Karnataka High Court
The Oriental Insurance Co Ltd vs Sri. Yatish Kumar on 24 November, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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NC: 2023:KHC:42490
MFA No. 9984 of 2012
C/W MFA No. 9969 of 2012
MFA No. 9970 of 2012
MFA No. 9971 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
MISCELLANEOUS FIRST APPEAL NO. 9984 OF 2012 (MV)
C/W
MISCELLANEOUS FIRST APPEAL NO. 9969 OF 2012(MV-I),
MISCELLANEOUS FIRST APPEAL NO. 9970 OF 2012(MV-I),
MISCELLANEOUS FIRST APPEAL NO. 9971 OF 2012(MV-I),
MFA NO.9984/2012
BETWEEN:
SRI. YATHISH KUMAR,
S/O KUMARSWAMY,
AGED ABOUT 16 YEARS,
R/AT BASAVAPATNA,
KHAMBAL POST,
SOMPURA HOBLI,
Digitally NELAMANGALA TALUK,
signed by BANGALORE RURAL DIST.
SOWMYA D
Location: CLAIMANT BEING A MINOR
High Court REP. BY HIS FATHER AND
of
NATURAL GUARDIAN
Karnataka
SRI. KUMARSWAMY
...APPELLANT
(BY SRI. SHRIPAD V SHASTRI, ADVOCATE)
AND:
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MFA No. 9984 of 2012
C/W MFA No. 9969 of 2012
MFA No. 9970 of 2012
MFA No. 9971 of 2012
1. ORIENTAL INSURANCE CO.LTD.,
D.O.VII, NO.1,
SHANKAR HOUSE,
RMV EXTENSION,
MEKHRI CIRCLE,
BANGALORE - 80,
BY ITS MANAGER.
2. SRI. V.L.M. MURTHY,
S/O VENKATESH,
MAJOR,
R/AT 5TH CROSS,
2ND MAIN, WEAVERS COLONY,
GANGANAGAR,
BANGALORE - 32.
...RESPONDENTS
(BY SRI. B.C. SEETHARAMA RAO, ADVOCATE FOR R1;
VIDE ORDER DATED 05.08.2015, NOTICE TO
R2 IS DISPENSED WITH)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:10.04.2012 PASSED IN MVC
NO.1692/2010 ON THE FILE OF THE XXII ADDITIONAL SMALL
CAUSES JUDGE, MEMBER, MACT, COURT OF SMALL CAUSES,
BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
MFA NO.9969/2012
BETWEEN:
THE ORIENTAL INSURANCE CO.LTD.,
D.O.VII, RMV EXTENSION,
BANGALORE.
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MFA No. 9984 of 2012
C/W MFA No. 9969 of 2012
MFA No. 9970 of 2012
MFA No. 9971 of 2012
THROUGH ITS REGIONAL OFFICE,
LEO SHOPPING COMPLEX,
# 44/45, RESIDENCY ROAD,
BANGALORE - 560 025.
REP. BY ITS MANAGER
SRI. K. GOVINDARAJAN.
...APPELLANT
(BY SRI. SRI. B.C. SEETHARAMA RAO, ADVOCATE)
AND:
1. SMT. UMADEVI,
AGED ABOUT 42 YEARS,
W/O GURUDEVAIAH ,
RESIDENT OF KURUBARAHALLI,
KODIGEHALLI POST,
KODDABALLAPURA TALUK,
BANGALORE RURAL DISTRICT - 561 101.
2. SRI. V.L.M. MURTHY, MAJOR,
S/O VENKATESH,
R/AT 5TH CROSS,
2ND MAIN, WEAVERS COLONY,
GANGANAGAR,
BANGALORE - 560 032.
(OWNER OF MOTOR CYCLE NO.KA.04/X-3312).
