IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 30TH DAY OF JULY, 2019 PRESENT THE HON’BLE MRS. JUSTICE B.V.NAGARATHNA AND THE HON’BLE MR. JUSTICE ASHOK G.NIJAGANNAVAR M.F.A. No.7802/2017 (MV-D) BETWEEN:
L. VASANTHA S/O. LAKSHMANA, AGE: 55 YEARS, R/AT SHIRANI MOHALLA, SIRA TOWN – 572 137 TUMKURU DISTRICT. ... APPELLANT (BY SRI A.K. BHAT, ADVOCATE) AND:
1. J. MANJUNATHA S/O. LATE C. JAYARAMAIAH, R/AT JYOTHINAGARA, SIRA TOWN – 572 137 TUMKURU DISTRICT.
2. SANGEETHA AGE: 11 YEARS, D/O. J. MANJUNATHA, R/AT JYOTHINAGARA, SIRA TOWN – 572 137 TUMKURU DISTRICT. SINCE MINOR R/B, N/G. FATHER 1ST RESPONDENT.
3. L.R. MANJULA DEVI AGE: 60 YEARS, W/O. LATE C. JAYARAMAIAH, R/AT JYOTHINAGARA, SIRA TOWN – 572 137 TUMKURU DISTRICT.
4. THE MANAGER, IFFCO TOKIO, INSURANCE CO. LTD., NO.2262, 7TH BLOCK MAIN, 3RD STAGE, NEAR YALAHANKA, NEW TOWN BUS STAND, BENGALURU – 560 096. ... RESPONDENTS (BY SMT. SPOORTHY HEGDE NAGARAJA, ADVOCATE FOR R-1 TO R-3; (R-2 IS MINOR REP. BY R-1);
SRI D. VIJAYA KUMAR, ADVOCATE FOR R-4) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 11.08.2017 PASSED IN MVC NO.84/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE AND J.M.F.C., ADDITIONAL M.A.C.T., SIRA, AWARDING COMPENSATION OF RS.29,84,896/- WITH INTEREST AT 9% P.A. FROM THE DATE OF PETITION TILL ITS DEPOSIT.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, ASHOK G.NIJAGANNAVAR J., DELIVERED THE FOLLOWING:-
J U D G M E N T Though this appeal is listed for admission, with the consent of learned counsel on both sides, it is heard finally.
2. The owner of the vehicle has preferred this appeal for setting aside the judgment and award passed in MVC.No.84/2015 passed by the Senior Civil Judge & Addl. MACT at Sira, dated 11/08/2017.
3. The facts leading to this appeal are that on 17/12/2013, the deceased Puttamma was proceeding as a pillion rider, on a motorcycle bearing registration No.KA-06/EM-3501 along with Vasantha @ Vasantha Naik on Sira – Amarapura Road. At about 5.15 p.m., when they reached near the land of Rangapura Junjanna, the rider of motorcycle drove the motorcycle in a rash and negligent manner, as a result of which, the pillion rider Puttamma fell down and sustained grievous injuries to her head. Later during the treatment she succumbed to the injuries.
4. On filing of the claim petition, Respondent No.1/owner of the vehicle was placed ex parte as he did not appear before the Court. The respondent No.2/insurance company appeared and filed objections denying the averments made in the complaint and also the liability.
5. On the rival pleadings, learned Claims Tribunal framed the following issues:
(i) Whether the petitioners prove that on 17/12/2013, when the deceased Puttamma was proceeding towards Sira after the completion of her work as a pillion rider in a Motorcycle bearing Reg.No.KA.06.EM.3501 along with Vasantha @ Vasantha Naik on Sira – Amarapura road and when they reached Adaluru gate, near Rangapura Junjanna’s land, at about 5.15p.m., the rider of Motorcycle bearing Reg. No.KA.06.EM.3501 rode the same in a rash and negligent manner so as to endanger human life and caused accident. In the result of which, the said deceased P.Puttamma fell down on the road and sustained grievous bleeding injuries to her head and later on she succumbed to the said injuries?
(ii) Whether the petitioners are entitled for compensation? If so, at what rate, from whom?
(iii) What order or award?
