IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF OCTOBER, 2019 PRESENT THE HON'BLE MR. JUSTICE S.N. SATYANARAYANA AND THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM MFA NO.11112/2012 (MV) C/W MFA NO.2507/2013 (MV) IN MFA NO.11112/2012 BETWEEN:
BRANCH MANAGER NATIONAL INSURANCE CO. LTD., HAVERI, NOW REPRESENTED BY ITS REGIONAL MANAGER NATIONAL INSURANCE CO LTD., REGIONAL OFFICE, SUBHARAM COMPLEX, 144 M.G. ROAD, BANGALORE-560 001.
...APPELLANT (BY SRI.A.N.KRISHNA SWAMY, ADVOCATE) AND:
1. H.K. BASAPPA S/O LATE HOSURAPPA NOW AGED ABOUT 53 YEARS AGRICULTURIST 2. SMT. GIRIJAMMA W/O H.K.BASAPPA NOW AGED ABOUT 48 YEARS 3. K.B. ASHA D/O H.K. BASAPPA NOW AGED ABOUT 17 YEARS SINCE MINOR REPRESENTED BY HER NATURAL GUARDIAN/FATHER THE 1ST RESPONDENT HEREIN.
4. K.B.SHASHIKUMAR S/O H.K. BASAPPA NOW AGED ABOUT 23 YEARS ALL ARE R/O KYATHINAKOPPA VILLAGE HOLALUR HOBLI, SHIMOGA TALUK.
5. VENKATESH S/O RANGAPPA BALIGAR NOW AGED ABOUT 32 YEARS R/O HALLUR GRAMA, HIREKEREU TALUK HAVERI DISTRICT.
6. H.S.HALESHA @ HALESHAIAH S/O SONNAIAH, MAJOR R/O HONNALI TOWN.
...RESPONDENTS (BY SRI.S.V.PRAKASH, ADV. FOR R1 TO R4, R5 IS SERVED AND UNREPRESENTED, V/O DATED:29.11.2018 NOTICE TO R6 IS HELD SUFFICIENT) THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:29.06.2012 PASSED IN MVC NO.205/2009 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, MACT, SHIMOGA AWARDING A COMPENSATION OF Rs.5,55,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL ITS DEPOSIT.
IN MFA NO.2507/2013 BETWEEN:
1. H.K. BASAPPA S/O LATE HOSURAPPA AGE 53 YEARS 2. SMT. GIRIJAMMA W/O H.K.BASAPPA AGE 50 YEARS 3. K.B. ASHA D/O H.K. BASAPPA AGE 18 YEARS 4. K.B.SHASHIKUMAR S/O H.K. BASAPPA AGE 24 YEARS ALL ARE RESIDENTS OF KYATHINAKOPPA VILLAGE HOLALUR HOBLI SHIMOGA TALUK & DISTRICT-577201.
...APPELLANTS (BY SRI.S.V.PRAKASH, ADVOCATE) AND:
1. VENKATESH S/O RANGAPPA BALIGAR AGE 33 YEARS R/O HALLUR VILLAGE HIREKEREU TALUK HAVERI DISTRICT-581110.
2. H.S.HALESHA @ HALESHAIAH S/O SONNAIAH, AGE MAJOR R/O HONNALI TOWN-577217 3. THE BRANCH MANAGER NATIONAL INSURANCE CO. LTD., HAVERI-58110.
...RESPONDENTS (BY SRI.A.N.KRISHNA SWAMY, ADV. FOR R3, V/O DATED 19.01.2015 NOTICE TO R1 & R2 IS DISPENSED WITH.) THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:29.06.2012 PASSED IN MVC NO.205/2009 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, AND MACT, SHIMOGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE MFA’S COMING ON FOR ADMISSION THIS DAY, SACHIN SHANKAR MAGADUM J., DELIVERED THE FOLLOWING:
JUDGMENT Being aggrieved by the judgment and award dated 29.6.2012 passed in MVC.No.205/2009 by the Principal Senior Civil Judge and MACT at Shimoga, the Insurance Company has preferred MFA.No.11112/2012 questioning the liability fastened on it and the claimants have preferred MFA.No.2507/2013 questioning the quantum of compensation determined by the Tribunal.
2. Though these matters are listed for admission, with the consent of the learned counsel appearing for the parties, they are taken up for final disposal.
3. For the sake of convenience, the parties are referred to as per their rank before the Tribunal.
4. The case of the claimants before the Tribunal is that on 28.10.2008 at 6.00 p.m. the deceased Shanthakumar was proceeding on a motor cycle bearing Regn.No.KA-27-7838 as a pillion rider which was being ridden by the second respondent on C.N. Koppa Village to Honnali Road. While they were proceeding near Jeenahalli Cross, opposite to the house of Huchaveerappa, the second respondent drove the bike in a rash and negligent manner on account of which the motor cycle fell down and the deceased Shanthakumar sustained grievous injuries and succumbed to the injuries on the same day. On the basis of these facts, the claimants claimed compensation of Rs.22,15,000/- by contending that the deceased was hardly aged 24 years and was a driver by profession and had a monthly income of Rs.6,000/- per month. The claimants also contended that they being parents, sister and brother of the deceased were depending on the earnings of deceased Shanthakumar. On account of his untimely death they are put to untold hardship and agony.
