Karnataka High Court
Shivalingappa And Ors vs Mallikarjun And Anr on 7 December, 2023
Author: R.Devdas
Bench: R.Devdas
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IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 07TH DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MR. JUSTICE R.DEVDAS
AND
THE HON'BLE MR. JUSTICE C M JOSHI
MISCL. FIRST APPEAL NO. 200061 OF 2020
BETWEEN:
1. SHIVALINGAPPA
S/O CHANNABASAPPA DANDOTI,
AGE: 54 YEARS, OCC: COOLIE,
R/O: BASAVESHWAR COLONY,
NEAR GOVT. SCHOOL,
KALABURAGI-585101.
2. SARASWATI
W/O SHIVALINGAPPA DANDOTI,
AGE: 52 YEARS, OCC: HOUSEHOLD.
3. BASAMMA
D/O SHIVALINGAPPA DANDOTI
AGE: 29 YEARS, OCC: STUDENT,
4. ARCHANA
D/O SHIVALINGAPPA DANDOTI,
AGE: 27 YEARS, OCC: STUDENT,
ALL ARE R/O: BASAVESHWAR COLONY,
NEAR GOVT. SCHOOL,
KALABURAGI-585101.
...APPELLANTS
(BY SRI. BABU H. METAGUDDA, ADVOCATE)
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AND:
1. MALLIKARJUN S/O NAGAPPA,
AGE: MAJOR,
OCC: BUSINESS,
R/O: H.NO. 3-1-312,
NEAR CHOWKI MATH,
GAJIPUR, KALABURAGI-585101.
2. THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO. LTD.,
JAWALI COMPLEX,
SUPER MARKET,
KALABURAGI-585101.
...RESPONDENTS
(R1 SERVED
BY SRI. SANJAY M. JOSHI, ADV. FOR R2)
THIS MFA IS FILED UNDER SECTION 173(1) OF THE M.V
ACT, PRAYING TO CALL FOR THE RECORDS IN MVC
NO.126/2015, ON THE FILE OF THE SENIOR CIVIL JUDGE &
MACT AT-HUMNABAD, ALLOW THE APPEAL AND SET ASIDE THE
JUDGMENT AND AWARD DATED 27.07.2017 PASSED IN M.V.C.
NO:126/2015 BY THE SENIOR CIVIL JUDGE & MACT AT-
HUMNABAD AND AWARD THE COMPENSATION OF
RS.20,00,000/- WITH 12% INTEREST AND ETC.,
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT AND COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, C M JOSHI, J., DELIVERED THE
FOLLOWING:
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JUDGMENT
Being aggrieved by the dismissal of the petition
under Section 166 of M.V.Act, in MVC No.126/2015 by the
learned Senior Civil Judge and MACT, Humnabad, the
petitioners have approached this Court in appeal.
2. Though the matter is listed for admission, with
the consent of learned counsel appearing for both the
parties, it is taken up for final disposal.
3. It is the case of the petitioners that on
12.11.2014, the deceased Veeresh along with his friends
and one Sandeep Kumar went on the motorcycle to go to
Hyderabad. The deceased Veeresh was rider of the
motorcycle bearing registration No.KA-51/R-4852 and
Sandeep Kumar was the pillion rider. His friend and
another went on another motorcycle. It was contended
that near Khaja Factory on Gulbarga-Humnabad road at
about 10.30 a.m. the rider of the offending motorcycle
bearing registration No.KA-32/K-4731, its rider Mallikarjun
drove the same in a rash and negligent manner and
dashed to the rear side of the motorcycle of the deceased
resulting in his fall and head injury and Veeresh died on
the spot. The petitioners contended that the deceased
Veeresh was bachelor aged about 29 years working as a
Manager in Ayyappa Road Lines and earning Rs.20,000/-
per month. The petitioner Nos.1 and 2 being the parents
and petitioner Nos.3 and 4 being the sisters were
depending on the income of the deceased and therefore
they are entitled for the compensation of Rs.20,00,000/-
from the owner and insurer of the offending motorcycle
bearing registration No.KA-32/K-4731. The respondent
No.1 was the owner of the said vehicle and respondent
No.2-Insurance Company being the insurer are liable to
pay compensation to the petitioners.
