IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR. JUSTICE S.G.PANDIT M.F.A.No.4100/2010 [MV] BETWEEN:
DIVISIONAL MANAGER NEW INDIA ASSURANCE CO. LTD., DIVISIONAL OFFICE NO.8 NO.47, GOPAL COMPLEX, II FLOOR, BAZAAR STREET YESHWANTHPUR BANGALORE-560 022.
(BY SMT. HARINI SHIVANANDA, ADV.) AND:
1. SMT. KOMALA 30 YEARS W/O LATE RAMAKRISHNA 2. SMT. MAGADIAMMA W/O LATE GAVIAPPA 60 YEARS BOTH ARE RESIDING AT MARUR, NARASANDRA POST KUDUR HOBLI, MAGADI TALUK BANGALORE RURAL DISTRICT.
3. MR. P.S RAVI BABU FATHER’S NAME NOT KNOWN MAJOR, NO.253, 7TH MAIN ... APPELLANT BAHUBALINAGAR, JALAHALLI BANGALORE.
(BY SRI.S.G.LOKESH, ADV. FOR R1 & R2 R3 –SERVED & UNREPRESENTED) ... RESPONDENTS THIS M.F.A. FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD 11.01.2010 PASSED IN MVC NO.2001/2005 ON THE FILE OF THE VIII ADDITIONAL JUDGE, MEMBER, MACT-V, COURT OF SMALL CAUSES, BANGALORE, AWARDING A COMPENSATION OF RS.5,77,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT IN COURT.
THIS M.F.A. COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The appellant-Insurance Company is before this Court being aggrieved by the judgment and award dated 11.01.2010 passed in MVC No.2001/2005 on the file of MACT V, Court of Small Causes, Bangalore City.
2. The claimants are wife and mother of the deceased Ramakrishna. The claimants filed claim petition under Section 166 of the Motor Vehicles Act, 1988, praying compensation for the accidental death of one Ramakrishna. It is stated that on 19.12.2004 at about 11.00 p.m. when the deceased was riding his Motor Cycle bearing Reg.No.TDN-1132 on Bangalore Tumkur road near Goragunte Palya junction, all of a sudden a Car bearing No.MVC.8191 came in a rash, negligent manner and dashed against the claimant’s vehicle. As a result, the deceased fell down and sustained grievous injuries and subsequently succumbed to the injuries.
3. On issuance of summons, respondents 1 and 2 appeared before the Tribunal and filed their statement. 1st respondent - Insurance Company denied the petition averments and prayed to dismiss the petition. The 2nd respondent – owner of the offending vehicle also filed his statement stating that the driver of the Car had valid driving license and the policy was in force as on the date of accident. The claim petition was dismissed by judgment and award dated 17.03.2006. The said judgment and award was the subject matter of MFA No.1141/2007 before this Court. This Court remanded the matter for fresh disposal.
4. On behalf of the claimants, 1st claimant examined herself as PW.1 and eye witness was examined as PW.2 apart from marking the documents Exs.P1 to P12. No evidence was led on behalf of the respondents. The Tribunal subsequent to remand on consideration of the material on record both oral and documentary awarded total compensation of Rs.5,77,000/- along with interest at 6% per annum from the date of petition till the date of deposit. The Insurer aggrieved by the same is before this Court in this appeal.
5. Heard the learned counsel for the appellant – Insurance Company and learned counsel for the respondents – claimants. Perused the entire material on record.
6. The learned counsel for the appellant – Insurance Company would submit that the appeal is filed only on the ground that the vehicle in question is not involved in the accident but the same is implicated for the purpose of compensation. It is the contention of the insurer that the accident had taken place on 19.12.2004 whereas the complaint was lodged on 20.12.2004 by one B.S. Raja. The complaint is against an unknown vehicle. The vehicle number is not mentioned in the complaint. Further the learned counsel contends that even though complaint was lodged on 20.12.2004 the vehicle was seized on 28.01.2005. Further it is stated that PW.2 is said to be the eye witness to the accident and stated that he noticed the accident and shifted the deceased to M.S. Ramaiah Hospital. There is contradictions in the evidence of PW.2 and the complaint enclosed to Ex.P.1. In the complaint it is stated that the deceased was initially taken to Mysore Hospital and thereafter to M.S. Ramaiah Hospital. The learned counsel inviting attention to Ex.P.4 – the sketch, submits that the sketch also would not indicate the vehicle number. Even in the spot mahazar it is against an unknown vehicle and Car is not shown as the offending vehicle. Hence it is submitted that the Tribunal is not justified in holding that the deceased died due to accident, but the claimants have failed to prove the accident, which is alleged to have taken place on 19.12.2004 involving the offending vehicle.
7. Per contra, the learned counsel for the respondents – claimants would submit that the in the statement filed by the Insurance Company, it has not taken the specific contention that the offending vehicle is not involved in the accident and it is falsely implicated. On the other hand, the 2nd respondent – owner of the vehicle has admitted the accident in his statement. The learned counsel also invites attention of this Court to the observation of this Court made in judgment dated 6.8.2009 passed in MFA No.1141/2007 wherein this Court remanded the matter for fresh disposal. Thus the learned counsel prays for dismissal of the appeal.
8. On hearing the learned counsels for the parties and on perusal of the entire records, the only question which arises for consideration is as to ‘Whether the Tribunal is justified in holding that the claimants have proved the accident that occurred on 19.12.2004 involving the Car bearing No.MVC.8191 ?’ Answer to the said question is in the affirmative.
