Sabiya vs Aminuddin I. Chabusksavar
2023 Latest Caselaw 1865 Kant

                                                        -1-
                                                                  MFA No. 102829/2015




                               IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                                    DATED THIS THE 15TH DAY OF MARCH, 2023

                                                     PRESENT
                                        THE HON'BLE MR JUSTICE R.DEVDAS
                                                        AND
                                      THE HON'BLE MR JUSTICE RAJESH RAI K

                                           MFA NO. 102829/2015 (MV-D)


                              BETWEEN

                              1.   SABIYA
                                   W/O HASIM TADE,
                                   AGE: 30 YEARS, OCC: HOUSEHOLD WORK,

                              2.   KUMARI MAHEK
                                   D/O HASIM TADE
                                   AGE: 4 YEARS, OCC: STUDENT,
                                   SINCE MINOR REPD. BY THE NATURAL GUARDIAN
                                   MOTHER, APPELLANT NO.1
           Digitally signed
           by BHARATHI


                              3.   SARABI
           HM
           Location: High
BHARATHI Court of
         Karnataka,
HM       Dharwad
           Date:
           2023.03.16
           10:24:26
           +0530                   W/O IBRAHIM TADE
                                   AGE: 57 YEARS, OCC: HOUSEHOLD WORK,

                                   ALL ARE RESIDENTS OF
                                   KANJAR GALLI, BELAGAVI.

                                                                        ...APPELLANTS

                              (BY SRI.VITTHAL S TELI, ADVOCATE)
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                                         MFA No. 102829/2015




AND


1.    AMINUDDIN I. CHABUSKSAVAR
      AGE: 37 YEARS, OCC: BUSINESS,
      R/O: PLOT NO.14, 5TH CROSS,
      AZAM NAGAR, BELAGAVI

2.    THE DIVISIONAL MANAGER
      NATIONAL INSURANCE COMPANY,
      RAMDEV GALLI, BELAGAVI.

                                             ...RESPONDENTS

(BY SRI.M.K.SOUDHAGAR, ADV. FOR R2)

(R1-SERVED)



      THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES

ACT, PRAYING TO SET ASIDE THE JUDGMENT & AWARD

DATED:02.07.2015, PASSED IN MVC.NO.1950/2013 BY THE

III   ADDITIONAL    SENIOR   CIVIL   JUDGE    AND   MEMBER

ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, BELAGAVI.


      THIS APPEAL HAVING BEEN HEARD AND RESERVED ON

06.03.2023    FOR   JUDGMENT       AND   COMING     ON   FOR

PRONOUNCEMENT, THIS DAY, RAJESH RAI K., J. DELIVERED

THE FOLLOWING:
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                                         MFA No. 102829/2015




                          JUDGMENT

This appeal is directed against the judgment and

order dated 02.07.2015 passed in MVC No.1950/2013 by

III Addl. Senior Civil Judge and Member, MACT, Belagavi

(for short' Tribunal').

2. Brief facts which are relevant for the purpose of

disposal of this appeal are that on 29.01.2013, the

deceased (Hasim Ibrahim Tade) was going by walk on

Darbar Galli Road, on the left side of the road at about

12.20 a.m., at that time the driver of the car bearing

No.KA-22/N-8959 coming from CBS circle towards

Shaniwarkoot in a rash and negligent manner, dashed the

deceased and after the accident, the driver of the Car and

PWs.2 and 3 shifted the injured in the said car to District

Hospital for treatment. Inspite of treatment, he died.

Hence, a claim petition was filed by the appellants i.e.

family members of the deceased Hasim Ibrahim Tade

under Section 166 of M.V. Act, 1988, before the Tribunal

for award of compensation.

MFA No. 102829/2015

3. Before the Tribunal, in order to prove their case, the

appellants/claimants got examined 3 witnesses i.e. PWs.1

to 3 and got marked 15 documents as per EX.P.1 to P15A.

On the other hand, respondent No.2 i.e. Insurance

Company got examined two witnesses as RW-1 and RW-2

and also got marked two documents as per EX.R1 and R2.

4. After hearing the learned counsels on both the sides

and on assessment of oral as well as documentary

evidence, the Tribunal passed a judgment, dismissing the

claim petition filed by the petitioners under Section 166 of

MV Act, 1988. Hence, claimants have challenged the said

impugned judgment in this appeal.

5. We have heard the learned counsel for both the

parties.

6. The learned counsel for appellants/claimants

vehemently contended that the judgment and award

passed by the Tribunal is erroneous, illegal and contrary to

the facts and evidence on record. As such, the same

MFA No. 102829/2015

suffers from perversity and illegality. He would further

contend that the Tribunal failed to consider the material

and evidence on record. Among three witnesses examined

before Tribunal i.e. PWs.1 to PW.3, PW.1 is none other

than the wife of the deceased, clearly deposed about the

manner in which the accident was caused due to the rash

and negligent driving of the car bearing Regn.No.KA-22/N-

8959 by it's driver. Further PW.2 who is the brother of the

deceased has also clearly deposed about the rash and

negligent driving of the driver of the offending vehicle

bearing No.KA-22/N-8959. He clearly deposed that the

said accident was witnessed by the PW.3 who in turn

called him and informed about the accident, thereby he

immediately rushed to the spot. At that time, the Police

officials were also present and all of them including the

driver of the car took the injured to the District Hospital,

Belagavi for treatment. However, doctor declared him as

brought dead.