4. After service of notice, the respondent No.2-
Insurance Company appeared before the tribunal and
resisted the petition contending that no such accident had
taken place as alleged by the petitioners. However, it
alleged that the petitioners have colluded with the police
and have cooked up a false case against the respondents.
It contended that the said motorcycle has been falsely
implicated in this case in order to make unlawful gain,
inter-alia, denying the age, income and occupation of the
deceased and contended that there is violation of terms
and conditions of the policy.
5. On the basis of the above pleadings, the
tribunal framed the following issues;
1. Whether the petitioners prove that the
deceased Veeresh died in the accident dated
12.11.2014 at about 10.30 p.m. near Khaja
company, on Humanbad-Gulbarga road within
the limits of Humnabad police station, due to the
rash and negligent driving of the driver of the
motorcycle Hero Honda bearing Reg. No.KA-
32/K-4731 by its driver.
2. Whether the claimants prove that the
deceased was earning Rs.20,000/- per month
from his Manager work, in Ayyappa road line and
was having an age of 29 years at the time of
accident?
3. Whether the respondent proves that the
amount of compensation claimed is exorbitant
and excessive one?
4. Whether the claimants are entitled for any
compensation? If so how much?
5. What order or award?
6. The petitioner No.1 was examined as PW.1 and
3 witnesses were examined on their behalf as PWs.2 to 4
and Exs.P1 to 13 were marked. After hearing the
arguments, the tribunal answered issued Nos.1 to 4 in the
negative and dismissed the petition.
7. Being aggrieved by the said judgment of
dismissal, the petitioners have approached this Court
contending that the tribunal has grossly erred in holding
that the petitioners are not entitled for the compensation.
It is alleged that the tribunal did not appreciate the
evidence in the proper perspective and it failed to notice
the charge sheet filed against the respondent No.1, which
should have been accepted by the tribunal.
8. On issuance of notice by this Court, respondent
No.1 did not appear despite service of notice and
respondent No.2 appeared through its counsel.
9. We have heard the arguments made by both
the sides.
10. Learned counsel appearing for the
appellants/petitioners submits that the tribunal failed to
appreciate the evidence of PWs.1, 3 and 4 and the police
papers which were produced by the petitioners. He
contends that PW.3 came to know about the accident and
then he had informed PW.1-Shivalingappa, who came to
the spot and thereafter the complaint came to be lodged.
It is contended that non filing of the complaint by PW.3 or
PW.4 would not be of much significance when the turn of
events have been narrated by PWs.1, 3 and 4 and said
narration is corroborated by the investigation made by the
police. Therefore, he contends that the tribunal failed to
appreciate the evidence in the proper perspective and
petitioners should have been awarded the just and
reasonable compensation entitled by them. In support of
his contention he placed reliance on the decision in the
case of Sumangala Vs. Virupakshi and Others1,
wherein a Division Bench of this Court had held that if
there is any discrepancy in the charge sheet which had
been filed by the police, the said charge sheet should have
been challenged before the higher authorities of the police
department by filing of the writ of mandamus for re-
investigation and therefore the charge sheet should be
2012 Kant MAC 61 (Kant)
accepted by the tribunal. He also relied on the decision in
the case of National Insurance Company Ltd. Vs.
Chamundeswari and Others2 rendered by the Hon'ble
Apex Court, wherein it was held that if any evidence
before the tribunal runs contrary to the contents in the
FIR, the evidence which is recorded before the tribunal has
to be given weightage. He also relied on the decision in
the case of Saroj and Others Vs. Het Lal and Others3,
wherein it was held that when the involvement of the
vehicle is admitted by the owner, the Courts could not
have held that it was a hit and run case.
11. Per contra, learned counsel appearing for the
respondent No.2-Insurance Company submitted that
PW.4-Sandeep Kumar was the pillion rider of the deceased
Veeresh and he has not filed any complaint to the police.
He also points out that PW.4 states before the tribunal
that he was present at the spot for about two hours but
there is no such evidence by PW.3 who says that within a
2022 Kant MAC 9 (SC)
2011 Kant MAC 247 (SC)
few minutes of the accident he has visited the spot.
