The Divisional Manager, Iffco ... vs Smt. Somavva, W/O.Nagappa Babli
2022 Latest Caselaw 4097 Kant

          IN THE HIGH COURT OF KARNATAKA
                  DHARWAD BENCH

     DATED THIS THE 10 T H DAY OF MARCH, 2022

                          BEFORE

 THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA

                 M.F.A.No.22000/2009 (MV D)

BETWEEN:

THE DIVISIONAL MANAGER,
IFFCO TOKIO GENERAL INSURANCE CO. LTD.,
BUSINESS UNIT KSCMF BUILDING, V-FLOOR,
IIIRD BLOCK, 4TH CROSS, CUNNINGHAM ROAD,
BANGALORE-52,
REPRESENTED BY ITS MANAGER,
IFFCO HOUSE, 3RD FLOOR, 34, NEHRU PLACE,
NEW DELHI-110 019.
                                              ....APPELLANT

(BY SRI G.N.RAICHUR, ADVOCATE)


AND :

1.      SMT. SOMAVVA W/O.NAGAPPA BABLI,
        AGE- 51 YEARS, OCC:COOLIE/ AGRICULTURE,
        R/O.KAVALOOR VILLAGE,
        NOW RESIDING AT MITTIKERI STREET,
        KOPPAL, TAL. AND DIST. KOPPAL.
        SINCE DECEASED BY HER LRS.

1A.     SHRI BASAVRAJ S/O.NINGAPPA BABLI,
        AGE-MAJOR, OCC-COOLIE,
        R/O.MITTIKERI STREET, KOPPAL,
        DIST-KOPPAL.
                           :2:



1B.   SHRI PRABHU S/O.NINGAPPA BABLI,
      AGE-MAJOR, OCC-COOLIE,
      R/O.MITTIKERI STREET, KOPPAL,
      DIST.KOPPAL.

1C.   SHRI YANKAPPA S/O.NAGAPPA BABLI,
      AGE-MAJOR OCC-DRIVER-CUM-CONDUCTOR,
      R/O.KSRTC DEPARTMENT, MYSORE DEPOT,
      MYSORE.

2.    SRI BASAVRAJ S/O ANNALAPPA HUNESEMARA,
      OCC: OWNER OF AUTO RIKSHAWA,
      NO. KA-25/ 4676, R/O.BHYGYANAGAR,
      TAL. AND DIST.KOPPAL.
                                         ..RESPONDENTS

(BY SMT CHITRA M.GOUNDELKAR, ADVOCATE FOR
SMT. GIRIJA S.HIREMATH, ADVOCATE FOR RESPONDENT NO.2)
(BY SMT.PADMAJA S.TADAPATRI, ADVOCATE FOR RESPONDENT
NOS.1(A) TO 1(C))


      THIS M.F.A. IS FILED U/S.173(1) OF MV.ACT, 1988,

AGAINST THE JUDGEMENT AND AWARD DATED:04-03-2009,

PASSED IN MVC NO.196/2007 ON THE FILE OF THE ADDL. MACT

AND   FAST   TRACK   COURT-I,   KOPPAL,   AWARDING   THE

COMPENSATION OF RS.1,28,200/- ALONG WITH THE INTEREST

AT THE RATE OF 6% P.A., FROM THE DATE OF PETITION TILL IT

IS DEPOSITED.


      THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY,

THE COURT DELIVERED THE FOLLOWING:
                                       :3:



                                   JUDGMENT

This is an appeal filed by the Insurance Company

challenging the award of Rs.1,28,200/- granted in favour of the

claimant for the injuries sustained by her.

2. In this case the fact that the accident

occurred is not in serious dispute. However, the serious

dispute raised by the Insurance Company is regarding

to the involvement of the vehicle which caused the

accident.

3. According to the Insurer, when lodging the

FIR, the claimant's son had stated in his comp laint that

the motorcycle that he was riding was hit from b ehind

by a auto rickshaw bearing registration No.KA-37/3942.

But subsequently, he had changed his statement and

stated that it was actually the auto rickshaw bearing

registration No.KA-25/4676 which had hit from behind .

4. Learned counsel for the appellant-Insurance

Company contends that since at the earliest point of

time, the claimant-Smt.Sommavva's son had clearly

stated that the accident was caused by an auto

rickshaw bearing registration No.KA-37/H-4599, the

Tribunal could not have foisted liability on the auto

rickshaw bearing registration No.KA-25/4676.

5. It is no doubt true that in the FIR lodged by

the claimant's son it has been stated that the auto

rickshaw which hit the motorcycle was b earing

registration No.KA-37/H-4599.