...RESPONDENTS
(BY SRI. SHRIPAD V SHASTRY, ADVOCATE FOR R1;
VIDE ORDER DATED 18.08.2015, NOTICE TO
R2 IS HELD SUFFICIENT)
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MFA No. 9984 of 2012
C/W MFA No. 9969 of 2012
MFA No. 9970 of 2012
MFA No. 9971 of 2012
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:10.04.2010 PASSED IN MVC
NO.1691/2010 ON THE FILE OF THE XXII ADDITIONAL SMALL
CAUSES JUDGE AND MEMBER, MACT, BANGALORE, AWARDING
A COMPENSATION OF RS.25,000/- WITH INTEREST @ 6% P.A.
FROM THE DATE OF PETITION, TILL THE DATE OF DEPOSIT.
MFA NO.9970/2012
BETWEEN:
THE ORIENTAL INSURANCE CO.LTD.,
D.O.VII, RMV EXTENSION,
BANGALORE.
THROUGH ITS REGIONAL OFFICE,
LEO SHOPPING COMPLEX,
# 44/45, RESIDENCY ROAD,
BANGALORE - 560 025.
REP. BY ITS MANAGER
SRI. K. GOVINDARAJAN.
...APPELLANT
(BY SRI. SRI. B.C. SEETHARAMA RAO, ADVOCATE)
AND:
1. SRI. YATHISH KUMAR,
S/O KUMARSWAMY,
AGED ABOUT 16 YEARS,
R/AT BASAVAPATNA,
KHAMBAL POST,
SOMPURA HOBLI,
NELAMANGALA TALUK,
BANGALORE RURAL DIST.
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MFA No. 9984 of 2012
C/W MFA No. 9969 of 2012
MFA No. 9970 of 2012
MFA No. 9971 of 2012
BEING A MINOR,
REP. BY HIS FATHER
SRI. KUMARSWAMY
S/O PUTTAHONNAIAH.
2. SRI. V.L.M. MURTHY,
S/O VENKATESH,
MAJOR,
R/AT 5TH CROSS,
2ND MAIN, WEAVERS COLONY,
GANGANAGAR,
BANGALORE - 560 032.
(OWNER OF MOTOR CYCLE NO.KA.04/X-3312).
...RESPONDENTS
(BY SRI. SHRIPAD V SHASTRY, ADVOCATE FOR R1;
(R1 IS MINOR REP. BY HIS FATHER)
VIDE ORDER DATED 18.08.2015, NOTICE TO
R2 IS HELD SUFFICIENT)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:10.04.2012 PASSED IN MVC
NO.1692/2010 ON THE FILE OF THE XXII ADDITIONAL SMALL
CAUSES JUDGE AND MEMBER, MACT, BANGALORE, AWARDING
A COMPENSATION OF RS.1,80,000/- WITH INTEREST @ 6%
P.A. FOR RS.1,70,000/- (EXCLUDING FUTURE MEDICAL
EXPENSES OF RS.10,000/-) FROM THE DATE OF PETITION TILL
DEPOSIT.
MFA NO.9971/2012
BETWEEN:
THE ORIENTAL INSURANCE CO.LTD.,
D.O.VII, RMV EXTENSION,
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MFA No. 9984 of 2012
C/W MFA No. 9969 of 2012
MFA No. 9970 of 2012
MFA No. 9971 of 2012
BANGALORE.
THROUGH ITS REGIONAL OFFICE,
LEO SHOPPING COMPLEX,
# 44/45, RESIDENCY ROAD,
BANGALORE - 560 025.
REP. BY ITS MANAGER
SRI. K. GOVINDARAJAN.
...APPELLANT
(BY SRI. SRI. B.C. SEETHARAMA RAO, ADVOCATE)
AND:
1. SRI. GURUDEVAIAH,
AGED ABOUT 50 YEARS,
S/O LATE LAKSHMAIAH,
RESIDENT OF KURUBARAHALLI,
KODIGEHALLI POST,
DODDABALLAPUR TALUK,
BANGALORE RURAL DISTRICT - 561 101.
2. SRI. V.L.M. MURTHY,
S/O VENKATESH,
MAJOR,
R/AT 5TH CROSS,
2ND MAIN, WEAVERS COLONY,
GANGANAGAR,
BANGALORE - 560 032.
