Karnataka High Court
S V Kishore vs Ashok Kumar on 7 December, 2021
Bench: H T Prasad
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF DECEMBER 2021
BEFORE
THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD
MFA No.6204 OF 2018(MV)
C/W
MFA Nos. 6205 OF 2018(MV), 6708 OF 2018(MV)
AND 6709 OF 2018(MV)
IN MFA 6204/2018
BETWEEN:
S.V.Kishore,
S/o Venkatachalapathy Shetty,
Major by age,
ESVEE Enterprises,
No.348/1, Bazar Street,
Bangalore-563114. ... Appellant
(By Sri. A.K.Bhat., Advocate)
AND:
Ashok Kumar,
S/o J.R. Badduappa,
Aged about 51 years,
R/at No.42,
1st Block, Budikote,
Bangarpet Taluk,
Kolar District-563 114. ... Respondent
(By Sri. Suresha M., Advocate)
This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:17.04.2018 passed
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in MVC No.515/2014 on the file of the Senior Civil Judge &
Principal JMFC, KGF, awarding compensation of Rs.
5,83,606/- with interest at 6% p.a. from the date of
petition till the realization.
IN MFA 6205/2018
BETWEEN:
S.V.Kishore,
S/o Venkatachalapathy Shetty,
Major by age,
ESVEE Enterprises,
No.348/1, Bazar Street,
Bangalore-563114. ... Appellant
(By Sri. A.K.Bhat., Advocate)
AND:
Manjunath K.G.,
S/o Gopal Shetty,
Aged about 43 years,
Malur Taluk,
Kolar District-563 114. ... Respondent
(By Sri. Suresha M., Advocate)
This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:17.04.2018 passed
in MVC No.367/2015 on the file of the Senior Civil Judge &
Principal JMFC, KGF, awarding compensation of Rs.
1,87,924/- with interest at 6% p.a. from the date of
petition till the realization.
IN MFA 6708/2018
BETWEEN:
Sri. Ashok Kumar,
S/o J.R. Badduappa,
3
Aged about 51 years,
R/at No.42,
1st Block, Budikote,
Bangarpet Taluk,
Kolar District-563 114. ... Appellant
(By Sri. Suresha M., Advocate)
AND:
Sri. S.V.Kishore,
S/o Venkatachalapathy Shetty,
Major by age,
ESVEE Enterprises,
No.348/1, Bazar Street,
Bangalore-563114. ... Respondent
(By Sri. A.K.Bhat., Advocate)
This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:17.04.2018 passed
in MVC No.515/2014 on the file of the Senior Civil Judge &
Principal JMFC, KGF, partly allowing the claim petition for
compensation and seeking enhancement of compensation.
IN MFA 6709/2018
BETWEEN:
Sri.Manjunath K.G.,
S/o Gopal Shetty,
Aged about 43 years,
R/o no.3038-2, bhovi nagar,
Bangarpet Taluk,
Kolar District-563 114. ... Appellant
(By Sri. Suresha M., Advocate)
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AND:
Sri. S.V.Kishore,
S/o Venkatachalapathy Shetty,
Major by age,
ESVEE Enterprises,
No.348/1, Bazar Street,
Bangalore-563114. ... Respondent
(By Sri. A.K.Bhat., Advocate)
This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:17.04.2018 passed
in MVC No.367/2015 on the file of the Senior Civil Judge &
Principal JMFC, KGF, partly allowing the claim petition for
compensation and seeking enhancement of compensation.
These MFAs, coming on for hearing, this day, this
Court, delivered the following:
JUDGMENT
MFA Nos.6204/2018 and 6205/2018 are filed
by the owner of the offending vehicle and MFA
Nos.6708/2018 and 6709/2018 are filed by the
claimants under Section 173(1) of the Motor Vehicles
Act, (for short, 'the Act') being aggrieved by the
judgment and award dated 17.04.2018 passed by the
MACT, KGF in MVC Nos.515/2014 and 367/2015,
respectively. Since the challenge is to the same
judgment, both the appeals are clubbed together,
heard and common judgment is being passed.
