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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
M.F.A. NO.8612/2011 (MV)
BETWEEN:
THE REGIONAL MANAGER,
UNITED INDIA INSURANCE CO. LTD.,
SHANKARANARAYANA BUILDING,
M G ROAD, BANGALORE - 560 001,
NOW AT
REGIONAL MANAGER,
UNITED INDIA INSURANCE CO. LTD.,
5TH FLOOR, KRISHI BHAVAN,
NRUPATHUNGA ROAD,
HUDSON CIRCLE,
BANGALORE - 560 027
BY ITS MANAGER
...APPELLANT
(BY SRI. O.MAHESH, ADVOCATE)
AND:
1. NARAYANAMMA,
AGED 42 YEARS,
W/O.LATE MUNIVENKATA SWAMY
2. MUNIRAJU,
AGED 24 YEARS,
S/O.LATE MUNIVENKATA SWAMY
3. YALLAPPA,
AGED 22 YEARS,
S/O.LATE MUNIVENKATA SWAMY
2
4. KUM GOWRAMMA,
20 YEARS,
D/O.LATE MUNIVENKATA SWAMY
5. SMT SEETHAMMA,
AGE 77 YEARS,
W/O.LATE MUNISWAMY
ALL ARE R/O. BYRNAHALLI VILLAGE & POST
KASABA HOBLI,
MALUR TALUK,
KOLAR DISTRICT - 563 130
6. AHMED PASHA,
MAJOR,
S/O.ABDUL SATTAR,
R/O.NO.87, SHAMEER MOHALLA,
SRINIVASAPUR ROAD,
MULBAGAL TOWN,
KOLAR DISTRICT - 563 131
...RESPONDENTS
(BY SRI. N GOPALKRISHNA, ADVOCATE FOR R1-R5;
V/O/DTD 18.11.2013, R6 SERVICE HELD SUFFICIENT)
THIS MFA IS FILED UNDER SECTION 173 (1) OF MV ACT,
1988 PRAYING TO SET ASIDE THE JUDGMENT AND AWARD
DATED 06.04.2010 PASSED BY THE COURT OF MOTOR
VEHICLES ACCIDENT CLAIMS TRIBUNAL, BANGALORE CITY
SCCH-14, IN MVC.NO.1273 OF 2009 WITH COSTS IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS MFA HAVING BEEN HEARD AND RESERVED ON
22.03.2022, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
Respondent No.2 has filed this appeal under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the MV Act'), challenging the impugned judgment and award dated 06.04.2010 in MVC.No.1273/2009, whereby the Tribunal granted compensation in a sum of Rs.5,67,000/- with interest at 6% p.a and directed respondent No.2 to pay the same by way of indemnifying respondent No.1.
2. For the sake of convenience the parties are referred to by their rank before the Tribunal.
3. FACTS: Brief facts leading to the filing of the claim petitioner are that petitioners are the wife, children and mother of deceased Munivenkata Swamy. On 06.01.2009, Munivenkata Swamy was riding TVS motor cycle bearing registration No.KA- 03-EK-2446 from Kolar side towards his village i.e., Byranahalli on NH-4. He was proceeding slowly and cautiously on the left side of the road. At around 10.00 a.m, near Chakarasanahalli Gate, a Maruthi Van bearing registration No.KA-07-M-796 (hereinafter referred to as offending vehicle) came from opposite 4 direction, in a high speed in a rash or negligent manner and by crossing the median dashed violently against TVS motor cycle. Due to the impact Munivenkata Swamy was knock down. He sustained severe injuries. Immediately he was taken to R.L.Jalappa Hospital, Kolar. After first aid, he was referred to NIMHANS, Bengaluru. However, while undergoing treatment, Munivenkata Swamy died on 09.01.2009 at 2.30 a.m.
4. At the time of accident deceased was aged 45 years. He was a barber by profession and also playing traditional instrument. He was earning Rs.8,000/-p.m. Hence, petitioners are entitled for compensation.
5. Respondent No.1 is the owner and respondent No.2 is the insurer of the offending vehicle and as such both of them are jointly and severally liable to pay the compensation.
6. Before the Tribunal, respondent No.1 remained Ex- parte.
7. Respondent No.2 appeared and filed written statement contending that the petition is bad for non-joinder of necessary parties i.e, owner and insurer of car bearing 5 registration No.KA-05/O-5597, which is involved in the alleged accident.