On receipt of notice, the appellant-Insurance Company which was arrayed as respondent No.3 filed written statement and denied the very involvement of the bike in the alleged accident. At Para 4 of the written statement specifically contended that infact the dead body of Shanthakumar was found in the room belonging to Asha Bargava Lodge at Honnalli town. Further contended that the complaint is filed 17 days after the alleged accident. The claim petition is filed by the claimants in collusion with the police officials, doctors and other respondents to make a wrongful gain. As such prayed to dismiss the petition.
The Tribunal while dealing with issue No.1 has recorded a finding that the delay in lodging the complaint is properly explained and the charge sheet submitted by the Investigating Officer would establish the accident and based on this reasoning the Tribunal proceeded to answer issue No.1 in the affirmative and has thereby determined the compensation and has fixed the liability on the Insurance Company. The Insurance Company being aggrieved by the said finding is before us in MFA.No.11112/2012 and the claimants have preferred MFA.No.2507/2013.
5. The counsel appearing for the Insurance Company would vehemently argue that the involvement of the bike bearing No.KA-27-7838 was seriously disputed by the Insurance Company and that the Police had registered UDR.No.44/2008 on the ground that the death might have been caused due to the crime committed by some miscreants. He would also vehemently contend that a false complaint is lodged after lapse of 17 days by the brother of the deceased alleging for the first time the involvement of the offending vehicle in the complaint in collusion with the police officials, driver and the insured. The counsel would further argue that the body of the deceased was found in the room belonging to Asha Bargava lodge on 29.10.2008 and therefore he would vehemently argue that the Tribunal ignoring the cogent and clinching rebuttal evidence adduced by the Insurance company has answered Issue No.1 in the affirmative holding that the claimants have proved that deceased Shanthakumar died due to the grievous injuries sustained in the accident that occurred on 28.10.2008 caused on account of actionable negligence on the part of the rider of the motor bike bearing No.KA-27-7838 6. The counsel for the respondents-claimants would however support the reasoning assigned by the Tribunal on issue No.1. He would contend that the claimants have been able to establish the rash and negligent act of the rider of the offending vehicle in causing the accident on 28.10.2008 and the claimants in support of their contention have examined P.W.2 who is an eye witness to the accident and P.W.3 the then CPI of Honnali who received the complaint on 13.11.2008 and registered the case and hence would contend before us that the reasoning assigned by the Tribunal is just and proper and does not warrant any interference by this Court.
7. Heard the counsel appearing for the appellant-Insurance Company and respondents- claimants and perused the records.
8. The point that would arise for consideration is:
“Whether the finding of the Tribunal that the claimants have proved that deceased Shanthakumar died due to rash and negligent riding by the rider of the bike bearing No. KA 27-7838 is perverse and suffers from serious infirmities? “ 9. It is the specific case of the Insurance Company that the deceased did not die on account of road accident and a specific contention is taken to that effect at Para 4 of the statement of objections filed by the Insurance Company before the Tribunal which is extracted as under:
“4. It is submitted that the death is not due to any road Traffic Accident. Moreover, this respondent denies the involvement of the vehicle in question bearing Reg.No.KA-27-Q-7838 as alleged by the petitioners. Even though this respondent again disputes that the second respondent was drove the vehicle in the alleged date and time of the accident. It is respectfully submitted that in first instance case was registered by the Police authority as UDR No.44/2008 wherein it is stated that the death might be due to Crime committed some miscreants. After lapse of 17 days all of sudden a false complaint has been lodged by one Shashikumar the brother of the deceased on 13-11-2008 stated about involvement of the alleged vehicle bearing Reg.No.KA-27-Q-7838. On the basis of said complain the police with collusion of petitioners have filed a false case against the alleged rider of vehicle that due to his rash and negligent driving the accident took place and the Shanthkumar died. It is pertinent to note that the body was found in the room belonging one Smt. Asha Bhargav lodge at Honnali Town on 29-10- 2008. The said Asha Bhargav the owner of the lodge has given a complaint 29-10-2008 stating that the some body’s body was found dead in the rooms belonging to her. It is appears that petitioners in collusion with the police officials, doctors and other respondent have concocted a story as if the death is due to road, Traffic accident to gain wrongfully by fixing the case against the Insured vehicle without any basis. It is submitted that in no way the Insured vehicle was connected to the alleged accident or incident Hence, the petition is liable to be dismissed against this respondent.”
