IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR. JUSTICE L. NARAYANA SWAMY MISCELLANEOUS FIRST APPEAL NO. 9126/2015 (MV) BETWEEN:
Smt. Rathnamma, W/o. Late Govindappa, Aged abour 41 years, Residing at No. 74, Vinayaka Nagara, Ramohalli Post, Kengeri Hobli, Bangalore -560 060. ...Appellant (By Sri. G.N. Subramani, Advocate) AND:
1. Bajaj Allianz General Insurance Co., Ltd., Represented by its Manager, Office at No.31, Ground Floor, TBR Tower, 1st Cross, New Mission Road, Adjacent to Jain College, J.C. Road, Bangalore -560 002.
2. Shri. B.G. Raghava, S/o. K.S. Govinda, Aged major, Residing at No.72, 5th Cross, 6th Main, Tyagaraja Nagara, 3rd Block, Opposite Dattatreya Temple, Bangalore – 560 028. …Respondents (By Smt. H.R. Renuka, Advocate for R1 and Sri. Ranganatha Reddy R, Advocate for R2) This Miscellaneous First Appeal is filed under Section 173(1) of the Motor Vehicle Act, against the judgment and award dated 14.08.2015 passed in MVC No.348/2009 on the file of the XVI Additional Judge Court of Small Causes, Member, MACT, Bangalore, dismissing the claim petition for compensation.
This M.F.A. coming on for admission this day, the court delivered the following:
J U D G M E N T The brother and the son of the injured made a complaint on 26.10.2008 informing the police that the vehicle bearing No. KA-02 M 472 caused accident resulting in injuries. As per the complaint Ex-P1 on 25.10.2008 when the injured was crossing the road, the vehicle stated above came in a very rash and negligent manner and caused the accident. Thereafter, the driver and the owner of the vehicle KA-06 M 4503 took the injured to hospital and later-on she was taken to her residence. Taking notice of the said information Ex-P1, a case was registered in Crime No. 378/2008 against the driver of the Santro Car bearing No. KA-06 M 4503 for the offences punishable under Sections 279, 337 of IPC and under Section 134 (A) and (B) read with 187 of MV Act.
2. On registering the case, police enquired into the matter and filed a charge sheet against the driver of the vehicle KA-06 M 4503. The claimants have made an application and claimed compensation in MVC No.348/2009 on the file of the MACT, Bangalore and the Tribunal, by judgment dated 14.08.2015, dismissed the claim petition for compensation.
3. Learned counsel for the appellant submitted that the Tribunal has committed an error in dismissing the claim petition on the following grounds. Namely, the dismissal of the claim petition on the ground that the claimants have not made out case against the vehicle which caused accident but they have named the vehicle which was referred in the charge sheet that is, KA-06 M 4503.
4. It is submitted that when the charge sheet is filed after thorough investigation of the particular vehicle and the claim is made against the driver and owner of the said vehicle, accordingly the Tribunal should have awarded the compensation. An issue was framed by the Tribunal whether the petitioner proves that the said injuries were caused in the accident arising out of the use of the motor vehicle bearing No. KA 06 M 4503 car on 25.10.2008 at about 6:30 p.m. and the said issue has been answered in the negative.
5. The reason assigned by the Tribunal in answering the issue in negative is contrary to law. It is true that as per the information furnished to the police, Ex-P1, it was stated that the accident was caused by the vehicle KA-02 M 472 but in the investigation it was stated that it was not the vehicle KA-02 M 472 but it was the vehicle KA- 06 M 4503. Under these circumstances, issue No. 1 should have been answered in the affirmative.
6. According to Ex-P3 the vehicle involved in the accident is KA-06 M 4503. However, in order to help the injured, the driver and owner of the vehicle KA-02 M 472 have taken her to the hospital and thereafter to her residence, that itself has wrongly been referred in the complaint and the very statement in the complaint is an error of fact. If the statement at Ex-P2 and P3, driver and owner of the vehicle is considered in a proper perspective, it would go to show that vehicle bearing KA-06 M 4503 caused the accident. Accordingly, issue should have been answered in the affirmative.
7. Tribunal dismissed the petition also on the ground that the vehicle which caused accident as per Ex- P1 complaint i.e., the driver and owner of vehicle KA-02 M 472, is to be impleaded and to enable that the matter requires to be remanded. Accordingly, the submission is made to remand the matter with liberty to implead the owner and driver of vehicle KA-02 M 472.
