IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 17TH DAY OF JULY, 2019 PRESENT THE HON’BLE MRS. JUSTICE B.V.NAGARATHNA AND THE HON’BLE MR. JUSTICE K. NATARAJAN M.F.A. No.6378/2014 C/W M.F.A. No.6377/2014 (MV-I) M.F.A. No.6378/2014 BETWEEN:
SRI VENKATESH S/O. MUNIRAJ, AGED ABOUT 32 YEARS, RESIDING AT NO.118-68A, NETHAJI NAGAR, KELEMANGALAM, DENKANIKOTTAI, KRISHNAGIRI DISTRICT, TAMIL NADU – 580 001. ... APPELLANT (BY SRI GOPALKRISHNA N., ADVOCATE) AND:
1. SRI N. NAGARAJ S/O LATE NAGAPPA, MAJOR IN AGE, RESIDING AT BYRANDAHALLI VILLAGE, VEMGAL POST, KOLAR TALUK AND DISTRICT – 563 101.
2. BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD., NO.31, TBR TOWER, 1ST CROSS, NEW MISSION ROAD, NEXT TO BANGALORE STOCK EXCHANGE, J.C. ROAD, BANGALORE – 560 002, REP. BY ITS MANAGER. ... RESPONDENTS (BY SRI H.S. LINGARAJ, ADVOCATE FOR R-2; R-1 – SERVED) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 12.12.2012 PASSED IN MVC NO.3264/2011 ON THE FILE OF THE I ADDITIONAL SMALL CAUSE JUDGE, MACT, BANGALORE, DISMISSING THE CLAIM PETITION FOR COMPENSATION.
M.F.A. No.6377/2014 BETWEEN:
1. SMT. SUGUNA W/O. LATE VEERABHADRA @ VEERABHADRAPPA, AGED ABOUT 30 YEARS, 2. MASTER ANIL .V S/O. LATE VEERABHADRA @ VEERABHADRAPPA, AGED ABOUT 11 YEARS, 3. MASTER SUNIL S/O. LATE VEERABHADRA @ VEERABHADRAPPA, AGED ABOUT 9 YEARS, 4. SRI VENKATAPPA, S/O. LATE MUNIVENKATAPPA, AGED ABOUT 63 YEARS, 5. SMT. CHOWDAMMA, W/O. VENKATAPPA, AGED ABOUT 58 YEARS, MINOR 2ND AND 3RD APPELLANTS ARE RESENTED BY NATURAL GUARDIAN/MOTHER, 1ST APPELLANT HEREIN.
ALL THE APPELLANTS ARE R/AT CHOWDADENAHALLI VILLAGE, DODDAVALLABBI POST, KOLAR TALUK AND DISTRICT. ... APPELLANTS (BY SRI GOPALKRISHNA N., ADVOCATE) AND:
1. SRI N. NAGARAJ S/O. LATE NAGAPPA, MAJOR IN AGE, RESIDING AT BYRANDAHALLI VILLAGE, VEMGAL POST, KOLAR TALUK AND DISTRICT – 563 101.
2. BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD., NO.31, TBR TOWER, 1ST CROSS, NEW MISSION ROAD, NEXT TO BANGALORE STOCK EXCHANGE, J.C. ROAD, BANGALORE – 560 002, REP. BY ITS MANAGER. ... RESPONDENTS (BY SRI H.S. LINGARAJ, ADVOCATE FOR R-2; R-1 – SERVED & UNREPRESENTED) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 12.12.2012 PASSED IN MVC NO.3263/2011 ON THE FILE OF THE I ADDITIONAL SMALL CAUSE JUDGE, MACT, BANGALORE, DISMISSING THE CLAIM PETITION FOR COMPENSATION.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:-
J U D G M E N T Though these appeals are listed for admission, with the consent of learned counsel on both sides, they are heard finally.
2. MFA.No.6378/2014 has been filed by the injured/claimant, whereas MFA.No.6377/2014 has been filed by the legal representatives of Veerabhadraiah @ Veerabhadrappa, both assailing the judgment and awards of the Tribunal passed in MVC.Nos.3264/2011 and 3263/2011 respectively dated 12/12/2012, passed by the Motor Accident Claims Tribunal, Bengaluru (hereinafter referred to as “the Tribunal” for the sake of brevity), by which the claim petitions filed by the claimants have been dismissed.
3. For the sake of convenience, the parties shall be referred to, in terms of their status before the Tribunal.
4. The appellant/claimants filed their respective claim petitions under Section 166 of the Motor Vehicles Act, 1988 claiming compensation of Rs.25,00,000/- on account of death of Veerabhadraiah @ Veerabhadrappa and Rs.10,00,000/- for the injuries sustained by Venkatesh in a road traffic accident. Since these claim petitions arose out of the same cause of action, they were clubbed together for the purpose of recording common evidence and common judgment rendered by the trial Court. Similarly, this Court has connected both the appeals and are disposed of by this common judgment.
