IN THE HIGH COURT OF KARNATAKA AT BENGALURU Dated this the 4th day of December 2017 Before THE HON’BLE MR. JUSTICE B.A. PATIL Miscellaneous First Appeal No.10621/2010 (MV) Between:
New India Assurance Co. Ltd., Represented by its Manager, Mission Road, Bangalore-560027. Representing New India Assurance Co., Kundapura. ...Appellant (By Sri R.Jaiprakash, Advocate) A n d :
1. Sri. Shankar Setty, S/o Krishnaiah Setty, Aged about 63 years, Malekodu, Halnad Village & Post, Kundapur Taluk.
2. Smt. Sumathi Shedthy, 33 years, 3. Anasuya, aged 14 years, 4. Abhishekh, aged 10 years, 5. Sri Kariyanna Setty, Aged about 70 years, 6. Smt. Rudramma Shedthi, Aged about 64 years, 2nd respondent is the wife, Respondent-3 & 4 are children Respondent-5 & 6 are parents of One Basavaraja Setty, Respondent 3 & 4 are minor Represented by second respondent All are R/at Chaukerla Makki, Ajri village and Post, Kundapur Taluk. ...Respondents (By Sri Mahesh Kiran Shetty, Advocate for R2, R5 & R6) (R3 & R4 are minors represented by R2) (R1 – served) This MFA is filed under Section 173(1) of the Motor Vehicles Act against the judgment and award dated 28.04.2010 passed in MVC No.929/2005 on the file of Presiding Officer, Fast Track Court & MACT, Kundapura, awarding a compensation of Rs.5,05,400/- with interest at 6% P.A. from the date of petition till realisation.
This MFA having been heard, reserved for judgment for 11.10.2017 and coming on for pronouncement of judgment this day, the Court, delivered the following:
JUDGMENT The present appeal has been preferred by the appellant-insurer assailing the judgment and award, dated 28.04.2010, passed by the Fast Track Court & Motor Vehicle Accidents Claims Tribunal at Kundapura (hereinafter referred to as ‘the Tribunal’, for short), in MVC No.929/2005.
2. Though the appeal is listed for Admission, with the consent of the learned counsel appearing for the parties, it is taken up for final hearing and disposed of by this judgment.
3. For the sake of convenience, the parties are referred to as per their rankings before the Court below.
4. Brief facts of the case, as per the claim petition, are that On 15.07.2005, at about 9.45 p.m., one Basavaraj Shetty @ Bhasker Shetty was walking on the side of Halady- Bidkalkatte Road, near Jannadi school. At that time, Bajaj M-80 motor cycle bearing registration No.KA-20/L-285 came from Bidkalkatte side to go towards Halady in a rash and negligent manner and dashed to Basavaraj Shetty. As a result of the said accident, he fell down and sustained grievous injuries. He was shifted to Acharya Hospital, Halady, and was given first-aid treatment, and from there he was shifted to Chinmayi Hospital, Kundapura, where he took treatment as an inpatient from 15.07.2005 to 17.07.2005. Thereafter, he was shifted to KMC, Hospital, Manipal, there he took treatment from 17.07.2005 to 21.07.2005 and on 21.07.2005 he succumbed to the accidental injuries. Having lost the bread-earner, the petitioners filed a claim petition in M.V.C. No.929/2005 under Section 166 of the Motor Vehicles Act by contending that the deceased Basavaraj Shetty was working as a coolie and was earning Rs.5,000/- per month; they being the wife, children and parents of the deceased are wholly dependent on his income. On the said grounds, they sought for grant of compensation.
In response to the notice issued by the Tribunal, while respondent No.1 remained ex parte, respondent No.2 appeared through its counsel and filed its written statement. Respondent No.2, in its written statement, while denying the contents of the claim petition, further contended that the said vehicle Bajaj M-80 is not involved in the accident; the 1st respondent was not having valid and effective driving licence as on the date of the accident; the petitioners were not dependent on the deceased. On the said grounds, respondent No.2 prayed for dismissal of the petition.
On the basis of the above pleadings, the Tribunal framed the following issues:
“1. Whether the petitioners prove that on 15-7-2005 at about 9-45 P.M., near Jannadi School, Hardalli Mandalli Village, the deceased Basavaraja Shetty @ Bhasker Shetty met with an accident while walking on the side of Halady-Bidkalkatte Road?