8. The offending car is not at all involved in the accident dated 06.01.2009. It is falsely implicated at the instance of vested interest in collusion with the police and thereby a wrongful liability is created on respondent No.2. After the accident, the jurisdictional police have registered case against car bearing registration No.KA-05/O-5597. However, later on FIR is manipulated showing the registration number of the offending vehicle. Seasoned professionals have joined hands with petitioners and insured to get a manipulated charge sheet. For reasons best known to the petitioners, the offending vehicle is implicated even though the alleged accident is caused by car bearing registration No.KA-05/O-5597.
8.1 Alternatively, respondent No.2 has pleaded that the offending vehicle is covered by a valid policy, however, its liability is subject to the terms and conditions of the policy. Since the owner of the offending vehicle has knowingly entrusted the vehicle to be driven by a person not possessing a valid driving 6 license, in the event of granting an award, respondent No.2 is not liable to pay compensation,.
8.2 Respondent No.2 has denied the age, occupation, income of the deceased, nature of the injury sustained and treatment taken. It has also denied that the petitioners are legal heirs of deceased Munivenkata Swamy and that they are entitled for compensation. It has also denied that the offending vehicle is involved in the accident and it was a result of rash or negligent driving by its driver.
8.3 Without prejudice, respondent No.2 has pleaded that accident occurred due to the rash or negligent driving by the deceased himself. Since petitioner Nos.2 and 3 are major sons and able bodied persons, they were not dependent on deceased. At the most, they are entitled for compensation under the head loss of consortium. Since respondent No.1 is colluding with the petitioners, respondent No.2 to be permitted to avail all the defences under Section 170 of the MV Act. The interest if any that may be granted shall not exceed 6% p.a. and has sought for dismissal of the claim petition against it. 7
9. Based on these pleadings, the Tribunal has framed issues.
10. In support of petitioners' case, two witnesses are examined as PWs-1 and 2 including petitioner No.2 and Ex.P1 to 13 are marked.
11. On behalf of respondent No.2, Ex.R1 and 2 are marked.
12. Vide the impugned judgment and award, the Tribunal has partly allowed the claim petition granting compensation in a sum of Rs.5,67,000/- with interest at 6% p.a as detailed below.
Heads Amount
In Rs.
Loss of dependency 5,04,000
Loss of consortium 15,000
Love and affection 15,000
Loss of estate 15,000
Funeral & Obsequies 10,000
Transportation of dead body 5,000
Medical expenses prior to 3,000
death
TOTAL 5,67,000
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13. During the course of arguments, the learned counsel for respondent No.2 submits that the Tribunal has grossly erred in holding that the offending vehicle is involved in the accident. Immediately, after the accident a case was registered against the driver of the Maruthi car bearing registration No.KA-05-O- 5597. But subsequently, on the complaint of one Jalappa, S/o Papanna, brother of deceased, which was given to ASI, Marimallappa of Vemgal P.S. on 09.01.2009 KA-07-M-796 was involved. As an after thought subsequently, the offending vehicle has been implicated to make wrongful gain. The Tribunal has not appreciated the fact that the petitioners have not examined any of the concerned officials to explain as to why subsequently, the offending vehicle has been implicated instead of car bearing No.KA-05-O-5597.
14. Learned counsel would further submit that the Tribunal has failed to appreciate the fact that when Sri. Prabhakar shifted the injured to R.L.Jalappa Hospital and Research Centre on 06.01.2009 at 10.45 p.m, he has given the history of injury as accident hit by a car and that the driver of the car was one Athaulla Khan. However, the charge sheet is 9 filed against one C.K.Ravi Kumar and petitioners have not chosen to explain this switching of the vehicle.
15. He would further submit that there was no compliance of mandatory provisions of Section 134-C of the MV Act either by the insured or under Section 158(6) of the MV Act by the insured and concerned Investigating Officer and thereby the insurer was kept in dark in respect of the alleged incident and allowed manipulation. The Tribunal has not appreciated the fact that petitioners have chosen neither to examine the first complainant B.Prabhakar, police constable or the second complainant Papanna, who is a relative of deceased to clarify as to which vehicle is actually involved in the accident.
16. The Tribunal has not appreciated the oral and documentary evidence in its right perspective. The compensation granted under various heads is exorbitant and has sought for dismissal of the petition.