2. Facts giving rise to the filing of the appeals
briefly stated are that on 18.03.2014 at about 7.15
p.m., the claimants were proceeding in the motorcycle
bearing registration No.KA-08/Q-7630 near 6th mile
Bangarpet - Budikote main road. At that time, the
rider of another motorcycle bearing registration
No.KA-08/E-2104 ridden the same at a high speed
and in a rash and negligent manner dashed to the
vehicle of the claimants. As a result of the aforesaid
accident, the claimants sustained grievous injuries and
were hospitalized.
3. The claimants filed petitions under Section
166 of the Act seeking compensation. It was pleaded
that they spent huge amount towards medical
expenses, conveyance, etc. It was further pleaded
that the accident occurred purely on account of the
rash and negligent riding of the offending vehicle by
its rider.
4. On service of notice, the respondent
appeared through counsel and filed written statement
in which the averments made in the petition were
denied. The age, avocation and income of the
claimants and the medical expenses are denied. It
was pleaded that the petition is bad for non-joinder of
necessary parties. It was further pleaded that the
owner and insurer of the vehicle bearing registration
No.KA-08/M-2104 were not made as parties to the
petitions. Hence, he sought for dismissal of the
petition.
5. On the basis of the pleadings of the parties,
the Claims Tribunal framed the issues and thereafter
recorded the evidence. The claimants themselves
were examined as PW-1 and PW-2, Dr.Imran Hussain
was examined as PW-4 and another person as PW-3
and got exhibited documents namely Ex.P1 to Ex.P48.
On behalf of the respondents, one witness was
examined as RW-1 and not got exhibited documents.
The Claims Tribunal, by the impugned judgment, inter
alia, held that the claimants have established that the
vehicle bearing registration No.KA-08/E-2104 is the
offending vehicle which is involved in the accident, as
a result of which, the claimants sustained injuries.
The Tribunal further held that the claimants are
entitled to compensation of Rs.5,83,606/- and
Rs.1,87,924/- along with interest at the rate of 6%
p.a. and directed the owner of the offending vehicle to
deposit the compensation amount along with interest.
Being aggrieved, this appeal has been filed.
6. The learned counsel for the owner of the
offending vehicle has raised the following contentions:
Firstly, the motorcycle bearing registration
No.KA-08/E-2104 was not involved in the accident.
To make a false claim, the claimants have implicated
the said vehicle colluding with the police.
Secondly, as per the claimants, the accident
occurred on 18.03.2014, the claimant himself has
lodged the complaint as per Ex.P2, the police
constable has recorded the statement of the claimant
in the hospital on 19.03.2014. In Ex.P2 the number
of the offending vehicle has been mentioned as KA-
08/M-2104. The investigation officer, on the basis of
the complaint, has registered an FIR on 19.03.2014.
In the FIR the number of the offending vehicle has
been mentioned as KA-08/E-2104. There is no
explanation forthcoming from either the evidence of
the claimants or by the evidence of PW-3 as to how
the registration number has been changed in the FIR.
Even the earlier investigation officer who has
registered the FIR and the police constable who has
recorded the statement of the claimant are also not
been examined to explain the defect in the complaint
as well as in the FIR.
Thirdly, the police, on the basis of the FIR has
seized the vehicle as per seizure mahazar - Ex.P4.
The vehicle that has been seized on 20.03.2014 is KA-
08/M-2104. The same is evident from Ex.P4.
Thereafter on request of the police the Motor Vehicles
Inspector has conducted the inspection and issued
IMV report as per Ex.P7, the inspection has been
conducted in respect of the vehicle bearing
registration No.KA-08/M-2104. At no point of time,
the vehicle bearing registration No.KA-08/E-2104 has
been seized and it has been inspected by the RTO.
Only at the time of filing the charge sheet, for the first
time, the vehicle number has been shown as KA-
08/E-2104. There is no explanation given by the
investigation officer or any witness examined as to
how the vehicle bearing registration No.KA-08/E-2104
has been charge sheeted.
Fourthly, PW-3 who is the investigation officer in
his evidence has categorically admits that he has
started investigation from 25.06.2014. After
investigation he has filed the charge sheet on
17.07.2014 mentioning the offending vehicle number
as KA-08/E-2104. In his evidence he has clearly
stated that subsequently he has obtained additional
statement of the claimant where he has given a
statement that the vehicle involved in the accident is
KA-08/E-2104. He has also admitted that he has
obtained 'B' register extract from transport
department as per Exs.P32 and P33. He contended
that these documents have been obtained on
26.09.2017 and the charge sheet has been filed in
the year 2014. It makes very clear that the police
have colluded with the claimant for implicating the
offending vehicle.