(OWNER OF MOTOR CYCLE NO.KA.04/X-3312).
...RESPONDENTS
(BY SRI. SHRIPAD V SHASTRY, ADVOCATE FOR R1;
VIDE ORDER DATED 18.08.2015, NOTICE TO
R2 IS HELD SUFFICIENT)
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MFA No. 9984 of 2012
C/W MFA No. 9969 of 2012
MFA No. 9970 of 2012
MFA No. 9971 of 2012
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:10.04.2012 PASSED IN MVC
NO.5890/2010 ON THE FILE OF THE XXII ADDITIONAL SMALL
CAUSES JUDGE, MEMBER, MACT, COURT OF small cuases,
BANGALORE, AWARDING A COMPENSATION OF RS.25,000/-
WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL
DEPOSIT.
THESE APPEALS, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These four appeals are filed by the claimant and
Insurance Company challenging the judgment and award
passed in MVC No.1691/2010, MVC No.1692/2010 and
MVC No.5890/2010 on the file of Motor Accident Claims
Tribunal and XXII Additional Small Causes Court,
Bangalore, dated 10.04.2012.
2. For the sake of convenience, the parties herein
are referred as per the ranks occupied by them before the
Tribunal.
NC: 2023:KHC:42490
3. The brief factual matrix leading to the case are
that on 11.10.2009, at 2.30 p.m., the claimants were
proceeding on a motor bike bearing registration No.KA-43-
J-2090. Near Gopinath Hills, Nandi Karahalli Raod in
Chikkaballapur Taluk, the rider of a motor cycle bearing
registration No.KA-04-X-3312 came in a high speed and in
a rash and negligent manner and dashed against the bike
on which the claimants were proceeding, due to which
they sustained grievous injuries. Immediately, they were
shifted to Government Hospital, Chikkaballapura and later
on to Padmavathi Hospital and later on to Panacea
Hospital. The claimants assert that they have spent a huge
amount towards medical expenses and due to accidental
injuries, they suffered both physically and mentally.
Hence, claim petitions were filed claiming compensation.
4. In MVC No.1691/2010, a compensation of
Rs.60,000/- was claimed, while in MVC No.1692/2010, a
compensation of Rs.6,00,000/- was claimed and in MVC
No.5890/2010, compensation of Rs.50,000/- was sought.
NC: 2023:KHC:42490
5. Respondent No.1 though served, did not appear
before the Court so as to contest the matter. Respondent
No.2 filed objection statement denying and disputing the
allegations & assertions made in the claim petition.
Respondent No.2 further asserted that offending vehicle
was never involved in the accident and it was planted.
Further, it is asserted that rider was not possessing a valid
and effective driving license and sought for dismissal of
the claim petitions.
6. The Tribunal after appreciating the oral and
documentary evidence, allowed the petitions in part. A
compensation of Rs.25,000/- each was awarded to the
claimants in MVC No.1691/2010 and MVC No.5890/2010,
while a compensation of Rs.1,80,000/- came to be
awarded in MVC No.1692/2010.
7. Being aggrieved by these judgments of allowing
the appeal MFA No.9969/2012, MFA No.9970/2012 and
MFA No.9971/2012 were filed by the Insurance Company
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challenging the liability, while MFA No.9984/2012 is filed
by the claimant in MVC No.1692/2010 for enhancement.
8. Heard the learned counsel appearing for the
Insurance Company as well as learned counsel appearing
for the respondents/claimants. Perused the records.