MFA No. 102829/2015

7. Further, the learned counsel relies on the evidence of

PW.3 who is none other than eye witness to the alleged

accident. According to the evidence of PW.3, on

29.01.2013, in the mid-night, he witnessed the accident

caused to the deceased by car bearing No.KA-22/N-8959

proceeding towards Shanivarkoot and the driver of the

said car was driving the car in a rash and negligent

manner. As such, the counsel for the appellants submits

that there is no reason to disbelieve the evidence of these

three witnesses since, they clearly deposed about the

manner in which the accident was caused. Accordingly to

him, Tribunal totally failed to consider the evidence of

these three witnesses and dismissed the claim petition

filed by the appellants / claimants. Learned counsel further

contends that though the jurisdictional Police filed a C-

report (Un-traceable case), later, PW.2 filed a protest

petition and after hearing the said protest petition and also

by considering the evidence and material available on

record, the trial Court rejected the C-report and took

cognizance of the case for the offences punishable under

MFA No. 102829/2015

Sections 279 and 304A of IPC and Section 134(a)(b) r/w

187 of MV Act and directed to register the case against the

accused-respondent No.1- Aminuddin I. Chabusksavar and

as such the learned counsel submits that the impugned

judgment is liable to be set aside.

8. Per contra, learned counsel for the 2nd respondent-

Insurance Company would submit that the trial Court

rightly rejected the claim petition and the judgment under

appeal does not suffer from any perversity or illegality

since the Tribunal on proper appreciation of oral and

documentary evidence has recorded the findings, which

are sound and reasonable. Therefore, the same does not

call for any interference by this Court. He further contends

that by perusal of Ex.P2-complaint, lodged by the brother

of the deceased who is examined as PW.2 at the earliest

point of time after the accident i.e. on 29.01.2013, reveals

that unknown vehicle dashed against the deceased and

accordingly, EX.P1-FIR was registered against un-known

persons. He would further contend that after a detailed

MFA No. 102829/2015

investigation, jurisdictional Police filed C-report as per

Ex.P.5 and on perusal of Ex.P.5-C-report, it clearly depicts

that the accident occurred on 29.01.2013 at about 12.30

a.m. Some unknown vehicle driven by un-known driver

coming from CBS Circle towards Shaniwarkoot in rash and

negligent manner near Darbargalli cross dashed against

the deceased, due to which deceased died. As such, the

Police also failed to prove the involvement of the offending

vehicle i.e. vehicle bearing No.KA-22/N-8959 insured with

the second respondent in the accident. He would further

contend that though PW.3 claimed himself to be an eye

witness to the accident, according to him, he informed

about the accident to PW.2-brother of the deceased, but

on perusal of Ex.P.2 lodged by the brother of the

deceased, it does not disclose about the said aspect which

clearly creates a doubt in the version of PW.3 and also

PW.2. Hence, the counsel submits that the Tribunal has

rightly rejected the claim of the petitioners/claimants and

dismissed the petition. Accordingly, he prays to dismiss

the appeal.

MFA No. 102829/2015

9. We have bestowed our anxious consideration to the

submissions made by the learned counsel for the parties

and also perused the material available on record including

trial court records.

10. Having heard the learned counsel for the parties and

having perused the records, it is undisputed fact that on

29.01.2013, the accident took place near Darbar Galli,

Belagavi and due to the same, deceased by name Hasim

Ibrahim Tade died. To that effect, the brother of the

deceased PW.2 lodged complaint as per EX.P.2 before the

jurisdictional Police and based on the same, FIR in Crime

No.22/2013 registered as per EX.P.1 against unknown

persons and unknown vehicle. It is also not in dispute

that PW.2-brother of the deceased lodged the complaint

against some unknown driver and unknown vehicle. Later

during the course of investigation, jurisdictional Police had

drawn spot panchanama as per Ex.P3 and spot sketch as

per Ex.P.4. However, Police failed to trace the vehicle

which caused the accident to the deceased. As such, Police

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MFA No. 102829/2015

filed final C-report to the Court that the vehicle which

caused accident is not traceable, as per Ex.P.5.