10. During trial, the appellant-Insurance company has succeeded in eliciting from the mouth of P.W.1 who is the brother of the deceased and also the informant to the police in regard to the cause of death. His categorical admission in cross-examination would clinch the issue. For better understanding the portion of the categorical admission given by P.W.1 which corroborates the contention of the Insurance Company as per Para 4 of its objections is culled out as under:
“£À£Àß CtÚ£À ±ÀªÀ D±Á ¨sÁUÀð« CªÀgÀ gÀÆ«Ä£À°è ¹QÌzÀÄÝ CzÀÄ ºÉÆ£Áß½ mË£ï JAzÀgÉ ¸Àj. ¥ÉÆðøÀjUÉ D ªÀÄÈvÀ zÉúÀzÀ §UÉÎ ªÀiÁ»wAiÀÄ£ÀÄß D±Á ¨sÁUÀð« J£ÀÄߪÀªÀgÀÄ PÉÆnÖzÁÝgÉ JAzÀgÉ ¸ÀjAiÀÄ®è.
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11. If this clinching evidence is taken into consideration coupled with the rebuttal evidence adduced by the Insurance Company vide Exs.R5 to R12, we are of the view that the deceased did not die on account of the road traffic accident. The deceased died on 28.10.2008 whereas the complaint came to be lodged on 13.11.2008, which is almost 17 days after the incident. The Tribunal unfortunately has not at all assessed and examined the evidence on record while examining issue No.1. We are of the firm view that the reasoning assigned by the Tribunal while answering issue No.1 in the affirmative is palpably erroneous.
12. The Tribunal in this case could not have simply relied on the police records which is quite shaky and untrustworthy. The Tribunal strangely has ignored the contention taken by the Insurance Company at Para 4 of the objections and has also not taken note of the admissions given by P.W.1 in the cross-examination. The Tribunal has not assigned any reasons as to why these material aspects cannot be considered when the same goes to the root of the case.
13. The Tribunal ought to have taken note of the fact that there is delay in lodging the FIR. When there is inordinate delay the Courts have to be cautious since delay in lodging the FIR results in embellishment which is a creature of an afterthought. We do not hesitate to come to the conclusion that the material on record clearly indicates that the delay has occasioned through deliberation and concoction of FIR with an oblique motive to make monetary gain by filing a false claim petition. The entire material on record only indicates that the homicidal death has been portrayed as a road traffic accident. The dead body was found lying in the lodge and on perusal of Ex.P4 it is evident that the Town Police Station, Honnali, requested the doctor to conduct post mortem on 29.10.2008. If the body was found on 29.10.2008, nothing prevented the police officials in registering the crime on the same day. On perusal of Ex.P2, it is seen that the crime is registered on 13.11.2008 at 6.00 p.m. The FIR indicates that the information was received at the police station on 13.11.2008 at about 6.00 p.m. This is in total contradiction with the post-mortem report where the PSI has sent the dead body along with a request to the doctor on 29.10.2008 to conduct the post-mortem. Further, the vehicle which is fraudulently involved in the accident is sent for inspection to the Inspector of Motor Vehicles on 17.11.2008 as per Ex.P5.
14. The Tribunal has given a total go bye and has unfortunately proceeded to rely on all fraudulent documents set up by the claimants in collusion with the police officials who have faked the accident by falsely involving the vehicle which is nothing but cash for crash. The reasons assigned by the Tribunal while dealing with issue No.1 are perverse, capricious and palpably erroneous. The Tribunal strangely records a finding that the delay in lodging the complaint is not properly explained. The Tribunal further records the finding that the death has occurred in a room and it is quite natural to suspect of any crime. Having taken note of all these shoddy investigation by the police officials and the rebuttal evidence adduced by the Insurance Company, the Tribunal has still proceeded to hold that the claimants have been able to establish that the death has occurred due to the injuries sustained in the accident by the deceased Shanthakumar. This finding recorded by the Tribunal is palpably erroneous and warrants interference by this Court. In the light of the reasons assigned by us, we proceed to answer the point formulated by this Court in the affirmative.
15. Accordingly, the appeal filed by the Insurance Company in MFA.No.11112/2012 is allowed. The impugned judgment and award dated 29.06.2012 passed in MVC.No.205/2009 on the file of the Principal Senior Civil Judge and MACT, Shimoga, is set aside holding that the death is not on account of road traffic accident and consequently the claim petition filed by the claimants is dismissed and the liability of the insurer to pay the compensation awarded therein is also set aside.
In view of the dismissal of the claim petition filed by the claimants, the appeal filed by the claimants in MFA.No.2507/2013 would not survive for consideration and accordingly, the same is dismissed.
Since the appeal filed by the Insurance Company is allowed, the compensation amount deposited by the appellant-insurer is hereby ordered to be refunded to it.
Sd/- JUDGE Sd/- JUDGE *alb/-