8. Learned counsel for the respondent – Insurance Company submits that the whole claim made by the respondent is not based upon the true facts, as it is submitted by the complainant that it was a case of hit and run by vehicle KA-06 M 4503.
9. The complaint Ex-P1, specifically states that on the said date when the injured was crossing the road the driver of vehicle bearing No. KA-02 M 472 came in a rash and negligent manner and caused the accident. Though, specifically it states that it was the said vehicle which caused the accident, it is plain in nature.
10. As per the evidence of the Investigating Officer it was further revealed that the driver and owner of the vehicle KA-02 M 472 have appeared before the Investigating Officer on 25.10.2008. They appeared before the police and their statement was recorded to the effect that the vehicle KA-06 M 4503 has caused the accident and since the driver of the said vehicle is known to the owner and driver of the vehicle KA-02 M 472, they have shifted the injured to the hospital and thereafter, to her residence.
11. As per Section 161 and 157 of Cr.P.C. the first statement which should read in the compliant called FIR in this regard is the statement of the owner and the driver of vehicle KA-02 M 472, Ex.P3 and P1 are the basis to register the case. Secondly, when the complaint itself was made on 26.10.2008 thereafter there was no occasion to go to the police to make a statement which was recorded as per P3 and Ex.P4. As per Ex.P2, it was taken into account as the vehicle KA-02 M 472, caused the accident and not the vehicle KA-06 M 4503. If statement in Ex-P3 and P4 is considered then the complaint should have been registered against KA-06 M 4503.
12. Under these circumstances, the Investigating Officer should not have proceeded against the driver of the vehicle KA-06 M 4503 since the complaint was registered against the driver of the vehicle KA-02 M 472. The mahazar, sketch also drawn as per Ex-P6 and P7 against the driver of vehicle KA-02 M 472, IMV report is also against the driver of vehicle KA-02 M 472. Under these circumstances there was no occasion to proceed against the driver of the vehicle KA-06-M-4503 which was insured with the insurance company –respondent. Accordingly, the Tribunal has rightly answered the issue No.1 in the negative.
13. Further it is the case of the claimants that the driver of vehicle KA-06 M 4503 has caused the accident throughout the proceedings and who are made a party in MVC No.348/2009, which is rejected.
14. Heard the learned counsel for the respondents.
The case was registered by virtue of Ex-P1 and statement of brother and son of the injured that the complaint – Ex- P1 is specifically against the driver of the vehicle KA-02 M 472, which caused the accident, thereafter he himself came forward and took the injured to the hospital and to her residence, the vehicle bearing KA-06 M 4503 was not in picture either in the complaint or in the statement.
When the accident took place on 25.10.2008 it is natural that immediately taken the injured to the hospital and moved to the police station to lodge the complaint and there is no delay in filing the complaint on 26.10.2008. However, the owner and the driver of the vehicle KA-02 M 472 went to the police station and voluntarily made statement with regard to the accident against the driver of vehicle KA-06 M 4503. If the said vehicle caused accident then the case should have been registered on the same day against the vehicle KA-06 M 4503. Investigating Officer / SHO has not registered any case either against the driver of vehicle KA-06 M 4503 or KA-02 M 472. When on the next day the brother and the son of the injured reported the case and registered the complaint against the driver of the vehicle KA-02 M 472, as per FIR Ex-P2, there was no materials before the Investigating Officer to proceed against the driver of vehicle KA-02 M 472 and charge sheet is filed against driver of the vehicle KA-06 M 4503.
15. For the said purpose the police have taken statements as per Ex-P3 and P4 and that itself shows that the complainants have made an attempt to claim compensation from the driver of the vehicle KA-06 M 4503. If it is the case, the case should have been filed against the driver and owner of the vehicle KA-06 M 4503 but brother and son of the injured surprisingly registered the case against the driver of the vehicle KA-02 M 472 and there was no complaint and FIR registered against the owner and the driver of KA-06 M 4503 through out the proceedings. These are all multiple errors resulting in dismissal of this petition.
16. It is the submission of the appellant that this matter be remanded as the owner and the driver of the vehicle KA-02 M 472 have to be impleaded. This accident is of the year 2008, almost about 9 years have lapsed, at this juncture it is not appropriate to remand this matter. The persons who contributed to claim false compensation should only be punished for their lapses to obtain the proper order from court below. Hence I do not propose to admit this appeal.
Appeal accordingly stands dismissed.
No liberty is reserved against the driver and insurer of the vehicle KA-02 M 472.
Sd/- JUDGE BVK/VBS