Karnataka High Court
The United India Insurance ... vs Vimal W/O Subhash Kore And Ors on 29 June, 2022
Bench: Rajendra Badamikar
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 29TH DAY OF JUNE 2022
BEFORE
THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR
MFA No.200063/2015 (MV)
BETWEEN:
The United India Insurance
Company Ltd., S.No.243,
"Laxmi Palace", 1st Floor,
Karanja Chowk, Budhawar Peth,
Vagdar Road, Akkalkot-413216.
Rep. by its Divisional Manager.
... Appellant
(By Sri. Manavendra Reddy, Advocate)
AND:
1. Vimal W/o Subhash Kore,
Age: 51 years,
Occ: Household work,
2. Prakash S/o Subhash Kore,
Age: 33 years,
Occ: Agriculture,
3. Sanjay S/o Subhash Kore,
Age: 28 years,
Occ: Agriculture,
2
4. Nagesh S/o Subhash Kore,
Age: 25 years,
Occ: Agriculture,
All are R/o Sayyad-Warwade,
Now residing at Swantantra Colony,
Bijapur-586101.
5. Mr. Vijay Raghvir Ubale,
Age: 43 years,
Occ: Business,
R/o Bajirao Nagar,
Barshi Naka,
At Post Beed, Tq. Beed,
Dist: Beed,
State Maharashtra-414205.
... Respondents
(By Sri. Sanganagouda V.Biradar, Advocate for C/R1 to 4;
Notice to R5 is dispensed with)
This MFA is filed under Section 173(1) of the Motor
Vehicles Act, praying to call for the records and set aside
the judgment and award dated 15.11.2014 passed by the
MACT & FTC, Bijapur in MVC No.85/2014 by allowing the
appeal as prayed for.
This appeal having been heard and reserved on
23.06.2022, coming on for 'Pronouncement of Judgment'
this day, the Court delivered the following:
3
JUDGMENT
This appeal is filed by the appellant-Insurance
Company under Section 173(1) of M.V.Act,
challenging the liability in respect of judgment and
award dated 15.11.2014 passed in MVC No.85/2014
by the MACT & Fast Track Court, Bijapur.
2. For the sake of convenience, parties are
referred with the ranks occupied by them before the
Tribunal.
3. The factual matrix leading to the case are
that on 30.09.2013, the deceased Subhash Kore was
travelling in the passenger auto rickshaw bearing
registration No.MH-23/H-8073, from Mohal to Sayyad-
Warwade village. The said auto rickshaw was driven
with a high speed in a rash and negligent manner and
when it came near Sayyad-Warwade village on Nazik-
Pimpari Mohal road, the driver dashed the auto
rickshaw to oncoming motorcycle bearing registration
No.MH-13/BF-5786 from opposite direction and as a
result, the auto rickshaw toppled down. Due to the
impact, the deceased Subhash Kore sustained fatal
injuries on his head and other parts of the body and
he was shifted to Rural Hospital at Mohal and after
giving first aid, he was shifted to Civil Hopsital,
Solapur, wherein he was declared brought dead. It is
alleged that the deceased was earning Rs.2,00,000/-
per annum by contributing to the family and
petitioners being the wife and children of the deceased
have lost their bread earner. Hence, they filed a claim
petition under Section 166 of M.V.Act, before the
tribunal seeking compensation of Rs.17,40,000/- from
the respondent Nos.1 and 2 on the ground that
respondent No.1 is the owner of the auto rickshaw
while respondent No.2 is the insurer.
4. The respondent No.1 did not contest the
matter, while respondent No.2 the insurer appeared
and filed objections denying the age, occupation and
income of the deceased. He has also contended that
the driver of the offending vehicle was not possessing
valid and effective driving license. He has specifically
taken up a defence that the vehicle was falsely
implicated in this case by colluding with the police and
respondent No.1 and the petition is also bad for non-
joinder of necessary parties. It is also further asserted
that the petitioners are not residents of Vijayapur,
Karnataka and they are residents of Maharashtra and
accident alleged to be taken place in Maharashtra and
this Court does not have any jurisdiction. Hence, they
disputed the claim.