2. Whether the petitioners further prove that, the said accident occurred due to rash and negligent act on the part of the rider of Bajaj M-80 bearing Reg. No.KA-20-L-285, which came and dashed against the deceased and caused him grievous injuries and he succumbed to the injuries?
3. Whether the respondent No.2 proves that there exists contributory negligence of the deceased Basavaraj Shetty @ Bhasker Shetty? If so, to what extent?
4. Whether the respondent No.2 further proves that the rider of the Motor Cycle was not having valid and effective driving licence as on the date of the accident, and therefore he is not liable to pay the compensation?
5. Whether the petitioners are entitled for compensation? If so, to what extent and from whom?
6. What order or Award?
In order to prove their case, petitioner No.1 got examined herself as P.W.1, an eyewitness as P.W.2 and one more witness as P.W.3, and got marked Exs.P.1 to P.7. Respondent No.2 got examined a Surveyor and Loss assessor of vehicles as R.W.1, the Investigating Officer as R.W.2, and three more witnesses as R.Ws.3, 4 and 5 and got marked Exs.R.1 to R.20. After hearing the parties to the lis, the Tribunal passed the judgment and award dated 16.04.2009. Assailing the said judgment and award, respondent No.2- insurer of the offending motor cycle is before this Court.
5. I have heard Sri R.Jaiprakash, learned counsel for the appellant-insurer and Sri Mahesh Kiran Shetty, learned counsel for respondent Nos.2, 5 and 6.
6. The main grounds urged by learned counsel for the appellant are that the vehicle bearing registration No.KA-20- L-285 is not involved in the accident and the vehicle that was actually involved is one bearing registration No.KA- 20/R-2253 belonging to the deceased himself. He further contended that, though the accident has taken place on 15.07.2005, a complaint came to be filed by P.W.2 on 21.07.2005. He further contended that it is the case of the complainant that he had accompanied the deceased, but during the course of cross-examination, he admitted that he had not seen the vehicle involved in the accident and he had not seen the rider of the motor cycle, name of the rider etc., and when that being the case, then under such circumstances, he cannot be considered to be an eyewitness to the alleged incident. He further contended that as per the evidence of P.W.2 one Pradeep Shetty was present and he had given the complaint, but the petitioners have not examined Pradeep Shetty. When the complaint came to be filed after lapse of six days and the proper witness has not been examined, then under such circumstances, the judgment and the award passed by the Tribunal is liable to be set aside. He further contended that as per the evidence led by the respondent-insurer by examining R.W.2 has proved the fact that the vehicle bearing registration No.KA- 20/R-2253 had met with an accident and the said vehicle was got repaired at Laxmi Motors and when the said vehicle has been involved in the accident, claimant has not properly explained how there were damage and why it was in garage. The said evidence clearly goes to show that the alleged accident has taken place on 15.07.2005. When such evidence was before the Tribunal, then under such circumstances, the Tribunal ought to have held that the vehicle bearing registration No.KA-20/L-285 was not involved in the accident and the vehicle was subsequently planted by the petitioners only to claim compensation from the insurer. He further contended that a criminal case has been registered against respondent No.1 and he has been acquitted in the criminal case, under such circumstances, it clearly goes to show that the vehicle KA-20/L-285 not involved in the accident. He further contended that the material which has been produced and the evidence which has been led has not been properly and carefully considered and appreciated by the Tribunal and, as such, the impugned judgment and award passed by the Tribunal is liable to be set aside. On these grounds he prayed for allowing the appeal by setting aside the impugned judgment and award.
7. Per contra, learned counsel appearing on behalf of the respondents/claimants vehemently argued and contended that the Tribunal, after considering the evidence of R.W.3 and other material, has come to the conclusion that the accident in question is caused by the vehicle bearing registration No.KA-20/L-285. He further contended that merely because the vehicle bearing No.KA-20/R-2253 was got repaired, no inference can be drawn that the said vehicle was involved in the accident and the deceased sustained injuries in the said accident. Learned counsel for the respondent further contended that acquittal of the driver of the offending vehicle in a criminal case has no relevancy in adjudication of the claim petitions before the Claims Tribunal and the Tribunal has to assess independently, the liability of the parties to the proceedings. In this behalf, the contention taken up by the learned counsel for the appellant does not hold any water. He further contended that, after discussing the entire material, the Tribunal has rightly answered issue No.1 in the affirmative and has rightly fastened the liability on the appellant-insurer. The appellant- insurer has not made out any good grounds so as to interfere with the judgment and award of the Tribunal and the appeal is liable to be dismissed. On these grounds, he prayed for dismissal of the appeal.
