Karnataka High Court
The Divisional Manager vs Smt. Savita W/O Balu @ Balasaheb Kanase on 6 December, 2023
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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MFA No. 21957 of 2011
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 06TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO.21957/2011 (MV-D)
BETWEEN:
THE DIVISIONAL MANAGER,
THE NEW INDIA ASSURANCE
COMPANY LIMITED,
DIVISIONAL OFFICE,
CLUB ROAD,
BELAGAVI,
REPRESENTED BY ASST. MANAGER,
REGIONAL OFFICE,
TP-HUB, II FLOOR,
SRINATH COMPLEX,
NEW COTTON MARKET,
HUBBALLI - 580 029.
...APPELLANT
(BY SRI G. N. RAICHUR, ADVOCATE)
Digitally
signed by AND:
SUJATA
SUBHASH
PAMMAR 1. SMT. SAVITA
W/O BALU @ BALASAHEB KANASE,
AGE: 30 YEARS,
OCC: HOUSEHOLD,
R/O: SANKESHWAR,
TQ: HUKKERI,
DIST: BELAGAVI.
2. KUMARI PRIYA BALASAHEB KANASE,
AGE: MINOR, OCC:NIL,
R/O: SANKESHWAR,
TQ: HUKKERI,
DIST: BELAGAVI.
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MFA No. 21957 of 2011
3. KUMARI SANIKA BALASAHEB KANASE,
AGE: MINOR, OCC:NIL,
R/O: SANKESHWAR,
TQ: HUKKERI,
DIST: BELAGAVI.
(SINCE RESPONDENTS NO.2 AND 3
ARE MINOR,
REP. BY THEIR NATURAL
GUARDIAN RESPONDENT NO.1.)
4. RAMU BALU KANASE,
AGE: 78 YEARS, OCC:NIL,
R/O: SANKESHWAR,
TQ: HUKKERI,
DIST: BELAGAVI.
5. SRI MARUTI LAGAMA TERANI,
AGE: MAJOR,
OCC: BUSINESS,
R/O: KAVALIKATTI,
TQ: GADHINGLAJ,
DIST: KOLHAPUR,
MAHARASHTRA STATE.
(OWNER OF TEMPO TRAX NO.MH-09/G-2270).
...RESPONDENTS
(BY SRI SANJAY S. KATAGERI, ADVOCATE FOR R1 AND R4;
R2 AND R3 ARE MINORS REPRESENTED BY R1;
R5 - NOTICE SERVED.)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988, PRAYING TO
SET ASIDE THE JUDGMENT AND AWARD DATED 29.12.2010 IN MVC
NO.348/2006, PASSED BY THE FAST TRACK COURT AND MOTOR
ACCIDENT CLAIMS TRIBUNAL, HUKKERI, BY ALLOWING THIS APPEAL
WITH COST AND ETC.,
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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MFA No. 21957 of 2011
JUDGMENT
This appeal is filed by the insurance company
challenging the judgment and award passed in MVC
No.348/2006, dated 29.12.2010, by the Fast Track Court
and MACT, Hukkeir, on the ground that Tempo Trax
No.MH-09/G-2270 was not involved in the accident, but it
is falsely implicated in the case and thus argued that the
claimants have played fraud on the Court. Therefore,
prays to set aside the judgment and award passed by the
tribunal.
2. Brief facts of the case. It is the case of the
claimant that on account of death of deceased, claim
petition was filed, initially the injured claimant namely
Balu @ Balasaheb Ramu Kanase has filed the claim
petition for having sustained injuries in the motor vehicle
accident and subsequently he died due to injuries
sustained. Therefore the claimants have come on record.
It is stated that on 17.01.2006 the deceased was going on
service road by driving his auto rickshaw bearing
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No.KA-23/9088 in front of Gajanan Petrol Pump towards
Gavani village abutting to the NH-4 at Nippani and in the
early morning at 05.00 a.m. when he was driving the auto
rickshaw, on his right side, at that time the driver of
Tempo Trax No.MH-09/G-2270 came from opposite side to
the auto rickshaw with high speed and in a rash and
negligent manner, dashed the auto rickshaw, due to which
the deceased had sustained grievous injuries to all over
the parts of the body and immediately he was shifted to
hospital but later on died on 05.06.2006. The tribunal by
entertaining the claim petition filed under section 166 of
the M.V.Act has awarded compensation by holding that the
said Tempo Trax has caused the accident and accordingly
fastened liability on the appellant insurance company.
3. Heard the arguments and perused the material
placed before the Court.