6. On appreciating the oral and documentary evidence, the Tribunal awarded compensation of Rs.29,84,896/- with interest at 9% per annum and held that respondent No.1/owner of the vehicle is liable to pay compensation to the petitioners and directed respondent No.1 to deposit the compensation amount within a period of two months from the date of award.
7. Being aggrieved by the judgment and award passed by the learned Motor Accident Claims Tribunal, the owner of the vehicle has preferred this appeal contending that the evidence placed on record is not appreciated in proper perspective. Even though in the complaint and FIR, the name of Vasantha/vehicle owner is shown, the police after investigation have filed the charge sheet, wherein it is clearly mentioned that Vasantha Naik @ Vasantha was riding the vehicle as per Ex.P-3, but not the appellant L.Vasantha. The liability is saddled on the appellant only on suspicion that there was collusion between owner of the vehicle/Appellant and another person by name Vasantha Naik @ Vasantha in order to fix the liability on the insurance company. The reasoning assigned by the trial Court and the finding given for fixing the liability on the owner of the vehicle is not proper and justified. The complainant who has given the complaint is examined as PW.2. He is the eyewitness to the accident. Even according to the evidence of RWs.2 and 3, it is crystal clear that the said vehicle was not driven by the appellant, but it was driven by Vasantha Naik. Thus, the finding given by the Tribunal fastening liability on the owner of the vehicle is liable to be set aside and the Insurer may be directed to pay the compensation.
8. Heard learned counsel for the appellant and learned counsel for the respondents and perused the material on record.
9. The first and foremost contention of the learned counsel for the appellant is that when there was ample evidence on record to show that the appellant was not driving the vehicle as on the date of the accident, the Tribunal has come to the conclusion that appellant himself was driving the vehicle.
10. As against this contention, learned counsel for the insurance company strenuously contended that there is sufficient evidence to prove that as on the date of the accident, the appellant was driving the vehicle. During the course of arguments, the counsel has tried to point out certain doubtful circumstances. It is submitted that Vasantha Naik was a stranger to Puttamma and there was no reason for the said lady to go with him as a pillion rider on his vehicle. It is only after the accident, the appellant in collusion/connivance with another person called Vasantha Naik and by taking undue advantage of similar names, has managed that the charge sheet is filed against a person named Vasantha @ Vasantha Naik so as to avoid the liability and to fasten the liability on the insurance company.
11. Learned counsel for respondent Nos.1 to 3 submitted that the person who was driving the vehicle as on the date of accident was Vasanth @ Vasantha Naik. As such, the insurance company is liable to pay the compensation since the vehicle was driven by the said person.
12. Having considered the contentions urged the point for consideration that would arise is as under:
“whether the Tribunal was justified in fastening the liability on the owner of the motorcycle.”
13. It is pertinent to note that the insurance company has examined two witnesses namely, RWs.2 and 3. We have given our anxious consideration to their evidence. RW.2 is the person by name L.Vasantha, who is none other than the appellant. He has categorically stated in his examination-in-chief that the motorcycle bearing registration No.KA-06/EM- 3501 was not driven by him on the date of the accident i.e., on 17/12/2013. He has been cross- examined at length, but nothing elicited to show that the said appellant alone was driving the vehicle. Several suggestions have been made in the cross- examination but he has denied that he had purchased the vehicle in order to go to his school and on 17/12/2013 he was driving the vehicle at the time of the accident. No doubt, he has admitted that Puttamma was working as a Clerk in the school, but he has denied that deceased Puttamma was traveling on his motorcycle as a pillion rider. He has also denied the suggestion that he had no valid driving licence as on the date of accident as such he has tried to include a person by name Vasantha Naik who had valid licence in the charge sheet to evade the liability to pay the compensation and to fix the liability on the insurance company.
14. Another witness RW.3 is the person who is said to have driven the vehicle as on the date of the accident. He has admitted in his examination-in-chief that on the date of the accident i.e., on 17/12/2013, he was driving the motorcycle bearing registration No.KA-06/EM-3501. This witness was also cross- examined in detail, but he has denied all the suggestions made by the insurance company that the appellant was driving the vehicle and the deceased Puttamma was a pillion rider on the said motorcycle. He has denied the suggestion that even though he was aware of the fact that L.Vasantha had no driving licence but colluding with him and the police, has posed himself as driver of the motorcycle and has given false evidence in order to help the appellant in evading the liability to pay the compensation.