9. The accident is said to have taken place on 19.12.2004 when the deceased was proceeding on his Motor Cycle bearing Reg.No.TDN-1132 on Bangalore – Tumkur Road at about 11.00 p.m. Complaint filed by one B.S. Raja is enclosed to Ex.P1. In the complaint, the complainant states that both the deceased and he were going in two separate Motor Cycles and the deceased was riding Motor Cycle bearing No.TDN-1132 behind the complainant. The complaint would not indicate the vehicle number, it is against an unknown vehicle. The complainant states that immediately the injured was shifted to Mysore Hospital and thereafter to M.S. Ramaiah Hospital. The complainant also states that the deceased was shifted to M.S. Ramaiah Hospital in the Hoysala Van with the assistance of the police. The only contention urged by the appellant – Insurance Company is that the Car bearing No.MVC 8191 was not involved in the accident, it was subsequently implicated. But in the statement filed before the Tribunal the Insurance Company admitted the fact of issuing policy in respect of Car bearing No.MVC 8191, but in the entire objection there is no whisper as to the non-
involvement of the Car in the accident and the allegation with regard to implication of Car in the accident. On the other hand, the 2nd respondent-owner in his statement at paragraph 5 (a) and (b) has stated as follows :-
“5(a) This respondent denies the averments made in Column No.22 of the petition. It is true that on 19.12.2004 at about 23.00 hours the deceased was riding his motorcycle bearing registration No.TDM-1132 on Bangalore Tumkur Road. When deceased came near Goraguntepalya Junction, all of a sudden, a car bearing No.MEC-8191 dashed against the deceased motorcycle on account of rash and negligent driving of car by its driver.
(b) The driver of the car was driving at slow speed observing traffic rules and regulations and on the correct side of the road in the direction in which it was moving. The respondent submits that the deceased was riding the motorcycle in a rash and negligent manner, without observing traffic rules and regulations. This respondent submits that there was no rash and negligent act on the part of the driver of car.”
On a reading of the above statement it could be safely said that the owner has admitted the accident involving his Car on 19.12.2004. PW.1 is the wife of the deceased. PW.2 - ShivaKumar is the eye witness to the accident. In his evidence, he states that Car bearing No.MVC - 8191 driven in high speed, rash, negligent manner and dashed against the Motor Cycle bearing No.TDN 1132 from backside resulting in grievous injuries and immediately he was shifted to M.S. Ramaiah Hospital. Learned counsel submits that in the complaint, it is stated that the injured was initiatially taken to Mysore Hospital at Goruguntepalya and thereafter to M.S. Ramaiah Hospital in Hoyasala Jeep and there is contradiction between Ex.P.2 – the complaint and the evidence of PW.2. PW.2 – the eye witness stated about the accident and also stated that on the way to M.S. Ramaiah Hospital, he succumbed to injuries. He has not stated in detail, what happened immediately after the accident and where he was initially taken, that difference in say would not be sufficient to say that the offending vehicle is not involved in the accident. The insurer has cross- examined PW.2 – the eye witness. The learned counsel for the appellant points out that PW.2 in his evidence has stated that he had given complaint to the police over telephone, who came to the spot at 10.45 or 11.00 p.m., but he has not produced the complaint before the Court. The complaint Ex.P.2 by one Raja also states that the deceased was shifted to hospital in Hoysala Van that strengthens the evidence of PW.2, who had said that police had come to the spot. Moreover, this Court by judgment dated 6.8.2009 in MFA No. 1141/2007 remanded the matter for fresh disposal.
While remanding, this Court observed that the Tribunal had not looked into the objections filed by the 2nd respondent – owner. Further this Court observed as follows :-
“After careful evaluation of the entire original records available on file at threadbare, including the impugned judgment and award passed by the Claims Tribunal, it emerge that, the Claims Tribunal has committed a grave error of law, much less material irregularity and mis-carriage of justice, in rejecting the claim petition filed by the appellants contrary to the materials available on file. It is significant to note that second respondent, the owner of the vehicle has filed detailed objections and he has not denied the accident which occurred on 19.12.2004. The objections of the owner of the vehicle dated 7.1.2006 is very much available in the original records at internal page Nos.8 to 10. In para -5B of the objections, he has stated that deceased was riding the motor cycle in a rash and negligent manner without observing the traffic rules and regulations and there is no negligence on the part of the driver of the car, as he was driving the said car slowly by observing all the traffic rules. The another fact which has to be borne in mind is that, the owner has not adduced any evidence to support his case of denial. This clinching evidence available on record has not been looked into or considered by the Claims Tribunal and has rejected the claim petition thereby committing the mis-carriage of justice without evaluating the relevant material available on file. The claims Tribunal ought to have assessed the compensation and awarded the same and decided the matter on merits, instead of dismissing the claim petition on hyper technical ground. Therefore, we are of the considered view that, at any stretch of imagination, the impugned judgment and award passed by the Claims Tribunal cannot be sustained and it is liable to be set side at the threshold.”
In view of the above observation, the claims Tribunal ought to have assessed the compensation and decided the matter on merits in accordance with law. The said judgment of this Court in the above said MFA has become final and the insurer has not taken up the said judgment any further. This Court, while remanding the matter has specifically observed that the Tribunal ought to have assessed the compensation and awarded the same, instead of dismissing the claim petition on hyper technical ground. I do not find any erroneousness or perversity in the judgment and award passed by the Tribunal. No ground is made out to interfere with the impugned judgment and award passed by the Tribunal. Accordingly, the appeal is dismissed. The amount in deposit be transmitted to the concerned Tribunal.
Sd/- JUDGE NG* CT:bms