Nevertheless, the said C-report was challenged by the

complainant by filing protest petition and also by

examining two witnesses i.e PW.1 and PW.2. Later, trial

Court after considering the evidence of those two

witnesses, rejected the C-report and has taken cognizance

against the accused/respondent No.1 by name Aminuddin

I. Chabusksavar, the owner of the offending vehicle for the

offence punishable under Sections 279 and 304A of IPC

and Section 134(a)(b) r/w 187 of MV Act,1988. Hence, by

perusal of the above materials, it can be concluded that

the accident took place on 29.01.2013 and the brother of

PW.2 deceased died due to the said accident. The next

aspect of the matter is that whether respondent No.1 who

claims to be the owner of the offending vehicle bearing

No.KA-22/N-8959 was driving the vehicle on the relevant

date, place and time and caused the accident to the

deceased and thereby responsible for death of the

deceased.

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MFA No. 102829/2015

11. It could be seen from the records and evidence of

witnesses that PW.1-wife of deceased is a hearsay witness

and she deposed that after the accident to her husband,

immediately she rushed to the spot of accident and

herself, PWs.2 and 3 along with Police officials shifted the

injured to the hospital. According to her, the said accident

was caused by the driver of the car bearing No.KA-22/N-

8959. However, during the course of investigation, she

failed to give any statement before the Police.

12. PW.2 is also none other than the brother of the

deceased, who lodged complaint as per Ex.P.2 deposed in

his evidence that on 28.01.2013 i.e. on the date of

accident, PW.3 informed him about the accident of his

brother and immediately he rushed to the spot. During

that time, Police officials were also present and the driver

of the offending vehicle who caused the accident was also

present at the spot of accident. All of them shifted the

injured to the District Hospital, Belagavi. However, the

doctor declared him as brought dead. By perusal of the

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MFA No. 102829/2015

cross-examination of this witness, he clearly admitted that

he was not an eye witness to the incident and also that he

lodged the complaint against unknown persons as per

Ex.P.2. Moreover, there is no whisper about the presence

of PW.3 in the spot or the information received from him.

Hence, by the contents of Ex.P.2 and evidence of PW.2 are

quite contradictory. Nevertheless, at the earliest point of

time i.e. immediately after accident, PW.2 lodged

compliant against unknown vehicle. As such, the evidence

of PW.2 does not inspire any confidence in respect of the

incident and involvement of the offending vehicle as

narrated by him before the Court. PW.3 who claims to be

an eye witness to the accident, deposed in his evidence

that on the relevant date and time, he was present at the

place of incident and witnessed the accident, But, the RW-

1 i.e. Investigating Officer in his evidence categorically

admitted that he has not recorded the statement of PW.3-

Chandru Ningappa Patil nor the said witness has given any

statement before him. Further, even PW.2 also while

lodging the complaint did not state anything about PW.3,

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MFA No. 102829/2015

and also about shifting the injured to the hospital. This

contradictory version of PW.3 creates a doubt in his

evidence that he is a planted witness to the case by PW.1

and PW.2 to support their claim before the Tribunal.

13. On perusal of evidence of RW.1-investigation officer

in the case, who submitted the final report as per Ex.P5,

clearly stated that PW.3-Chandru Ningappa Patil did not

gave any statement before him and during his

investigation, he was unable to trace the vehicle which

involved in the accident. Accordingly, he filed C-report as

per Ex.P.5.

14. There is no reason to depose falsely by RW.1-the

Investigation Officer and also there is no reason to file C-

report after investigation, if the accident was really caused

by the driver of the offending vehicle bearing No.KA-22 /

N-8959. The version of RW.1 supports with contents of

Ex.P.2 lodged by PW.2 who is none other than brother of

the deceased. As such, it can be easily concluded that the

evidence of PWs.1 to 3 is an after taught in order to claim

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MFA No. 102829/2015

compensation in connection with the death of the

deceased and PW.3 deposed before the Court on behest of

PW.2. Another aspect of the matter is that though the

respondent No.1 admitted the accident, being the owner of

the vehicle, in his written statement he stated that driver

was employed to his car. Nowhere he had stated in his

objection statement that he himself was the driver of the

offending car. But, strangely PWs.1 to PW.3 before the

Magistrate has specifically deposed that the respondent

No.1 was driving the car at the time of accident. Hence,

this contradictory version in respect of the driver of the car

also creates a doubt in the case of the appellants, since

the investigating officer filed final C-report, appellants /

claimants have to prove the involvement of the offending

vehicle in the accident beyond all reasonable doubts. But

the appellants / claimants failed to prove the same. The

inconsistent version of the witnesses and the contradictory

evidence to the documents produced by them cannot be

relied to prove the involvement of the offending vehicle in

the accident. As such, the question of fastening the

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MFA No. 102829/2015

liability on the Insurance Company does not arise. Hence,

in our considered opinion, trial Court has rightly dismissed

the claim petition filed by the appellants / claimants.

Accordingly, we pass the following:

ORDER

The appeal filed by the appellants/claimants is

dismissed.

The judgment and award dated 02.07.2015 in MVC

No.1950/2013 by III Addl. Senior Civil Judge and Addl.

MACT, Belagavi is hereby confirmed.

Sd/-

JUDGE

Sd/-

JUDGE HMB