15. As far as the issuance of the policy and other aspects are concerned, there is no serious dispute. The only contention is with regard to liability.
16. In the instant case, the husband of the deceased Puttamma, who is the claimant has also been examined as PW.1. This witness is only a hearsay witness. He has stated in his evidence regarding the accident caused by a person called Vasantha, but he has not stated anything in detail as to who exactly drove the vehicle. It is pertinent to note that one of the doubtful circumstances pointed out by the insurance company is that the name of the person in the FIR is shown as Vasantha, but there is no other specific details to show that the person by name Vasantha Naik was driving the vehicle. Even in the mahazar, the name is shown as Vasantha. It is pertinent to note that after investigation, the police have filed the charge sheet wherein the name of the accused is shown as Vasantha @ Vasantha Naik. The insurance company is trying to take advantage of the FIR in support of its defense; but the police have submitted a charge sheet after conducting the investigation, wherein it is clearly shown as Vasantha @ Vasantha Naik. When the insurance company is trying to rely on some of the police records, it is estopped from taking up contention that the charge sheet was filed by the police against Vasantha @ Vasantha Naik in collusion with the appellant in order to avoid the liability to pay the compensation. Even though the insurance company had no occasion to challenge the records, it could have made the best efforts to show as to how the act of impersonation has taken place and that there was fabrication of documents in order to evade the liability of the appellant.
17. The insurance company has tried to point out another doubtful circumstance that the deceased Puttamma being a stranger to Vasantha Naik would not have traveled as a pillion rider with him. This circumstance do not prove that the records have been concocted at the stage of investigation. The important aspect to be considered at this stage is that, generally no person will venture to act as accused in a Criminal case where the death has occurred in the accident. Thus, Vasantha Naik would not have come forward to face the criminal trial that too in an accident case, if he was not riding the motorcycle, no such person would face the trial in order to help some other person like appellant. In the event the charges being proved, the said Vasantha Naik would have been convicted and sentenced appropriately for the offence. Thus, the doubtful circumstance pointed out by the insurance company does not make out a case that only for the sake of helping the appellant, Vasantha Naik has lent his name.
18. During the course of argument, learned counsel for the insurance company has tried to raise the point regarding remand of the matter, but after considering the entire evidence placed on record and on appreciation of the entire oral and documentary evidence, we are of the view that there are no valid reasons for remanding this case to the trial Court as it will not serve any purpose.
19. The insurance company has not placed any records pertaining to the criminal case where the eyewitness namely, Manjunatha who has filed the complaint and FIR to confirm that appellant has driven the vehicle on the date of the accident. Even though doubtful circumstances are pointed out by the insurance company, but there is no cogent or convincing evidence to prove that a person by name L.Vasantha i.e., the appellant has driven the vehicle on the date of accident and he had faced the trial.
Under these circumstances, the contentions raised by the learned counsel for the insurance company is devoid of merits. As far as the liability is concerned, the insurance company has failed to discharge its burden in proving that another person by name Vasantha Naik was shown in the charge sheet in place of appellant in order to fix the liability on the appellant. On re-appreciation of the evidence on record, we are of the considered view that the finding given by the Tribunal in fastening the liability on the appellant is erroneous. Accordingly, point No.1 is answered in negative (in favour of Appellant).
20. At this stage, learned counsel for the insurance company states that this Court has been normally awarding interest at the rate of 6% per annum, but in the instant case, the Tribunal has awarded 9% interest per annum. Therefore, considering the submission of learned counsel for the insurance company and the appellant, the rate of interest is reduced to 6% from 9% per annum.
However, the quantum of compensation awarded by the Tribunal is retained.
For the foregoing reasons we pass the following:
ORDER Appeal is allowed, the judgment and award passed in MVC.No.84/2015 passed by the Senior Civil Judge & Addl. MACT, Sira, directing the Appellant/owner of the vehicle to pay the compensation is set aside. The Respondent No.4 insurance company is directed to pay the compensation.
The statutory deposit to be refunded to the appellant herein.
The registry to transmit the records to the concerned Tribunal forthwith.
In view of disposal of the appeal, I.A.No.1/17 also stands disposed.
Sd/- JUDGE Sd/- JUDGE S*