4. The learned counsel for appellant insurance
company submitted that Tempo Trax No.MH-09/G-2270
was not involved in the accident. But it is falsely
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implicated in the case for the purpose of making claim
against the insurance company. Therefore submitted,
fraud is played. Further submitted that in the complaint
there is no mentioning of nature of vehicle as well as
number of vehicle. But it is only mentioned that some any
vehicle has caused the accident. Therefore, the
Investigating Officer does not have any evidence regarding
proof that how this Tempo Trax has caused the accident
except the statement of wife and father of the deceased.
Wife and father of the deceased are not eye witnesses to
the accident. Therefore, their evidence is hearsay
evidence, hence not believable. Therefore, in the absence
of cogent evidence as to how the Tempo Trax is involved
in the accident, it cannot be believed that the said Tempo
Trax has caused the accident. The deceased might have
sustained injuries may be in the accident but for other
reasons, might be by any other vehicle; but there is no
believable evidence to prove that this tempo trax was
involved in the accident. Further submitted that the
Investigating Officer has not recorded the statement of the
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deceased when he was alive. Further, eye witnesses are
not examined before the tribunal. Therefore on all these
reasons it is highly doubtful to believe involvement of
Tempo Trax in the accident. Therefore, submitted that
appreciation of evidence made by the tribunal is perverse.
Hence prays to allow the appeal by setting aside the
judgment and award passed by the tribunal.
5. Further on the nexus between injuries caused
and death of the deceased, the learned counsel for the
insurance company submitted that the deceased not died
for the injuries sustained and hence, submitted there is no
nexus between injury and cause of death.
6. On the other hand, learned counsel for
respondent claimant by justifying the judgment and award
of the tribunal has submitted that in the accident the
deceased has lost his consciousness and after three days
regaining consciousness he told his wife and father that
Tempo Trax had hit him and stated the number of Tempo
Trax and accordingly the Investigating Officer had
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recorded the further statement of wife and father of
deceased. Therefore when the deceased himself has stated
before his wife and father mentioning the vehicle with its
number, and accordingly the Investigating Officer has
carried out the investigation and rightly filed the charge
sheet against the driver of Tempo Trax. It is further
submitted that conviction or acquittal of the accused of the
offence of committing accident does not bear impact on
the claim proceedings. Because the degree of proof in both
the proceedings are different. Therefore submitted that
when the entire case is considered upon its preponderance
of probabilities, as it can be run in the present nature of
cases. On all its probabilities it is proved that the Tempo
Trax has caused the accident and thus the tribunal has
rightly given finding, thus it needs no interference.
Therefore prays to dismiss the appeal filed by the
insurance company.
7. On the other hand, learned counsel for the
respondents/claimants submitted along with records that
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medical records proved that there is nexus between nature
of injury sustained and the death occurred. Hence,
submitted the deceased died due to the accidental injuries.
8. Upon considering the rival submissions made by
the learned counsels appearing for the parties, the fact is
that on 17.01.2006, accident was caused. The claimants
have stated that the deceased was driving auto rickshaw
and was hit by Tempo Trax No.M-09-G-2270. Ex.P.2 is the
complaint and Ex.P.1 is the FIR and in the complaint, it is
stated that one vehicle had dashed the auto rickshaw and
therefore, the deceased has sustained injuries. In the
complaint, the nature of vehicle and its registration
numbers are not stated. The accident is caused on
17.01.2006 at morning 05.00 a.m. and Ex.P.2-complaint
was lodged morning at 09.15 a.m. on the very same day.
Therefore, within 4 and ½ hours from the time of accident,
the complaint is lodged before the police. Since, the
accident is occurred at morning 5.00 a.m. and from the
records available, there are no eye-witnesses to the
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accident. One Chandrakant Kagangouda Patil came later,
at the spot of the accident and saw that the deceased has
sustained injuries and he has shifted deceased to the
hospital. Ex.P.4-wound certificate, which shows that the
accident was occurred on 17.01.2006 at morning 5.00
a.m. immediately he was shifted to the hospital. Regarding
appreciation of evidence of involvement of Tempo Trax as
stated by the claimants, the wife has given further
statement before the police on 20.01.2006 i.e. after three
days from the date of accident. It is stated that in the
hospital after three days the deceased (her husband)
regained consciousness and told her that one Tempo Trax
vehicle No.MA-09-G-2270 has caused accident. The father
of the deceased has also given further statement before
the police on 20.01.2006 stating that the deceased after
regaining consciousness has told him that the Tempo Trax
No.MA-09-G-2207 has dashed the auto rickshaw. There
are no eye-witnesses to the accident. Immediately after
the accident, the deceased has lost his consciousness.
