Karnataka High Court
The Regional Manager vs Narayanamma on 12 July, 2022
Bench: J.M.Khazi
1
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:
3
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
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
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
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.
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
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
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.
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
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
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
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
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
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
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
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
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
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
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
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.
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.
(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