Fifthly, PW-3 has also stated that he has
recorded the statement of the Assistant Regional
Transport Officer. In his statement he has stated that
by mistake in the IMV report instead of mentioning
the vehicle number as KA-08/E-2104, it has been
mentioned as KA-08/M-2104. The ARTO has not been
examined to prove Ex.P31.
Sixthly, the investigation officer has deposed
that he has served a notice to the appellant as per
Ex.P12 and P13. In Ex.P13 the signature of the
appellant was not tallying, his signature has been
forged and this has been admitted by PW-3 that his
signature is not tallying. Therefore, it is very clear that
the police have created all these documents just to
implicate the offending vehicle to help the claimants to
make a false claim.
Seventhly, the police have clearly stated that
they have seized the motorcycle bearing registration
No.KA-08/M-2104, they have not produced any
document to show that whether the vehicle has been
released in favour of the owner of the offending
vehicle or whether it is in the custody of the police
and to verify whether the engine and chasis number is
tallying with KA-08/E-2104. Therefore, he contended
that there is lot of discrepancy in the documents
produced by the police. The Tribunal only on the basis
of the police records has come to the conclusion that
the vehicle bearing registration No.KA-08/E-2104 was
involved in the accident. This finding of the Tribunal is
perverse and unsustainable. Hence, he sought for
allowing the appeals filed by the owner of the
offending vehicle and to dismiss the appeals filed by
the claimants.
7. On the other hand, learned counsel for the
claimants has raised the following contentions:
Firstly, immediately after the accident the
claimants have suffered grievous injuries, they have
been admitted to the hospital, they were not in a
position to give correct registration number of the
vehicle, the police have wrongly written the vehicle
number as KA-08/M-2104 instead of KA-08/E-2104.
Secondly, it is very clear from the 'B' extract
issued by the RTO that KA-08/M series is related to a
four wheeler. It is the specific case of the claimants
that the vehicle involved in the accident is a two
wheeler. Therefore, the police after investigation
have rightly charge sheeted the driver of the offending
vehicle.
Thirdly, the owner of the offending vehicle in his
evidence has deposed that he sold his vehicle long
back to the person who is the resident of Magundi
village. The accused in criminal case Magundi
Chandrappa, who is from the same village and who is
the rider of the motorcycle has pleaded guilty.
Therefore, he himself has admitted that his vehicle
was involved in the accident and the Tribunal was
justified in holding that the owner of the offending
vehicle is liable to pay the compensation. All these
records speak that the offending vehicle was involved
in the accident. But the Tribunal is not justified in
fastening the liability on the owner of the offending
vehicle.
Fourthly, considering the injuries suffered by the
claimants and considering the age and avocation, the
overall compensation awarded by the Tribunal is on
the lower side. Hence, he sought for dismissal of the
appeals filed by the owner of the offending vehicle and
allowing of the appeals filed by the claimants.
8. Heard the learned counsel for the parties.
Perused the judgment and award and the original
records.
It is the case of the claimants that on
18.03.2014 at about 7.15 p.m., the claimants were
proceeding in the motorcycle bearing registration
No.KA-08/Q-7630 near 6th mile Bangarpet - Budikote
main road. At that time, the rider of another
motorcycle bearing registration No.KA-08/E-2104
ridden the same at a high speed and in a rash and
negligent manner dashed to the vehicle of the
claimants. As a result of the aforesaid accident, the
claimants sustained grievous injuries and immediately
they were shifted to the hospital. After recovering
from the injuries they have filed the claim petition. To
prove their case claimants examined themselves as
PW-1 and PW-2, respectively and Ravi Kumar -
investigation officer as PW-3 and Dr.Imran Hussain as
PW-4 and produced 49 documents
9. Immediately after the accident Ashok Kumar
- claimant No.1 has been shifted to Government
Hospital, Bangarpet and thereafter shifted to Gaurav
Orthopedic Hospital, Kolar where he was inpatient.
