Karnataka High Court
Smt. Yasmeen W/O Yunus And Ors vs Sri. Ateeque Miyan And Ors on 24 November, 2023
Author: R.Devdas
Bench: R.Devdas
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MFA No. 202214 of 2018
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 24TH DAY OF NOVEMBER, 2023
PRESENT
THE HON'BLE MR. JUSTICE R.DEVDAS
AND
THE HON'BLE MR. JUSTICE C M JOSHI
MISCL. FIRST APPEAL NO. 202214 OF 2018 (MV-D)
BETWEEN:
1. YASMEEN
W/O YUNUS @ YUNUS PASHA MULLA,
AGED ABOUT 28 YEARS, OCC: HHWORK
2. MUJAHID,
S/O YUNUS @YUNUS PASHA MULLA,
AGED ABOUT 9 YEARS, OCC: STUDENT
3. MIZABA,
D/O YUNUS @ YUNUS PASHA MULLA,
AGED ABOUT 7 YEARS, OCC: STUDENT
Digitally signed by
SOMANATH 4. AIYAN,
PENTAPPA MITTE
Location: HIGH
S/O YUNUS @ YUNUS PASHA MULLA,
COURT OF AGED ABOUT 4 YEARS, OCC: NIL
KARNATAKA
APPELLANT NO.2, 3 AND 4 SINCE MINORS
ARE REP.BY THEIR NATURAL MOTHER
APPELLANT NO.1
5. MAHABOOBI,
W/O SHAMSUDDIN @ SHARMODDIN MULLA,
AGED ABOUT 59 YEARS, OCC: HHWORK
ALL ARE R/O MADINA NAGAR,
SINDAGI, DIST: VIJAYAPURA.
...APPELLANTS
(BY SRI. S.S. JALAKI & ANNARAYA M. PATIL, ADVOCATES)
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MFA No. 202214 of 2018
AND:
1. ATEEQUE MIYAN,
S/O ALLAUDDIN PATEL,
AGED ABOUT 50 YEARS,
OCC: BUSINESS & OWNER OF
CRUISER JEEP NO.KA-28/M-3412
R/O FIROZABAD,
TQ & DIST: KALABURAGI-585308.
2. THE NATIONAL INSURANCE CO. LTD.,
POLICY ISSUING OFFICE,
FIRST FLOOR, DR.JAWALI COMPLEX,
SUPER MARKET, KALABURAGI-585102.
POLICY NO.61041/31/16/67000000792
VALID FROM: 03.06.2016 TO 02.06.2017.
(SUMMONS SERVED THROUGH)
THE BRANCH MANAGER,
NATIONAL INSURANCE CO. LTD.,
HERALAGI BUILDING,
BEHIND SIDDESHWAR TEMPLE,
VIJAYAPURA-586101.
...RESPONDENTS
(BY SRI. LIYAQAT PAREED USTAD, ADVOCATE FOR R1;
SRI. MANVENDRA REDDY, ADVOCATE FOR R2)
THIS MFA IS FILED U/S. 173(1) OF MV ACT, PRAYING TO
SET ASIDE THE JUDGMENT AND AWARD DATED 10.09.2018
PASSED BY THE MACT, IV & III ADDL. DISTRICT JUDGE,
VIJAYAPURA, IN M.V.C.NO.1659/2016 AND ALLOW THE CLAIM
PETITION BY AWARDING THE COMPENSATION AS PRAYED
FOR, IN THE ORIGINAL PETITION IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR EARLY HEARING, THIS
DAY, C.M.JOSHI, J., DELIVERED THE FOLLOWING:
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MFA No. 202214 of 2018
JUDGMENT
Being aggrieved by the dismissal of MVC
No.1659/2016 by Judgment and award dated 10.09.2018
by MACT Vijayapura, the petitioners are before this Court
in appeal.
