIRST APPEAL NO.8417 OF 2010 (MV) BETWEEN:
BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD., 105A/107A, CEARS PLAZA, I FLOOR 136, RESIDENCY ROAD, BENGALURU NOW SITUATED AT BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD., # 31, GROUND FLOOR TBR TOWER, I CROSS, NEW MISSION ROAD ADJACENT TO JAIN COLLEGE, BENGALURU ... APPELLANT (BY SRI. A. N. KRISHNA SWAMY, ADVOCATE) AND:
1. SMT RATHNAMMA WIFE OF NAGARAJ AGED ABOUT 32 YEARS OCCUPATION COOLIE RESIDENT OF CHITRAIAHANAHATTY CHALLAKERE TOWN, PRESENTLY RESIDING AT CARE OF HONNAPPA COMPOUND, 1ST CROSS,KELAGOTE, CHITRADURGA.
2. O. SRINIVAS, SON OF OBANNA, MAJOR, OWNER OF AUTORIKSHAW RESIDENT OF UPPARAHATTY, DODDERI POST, CHALLAKERE TALUK, CHITRADURGA DISTRICT.
... RESPONDENTS (BY SRI. R SHASHIDHARA, ADVOCATE FOR R1 VIDE ORDER DATED 03.07.2012 NOTICE TO R2 IS HELD SUFFICIENT) THIS MISCELLANEOUS FIRST APPEAL UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 29.03.2010 PASSED IN MVC NO.85 OF 2008 ON THE FILE OF THE SENIOR CIVIL JUDGE AND ADDITIONAL MACT, CHITRADURGA, AWARDING A COMPENSATION OF `50,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL DEPOSIT.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is filed by the Insurance Company impugning the judgment and award dated 29.3.2010 in MVC No.85 of 2008 on the file of the Senior Civil Judge and Additional MACT, Chitradurga (for short, ‘Tribunal’). The Tribunal by the impugned judgment has allowed the claim petition filed by respondent No.1 awarding a compensation of `50,000/- with interest at the rate of 6% per annum holding that the appellant - Insurance Company and respondent No.2, who is the owner of the offending vehicle - Auto- rickshaw bearing No.KA-16/A-1574, would be jointly and severally liable to pay compensation with interest.
2. The respondent No.1 presented a claim petition under Section 166 of the Motor Vehicles Act, 1988 contending that while she was travelling in an auto rickshaw bearing No. KA-16/A-1574, there was an accident and she suffered facial injuries in such accident. The accident was caused by the driver of the said auto rickshaw as he was rash and negligent in his driving. The auto rickshaw turned turtle in the accident.
3. The appellant upon being served with the notice of the claim petition filed objection statement denying the accident and the respondent No.1 suffering injuries in such accident. The respondent No.2, the owner of the aforesaid auto rickshaw, upon being served with the notice of the claim petition, also filed objection statement. The respondent No.2 specifically denied that his vehicle was involved in the accident. The Tribunal framed issues which required the respondent No.1 to prove that the driver of the aforesaid auto rickshaw was rash and negligent and she suffered injuries in the accident brought about by such rash and negligent driving.
4. The respondent No.1 examined herself as PW.1 in support of the claim petition and marked different exhibits, including FIR, Complaint, Mahazar and Wound Certificate. The appellant examined one of its officers as RW.1 and marked Exs. R.1 to R.10. The Exhibits marked by the appellant include a copy of Medico Legal Register Extract issued by the Taluk Hospital, Challakere, Chitradurga District, the Endorsement dated 13.1.2010 issued by the Police Sub-Inspector, DCRB Division, Chitradurga as well as the judgment in CC No.785 of 2007 on the file of the Civil Judge (Junior Division) and JMFC, Chitradurga.