5. After appreciating the oral and
documentary evidence, the tribunal has awarded the
total compensation of Rs.5,08,000/- with interest @
6% p.a. to the petitioners by fastening the liability on
respondent No.2/appeallant herein.
6. Being aggrieved by the judgment and
award passed by the tribunal, the appellant-Insurer
has filed this appeal challenging the liability.
7. Heard the arguments advanced by the
learned counsel for the appellant-Insurer and learned
counsel for the respondents/petitioners. Perused the
records.
8. Learned counsel for the appellant-
Insurance Company would contend that the very
involvement of the vehicle in the accident itself is
doubtful. He would contend that though the alleged
accident said to have been taken place on
30.09.2013, the complaint was lodged after lapse of
15 days and this delay is not properly explained. He
would also contend that MLC details of Mohal Hospital
were not produced and it is alleged that there is head
on collision and the vehicle was toppled. But the MVI
report disclose that there is no damage to the vehicle
and Ex.P5, disclose that the vehicle number was
overwritten, which disclose that the vehicle was
planted subsequently. He would contend that there is
no material evidence to show the involvement of the
vehicle and as such sought for allowing the appeal by
dismissing the claim petition.
9. Per contra, learned counsel appearing for
respondents -petitioners would support the judgment
and order passed by the tribunal. He would contend
that RW.1, who was examined was not an eye-witness
and the Insurance Company has not conducted any
enquiry and RW.1 does not have any personal
knowledge. Hence he would contend that the tribunal
has appreciated the oral and documentary evidence in
proper perspective and fastened the liability on the
Insurance Company. Hence, he would seek for
dismissal of the appeal.
10. Having heard the arguments and perusing
the records, it is to be noted here that the specific
contention of the petitioners is that the alleged
accident has taken place on 30.09.2013. At the first
instance, it is to be noted here that all the petitioners
are residents of Maharashtra. No documents have
been produced to show that they are residing in
Vijayapur. Even the complaint allegations disclose that
they are residents of Maharashtra. The accident did
took place in Maharashtra and respondent No.1 the
alleged owner is also resident of Maharashtra. But
very interestingly, the claim petition is filed in
Vijayapur. No proper explanation has been given in
this regard. No doubt, the office of respondent-
Insurance Company is situated in Vijayapur and the
Court at Vijayapur is having jurisdiction to entertain
the claim petition. However, considering the facts
that the vehicles involved were of Maharashtra,
accident occurred in Maharashtra and parties being
residents of Maharashtra, but the claim petition is
being filed in Vijayapur, Karnataka, creates serious
suspicion regarding the genuineness of the case.
11. PW.1 is petitioner No.2 and he is the
complainant. In his cross-examination, he has
specifically admitted that he does not know Kannada
reading and writing. He admits that their native place
is Sayyad Warwade in Maharashtra and they were
residing there and though he asserts now they are
residing in Vijayapur, no documents have been
produced. Further, he himself lodged a complaint on
15.10.2013. The alleged date of accident is
30.09.2013. The complaint was lodged after lapse of
15 days. In his cross-examination, he claimed that as
he has lost his father, he could not lodge the
complaint immediately. But, on perusal of his
complaint, it is to be noted here that no reasons have
been given in the entire complaint for delay in lodging
the complaint. Further, the complaint allegations also
disclose that there was head on collision between the
two vehicles and both the vehicles were lying by the
side of the road and the alleged offending vehicle was
turtled. But it is important to note here that inspite of
all these details, no instant complaint came to be
lodged.
12. Ex.P3, is relied by the petitioners. But it is
an inquest mahazar drawn under Section 174 of
Cr.P.C. No doubt, it was drawn on 30.09.2013 itself,
but it was registered under Section 174 of Cr.P.C. in
respect of unnatural death. This document does not
establish the involvement of any vehicle as on that
date.
13. Ex.P5, is relied by petitioners. It is
important to note here that Ex.P5, is in Marathi
language and Ex.P5(a) is the English translation. It is
evident that in Ex.P5, the vehicle number was
overwritten. It is evident that initially it was MH-22
and the vehicle number was also overwritten. This
was not explained. No doubt, it is submitted on the
same day. If at all, on the same day the vehicle
number and details were available as referred in
Ex.P5, there is no explanation as to why the case was
registered under Section 174 of Cr.P.C. rather than
under the provisions of 279, 337 and 304(A) of IPC.