9. The learned counsel for appellant/Insurance
Company would contend that the evidence clearly
discloses that the accident has occurred on 11.10.2009
and all the injured were taken to Government Hospital in
Chikkaballapur, wherein medico-legal case came to be
registered as per Ex.R1. It is asserted that history given
was the involvement of KA-43-E-1241 & KA-43-J-2090
Hero Honda Splendor Vehicle and PW4, who is the rider of
KA-43-J-2090 and claimant in MVC No.5890/2010, has
suffered simple injuries and he himself drove to the
hospital and obtained treatment and given history. He
would contend that this fact is evident from evidence of
PW4 and the complaint was lodged 10 days later on by
planting the vehicle bearing KA-04-X-3312 in place of
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KA-43-E-1241. He would also contend that, regarding MLC
recorded in the Government Hospital. RW1 was examined
and his evidence is not impeached and the tribunal instead
of considering the evidence of RW1 and history given at an
undisputed time, placed reliance on the charge sheet
material, ignoring the fact that complaint was lodged after
ten days by PW4, who was claimant in MVC No.5891/2010
and this delay is not properly explained. He would also
contend that Insurance Company has also taken a warrant
against the Investigating Officer to examine him, but the
same was not executed and the Tribunal did not take any
further coercive action and Investigating Officer did not
appear before the Court. It is also asserted that no
independent eyewitnesses were examined and the
appreciation of the evidence by the Tribunal by giving
relevance to the charge sheet material rather than the
history recorded at the first instance has resulted in
miscarriage of justice. Hence, he would seek for allowing
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the appeals by dismissing the claim petitions filed by the
claimants.
10. Per contra, the learned counsel for claimant
would contend that the Insurance Company has withheld
the investigation report and hence, adverse inference is
required to be drawn. He would contend that the Tribunal
has appreciated the oral and documentary evidence and
has rightly allowed the petitions. However, he would
contend that the injured-claimant in MVC No.1692/2010
was a minor and he suffered fracture of both bones of his
right leg and he was inpatient for nearly for seven days in
three different hospitals and there is deformity of right leg.
It is asserted that he has suffered from permanent
physical disability to the extent of 36% to the right lower
limb and 18% to the whole body and the compensation
awarded under the various heads is on the lower side and
no compensation was awarded regarding loss of income of
parents during the laid up period. Hence, he would seek
for allowing his appeal in MFA No.9984/2012 by enhancing
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the compensation in MVC No.1692/2010 by dismissing the
other three appeals filed by the Insurance company.
11. Having heard the arguments and perusing the
records, there is no serious dispute of the fact that the
claimants were proceeding on a motor bike bearing No.KA-
43-J-2090 on 11.10.2009, at 2.30 p.m., near Gopinath
Hills, on Nandi Karahalli Road they were hit by other two-
wheeler. It is also not under serious dispute that all three
claimants have suffered injuries and two claimants were
shifted to Government Hospital and later on, PW4, who
was the claimant in MVC No.5890/2010 Gurudevaiaih, who
was riding the two-wheeler himself, drove the two-wheeler
and went to the hospital and obtained treatment. The
records also disclose that he has given history. However,
the Insurance Company specifically asserts based on
records that the vehicle registration No.KA-04-X-3312 was
not involved in the accident, but the vehicle bearing
No.KA-43-E-1241 was involved and subsequently, after
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lapse of ten days, the complaint was lodged by planting a
different two-wheeler.
12. Before considering the liability, will have to
consider the compensation to be awarded to the
claimant/appellant in 1692/2010. The Tribunal has
awarded total compensation of Rs.1,80,000/- to the
claimant injured, who was a minor. The Tribunal has
awarded the compensation under following heads as
under:
Sl.
Particulars Amount
No.
1 Pain and Suffering Rs.30,000/-
2 Medical Expenses Rs.40,000/-
3 Conveyance and Rs.15,000/-
Nourishment
4 Disability Rs.60,000/-
5 Future Medical Expenses Rs.10,000/-
6 Loss of Educational Rs.25,000/-
Prospects and
Enjoyment Of Life
Total Rs.1,80,000/-
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13. The Ex.P.9 discloses that the claimant Yathish