2. The petitioners contended that on 28.08.2016
at about 5.00 p.m. near Nandikur Tanda, on Kalaburagi-
Sindagi Road, when the deceased was riding his
motorcycle from Kalaburagi towards Sindagi, the driver of
the Jeep bearing No.KA-28/M-3412 drove the same from
Sindagi towards Kalaburagi in rash and negligent manner
and collided with the motorcycle of the deceased. Initially
the deceased was shifted to Government Hospital,
Kalaburagi and thereafter to Sathya Pioneer Hospital,
Kalaburagi and thereafter to United Hospital, Kalaburagi
and lastly to Gangammai Hospital, Solapur, where he
succumbed to the injuries on 30.08.2016. It was
contended that the deceased Yunis Pasha was aged 32
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years and was working as a mechanic earning Rs.15,000/-
per month. It was alleged that the accident was due to
the negligence of the driver of the Jeep. The petitioner
No.1 happens to be the wife of the deceased and the
petitioner No.2, 3 and 4 happened to be sons and
daughter of the deceased and the petitioner No.5 happens
to be the mother of the deceased. It was contended that
the respondent No.1 is the owner and the respondent No.2
is the insurer of the said Jeep.
3. On issuance of notice by the Tribunal, the
respondent No.1 and 2 have appeared through their
counsel and filed their written statements. The respondent
No.1 contended that the accident was due to the
negligence on the part of the rider of the motorcycle i.e.
the deceased and the jeep has been falsely implicated. It
was contended that the deceased was not having a valid
driving licence and the owner and insurer of the
motorcycle are also necessary parties. Inter-alia he denied
the age, income and occupation of the deceased and
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termed the compensation claimed as highly exorbitant and
imaginary. He further contended that he was having a
valid driving licence at the time of the accident and he is
owner of the cruiser jeep and it was insured with the
respondent No.2 as on the date of the accident and
therefore, if at all any claim is there, the same has to be
answered by respondent No.2.
4. The respondent No.2-National Insurance
Company contended that the alleged accident occurred on
account of the contributory negligence of the deceased
since he was riding the motorcycle in high speed on the
middle of the road. Therefore it was contended that the
driver of the insured jeep alone was negligent is totally
false and the hand sketch prepared by the police indicates
that the alleged accident occurred on the middle of the
road. It was contended that the deceased was riding the
said motorcycle without holding a valid driving licence and
therefore adverse inference has to be drawn. It was
contended that the petition is liable to be dismissed
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against the respondent No.2 since there was a violation of
terms and conditions of the policy. It also disputed the
age, income and occupation of the deceased and termed
the compensation as highly exorbitant and imaginary.
Inter-alia it also contended that there was a delay in filing
the FIR and therefore the petition is liable to be dismissed.
5. On the basis of the above pleadings, the
Tribunal framed the following issues:
1. Whether the petitioners prove that on
28.08.2016 at about 5:00 p.m. on NH-
218 road, near Nandikur Tanda, when
the deceased Yunus @ Yunushpasha
was riding the motorcycle bearing
No.KA-35/J-5608 towards Sindagi side,
the driver of Tempo Trax Jeep bearing
No.KA-28/M-3412 drove the same in a
rash and negligent manner from
opposite direction and dashed against
the said motorcycle and in the said
accident the said Yunus @ Yunuspasha
had sustained fatal injuries and
succumbed to the injuries as alleged?
2. Whether the respondent No.2 prove
that, the deceased Yunus @
Yunuspasha was riding the motorcycle
without holding driving licence as
alleged?
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3. Whether the petitioners are entitled for
compensation? If so, what is the
quantum and from whom?
4. What order or award?
6. The petitioner No.1 was examined as PW1 and
Ex.P1 to Ex.P13 were marked in evidence. Two witnesses
were examined as PW2 and PW3. The insurance company
did not adduce any ocular evidence but the copy of the
insurance policy and the spot mahazar were marked as
Ex.R1 and Ex.R2.
7. After hearing the arguments by both the sides,
the Tribunal answered the issue No.1 and 2 in the
negative and dismissed the petition. Being aggrieved by
the dismissal of the claim petition, the petitioners are
before this Court in appeal.
8. On issuance of notice, the respondent No.1 and
2 have appeared through their counsels. The Trial Court
records have been secured. The arguments by learned
counsel for the appellants and learned counsel appearing
for respondents were heard.