Therefore, there was no occasion to extract the nature of
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vehicle and its number from him. But after regaining
consciousness, the deceased while in the hospital has
stated the nature of vehicle and its registration number
before the wife and father. PW.1 in the cross-examination
has stated that for mentioning the nature of vehicle and
number, the information was given by one Irappa
Kambale. Therefore, learned counsel for the appellant
submitted that there is a contradiction between further
statement given before the investigating officer during the
course of the investigation and the admission given in the
cross-examination before the tribunal. The evidence of
PW.1 is to be considered on all its preponderance of
probabilities. PW.1 is wife of the deceased being a village
and rustic woman. Therefore, some minor contradictions
are natural to occur. Just because eye-witnesses, father
and Chandrakant Kagangouda Patil are not examined that
cannot be a ground to throw the claim petition. This
Chandrakant Kagangouda Patil is made as charge sheet
witness No.13 in the charge sheet. According to his
statement given before the investigating officer that after
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the accident he went to the place of accident and saw the
injured deceased found bleeding with accidental injuries.
Later he came to know that the Tempo Trax vehicle
No.MA-09-G-2270 has caused accident. He has given
statement before the police on 20.01.2006. Therefore,
before investigating officer these three witnesses i.e.,
wife-PW.2, father of the deceased and Chandrakant
Kagangouda Patil have given statement before the
investigating officer that the Tempo Trax was involved in
the accident and caused accident. Therefore, upon
considering the entire evidence on record as discussed
above, involvement of Tempo Trax No.MA-09-G-2270 is
proved to be involved in the accident. In the submission
made by the learned counsel for the appellant in the
cross-examination of PW.1 it is elicited that she has
received information about the Tempo Trax. Considering
the background of PW.1 who has lost her husband at
young age and rustic village woman, just because, the
investigating officer has not recorded the statement of the
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deceased, when he was alive cannot be a reason to say
that Tempo Trax is not involved in the accident.
9. From the medical evidence on record it is found
that the deceased for a period of six months was in
quadriplegia condition. Therefore, the investigating officer
might not have received the statement of the deceased.
Just because investigating officer has not recorded the
statement of the deceased, when he was alive that cannot
negate the claim made by the claimants. The wife and
father of the deceased have received information from the
deceased himself in the hospital after regaining his
consciousness after three days is amounting to relevant as
per Section 6 of the Indian Evidence Act, 1872. Therefore,
the evidence of PW.1 cannot be brushed aside that she is
hear say witness. Therefore, in this regard, the claimant
has proved involvement of Tempo Trax No.MA-09-G-2270
in the accident it has dashed the Auto Rickshaw and the
deceased died in the said accident due to injuries
sustained. Hence, the findings of the tribunal in this regard
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are found to be justifiable, legal and hence, which needs
no interference by this Court for the reason above
discussed.
10. Regarding death of the deceased is concerned,
the accident is dated 17.01.2006 and the deceased died
on 05.06.2006. The deceased died within a period of five
months from the date of the accident. Ex.P.4 is the wound
certificate, which proves that the deceased was admitted
to the hospital on 17.01.2006 and the examination of the
deceased was commenced at 7.15 a.m. and the deceased
was admitted to the hospital at 7.10 a.m. in the morning
and his examination was commenced at 7.15 a.m. and
mentioned in the wound certificate that the claimant was
admitted to the hospital that with the effect of road traffic
accident at 5.00 a.m. morning. In the said wound
certificate, it is mentioned that the claimant suffered
following injuries.
i) 2" x 2" read lacerated wound on frontal area of
scalp, bone, deep c firm blood clots.
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ii) Bleeding pt nose [As per CT Scan - Adhar
Nursing Home Kolhapur pt has cervical cord
injury c quadriplegia].
iii) Swelling, fractures back of neck. As per Adhar
Nursing Home pt has degloring.
11. As per the above would certificate, it is proved
that the claimant has suffered fractural injuries to the
cervical and suffering quadriplegia.
12. Ex.P.7 is the post mortem report, in which the
cause of death of the deceased is shown as septicemia due
to quadriplegia. Therefore, the nature of injuries suffered
by the deceased are that cervical bones fracture resulting
into occurring quadriplegia to the deceased. Therefore, the
deceased was confined to the bed for five months due to
quadriplegia and died on 05.06.2006. Therefore, from the
medical evidence on record, it is proved that the death of
the deceased is due to quadriplegia as a result of accident
caused to the deceased. Hence, it is proved that the
deceased died due to the accidental injuries.
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13. Considering the quantum of compensation is
found to be just and proper and the claimant has also not
made the appeal. Therefore, the tribunal is correct in
holding that the Tempo Trax No.MA-09-G-2270 has caused
the accident and deceased died due to the accidental
injuries and the quantum of compensation determined by
the tribunal are found to be just and proper. Hence, there
is no merit found in this appeal. Thus, it is liable to be
dismissed accordingly.
14. The amount in deposit shall be transmitted to
the tribunal.
SD/-
JUDGE
MRK-para 1 to 5.
SSP-para 6 to
CT-ASC