Kumar has suffered fracture of both bones of right leg and
he was complaining pain. There was also a simple injury
noticed in the form of abrasion. Ex.P10 is discharge
summary of the Panacea Hospital, which discloses that he
was admitted on 12.10.2009 and discharged on
13.10.2009. He was admittedly the aged about 14 years.
Ex.P11 is the discharge summary of the Padmavathi
Hospital, which discloses that he was admitted in
Padmavathi Hospital on 13.10.2009, after getting
discharged from Panacea Hospital and he was discharged
from the Padmavathi Hospital on 16.10.2009. The
diagnose was regarding the fracture of both Tibia-Fibula of
upper 1/3rd of right leg. The photographs were also relied
in this regard and considering these aspects, the Tribunal
has awarded a compensation of Rs.30,000/- under the
head of pain and suffering. This accident is pertaining to
the year 2009 and the compensation awarded under the
'head of pain and suffering' to the tune of Rs.30,000/- is a
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reasonable one. Further under the head of loss of
educational prospects, enjoyment of life in the form of loss
of amenities, Rs.25,000/- was also granted, which is also
reasonable one. Under the head of conveyance and
nourishment expenses, Rs.15,000/- and under the head of
medical expenses, Rs.40,000/- was awarded based on
records. Under the head of future medical expenses
Rs.10,000/- was granted, which also does not call for any
interference.
14. The Tribunal has not granted any compensation
under the head of loss of earning of guardians during the
laid up period. The records disclose that the claimant was
admitted in the hospital for seven days. However, due to
these injuries, he might have been prevented from
attending his normal duties for atleast two months and
hence, the claimants would be entitled for Rs.10,000/-,
under the head of loss of income of guardians, during the
laid up period. Towards disability Global compensation of
Rs.60,000/- was awarded which does not call for any
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interference. Hence, claimant would be entitled for total
compensation under the various heads as under:
Sl.
Particulars Amount
No.
1 Pain and Suffering Rs.30,000/-
2 Medical Expenses Rs.40,000/-
3 Conveyance and Rs.15,000/-
Nourishment Expenses
4 Disability Rs.60,000/-
5 Future Medical Expenses Rs.10,000/-
6 loss of educational Rs.25,000/-
prospects and Enjoyment of
life in the form of amenities
7 Loss of Income of Guardians Rs.10,000/-
during ladder period
Total Rs.1,90,000/-
Award of Tribunal Rs.1,80,000/-
Enhanced compensation Rs.10,000/-
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15. Hence, the claimant is entitled for total
compensation of Rs.1,90,000/- as against Rs.1,80,000/-
awarded by the Tribunal.
16. However, the insurance company has disputed
its liability in all the 3 claim petitions. It is an undisputed
fact that the claimant Sri. Gurudevaiah in
MVC.No.5890/2010 was riding the two-wheeler. He was
awarded Rs.25,000/- as a global compensation pertaining
to simple injuries suffered by him in MVC.No.5890/2010
which was challenged by the Insurance company in MFA
No.9971/2012. Further his wife i.e., Smt.Umadevi has
filed claim petition in MVC.No.1691/2010 and she was also
awarded a global compensation of Rs.25,000/- for simple
injuries sustained by her. This award was challenged by
the Insurance company in MFA No.9969/2012. The award
granted in favour of the minor Yathish Kumar, who was
claimant in MVC.No.1691/2010 challenged by the
Insurance company in MFA No.9970 /2012.
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17. Admittedly, Gurudevaiah was riding the Motor
Cycle, and the Tribunal has fastened the liability on the
Insurance company holding that the involvement of the
vehicle bearing No.KA-04-X-3312 on respondent No.1-
Insurance company.
18. The learned counsel for appellants Insurance
company, in this regard, invited the attention of the Court
to the evidence of PW.4 and Ex.R1. Ex.R1 is the MLC
extract pertaining to this accident maintained by District
Hospital, Chikkaballapura. This document is not
challenged and on perusing this document, it is evident
that history was recorded and the name of all the
claimants find a place in the MLC register. The name of
Yathish Kumar is shown at Sl.No.1, while Gurudevaiah
shown at Sl.No.2 and Umadevi is shown to be at Sl.No.3.
The history given was RTA near Nandi Temple around
2:15.p.m, on 11.10.2009, involving Splendor two wheeler
vehicle bearing Reg.No.KA-43-E-1241 and Splendor
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Vehicle bearing Reg.No.KA-43-J-2090. This history was
recorded at an undisputed time. Immediately after the
accident both the vehicles numbers were specifically
referred asserting both were Splendor Vehicles.