5. According to the claimants, on 20/02/2011, Venkatesh and Veerabhadraiah were proceeding on a TVS Apache motorcycle bearing registration No.KA-03/EY-9475 on Malur-Narasapura Road, Kolar Taluk and District. At about 6.00 p.m., when they were near M/s.SVB Bricks Factory, a Mahindra Xylo car bearing registration No.KA- 07/M-3091 was driven in a high speed and in a rash and negligent manner by its driver from the opposite direction and dashed against the TVS motorcycle. As a result, Veerabhadraiah died on the spot due to the injuries sustained by him in the accident and Venkatesh sustained multiple fracture injuries. According to the claimants, the accident had occurred solely due to the rash and negligent driving of the Mahindra Xylo car bearing registration No.KA-07/M-3091 by its driver.
6. The claimant/petitioners contended that they suffered financially, physically and mentally due to the sudden death of Veerabhadraiah @ Veerabhadrappa, who was the sole bread earner of the family. Injured claimant/Venkatesh contended that due to the injuries sustained by him in the accident, he had suffered permanent disability and lost future earning capacity. The claimants sought compensation on various heads.
7. In response to the notices issued by the Tribunal, respondent Nos.1 and 2 appeared through their respective counsel. Respondent Nos.1 and 2 before the Tribunal have filed their statements of objections denying the allegations and claims made by the claimants. They contended that the accident was caused due to rash and negligent riding of the motorcycle by deceased Veerabhadraiah. Respondent No.1/owner of the vehicle sought dismissal of the claim petition. Respondent No.2/insurance company filed its statement of objections denying all allegations and averments made in the claim petitions and contended that Xylo car was not involved in the accident and that the jurisdictional police had hatched a pre-planned conspiracy and created false crime record and make believe theory to get compensation as Mahindra Xylo car was falsely implicated in the case. Hence, respondent No.2/insurance company also sought dismissal of the appeal.
8. On the basis of the rival pleadings, the Tribunal framed the following issues for its consideration in the respective claim petitions:
ISSUES IN MVC.NO.3263/2011 (i) Whether petitioner proves that on 20/02/2011 at about 6.00 p.m., near SVB Bricks Factory, on Malur-Narasapura Road, Kolar Taluk & District, the driver of the vehicle, bearing Regn.No.KA-07-M-3091 drove the said vehicle in a rash or negligent manner so as to endanger human life and dashed the vehicle bearing Regn.No.KA-03- EY-9475, ridden by Veerabhadra @ Veerabhadrappa causing him grievous injuries and later he succumbed to the said injuries?
(ii) Whether the petitioners are the dependants of the deceased Veerabhadra @ Veerabhadrappa?
(iii) Whether the petitioner is entitled to for compensation? If so, what amount and from whom?
(iv) What order?
ISSUES IN MVC.NO.3264/2011 (i) Whether petitioner proves that on 20/02/2011 at about 6.00 p.m., near SVB Bricks Factory, on Malur-Narasapura Road, Kolar Taluk & District, petitioner being pillion rider of the vehicle bearing Regn.No.KA-03- EY-9475 had met with an accident due to rash or negligent driving of the vehicle bearing Regn.No.KA-07-M-3091 by its driver and sustained injuries as averred?
(ii) Whether the petitioner is entitled to for compensation? If so, what amount and from whom?
(iii) What Order?
9. In order to substantiate their case, the claimants examined three witnesses including Dr. Imran Hussain as PW.3 and produced fifty nine documents, which were marked as Exs.P-1 to P-59. The owner of Mahindra Xylo car was examined as RW.1, while the officer of the insurance company was examined as RW.2 and Exs.R-1 to R-3 were marked on behalf of the owner of the vehicle and Exs.R-4 to R-11 were marked on behalf of the insurance company. On the basis of the said evidence, the trial Court answered issue Nos.1 and 2 in the negative in both the cases and issue No.3 in the negative in MVC.No.3263/2011 and dismissed the claim petitions by judgment and awards dated 12/12/2012. Being aggrieved, the claimants have preferred these appeals.
10. We have heard learned counsel for the appellant/claimants and learned counsel for the respondent/insurer. Owner of the vehicle/respondent No.1 in both the appeals has been served and is unrepresented.
11. We have perused the material on record as well as the original record.
12. Learned counsel for the appellant/claimants contended that the trial Court was not right in dismissing the claim petitions based on what was stated in Ex.P-20, which is the discharge summary. He submitted that on account of the dismissal of the claim petitions, it is implied that the Mahindra Xylo car bearing registration No.KA- 07/M-3091 was not involved in the accident. The said conclusion arrived at by the Tribunal is contrary to the voluminous oral and documentary evidence produced by the claimants in the case, particularly Exs.P-1 to P-12. He submitted that it might have been noted in the discharge summary Ex.P-20 that the accident had occurred on account of skidding of the motorcycle, but the other evidence produced by the appellant/claimants could not have been discarded. That the Tribunal ought to have perused the evidence on record in its proper perspective and in appreciation of the same ought to have granted compensation to the injured claimant as well as the legal representatives of deceased Veerabhadraiah.