8. I have considered the submissions made by the learned counsel for the appellant as well as the learned counsel appearing on behalf of the respondents. I have also perused the original lower court records.
9. The only contention taken up by the learned counsel for the appellant is that the vehicle Bajaj M-80 bearing registration No.KA-20/L-285 is not involved in the accident and the same has been planted only to claim compensation and the vehicle actually involved in the accident is the motor cycle bearing No.KA-20/R-2253 belonging to the deceased himself.
10. As could be seen from the impugned judgment and award, the Tribunal framed issue No.2, which is referred to above. In order to prove their case, petitioner No.1, the wife of the deceased, got examined herself as P.W.1. Admittedly, petitioner No.1 is not an eyewitness to the alleged incident. The petitioners have got examined Krishna Shetty, an eyewitness to the alleged incident and the complainant, as P.W.2. The petitioners produced relevant documents and got marked the copy of the complaint as Ex.P.7. The respondent- insurer has got examined R.W.1 to R.W.5 in order to substantiate the fact that the vehicle Bajaj M-80 bearing No.KA-20/L-285 was not involved in the accident. R.W.1 is a Surveyor and Loss assessor working in General Insurance Company and, in his evidence, he has deposed that at the request of the Divisional Manager, he visited M/s. Laxmi Motors, Haladi on 14.12.2015; he met the owner of the workshop Mr. Gangadhar Shetty; during the course of enquiry, it revealed that the motor cycle bearing No.KA- 20/R-2253 was involved in the accident that occurred on 15.07.2005; the owner of the said shop has repaired the vehicle as per the request of the owner of the motor cycle and the deceased Bhaskar Shetty is the registered owner of the vehicle which was left for repair. R.W.2 has produced the survey report. As could be seen from the evidence and material on record, admittedly, the accident has taken place on 15.07.2005 and immediately, Bhaskar Shetty was taken to Acharya Hospital, Halady, and after first-aid treatment, he was shifted to Chinmayi Hospital, Kundapur and as per the advice of the doctor, he was shifted to KMC Hospital, Manipal, where he died on 21.07.2005 because of the injuries sustained by him in the accident. However, the evidence of R.W.1 discloses the fact that the owner of the workshop has repaired the vehicle as per the request of the owner of motor cycle bearing No.KA-20/R-2253 i.e., Bhaskar Shetty. When, on 15.07.2005, the owner of the said bike bearing registration No.KA-20/R-2253 was admitted to the hospital with grievous injuries, then under such circumstances, the owner of the bike i.e. Bhaskar Shetty going and requesting the owner of the workshop Sri. Gangadhar Shetty to get the said vehicle repaired does not stand to any reason. If he had met with an accident, then, if a vehicle has been planted subsequently, then under such circumstances, immediately that too on 15.07.2005, the vehicle ought not to have been taken and got it repaired that too with a workshop owner. When the deceased had sustained so many injuries and he was in pain and admitted in the hospital, under such circumstances, much attention would have been given to the person who has suffered injuries rather than the vehicle involved in the accident. The evidence led by the appellant-insurance company does not stand to any common sense as well as just reason. The Tribunal, after considering the said fact, has rightly come to the conclusion that the evidence of R.W.1 is not acceptable in law.
11. No doubt, there is a delay in lodging the complaint by P.W.2, who is said to be the brother-in-law of the deceased Basavaraj Shetty @ Bhasker Shetty. Merely because there is some delay in lodging the complaint, it cannot be inferred that only after planting the vehicle in the case, the complaint has been lodged. When the condition of the deceased Basavaraj Shetty was critical, then under such circumstances, even though there is a delay that by itself would not take away the case of the petitioners. As could be seen from the evidence of R.W.1, the accident has taken place on 15.07.2005 and he went to the workshop on 14.12.2005, that too after a period of five months. In that light, the evidence of the said witness is not acceptable in law.