17. The petitioners have not challenged the impugned judgment and award.
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18. Heard arguments of both sides and perused the record.
19. It is an undisputed fact that respondent No.1 is the owner and respondent No.2 is the insurer of the offending vehicle bearing registration No.KA-07-M-796. It is a Maruthi van. However, respondent No.2 has taken up a specific contention that it was not at all involved in the alleged accident. In fact at the first available opportunity, complaint came to be lodged by one B.Prabhakar, who was working at the Vemgal police station, Kolar Rural Circle, which came to be registered in Cr.No.6/2009. The incident took place at 10.00 a.m and the information of accident was received by the concerned police at 5.45 p.m. In the complaint it is specifically stated that the vehicle involved is Maruthi car bearing registration No.KA-05-O-5597.
20. However, after the death of deceased which took place on 09.01.2009, the concerned police have taken a second complaint through one Jayappa, S/o Papanna, who is no other than the cousin of deceased. In the said complaint, the vehicle number is changed as Maruthi van bearing registration No.KA- 07-M-796 i.e., the offending vehicle and based on it the 11 concerned police have filed charge sheet against the driver of the offending vehicle and on that basis, the petitioners have arrayed the owner and insurer of the offending vehicle and seeking compensation.
21. In fact before the Tribunal also, the respondent No.2 has specifically disputed the involvement of the offending vehicle in the accident and that it is not liable to pay the compensation. However, the Tribunal has brushed aside the said objection by making an observation that an FIR need not be an encyclopedia of the prosecution case and on that basis proceeded hold that the offending vehicle is involved and therefore respondent Nos.1 and 2 being the owner and insurer of the offending vehicle are liable to pay the compensation. It is pertinent to note that respondent No.1, who is admittedly the owner of the offending vehicle has not chosen to counter the claim of the petitioners or the defence of respondent No.2 regarding the involvement of the offending vehicle and thereby he is tacitly admitting the claim of the petitioners and supporting them.
22. In the light of the specific defence taken by respondent No.2, now it is necessary to examine whether in fact 12 the offending vehicle is involved in the accident, if so what is the explanation coming from the petitioners or the concerned police regarding registering the case against car bearing registration No.KA-05-O-5597 at the first available opportunity and on what basis the police have changed the vehicle to the offending vehicle and what is the reason for the Investigation Officer to take a second complaint without there being any explanation for switching the earlier vehicle by the offending vehicle.
23. PW-1 Muniraju is petitioner No.2. He is the son of the deceased. However, he is not an eye witness to the incident. His evidence is based on the records. PW-2 Shankara, S/o Lagumappa is cited an eye witness to the incident. In the charge sheet, he is arrayed as CW-7. He has deposed of having witnessed the incident and taken the injured to the R.L.Jalappa Hospital, Kolar and informed his family members. Though petitioners have chosen to produce the FIR dated 06.01.2009, which was based on the first complaint filed by B. Prabhakar, official of the Vemgal Police Station, petitioners have not chosen to produce the complaint. However, they have produced the second complaint which is dated 09.01.2009, which came to be 13 received after the death of the deceased. Since the first complaint is not produced, the Court is not in a position to examine whether in the said complaint the presence of the eye witnesses was noted and who took the deceased to the hospital, etc. The production of the first complaint would have lent support as to whether Jayappa, S/o Papanna who lodged the second complaint was an eye witness to the said incident and whether he was in a position to say which vehicle was involved i.e., whether the first vehicle or the second vehicle which is being substituted in the second complaint.
24. When already first complaint was lodged, there was no need for the concerned police to take the second complaint. At the most it should have been taken as a report for having brought to the notice of the concerned police the death of the deceased while undergoing treatment. For the said purpose, there was no necessity to change the registration number of the vehicle and in the absence of any explanation as to why at the first instance registration number of the vehicle which involved in the accident is given as KA-05-O-9957 and subsequently it is changed as KA-07-M-796 i.e the offending vehicle. In the 14 absence of any explanation the second complaint is hit by Section 161 of the Cr.P.C, except the part which replaced the number of the offending vehicle. In the absence of explanation for so doing, the same is not acceptable.