Therefore, the very involvement of the vehicle owned and
ridden by respondent No.1, who was none else than the
friend of deceased Veeresh becomes doubtful. He contends
that when the accident had occurred at about 10.00 p.m.,
if the PW.4 had sustained minor injuries nothing prevented
him from going to the police station which was admittedly
about 4 kms from spot and inform the police. Nothing also
prevented him from informing PW.1 about the accident. He
points out that respondent No.1 and the pillion rider had
not informed the PW.1 or the police of the accident but
they simply vanished from the spot. Therefore, he
contends that the charge sheet cannot termed to be true
account of the events which had taken place and therefore
the tribunal has rightly disbelieved the story of the
petitioners. He also points out that the presence of PWs.3
and 4 was not narrated by PW.1 while filing the complaint.
He further points that PW.2 happens to be the employer of
the deceased Veeresh as well as PW.3. He contends that
the very involvement of the vehicle is in doubt. Therefore,
circumstances or the police investigation did not show the
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involvement of motorcycle owned by respondent No.1
satisfying the requirement of principles of preponderance
of probability.
12. After hearing the arguments by both sides, the
points that arise for our consideration;
(a) Whether the vehicle owned by respondent
No.1 and insured by respondent No.2 was
involved in the accident on the night of
12.11.2014?
(b) If so, whether the petitioners are entitled
for the compensation and what is the
quantum?
13. A perusal of the FIR produced at Ex.P1
discloses that the deceased Veeresh had left the house at
about 8.00 p.m. along with his friends Mallikarjun and
Pintu saying that he is going to Hyderabad. It is stated
that at about 11.30 a.m. Humnabad Traffic Police called
him over phone and informed that the deceased Veeresh
had died in a road traffic accident at Humnabad Industrial
Area at Gulbarga road and therefore he went to the spot
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and then found the body of the deceased Veeresh was
kept in the Government Hospital at Humnabad. At the spot
of the accident, the motorcycle was not available but there
were pieces of indicator of the motorcycle and there were
scratch marks. It was stated that the motorcycle had
caused the accident at about 10.15 p.m. and the rider of
the motorcycle had taken away the motorcycle of the
deceased. The endorsement of the police show that the
ASI of Humnabad Traffic Police Station had visited the spot
on the basis of the information he received from the police
station at about 10.30 p.m. and by searching pockets of
the deceased, found out the phone numbers of the
petitioners and informed them. He also says that the body
was shifted to Government Hospital, Humnabad and after
showing the body of the deceased to the petitioners and
showing the spot of the accident, he returned to the police
station on 13.11.2014 and received the complaint and
registered the case in Crime No.168/2014. Thus, the FIR
came to be registered at 4.00 p.m. on 13.11.2014.
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14. The inquest report produced at Ex.P5 show that
the inquest was conducted on 13.11.2014 at 7.00 to 7.30
a.m. Obviously, it is prior to the registration of the FIR. In
the inquest report, it is mentioned that the death had
occurred on account of the accident on the night of
12.11.2014 by an unknown vehicle and the motorcycle of
the deceased had been taken away by the rider of the
offending vehicle.
15. The vehicle seizure mahazar produced by the
petitioners at Ex.P4 show that it was conducted on
24.11.2014 and it was stated that PW.4-Sandeep Kumar
was present and he produced the motorcycle which was
ridden by the deceased Veeresh and it was bearing
registration No.KA-51/R-4852. At the same time, the
accused Mallikarjun was also present and he also produced
the motorcycle ridden by him and it was bearing
registration No.KA-32/K-4731. It is evident that on
24.11.2014, PW.4-Sandeep Kumar as well as Mallikarjun
were traced and they had stated the story that Mallikarjun
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had dashed his motorcycle to the motorcycle of the
deceased Veeresh.
16. The manner in which the Investigating Officer
could trace the said Sandeep Kumar as well as Mallikarjun
is not available on record. Ex.P8-charge sheet discloses
that only the first page of the charge sheet is produced
and the subsequent papers, list of witnesses are not
forthcoming. In Ex.P8, it only show that a charge sheet is
laid against the rider of the motorcycle i.e., Mallikarjun.