19. PW.4-Gurudevaiah is the complainant in the
instant case and he was the rider of Splendor Vehicle
bearing Reg.No.KA-43-J-2090, on which, the other 2
claimants were also travelling. In his examination-in-
chief, he has deposed regarding involvement of vehicle
bearing Reg.No.KA-04-X-3312 in the accident.
Admittedly, the said vehicle is a Yamaha two wheeler
vehicle and in his evidence it is specifically stated that it is
a Yamaha vehicle but history given in Ex.R1 is
involvement of 2 Splendor Vehicles with specific
registration numbers.
20. His cross-examination reveals that his wife Uma
Bai, who is the claimant in MVC.No.1691 and Yathish
Kumar claimant in MVC.No.1692, who was travelling
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along with him as a pillion rider, immediately shifted in a
auto to Government Hospital to Chikkaballpur and later
on, he visited the said hospital on his own vehicle with the
assistance of local public. This assertion on the part of
this witness, clearly disclose that he himself driven the
vehicle and went to Government Hospital, Chikkabalapur.
His further admission discloses that he has sustained
simple abrasion. He further admitted in his cross-
examination that he had informed about the incident to
the doctor and same was recorded by the doctor in Ex.R1.
He further admits that he has studied up to SSLC and was
admitted as inpatient in Government Hospital for 2 days,
but to substantiate this, he has not produced any
documents regarding his admission. Even he has not
produced to show that he was possessing Driving License
and though he asserts that he lost Driving License in 2008,
nothing preventing him from obtaining a duplicate copy
and produce the same. He admits that, he lodged a
complaint as per Ex.P2 subsequently.
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21. The evidence of PW.4 clearly discloses that he
suffered simple injuries. His wife is examined as PW.1,
who is also one of the claimant, but she pleads her
ignorance regarding her husband by filing a claim petition.
Interestingly, all the claim petitions were clubbed and
common evidence was recorded. In her cross-
examination, she has specifically admitted that her
husband Gurudevaiah has suffered only simple injuries
and he had no impediment for walking and she also admit
that in Ex.P6., the injuries were shown to be simple.
Hence, it is evident that PW.4 has suffered simple injuries.
He admits of giving history of involvement of two Splendor
Vehicles and especially with reference No.KA-43-E-1241.
If this version is taken into consideration, then the District
Hospital should have issued a MLC intimation to the
concerned police station, but that intimation was not
produced.
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22. When Gurudevaiah i.e., PW.4 has suffered
simple injuries and when the history was already recorded
in MLC register as per Ex.R.1, the complaint should have
been lodged immediately and the crime should have been
registered on the same day. Interestingly, the
complainant was filed by the Gurrudevaiah after the ten
days when he has suffered simple injuries. There is no
explanation on his part for lodging the complaint after the
delay of ten days. Hence, it is evident that the all is not
well, in the instant case and though in Ex.R1, the vehicle
bearing Reg.No.KA-43-E-1241 was referred but while
lodging the complaint as per Ex.P2, the vehicle bearing
Reg.No.KA-04-X-3312 was planted. Further the delay in
filing the complaint was not considered by the
Investigating Officer and when in Ex.R1, the involvement
of vehicle bearing Reg.No.KA-43-E-1241 is recorded, how
in Ex.P6, the involvement of vehicle bearing Reg.No.KA-
04-X-3312 was referred is not at all explained. This Ex.P6
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is required to be issued on the basis of MLC extract and
the MLC extract Ex.R1 speaks a different story.