This is also not explained. If at all the vehicles have
collided on that day, the police could have rushed to
the spot and seized the vehicles but instead of doing
the same, the offence under Section 174 of Cr.P.C.
came to be registered. This was also not explained by
the petitioners.
14. Apart from that, PW.1 is not an eyewitness.
But, PW.2 claims to be an eyewitness. He claims that
on 30.09.2013, he was riding the motorcycle bearing
registration No.MH-13/BF-5786 and proceeding to
college and near Dhaba the auto rickshaw bearing
registration No.MH-23/H-8073 came from opposite
and hit his motorcycle. Hence, it is evident from his
statement that he was rider of the two wheeler, which
was involved in the accident, which was hit by the
auto rickshaw. He also claims that he had sustained
injuries and the inmates of auto also sustained injuries
and he had been to Mohal Hospital for primary
treatment. So this witness is a star witness. His
vehicle was hit by auto rickshaw and he sustained
injuries. Very interestingly, he did not lodge any
complaint. Further, the petitioners have also not
produced the MLC extract pertaining to this witness to
show that he has given history before the Primary
Health Center in Mohal Hospital regarding the
accident. Hence, considering his conduct in not
lodging the complaint, not filing any claim petition and
non production of his injury certificate as well as MLC
extract creates a serious doubt regarding the alleged
accident itself. Hence, his evidence itself disclose that
he is a planted witness. Otherwise when he sustained
injuries, when the auto rickshaw was hit to his vehicle,
he would have lodged a complaint. Hence, his
evidence is not trustworthy. Admittedly, PW.1 is not
an eyewitness and there is no other material evidence
to show that he has given any proper explanation for
delay in lodging the complaint.
15. Apart from that, all along it is specifically
contended by the petitioners that there is head on
collision between the auto rickshaw and two wheeler
on which PW.2 was riding and after the impact both
the vehicles fell down and the auto rickshaw toppled.
Ex.P7, is the Accident Report Form regarding damages
to the vehicles and it disclose that only two wheeler
suffered damage as foot back pedal was bend. Very
interestingly, when it is the specific contention that
after head on collision, the auto rickshaw over turned
and in that event the vehicle should have sustained
material damages on the front side as well as to the
body. But, Ex.P7 disclose that no damages were found
on the auto rickshaw and that itself clearly establish
that the said vehicle was never involved in the said
accident and it was only planted after 15 days.
16. Apart from that, the evidence also disclose
that everybody including the relatives of the deceased
were eye-witnesses but none of them have chosen to
lodge the complaint including PW.2, who was victim of
the said alleged accident. Hence, the entire case
made out by the petitioners is full of suspicion and as
observed above though the accident has occurred in
Maharashtra, parties are residents of Maharashtra,
vehicles are of Maharashtra, but the claims tribunal
was chosen in Karnataka, which establish the
intention of the parties. Even, no damage was found
on the vehicle and all these facts and circumstance
clearly establish that the offending vehicle bearing
registration No.MH-23/H-8073 did not involve in the
accident, which was planted later on as there is
manipulation and over-writing in Ex.P5-death report
and initially crime was registered under Section 174 of
Cr.P.C.
17. Considering all these facts and
circumstances, it is evident that the petitioners have
failed to prove the involvement of the vehicle in the
accident and as such question of claiming
compensation does not arise at all. The tribunal did
not assess the evidence on record properly and did
not consider these serious lapses which are apparently
on the face of the record and in a mechanical way
proceeded to grant compensation. Hence, the claim
petition was required to be dismissed, but the tribunal
has wrongly allowed the claim petition by awarding
compensation. Hence, the judgment and award
passed by the tribunal calls for interference and the
appeal needs to be allowed.
18. Accordingly, I proceed to pass the
following;
ORDER
(a) The appeal is allowed.
(b) The judgment and award dated 15.11.2014
passed in MVC No.85/2014 by the MACT &
Fast Track Court, Bijapur, is set aside.
(c) The claim petition stands dismissed.
Sd/-
JUDGE
msr