6. Ex.P.3 is a statement given by the claimant's

son stating that he had committed a mistake in

mentioning the auto rickshaw bearing registration

number as KA.No.37/3942 and it was actually auto

rickshaw bearing registration No.KA-25/4676, which had

caused the accid ent. It is not in dispute that the police

investigated the case and ultimately laid a charge sheet

against the driver of auto rickshaw bearing registration

No.25/4676. It is not in d isp ute that the driver of the

said auto rickshaw pleaded guilty to the offence to

which he was charged.

7. As stated above, the only contention

advanced by the Insurance Company was that the

change in registration of number of the auto rickshaw

clearly indicated the imp lication of a wrong vehicle and

therefore, it could not be made liable. In cases of such

nature, when the Insurance Company questions the

investigation made by the police and contends that the

vehicle involved in the accident as stated in the charge

sheet was incorrect, the onus of proving the said

contention would lay entirely on the Insurance

Company. In order to d ischarge this burden, the

Insurance Company would be required to summon the

particulars of the vehicle mentioned in the FIR and

thereafter establish that the said vehicle had not been

insured , thereby establishing mother's to lay a false

claim. The Insurance Company will also have to

summon the Investigating Officer and question him

regarding his decision to charge sheet the driver of

vehicle which was not involved in the accident.

Admitted ly, no such exercise has been taken by the

Insurance Company in this case.

8. The Insurance Company basically relies upon

an investigation report which was prepared at its behest

by one Sri Anand S.Kalaghatg i, who is stated to be an

Investigation Consultant and Provider of Auxillary

Services. The Insurance Company, for reasons best

known to it did not even examine this investigation

consultant. It also did not choose to summon the

complainant, who had lodged the FIR in order to

ascertain the actual vehicle that had been involved. In

my view, the Tribunal was therefore justified in coming

to the conclusion that the vehicle bearing registration

No.KA-25/4676 was involved since a charge sheet had

been laid against the driver of the said auto rickshaw

and he had also pleaded guilty.

9. The learned counsel for the appellant places

reliance on the decision of the Hon'ble Apex Court

rendered in the case of Oriental Insurance Company

Ltd., vs. Premalata Shukla, reported in (2007) 13

SCC 476 to contend that the statements found in the

FIR are to be accepted in its totality and also the

decision rendered by a Division Bench of this Court in

the case of Veerappa and Another vs. Siddappa and

Another, reported in ILR 2009 Kar. 3562.

10. In the decision rendered by the Hon'ble

Supreme Court, the Supreme Court has basically stated

that once an FIR was ad mitted in evidence, the question

of relying upon only a part of the FIR and not upon the

remaining part of the FIR would be incorrect. In the

instant case. It is not the case of the claimant that she

intending to rely only upon a part of the FIR. The case

put forth by the claimant was that the FIR that had

been lodged was incorrect and the only error committed

was the incorrect mentioning of the registration number

of the auto rickshaw.

11. It is also the specific case of the claimant that

this error was rectified by giving a statement

thereafter. The Police on investigation have found that

the vehicle involved in the accident was the vehicle in

respect of which a further statement had been given.

The decision of the Hon'b le Supreme Court therefore

would have no ap plication.

12. As far as the decision of the Division Bench of

our High Court is concerned, in that case, the Court was

dealing with the situation where there was an earlier

complaint lodged to the Police and a charge sheet filed

by the Police and thereafter a separate private

complaint had been lodged in respect of the very same

accident by suppressing the earlier comp laint. In that

context, this Court had stated that it was a case of

clear fraud and hence, the Insurance Company could

not be liable. However that is not the present case. As

stated above, the Police have, infact, after investigation

charge sheeted the driver of the auto rickshaw bearing

registration No.KA-25/4676 and this establishes the

involvement of that vehicle.

13. It may also be relevant to state here that this

Court in the case of Bajaj Allianz General Insurance

Co. Ltd. v. Smt.Lakshmamma and Others, reported

in 2008 Kant. M.A.C. 145 has held that in a case

where the Insurance Company put forth the contention

that the owner had colluded with claimants, it was for

the Insurance Company to challenge the charge sheet

and seek for its quashing and for a direction to

investigate the case properly.

14. In the instant case, admittedly neither a

challenge has been made by the Insurance Company to

the charge sheet nor steps have been taken to

challenge the investigation made by the Police by

summoning the Investigating Officer. I am therefore of

the view that the contention advanced by the Insurance

Company that the vehicle involved in the accident was

not the vehicle that it had insured cannot be accepted.

No other grounds are raised regarding quantum and

therefore this appeal is dismissed .

SD JUDGE ckk