23. Apart from that to prove Ex.R1, the doctor was
examined as RW.1 on behalf of Insurance company. He
has specifically deposed that on 11.10.2009 at 3:15.p.m.,
three injured persons were treated by him and he further
deposed that as per the information provided by the
injured, the history was recorded as per Ex.R.1(a) and (b)
in Ex.R1. Interestingly, the cross-examination discloses
that a simple suggestion was made that by mistake, the
Vehicle number was wrongly quoted. Interestingly, Ex.P6
was not confronted to this witness and that itself discloses
that in Ex.P6 history was concocted which runs against
Ex.R1. Apart from that the Insurance company not only
examined the Medical Officer, who has recorded the
history under Ex.R1 has also attempted to examine the
Investigating Officer by summoning him. All the efforts
were made by taking warrant against the Investigating
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Officer who has submitted the charge sheet but the
warrant was not executed and Investigation Officer did not
appear before the Court to give evidence to substantiate
the investigation done by him. Further, the Tribunal
should have taken coercive steps to secure the presence of
the Investigating Officer, in this regard, to go to the root
of the issue, but the Tribunal has not taken any pain in
this regard. When Ex.R1, which is the main document
based on which Ex.P.6 was issued, gives a different story,
Ex.P3/charge sheet cannot be looked into.
24. The Tribunal instead of giving importance to the
evidence of RW.1, a doctor, who has deposed pertaining to
entries in Ex.R1 and Ex.R.1(a) and (b), it has given
importance to the charge sheet without considering the
delay and without appreciating the evidence of RW.1 and
PW.4 in this regard. The Tribunal in a mechanical way has
observed that in view of submission of the charge sheet
the involvement of Vehicle bearing Reg.No.KA-04-X-3312
in the accident is established and no reasons were given
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for discarding the evidence of Medical Officer RW.1 as well
as Ex.R1. The history in Ex.R1 was recorded at an
undisputed time and subsequently, complaint came to be
lodged after ten days.
25. The evidence on record clearly disclose that
even rider Guruvaiah did not possess Driving License and
he is now giving a lame reason that the DL was lost. It
was even a triple riding and it is evident that the vehicle
was not having insurance also. Hence, it is evident from
the records that the vehicle bearing Reg.No.KA-04-X-3312
was subsequently planted and because the owner has not
challenged, it is evident that owner has colluded with the
claimants and without his consent, it is not possible. As
such, considering the planting of the vehicle, the
Insurance company cannot be held liable to pay the
compensation and the compensation is required to be paid
by respondent No.1, who did not even appear before the
Court to dispute the accident and his silence clearly
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discloses that he was part of this conspiracy to get
involved his vehicle. As such, the appeals filed by the
Insurance company in MFA.No.9969/2-12, 9970/2012,
9971/2012 needs to be allowed, so-far-as relates to
liability is concerned. At the same time in MFA
No.9984/2012 is also required to be allowed, so far its
relates to the quantum of the compensation, but liability
required to be fastened on the owner.
26. Further the Division Bench of this Court in the
case of Veerappa and another Vs. Siddappa and
another reported in ILR 2009 KAR 3562 has held that
in order to curb the practice of planting the vehicle and
fraud, it is necessary to fix the liability on the owner, who
is a consenting party for such fraud and as such, the
liability is required to be fastened on respondent No.1. In
view of these facts and circumstances, all the appeals
need to be allowed in part and accordingly, I proceed to
pass the following order.
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ORDER
i. In MFA.No.9969/2012, 9970/2012,
9971/2012 and MFA.No.9984/2012 are
allowed in part.
ii. The liability fastened by the Tribunal in
MVC.No.1691/2010, 1692/2010 and
5890/2010 on respondent No.1 is set aside
and the liability stands fastened on
respondent No.2/owner of the vehicle
bearing Reg.No.KA-04-X-3312.
iii. The claim petitions as against the
respondent No.1, Insurance company stand
dismissed.
iv. MFA.No.9984/2012 is also allowed in part
and claimant is held entitled for total
compensation of Rs.1,90,000/- as against
Rs.1,80,000/- awarded by the Tribunal with
the interest at rate of 6%p.m., as against
respondent No.2/owner. The appeal as
against respondent No.1, the insurer
stands dismissed.
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v. The amount deposited by the Insurance
company in MFA.No.9969/2012, 9970/2012
and 9971/2012 shall be refunded to the
Insurance company.
Sd/-
JUDGE
DS,PHM
CT:SNN