25. It is relevant to note that the Investigating Officer has conducted spot/seizure mahazar on 07.01.2009. Through this mahazar the concerned police have seized the vehicle involved in the accident viz., TVS Excel No.KA-03-EK-2446 which was driven by the deceased and the other vehicle is stated to be KA-07-M-796, which is the offending vehicle. It is relevant to note that on 07.01.2009, the involvement of the offending vehicle was not yet brought on record. For the first time, the registration number of the offending vehicle was brought on record i.e., reflected in the second complaint dated 09.01.2009.
26. It is relevant to note that the petitioners have not got this complaint separately marked, but it is produced as part and parcel of the FIR at Ex.P1. When the mahazar at Ex.P2 was drawn on 07.01.2009, the concerned police were not yet aware of the involvement of the offending vehicle. Such being the case it creates doubt as to whether Ex.P2 was in fact drawn on 15 07.01.2009 or it is anti-dated or else on 07.01.2009, a mahazar was drawn seizing the vehicle bearing registration No.KA-05-O- 5597 as per the first complaint and subsequently, in order to help the petitioners, the same is replaced by another mahazar. In order to explain this discrepancy, it was necessary for the petitioners to examine B.Prabhakar, who lodged the first complaint dated 06.01.2009 and Jayappa, who lodged the second complaint on 09.01.2009 and to explain why at the first available opportunity, case came to be registered against the driver of the Maruthi car bearing registration No.KA-05-O-5597.
27. It is relevant to note that the first complaint is lodged by official of Vemgal Police Station, who was present when the incident took place or at least have reached the spot at the first available opportunity. This fact is forthcoming from the entry in accident register at Ex.P5 (marked in Rev.P.No.39/2010). As per this document, the injured was taken to the hospital by B.Prabhakar, constable of Vemgal P.S. It also bares the signature of Athaulla Khan, driver of the car which caused the accident. This document makes it evident that immediately after the accident, B.Prabhakar along with the 16 driver of the car which caused the accident took the injured to the hospital and admitted him. Therefore, the said B. Prabhakar being a police official, it cannot be expected that there was any confusion in his mind about involvement of the vehicle bearing registration No.KA-05-O-5597, especially when the driver of the said vehicle was also with him and assisted him to take the injured to the hospital. In the absence of any explanation, the only conclusion to which the Court could reach is that in all probabilities the said vehicle was not having a valid insurance or the rider was not having a driving license and therefore the concerned police in collusion with the petitioners have chosen to replace it by the offending vehicle.
28. Even though in the written statement respondent No.2 has taken a specific contention, during the course of the judgment, the Tribunal relying upon the decisions reported in AIR 1972 SC 283, 1 2008 ACC 716 (DB), 2007 ACJ 1130, ILR 1996 KAR 161 and ILR 2003 KAR 2877 has held that an FIR need not be an encyclopedia of the prosecution case and therefore brushed aside the defence of respondent No.2 that the offending vehicle is not at all involved in the accident and 17 intentionally it has been implicated to get compensation. In the present case, the question involved is not whether in the FIR, details of the prosecution case are forthcoming or not. The question involved is why at the first instance the involvement of vehicle bearing registration No.KA-05-O-5597 was stated and after the death of deceased, it is totally replaced by the offending vehicle. The concerned Investigating Officer must be having some explanation for switching the vehicles.
29. In the absence of the said explanation, the above referred decisions are not helpful to the case of the petitioners to establish that it is the offending vehicle which is involved and therefore, as an insurer respondent No.2 is liable. In this fact situation, I hold that the Tribunal has erred in not giving a finding as to why the vehicles were switched by the Investigating Officer. The proper course open to the petitioners was to examine the Investigating Officer and to get an explanation on what basis he was able to accept the second complaint and replace the vehicle involved, by the offending vehicle. The examination of the first complainant i.e., B. Prabhakar as well as the second complainant Jayappa, on whose statement the 18 vehicle came to be replaced by the offending vehicle was necessary to prove the case of the petitioners.
30. From the perusal of the record, it is evident that the Investigating Officer has not conducted an honest investigation. From the manner in which he has conducted the investigation it is quiet evident that his intention is only to allow the petitioners to claim compensation through the respondent No.2 - Insurance company rather than to find out the truth and make the person responsible for causing the accident to face the prosecution.
