IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 23RD DAY OF OCTOBER, 2017 BEFORE THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY MFA NO.4420 OF 2015 (MV) BETWEEN:
The Manager National Insurance Co., Ltd., Kasturi Mansion, Above Corporation Bank, M.G. Road, Tumkur. ... Appellant (By Sri. O. Mahesh, Advocate) AND:
1. C.S. Devaraju, Major, S/o late Siddaiah C.R., R/o Thotada Mane, Chelur, Sira Road, Gubbi Taluk, Tumkur District – 572 101.
Now residing at C/o B.K. Basavaraju, Basaveshwara Nilaya, Near Mahalakshmi Layout, Tumkur – 572 101.
2. Narasimhamurthy Major, S/o Ramaiah, R/o Ranganahalli, Thale Koppa Post, Chelur Hobli, Gubbi Taluk, Tumkur District – 572 101. ... Respondents (By Sri. Patel D. Karegowda, Advocate for R-1; R-2 served) This MFA filed u/s 173(1) of MV Act against the judgment and award dated:11.02.2015 passed in MVC No.734/2013 on the file of the II Additional Senior Civil Judge, MACT, Tumkur awarding a compensation of Rs.2,18,800/- with interest @ 6% p.a., from the date of petition till payment.
This appeal coming up for Admission this day, the court delivered the following:
JUDGMENT Being aggrieved by the judgment and award passed by the Tribunal, the Insurance Company is before this Court challenging the quantum of compensation awarded by the Tribunal.
2. The brief facts of the case is that on 07.04.2013 at about 9.00 a.m., when the claimant- respondent No.1 herein was proceeding towards Chelur tank in a Passion Pro vehicle bearing registration No.KA-
06-EH-6980 along with a pillion rider, in front of Bikkalu Kariyappa’s land, one Bajaj Discover 125 vehicle bearing registration No.KA-06-EL-2914, came from Sira to Nelligere with high speed in a rash and negligent manner and hit the back right side of the claimant’s vehicle, due to which, the claimant and pillion rider fell down and sustained grievous injuries. The claimant was admitted to Aditya Hospital, Tumkur as an inpatient for a period of 12 days. After discharge, he also took treatment as outpatient. A case came to be registered by the Police in Cr.No.53/13 for the offences punishable under Sections 279, 337 and 338 of IPC and Sections 134(A and B) and 187 of Indian Motor Vehicle Act. Hence, a claim petition came to be filed in M.V.C.No.734/2013 on the file of II Additional Senior Civil Judge, MACT, Tumkur (for short ‘the Tribunal’). On considering the material placed on record, the Tribunal has awarded a total compensation of Rs.2,18,800/-. Being aggrieved by the same, the Insurance Company is before this Court.
3. Learned counsel for the appellant-Insurer has submitted that there is a delay in lodging the complaint by the claimant, so also, there is a delay in recording the statement by the police. The complainant has neither mentioned the vehicle number nor name of the rider while registering the complaint in Crime No.53/2013. The jurisdictional police conducted the investigation and filed charge-sheet against one Ranganath, who is said to be the rider of offending vehicle. As per the charge-sheet, it is Ranganath, who has committed the accident, but in the evidence and cross-examination of PW-1, he has stated that one Narasimhamurthy-respondent No.2 herein was riding the alleged motor bike. The claimant got examined two witnesses as PWs.2 and 3, who are stated to be eye- witnesses to the said incident. They have deposed in the evidence that it is not respondent No.2 herein who was riding the motor cycle, but it is Ranganath who was driving the motor cycle at the time of incident and caused the accident. The name of offender referred in the charge- sheet is different. It is further contended that the police have seized both the alleged vehicles on 16.04.2013 and subjected to IMV report which was secured on 17.04.2013, in which it is stated that either of the vehicles do not have any visible damages. This is contrary to the complaint made by the complainant on 08.04.2013, in which, he has stated that his vehicle suffered damage by virtue of the accident by the offending vehicle. The claimant having knowledge of the IMV report, in order to make false claim, has suppressed the facts.
4. Per contra, learned counsel for the claimant submits that occurrence of the accident on 07.04.2013, treatment taken by the claimant is not in dispute. After the complaint lodged by the claimant, the police has investigated the matter and filed the charge-sheet against one Ranganath. He further submits that though there is contradiction in the evidence by PWs.1 and PWs.2 and 3, the evidence of PW1 cannot be brushed aside. If at all, if the name of Ranganath has been wrongly referred in the chargesheet, he would have certainly challenged the FIR and charge-sheet without fail.
5. I have heard the learned counsel for both the parties and have also gone through the entire material on record. In the complaint, it is stated that the pillion rider has also suffered grievous injuries, but he has not made any claim petition before the Tribunal. The complaint is about who has made the accident. As per the evidence of respondent No.2 herein, he has denied the allegations made against him. PW1 has stated in his cross examination that respondent No.2 herein was riding the offending vehicle at the time of incident and he has committed the accident. But this evidence is contrary to the evidence of PWs.2 and 3, who have stated that one Ranganath was driving the offending vehicle at the time of accident. The police records reveal that the driver of offending vehicle was Ranganath, and charge-sheet was also filed against him.
6. It is also borne out from the records that in the complaint, neither the registration number of offending vehicle nor name of the rider of the offending vehicle was referred and different names have been referred by the witnesses and in IMV report. On 16.04.2013, both the vehicles have been subjected to examination and the IMV report discloses that the vehicles have not suffered any visible damages, but the Tribunal has committed an error by not looking into Ex.R3. The burden cast upon the complainant to clarify regarding the name of the driver of offending vehicle and vehicle number of the offending vehicle. Though the Investigating Officer has filed charge- sheet against one Ranganath, they have failed to prove the allegations made against respondent No.2 herein. Since the evidence of PWs.1 to 3 are not consistent and their evidence is contradicted to each other, the investigation conducted by the police and filing charge-sheet against one Ranganath, cannot be sustainable in law.
7. The Tribunal has committed an error in awarding compensation to the claimant, without looking to the fact as to the real offender of the accident. Firstly, the Tribunal should have decided as to who has committed the accident and then it should have come to the conclusion of awarding compensation to the claimant. Since the very offender of the accident is not clear and proved, awarding compensation to the claimant is erroneous. The Investigating Officer has failed to prove as to who has committed the accident.
8. Under these circumstances, the justice would be met, if the matter is remanded to the Tribunal to consider the claim of the claimant afresh by looking into the material placed on record.
9. Accordingly, the appeal is allowed. The impugned judgment and award are set aside and the matter is remanded to the Tribunal to consider the claim of the claimant afresh. The Tribunal shall decide the case by looking into the complaint, evidence of PWs.1 to 3 and Ex.R3, and thereafter consider the claim of the claimant afresh, in accordance with law.
Sd/-
JUDGE MBM/AG