Smt. Vimala W/O Arjun Bhosle vs Balasaheb S/O Gulabrao Warwate
2022 Latest Caselaw 7738 Kant

                                1

            IN THE HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH

          DATED THIS THE 31ST DAY OF MAY 2022

                            PRESENT

THE HON'BLE MR.JUSTICE SREENIVAS HARISH KUMAR

                              AND

          THE HON'BLE MR.JUSTICE S. RACHAIAH

 MISCELLANEOUS FIRST APPEAL NO.201361/2017 (MV)
                      C/W
 MISCELLANEOUS FIRST APPEAL NO.201360/2017 (MV)
                      AND
 MISCELLANEOUS FIRST APPEAL No.201362/2017 (MV)


IN MFA.No.201361/2017

Between:

1.      Smt. Channabassabai W/o Chourang Bhale
        Age: 56 Years, Occ: Household

2.      Chourang S/o Shamrao Bhale
        Age: 71 Years, Occ; Nil

        Both R/o Kumbarpatti, Umarga
        Now residing Near Aland Naka, Shaha Bazar
        Kalaburagi - 585 101
                                                    ...Appellants
(By Sri Babu H. Metagudda, Advocate)

And:

1.     Balasaheb S/o Gulabrao Warwate
       Age: Major, Occ: Owner of Truck No.KA-39/9070
       R/o: Village Jajanmugli, Tq: B. Kalyan
                                   2

       Dist: Bidar - 585 106

2.     The Divisional Manager
       Bajaja Allianz General Insurance Co. Ltd.
       IV Floor, Kalaburagi Mansion
       Opp: Municipal Corporation, Lamington Road
       Hubli, through its Legal Manager-585104
                                                    ...Respondents

(Sri C. S. Kalburgi, Advocate for R2; V/o dated 14.08.2019, Notice to R1 is held sufficient)

This MFA is filed under Section 173 (1) of the M.V. Act, 1988 praying to allow this appeal and set aside the judgment and award dated 10.01.2017 passed in MVC.No.808/2011 by the I Addl. Senior Civil Judge and MACT at Kalaburagi and award the compensation of Rs.20,00,000/- with 12% interest and etc.,

IN MFA.No.201360/2017

Between:

1. Smt. Vimala W/o Arjun Bhosle Age: 51 Years, Occ: Household

2. Arjun S/o Maruti Bhosle Age: 56 Years, Occ: Nil

Both R/o Munchi Plot, Umarga Now residing Near Aland Naka, Shaha Bazar Kalaburagi - 585 101 ...Appellants

(By Sri Babu H. Metagudda, Advocate)

And:

1. Balasaheb S/o Gulabrao Warwate Age: Major, Occ: Owner of Truck No.KA-39/9070 R/o: Village Jajanmugli, Tq: B. Kalyan

Dist: Bidar - 585 106

2. The Divisional Manager Bajaja Allianz General Insurance Co. Ltd. IV Floor, Kalaburagi Mansion Opp: Municipal Corporation, Lamington Road Hubli, through its Legal Manager ...Respondents

(Sri C. S. Kalburgi, Advocate for R2; V/o dated 24.07.2019, Notice to R1 is held sufficient)

This MFA is filed under Section 173 (1) of the M.V. Act, 1988 praying to allow this appeal and set aside the judgment and award dated 10.01.2017 passed in MVC.No.807/2011 by the I Addl. Senior Civil Judge and MACT at Kalaburagi and award the compensation of Rs.20,00,000/- with 12% interest and etc.,

IN MFA.No.201362/2017

Between:

1. Smt. Shantabai W/o Prabhakar Kamble Age: 56 Years, Occ: Household

2. Prabhakar S/o Sahadev Kamble Age: 68 Years, Occ: Nil

Both R/o: Ward No.17 Both R/o: Kumbarpatti, Umarga Now residing Near Aland Naka Shaha Bazar, Kalaburagi - 585 101 ...Appellants

(By Sri Babu H. Metagudda, Advocate)

And:

1. Balasaheb S/o Gulabrao Warwate Age: Major, Occ: Owner of Truck No.KA-39/9070 R/o: Village Jajanmugli, Tq: B. Kalyan

Dist: Bidar - 585 106

2. The Divisional Manager Bajaja Allianz General Insurance Co. Ltd. IV Floor, Kalaburagi Mansion Opp: Municipal Corporation, Lamington Road Hubli, through its Legal Manager-585101 ...Respondents

(Sri C. S. Kalburgi, Advocate for R2; V/o dated 24.07.2019, Notice to R1 is held sufficient)

This MFA is filed under Section 173 (1) of the M.V. Act, 1988 praying to allow this appeal and set aside the judgment and award dated 10.01.2017 passed in MVC.No.809/2011 by the I Addl. Senior Civil Judge and MACT at Kalaburagi and award the compensation of Rs.20,00,000/- with 12% interest and etc.,

These appeals coming on for Hearing, this day, Sreenivas Harish Kumar J., delivered the following:

COMMON JUDGMENT

These three appeals are disposed of by common

judgment, as the Tribunal at Kalaburagi has decided three

claim petitions together by common judgment.