On the same day i.e., 19.03.2014, the Police
Constable No.58 - Manjunath Reddy has recorded the
statement of Ashok Kumar as per Ex.P2. He has also
taken the signature of the complainant. In that
complaint the number of the offending vehicle has
been mentioned as KA-08/M-2104. Immediately
thereafter the Investigation Officer has registered the
FIR as per Ex.P1. In the FIR the number of the
offending vehicle has been mentioned as KA-08/E-
2104. There is no explanation forthcoming from any
document or the evidence of any witnesses as to how
the vehicle number has been changed in the FIR which
is not in the complaint. The claimant has not
examined the investigation officer who has registered
the FIR and also not examined the police constable
who has recorded the statement of the claimant. On
the basis of the FIR, on 20.03.2014 the police have
seized the vehicle bearing registration No.KA-08/M-
2104 and issued the seizure mahazar as per Ex.P4 in
the presence of the witnesses Ravi, Chandrashkear
and Govindappa. None of these witnesses have been
examined to explain that the vehicle number written
in the seizure mahazar was wrong. Even thereafter,
PW-3, who is the investigation officer who has taken
charge from 25.06.2014 has filed the charge sheet.
In the charge sheet for the first time it has been
mentioned that the offending vehicle is KA-08/E-2104.
PW-3 in his evidence has explained that after he has
taken charge he has recorded the additional
statement of the claimant who has given the
statement that the vehicle number has been wrongly
mentioned and he has given the correct vehicle
number. Thereafter he has deposed that he has
recorded the evidence of the ARTO who has examined
the offending vehicle and issued IMV report. His
statement has been produced as Ex.P31. As per
Ex.P31 the ARTO - G.N.Suresh has given a statement
that while writing the IMV report he has wrongly
mentioned the vehicle number. Even Exs. P32 and P33
have been marked on behalf of PW-3. He has
deposed that after obtaining the 'B' extract as per Exs.
P32 and P33 he has come to know that the offending
vehicle was involved in the accident. On that basis he
has conducted the investigation and filed the charge
sheet. Ex.P32 shows that the said document has
been obtained by a private party by paying the
necessary fee on 26.09.2017 and the charge sheet
has been filed in the year 2014. Therefore, there is lot
of discrepancy in the police documents produced by
the claimants. The Tribunal only on the basis of these
documents has come to the conclusion that the
offending vehicle is KA-08/E-2104 which is involved in
the accident. To prove all these documents, necessary
evidence of police constable who has recorded the
complaint, the investigation officer who has registered
the FIR, the witnesses to the seizure mahazar and the
ARTO G.N.Suresh have not been examined to prove
that the vehicle number has been wrongly mentioned
in the complaint, IMV report and seizure mahazar.
Without evidence of the necessary parties the Tribunal
has wrongly come to the conclusion that the offending
vehicle bearing registration No.KA-08/E-2104 was
involved in the accident.
10. Even in the criminal case, Chandrappa who
is the rider of the motorcycle bearing
registarttionNo.KA-08/E-2104 has appeared and
pleaded guilty, he has not been examined by either of
the parties to prove whether this vehicle was involved
in the accident or not. Therefore, this matter requires
to be remanded back to the Tribunal for consideration
of the matter afresh.
11. Accordingly, the appeals are allowed. The
judgment and award passed by the Tribunal is set
aside. The matter is remanded back to the Tribunal to
reconsider the matter afresh after giving opportunity
to both the parties to adduce additional evidence and
to produce the additional documents. Further liberty
is reserved to examine the Police Constable -
Manjunatha Reddy, Yogananda, investigation officer
who has registered the FIR and mahazar witnesses
and ARTO Suresh. Liberty is also reserved to the
parties to implead the necessary parties.
The Tribunal, after giving opportunity to the
parties to consider the matter afresh in accordance
with law as expeditiously as possible.
The parties are directed to appear before the
Tribunal on 04.01.2022 at 11.00 a.m. without any
further notice.
The amount in deposit is ordered to be refunded
to the owner of the offending vehicle through online,
after due verification.
In view of disposal of the main matter, the
pending IAs. Do not survive for consideration.
Sd/-
JUDGE
Cm/-