17. PW.1 in his affidavit states that Mallikarjun had
dashed his motorcycle against the motorcycle of the
deceased Veeresh and therefore he had died. There are no
details as to how he came to know about the fact that
Mallikarjun had dashed the motorcycle to the motorcycle
of the deceased Veeresh. In the cross-examination, it is
elicited that the factum of the accident was informed to
him by the owner of the Ayyappa Road Lines and therefore
he went to the spot. It is elicited that the police were
present at the spot and on the same night at 1.00 a.m. he
came to know that Mallikarjun had dashed against the
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motorcycle of the deceased. Obviously, the said statement
is not available on record and he did not mention the same
in his affidavit evidence. He denies that he had lodged the
complaint stating that some unknown person had dashed
against the motorcycle of the deceased. Thus, his evidence
is contrary to Ex.P1. The endorsement of ASI of
Humnabad Traffic Police Station show that he had visited
the spot after receiving the information from police station
and none were present at spot, including PW.4-Sandeep
Kumar. The motorcycle of the deceased Veeresh was also
missing. The said missing of the motorcycle of the
deceased is also mentioned under the signature of PW.1 in
Ex.P1. If, PW.1 knew that the motorcycle of Mallikarjun
had dashed against the motorcycle of deceased Veeresh,
on which the PW.4 was the pillion rider, nothing prevented
him to mention in the FIR which was prepared at 4.00
p.m. on the next day.
18. PW.2 in his affidavit evidence states that he is
the owner of Ayyappa Road Lines and the deceased
Veeresh was working as Manager in Ayyappa Road Lines.
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He states that he was paying a sum of Rs.20,000/- to the
deceased Veeresh as salary. He does not say anything that
he had informed about the death of the deceased Veeresh
to PW.1. In the cross-examination by learned counsel for
the Insurance Company, it is elicited that he is only a
booking agent but not the owner. He admits that he has
not obtained any permission from the panchayath to run
the said business and he had not informed any labour
authorities in respect of his business. He only produced
the alleged salary certificate as per Ex.P12.
19. PW.3-Sharana s/o Shivaji Reddy, states about
the accident as if he was an eye-witness and also states
that the deceased was working as a Manager at Ayyappa
Road Lines. In the cross-examination, he states that he
was an eye-witness to the accident and he was coming
from Humnabad towards Gulbarga, on his two-wheeler. He
states that the deceased Veeresh had fallen on the road
and he identified him and informed the owner of Ayyappa
Road Lines, as he was working as coolie in Ayyappa Road
Lines. He admits that he did not see the accident
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happening and he only came to the spot after some time
of the accident. Thus, his evidence shows that at about
10.00 p.m., he had reached the spot and informed the
owner of Ayyappa Road Lines.
20. PW.4-Sandeep Kumar, happens to be the pillion
rider of the deceased Veeresh. He says that at about
10.15 p.m. while deceased Veeresh was riding the
motorcycle, the respondent No.1-Mallikarjun drove his
motorcycle bearing registration No.KA-32/K-4731 in a rash
and negligent manner and dashed to the motorcycle of the
deceased Veeresh. In his affidavit, soon after the accident
the said Mallikarjun ran away from the spot. He says that
the police came to the spot had taken the dead body of
the deceased Veeresh to the hospital. In the cross-
examination, it is elicited that he had sustained minor
injuries and therefore he has not taken any treatment. It
is elicited that he had informed PW.1 and his family
members about the accident and he was at the spot for
about two hours. He states that he did not call the
ambulance since he had no currency in his mobile. He says
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that he also did not go to the police station after arrival of
PW.1 and petitioner No.2. He admits that he and deceased
Veeresh had consumed alcohol. He admits that he did not
call Mallikarjun over phone also. Strangely, he does not
say anything about the disappearance of the motorcycle of
the deceased Veeresh.