13. He further contended that the respondent/ insurer had cleared the own damage claim made in respect of the damage caused to the offending vehicle i.e., Mahindra Xylo car bearing registration No.KA-07/M-3091. The said fact has been admitted by RW.2 the officer of the insurance company during the course of his evidence. But the Tribunal has also not taken note of the said significant fact and has simply dismissed the claim petition based on the discharge summary Ex.P-20. Learned counsel also contended that this Court may re-appreciate the evidence on record and give a finding that the accident had occurred on account of rash and negligent driving of the driver of the Mahindra Xylo car resulting in the death of Veerabhadraiah and injuries to the claimant/Venkatesh by allowing these appeals.
14. Per contra, learned counsel for the respondent/insurer supported the judgment and awards of the Tribunal and contended that this is a case of fabricated evidence and that the truth is, what is stated in Ex.P-20, which has been produced by the claimants themselves, wherein it has been stated that the accident had occurred on account of the skidding of the motorcycle on which Veerabhdraiah was riding and Venkatesh was proceeding as a pillion rider. He contended that the appeal filed by the claimants is without any merit and therefore, the same may be dismissed.
15. Having heard learned counsel for the respective parties, the following points would arise for our consideration:
(i) Whether the Tribunal was justified in dismissing the claim petitions?
(ii) What order?
16. The fact that on 20/02/2011, Veerabhadraiah and Venkatesh were proceeding on TVS Apache motorcycle bearing No.KA-03/EY-9475, on Malur-Narasapura Road, Kolar Taluk and District and at about 6.00 p.m., when they were near M/s.SVB Bricks Factory, the accident occurred resulting in the death of Veerabhadraiah and injuries to Venkatesh has been established. The controversy is, as to whether the Mahindra Xylo car bearing registration No.KA- 07/M-3091 was the cause of accident.
17. In this regard, the contention of learned counsel for the insurance company is that the Tribunal has rightly placed reliance on Ex.P-20, which is the discharge summary which has been produced by none other than claimants, wherein it has been categorically stated that the accident had occurred on account of skidding of the motorcycle which was sufficient for the Tribunal to hold that Mahindra Xylo car was not involved in the accident and that there is no merit in these appeals.
18. The said contention is countered by learned counsel for the appellants by drawing our attention to Ex.P-1, which is the certified copy of FIR, Ex.P-2 is the certified copy of complaint, Exs.P-3 and P-4 are the statements recorded on the date of the accident. Ex.P-5 is the certified copy of the panchanama, Ex.P-6 is the copy of sketch, Ex.P-7 is the certified copy of IMV report, Ex.P-8 is the inquest report, Exs.P-9 to P-11 are the witness statements, Ex.P-12 is the post-mortem report and Ex.P- 13 is the certified copy of the charge sheet.
19. On a perusal of the said documents, it would clearly indicate that even in the complaint which has been given by the injured/claimant Venkatesh, it has been stated that the Mahindra Xylo car bearing No.KA-07/M- 3091 was indeed involved in the accident.
20. Further, RWs.1 and 2 have let-in their evidence in the matter. RW.1 is the owner of the vehicle who examined himself in the matter, but has not been cross-examined by the insurance company. More significantly, the officer of the insurance company RW.2 was examined and cross-examined by the claimants. In the cross-examination, RW.2 has clearly admitted the own-damage claimed by the owner of the vehicle, and that it was satisfied by the insurance company. Of course, in this regard, the contention of the learned counsel for the insurance company is for the purpose of satisfying the own-damage claim, the question whether the vehicle was involved in an accident or whether there was negligence on the part of the driver of the vehicle are irrelevant, but the fact remains that the vehicle had sustained damage and the own damage claim made by the owner of the vehicle was satisfied by the insurance company. There is no material on record produced by the insurance company to state that the damage sustained by the offending vehicle was not on account of the accident which occurred on 20/02/2011 or that it was due to some other cause. The absence of any categorical evidence on the part of the insurance company so as to disprove the case of the claimant would indicate that the insurance company had only sought to escape its liability in the matter by contending that the vehicle was not involved in the accident. The Tribunal however, has been swayed by the stand taken by the insurance company and has totally discarded the claim made by the claimants that the Mahindra Xylo car was involved in the accident. Hence, the impugned judgment and awards of the Tribunal are set aside and the matter is remanded to the Tribunal for consideration of the case of the claimants only with regard to the issue of quantum of compensation to be awarded in the matter. Consequently, point No.1 is answered in favour of the claimants and against the respondent/insurance company.
21. Since the parties are represented by their respective counsel, they are directed to appear before the Tribunal on 28/09/2019 without expecting any separate notices from the said Tribunal.
22. The Tribunal may however, issue notice to respondent No.1 herein the owner. The Tribunal shall dispose of the claim petition with regard to the quantum of compensation to be awarded to the claimants in accordance with law.
23. In the result, the appeals filed by the appellant/claimants are disposed of in the aforesaid terms.
Parties to bear their respective costs.
24. Registry to transmit the original records to the concerned Tribunal forthwith.
Sd/- JUDGE Sd/- JUDGE S*