5. The Tribunal, upon appreciation of the material on record including the evidence aforesaid, concluded that the respondent No.1 had made a mistake in notifying the doctor at Taluk Hospital, Challakere about the auto rickshaw she boarded. The respondent No.1 is uneducated and she subscribes her LTM. Therefore, the Tribunal has rejected the defense by the appellant that the respondent No.1 had herself given a different auto rickshaw number in the immediate vicinity of the alleged accident, but the Police complaint was lodged four days later giving the registration number of the auto rickshaw owned by respondent No.2 and as such, this was obvious effort to falsely implicate the vehicle which had insurance coverage. As regards the compensation payable, the Tribunal has awarded a global sum of `50,000/- holding that the appellant had been unable to establish disablement.
6. The learned counsel for the appellant contended that the evidence on record establishes a blatant effort to bring in a vehicle that was not involved in the accident to stake a false claim and this effort would be a fraud on court. The false claim as regards the involvement of the auto rickshaw bearing No. KA-16/A-1574 is borne out by the following circumstances:
6.1 The Respondent No.1, immediately after the accident, did herself mention another vehicle number as recorded in the Medical Register Extracts (Ex. R.1) with the doctors at Taluka Hospital. However, the husband of respondent No.1, four days after the accident, lodges a complaint mentioning the present registration number.
6.2 The appellant upon coming to know that the respondent No.1 herself had mentioned another auto rickshaw number, wrote to the Superintendent of Police, Chitradurga on 18.11.2009. In response thereto, the Police Sub-Inspector, DCRB Division informed the appellant that the complaint about false implication of a vehicle was true and necessary correspondence was being made with the Higher Authorities for initiation of the proceedings against the persons responsible.
6.3 The IMV Report does not mention any damage to the auto rickshaw bearing No. KA-16/A- 1574 which could not have been if the auto rickshaw had turned turtle.
6.4 The respondent No.1 had herself admitted the contents of the Medical Register Extracts (Ex. R.1).
The learned Counsel submitted that these circumstances established the appellant’s defense on the scale of preponderance of probabilities.
7. Per contra, the learned counsel for the claimant contended that the evidence of respondent No.1 was rightly appreciated by the Tribunal in view of the fact that respondent No.1 admittedly is an illiterate lady who does not even know to sign. The statements made by respondent No.1 in cross- examination cannot be held against her as it was not suggested to her that she had given a different auto rickshaw number to the doctors at the hospital. The learned counsel emphasized more specifically that the case of respondent No.1 will have to be considered in the light of the charge sheet filed by the Police pursuant to the complaint. The appellant cannot dispute the charge sheet contents without examining the investigating officer.
8. In view of the rival contentions, the question that arises for consideration is whether any interference is called for in the present appeal as against the Tribunal’s finding that the vehicle involved in the accident was auto rickshaw bearing No.KA-16/A-1574.
9. The onus of establishing the accident, including the involvement of a vehicle, is definitely on the claimant. It cannot be said that the claimant has discharged such burden merely because the claimant has produced the charge sheet. The claimant will have to, on the scale of preponderance of probabilities, establish the accident as alleged and the injuries consequent to such accident if the claimant is to be entitled for compensation. The respondent No.1 has been rather categorical in her admissions in the cross-examination that she did mention the auto rickshaw number to the doctors when she visited them immediately after the accident and that the information she had furnished to the doctors was correct. Further, if the circumstances relied upon by the learned counsel for the appellant are considered in the light of this categorical statement, it cannot be reasonably concluded that the respondent has been able to establish the accident including the involvement of the vehicle as asserted by her. In the face of these overwhelming material, no benefit of doubt could be extended to the respondent No. 1 merely because the respondent No.1 does not sign and she affixes her LTM. The Tribunal has failed to consider all the material in its proper perspective. As such, the Tribunal’s order is irregular and calls for interference.
Accordingly, the appeal is allowed. The question that arises for consideration is answered in favour of the appellant. The office is directed to refund the amount in deposit to the appellant.
SD/- JUDGE nv