21. The above evidence shows that PWs.3 and 4
state that they were present at the spot at about 10 p.m.,
but their evidence is totally contrary to what is mentioned
by PW.1 in the FIR at Exs.P1 and 2. It is also against the
endorsement of the ASI of Humnabad Traffic Police
Station. If, PWs.3 and 4 were present at the spot for about
two hours, nothing prevented PW.1 to say that he had
been informed by PW.3 or PW.4. Their evidence also does
not say as to what had happened to the motorcycle driven
by deceased Veeresh. Curiously, PW.4 produced the
motorcycle of the deceased Veeresh on 24.11.2014.
Therefore, the evidence of PWs.3 and 4 is highly
unbelievable and contrary to the contention of PW.1 also.
When the entire investigation papers are not produced by
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the petitioners before the tribunal, except first sheet of the
charge sheet, when there are discrepancies about the
involvement of the motorcycle of Mallikarjun and when the
conduct of the PW.4 appears to be not of prudent person,
we do not find that the testimony of PWs.3 and 4 is worth
and placing any reliance. Obviously, the FIR was
registered at about 4.00 p.m. as mentioned in the
endorsement of ASI. If PWs.1 and 4 knew that it was the
respondent No.1-Mallikarjun who caused the accident,
nothing prevented PW.1 to inform the same in the FIR.
22. Another important aspect is that PW.3 was
working in Ayyappa Road Lines owned by PW.2. The
deceased was also working in the said Ayyappa Road
Lines. PW.1-Shivalingappa says that he was informed of
the accident by the owner of Ayyappa Road Lines.
Curiously, he did not mention that it was PW.2. PW.2
claims that he was the owner of the Ayyappa Road Lines,
but he did not say that he had visited the spot and had
informed the PW.1 about the accident. PW.3 says that he
had informed the owner of Ayyappa Road Lines. Thus, the
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entire evidence available on record did not establish the
involvement of the motorcycle driven by respondent No.1.
The conduct of PWs.3 and 4 is not worth believing and the
conduct of PW.4 is very much questionable.
23. The decision in the case of Saroj and Others
was concerning an alleged hit and run case and on an
admission by the insurer about the involvement of the
vehicle in pleadings, the Hon'ble Apex Court came to the
conclusion that the admission of tort-feasor could not have
been rejected by the tribunal. In the case on hand, the
respondent No.1 has not admitted his involvement in the
accident. The insurer has denied the involvement of the
vehicle. The conduct of PW.4 is very much questionable
and therefore, on facts, the said decision may be
distinguished.
24. The decision in the case of National
Insurance Co. Ltd. Vs. Chamundeswari, referred supra
was in respect of the believability of PWs.1 and 3 but they
were not the witnesses mentioned in the FIR. In such
circumstances, the Hon'ble Apex Court held that the
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weightage has to be given to the testimony before the
Tribunal and there was no reason to discard the very
evidence as they were inmates of one of the vehicle which
had met with the accident. In the case on hand, the
evidence of PW 3 and 4 is unbelievable and is
contradictory to the investigation papers. Moreover, their
evidence lacks the actions of a prudent person and cannot
be said to be true.
25. The judgment of this Court in The Divisional
Manager, Oriental Insurance Company Vs Rayan
Fernandes and others (MFA No.7279/2016 with
connected matters dated 5-1-2021) observed that the
charge-sheet submitted by the police cannot be accepted
as a gospel truth in all cases. It was observed that the
charge-sheet papers viz. spot sketch, spot mahazar would
be helpful for the Tribunal to come to a proper conclusion
and when the charge-sheet is shown to be flawed and
investigation was not proper, they are liable to be
rejected. This Court had come heavily on the manner of
investigation. In the case on hand also, there is delay in
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filing the complaint and the interregnum between the time
of the accident and the registration of the case is not
properly brought on record. The respondent No.1 has
maintained a stoic silence regarding the accident and PW.4
is not trustworthy in his evidence before the Court.
26. For foresaid reasons, we find that the
involvement of the vehicle insured by the respondent No.
2, owned by respondent No. 1 in the alleged accident is
not proved and that no fault can be found in the judgment
and award passed by the Tribunal. Consequently, the
appeal deserves to be dismissed. Hence, the following:
ORDER
The appeal is dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
msr