2. On 25.03.2009, three boys namely, Sunil, Suresh

and Pammulal were riding the motorcycle bearing

registration No.MH-13/Z-4336. The claimants are the

parents of the riders. The case of the claimants is that on

25.03.2009, the driver of the lorry bearing registration

No.KA-39/9070 came from opposite direction and dashed

against the motorcycle and thereby all the three riders were

killed at the spot. FIR was laid by one Abhimanyu on the

same day. All the claim petitions were dismissed by the

Tribunal recording findings that P.W.4 could not be the

eyewitness and the lorry could have been fixed in the

accident only for the purpose of claiming compensation.

Thus, the Tribunal has doubted the very involvement of the

lorry in happening of the accident.

3. Learned counsel for the appellants Sri Babu H.

Metagudda argues that the FIR was laid on the same day of

the accident. Though, it is true that in the FIR, registration

number of the tanker has not been mentioned, at a later

stage during investigation, it was found that the driver of the

lorry bearing registration No.KA-39/9070 caused the

accident as he was rash and negligent while driving. P.W.4 is

the eyewitness. His testimony should have been believed by

the Tribunal. When the chargesheet was not challenged by

the insurance company, the Tribunal should not have

dismissed the claim petition. In support of his argument, he

places reliance on two judgments, one of the Supreme Court

in the case of Saroj and others vs Het Lal and Others

reported in 2011 (1) SCJ 258 and the other of Division

Bench of this Court in the case of Sumangala vs

Virupakshi and others reported in 2012 Kant. MAC 61

(Kant). Therefore, it is his argument that these appeals

should be allowed and the matters should be remanded to

the Tribunal for computing the compensation payable to the

claimants.

4. Learned counsel for respondent No.2 submits

that the evidence of P.W.4 cannot be believed. He argued

that the Tribunal has given correct finding that P.W.4 was not

an eyewitness; if he was an eyewitness, the person who laid

FIR would have mentioned the name of PW-4. The very fact

that FIR is silent about the eyewitness indicates that P.W.4

could be a planted witness and the police might have falsely

implicated the truck driver finding that there was insurance

coverage to the lorry. Therefore, it is argued that these

appeals do not deserve consideration.

5. We have perused the evidence of PW-4 and also the

charge sheet. The evidence of PW-4 clearly shows that he

saw the accident. In the cross-examination it is elicited from

him that after seeing the incident he sent information to the

family members of the deceased. They all came to the spot.

PW-4 himself gave information to Abhimanyu to lodge FIR

that driver of the truck bearing Reg.No.KA-39/9070 was

responsible for the accident. Now if his evidence is analysed

it may be stated that if really PW-4 gave truck number which

caused the accident, nothing prevented Abhimanyu from

mentioning the name of PW-4 and the registration number of

the truck while lodging FIR. Rather what FIR shows is that

an unknown lorry caused the accident. Therefore, if the

evidence of PW-4 and the contents of FIR are analysed

together, an inference may be drawn that probably PW-4

could have been brought to the Tribunal to falsely depose

about the accident which he might not have seen. The

contents of FIR are very important here. If Abhimanyu came

to know from PW-4 about the lorry which caused the

accident, definitely he would have mentioned the lorry

number in the FIR. In this view, rightly the Tribunal has not

believed the evidence of PW-4.

6. Sri Babu Metagudda argued that the Insurance

Company should have challenged the charge sheet and in

support of his argument he has placed reliance on the

Division Bench judgment of this Court in the case of

Sumangala supra. The facts therein disclose that it was a

hit and run case. Therefore, the Division Bench might have

come to a conclusion that the Insurance Company should

have challenged the charge sheet. In our considered opinion

Insurance Company need not challenge the charge sheet. It

is enough if Insurance Company disputes its liability during

the proceedings in the claim petition. Charge sheet can be

challenged by the person who is shown as accused. In the

case of Saroj supra, the facts disclose that the involvement

of the lorry was not disputed. Same is not the case here.

7. In this view, we come to conclusion that just

because charge sheet was laid against the driver of the lorry

bearing Reg.No.KA-39/9070, it does not mean that the

Tribunal cannot arrive at an independent conclusion based on

the evidence placed before it. We do not find any infirmity in

the findings given by the Tribunal for dismissing the claim

petitions. There are no merits in these appeals. Therefore,

they are dismissed.

Sd/-

JUDGE

Sd/-

JUDGE

RSP/SWK