12. Petitioners have got examined the eyewitness. He has categorically deposed that when himself and deceased were proceeding, the rider of the motor bike bearing registration No.KA-20/L-285 came rashly and negligently and dashed to the deceased and, as a result of the same, deceased Basavaraj Shetty sustained injuries and subsequently, he succumbed to the injuries. No doubt, there are some minor discrepancy in the evidence during the cross-examination of this witness, but only on the basis of such discrepancy, no view can be taken. As could be seen from his evidence, there are some discrepancies and minor contradictions, the evidence of the eyewitness cannot be brushed aside on minor contradiction. Leave apart this. As could be seen from the evidence of R.W.4, who has been examined on behalf of the respondents, in his examination- in-chief, he has deposed that on 15.07.2005, near Jannadi School, his vehicle had met with an accident and on the next day, the said vehicle was seized by the Kota Police and the vehicle was there at the spot of the accident. He has further deposed that on the next day of the incident, Krishna Shetty had lodged a complaint with Kota Police; Bhaskar Shetty had sustained injuries in the accident; himself and Krishna Shetty took Bhaskar Shetty to Durga Hospital in Halady and got him admitted for treatment. He has further admitted that a criminal case had been registered as against him in Kundapur court and he had pleaded guilty. Though the said witness has been treated as hostile, during the course of cross-examination, nothing has been elicited so as to discard the evidence of this witness. When the owner of the vehicle bearing registration No.KA-20/L-285 has specifically deposed before the Tribunal contending that his vehicle had met with an accident and he took the injured Bhaskar Shetty to the hospital and got him treated, he has been convicted in the criminal case by pleading guilty, then under such circumstances, the question of insurer taking the defence that the said vehicle has not met with an accident is not sustainable in law.
13. Coming to the question of involvement of the vehicle, admittedly, the chargesheet is filed as against the rider of the motor bike and he has not denied the accident. If really, the vehicle was not involved, if a false case has been lodged and if the owner had colluded with the claimants, it was for the insurer to challenge the same and seek quashing of the chargesheet and for a direction to the police to investigate the case properly and to file an appropriate case for having lodged a false case, when there was no accident and vehicle in question had not been involved. In this behalf, there is no material produced by the appellant insurer. This proposition of law has also been laid down by a Division Bench of this Court in the case of Bajaj Allianz General Insurance Co. Ltd. Vs. Smt. Lakshmamma and others reported in [2008 Kant M.A.C. 145 (Kant)]. At para No.6 of the said decision, the Division Bench has observed as under:
“ 6. Then, coming to the question of involvement of the vehicle, admittedly charge-sheet is filed against the driver of the vehicle, the owner has not denied the accident. FIR is registered in Crime No.10/05 by the Malur Police. If really the vehicle was not involved, if a false case has been lodged and if the owner has colluded with the claimants it was for the Insurance company to challenge the same to quash the charge-sheet and to direct the police to investigate properly and file an appropriate case for having lodged a false case when there was no accident and vehicle in question had not been involved. The learned counsel for the appellant submits that after case was filed, the matter was entrusted to a private agency for investigation and according to the report of the investigation of a private agency, the vehicle in question had not been involved in the accident. But, we cannot place reliance on a report submitted by a private agency when a charge-sheet is filed by the police after a detailed Investigation and when the driver and owner of the vehicle have not disputed about the involvement of the vehicle in question. Therefore, this point is also answered against the appellant”
14. In the light of the above discussion, what is to be noticed is that the Tribunal has considered the aspect with regard to the accident having occurred and the negligence on the part of the rider of the motor bike and the vehicle having been involved. Even on a perusal of the judgment, it clearly indicates that the contention with regard to the liability of the insurance company in the background of the contention of the appellant, it clearly shows that the vehicle was involved and there is no substance in the contention taken up by the learned counsel for the appellant.
15. Looking from any angle, the appellant has not made out any good grounds to interfere with the impugned judgment and award of the Tribunal and the same deserves to be confirmed. Hence, the appeal is hereby dismissed.
Sd/- JUDGE Kms