31. It is also relevant to note that immediately after the accident neither the owner of the vehicle nor the concerned police have intimated the Insurance company as required under Section 134-C or under Section 158(6) of the MV Act. Under Section 134 of MV Act, it is the duty of the driver or the person incharge of the vehicle to bring the fact of accident to the notice of the insurer. Similarly under Section 158(6), the concerned Investigating Officer is under an obligation bring the fact of the accident to the notice of the Claims Tribunal giving the details. By not giving such information, the driver as well as the owner of the offending vehicle have committed a breach and thereby 19 prevented the respondent No.2 - Insurance company from conducting investigation and ascertaining the truth of the involvement of the offending vehicle. The Investigating Officer has also failed to comply with the responsibility of bringing to the notice of the Claims Tribunal regarding the involvement of the vehicle and on the other hand, by switching the original vehicle by the offending vehicle, he has tried to facilitate petitioners to get the compensation.
32. It is also relevant to note that the respondent No.1, who is the owner of the offending vehicle has not chosen to appear and either admit or dispute the claim of the petitioners regarding the involvement of the offending vehicle. By remaining ex-parte, indirectly he has supported the claim of the petitioners that the offending vehicle is involved. However, the documents placed on record, at the earliest available opportunity indicates that the vehicle involved in the accident is Maruthi car bearing registration No.KA-05-O-5597 and for reasons best known to them, the petitioners, the Investigating Officer as well as respondent No.1 have colluded to replace it by the offending vehicle. Since it is the petitioners who are going to be benefitted 20 by it, the Court is required to draw an irresistible inference that it is done only to help the petitioners.
33. It is pertinent to note that in the charge sheet, one C.K.Ravi kumar is cited as witness i.e., CW-10 and his evidence is with regard to having got the offending vehicle released to his custody. However, the 'B' extract at Ex.R2 which is in respect of the first vehicle i.e., KA-05-O-5597 shows the said C.K.Ravi Kumar as the owner of the first vehicle and not the offending vehicle. The very fact that the said C.K.Ravi Kumar is stated to have taken the possession of the first vehicle i.e., KA-05-0-5597 to his custody after the requisite investigation by the police goes to show that in fact it was the vehicle involved in the accident and after the death of deceased, in order to help the petitioners to claim compensation, the Investigating Officer has replaced the same by the offending vehicle. If the really the offending vehicle was involved in the accident, then the said C.K.Ravi Kumar would not have taken it to his custody, as he was not the owner of the said vehicle. Thus, from the above discussion, I hold that with the help of the concerned police and respondent No.1 the petitioners have played fraud on the Court by involving the 21 offending vehicle and claiming compensation against respondent No.2.
34. It is also relevant to note that as per the charge sheet at Ex.P7, C.K.Ravi Kumar is arrayed as accused. He is shown to be the driver of the offending vehicle. He is also cited as a witness i.e., CW-10 for having taken the custody of the offending vehicle. However, as discussed earlier and as per Ex.R2 - the 'B' register extract, he is the owner of the first vehicle i.e., KA-05-O-5597 against which the case came to be registered at the earliest available opportunity. All these details certainly supports the contention of respondent No.2 that the Investigating Officer in collusion with respondent No.1 and the petitioners have played fraud on the Court and sought to implicate the offending vehicle only with an intention of getting compensation for the petitioners. The Tribunal has failed to examine these aspects and lightly brushed aside the fact that no explanation is forthcoming from the petitioners as well as the Investigating Officer as to the switching of the first vehicle by the offending vehicle.
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35. Thus from the above discussion, I hold that respondent No.2 is not liable to pay the compensation. Since, respondent No.1 is tacitly conceding that the offending vehicle is involved in order to help the petitioners, I hold that instead of respondent No.2, respondent No.1 is liable to pay the compensation. In the result, the appeal filed by respondent No.2 succeeds and accordingly, I proceed to pass the following:
ORDER
(i) The appeal filed by respondent No.2 - Insurance company is allowed.
(ii) The impugned judgment and award dated 06.04.2020 in MVC.No.1273/2009 is set aside as against respondent No.2 - Insurance company. However, instead respondent No.1 is directed to pay the compensation with interest.
(iii) The petitioners are at liberty to recover the compensation from respondent No.1.
(iv) Respondent No.2 - Insurance company is entitled to withdraw the amount in deposit. 23
(v) The registry is directed to transmit the trial Court record along with the copy of this order to the Tribunal forthwith.
Sd/-
JUDGE RR