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9. The learned counsel appearing for the
appellants submitted that the Tribunal failed to see that on
28.08.2016 at 5.00 p.m. the accident had occurred
involving the jeep bearing No.KA-28/M-3412 and it had
collided with motorcycle ridden by the deceased. It is
contended that the jurisdictional police have taken the
statement of the petitioner No.1 on the same day at about
10.30 p.m. as per Ex.P2 and FIR is registered at 0030
hours. Thereafter, a spot mahazar was conducted on
29.08.2016 as per Ex.P3 and seized both the offending
vehicles which were on the spot. After completion of the
investigation, a charge sheet was filed against the
respondent No.1. It was contended that without
considering the Ex.P1, to Ex.P4 which corroborates each
other in respect of the involvement of the jeep, the MACT
has dismissed the petition. He submitted that the Tribunal
erred in relying on the death summary issued by
Gangamai Hospital, Solapur, where the deceased was
declared dead where it had wrongly recorded about the
accident that the motorcycle of the deceased Yunis Pasha
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was hit by another motorcycle. It is contended that the
other police papers and the investigation conducted by the
police is categorically implicated the vehicle owned by
respondent No.1 and insured by respondent No.2. He
contended that the recordings of Gangamai Hospital,
Solapur was obviously on 30.08.2016. He also contended
that the Tribunal erred in rejecting the evidence of PW2
and PW3 who were eye witnesses of the accident. He
further contended that the Tribunal committed grave error
in coming to the conclusion that the Cruiser Jeep was not
involved in the accident, even though the insurance
company had not disputed the involvement of the said
vehicle in the accident. It is pointed out that the
respondent Nos.1 and 2 never denied the accident in their
written statements but it was only contended that there
was contributory negligence on the part of the deceased
Yunis Pasha. Therefore, the learned counsel for the
appellants contended that the impugned judgment of the
Tribunal is without proper appraisal of the evidence on
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record and as such the same is liable to be set aside and
prayed that adequate compensation be awarded to him.
10. Per contra, the learned counsel appearing for
the respondents submitted that the involvement of the
vehicle is in doubt. He points out that though PW2 and
PW3 were examined by the petitioners, in the cross
examination they have stated that they are the eye
witnesses to the accident but they had reached the spot
much later to the accident. It is pointed out that the
accident was never seen by PW1 or the brother of the
deceased who had informed the PW1 about the accident.
It is contended that death summary issued by Gangammai
Hospital categorically mentioned that the accident
occurred due to the collision by another motorcycle. None
of the other hospital records show that there was
involvement of the jeep owned by the respondent No.1
and therefore the order passed by the Tribunal cannot be
faulted with. Therefore they had defended the impugned
judgment of the Tribunal.
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11. After hearing the arguments by both the sides,
the points that arise for our consideration are :
i) Whether the petitioners have
established that the accident occurred
due to the involvement of the jeep
owned by the respondent No.1?
ii) Whether the impugned passed by
the Tribunal is perverse and
arbitrary?
12. Reg. Point Nos.1 and 2: The contention of
the petitioners is that the deceased had been to
Kalaburagi and he was returning to Vijayapura on his
motorcycle. They contend that at about 5.00 p.m. near
Nandikur bus stop, the Cruiser jeep owned by respondent
No.1 came from opposite direction and dashed to the two-
wheeler of the deceased. The petitioners rely on the
evidence of PW2 and PW3 in order to prove the accident
apart from the police papers.
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13. A perusal of the evidence of the PW2 discloses
that he was traveling in a jeep towards Sindagi and he was
behind the motorcycle of the deceased. He states in his
affidavit evidence that the cruiser jeep of the respondent
No.1 came from the opposite direction and he was
overtaking another vehicle and came on the left side of the
road and dashed against the motorcycle of the deceased.
He states that many people gathered at the spot and
somebody had informed the relative of the deceased and
in the meanwhile the brother of the deceased came to the
spot. In the cross examination he states that he had left
Kalaburagi at 4.30 p.m. He states that the spot is about
7-8 kilometers from Kalaburagi and after the accident the
driver of the jeep was not found at the spot. It is elicited
that when he reached the spot, it was about 20 minutes
after the accident. He states that he was not present at
the spot till the police came there and he had not given
any statement to the police. He admits that he was
brought to the Court by the PW1 to depose in the case.
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14. The PW2-Ganesh states that he was returning
on his motorcycle and the deceased was driving his
motorcycle in his front and he was on the left side. The
cruiser came from opposite direction and while overtaking
another vehicle, he came on a wrong side of the road and
dashed against the motorcycle of the deceased. In the
cross examination it is elicited that the counsel appearing
for the petitioners had brought him to the Court. He
states that he had not stated about the accident before
anybody and he had not given any statement to the
police. He is unable to state which portion of the jeep had
collided with the motorcycle of the deceased.
15. Coming to the police papers, the Ex.P1- the FIR
and the complaint at Ex.P2 show that the PW1 had given
the statement to the police while she was at Govt.
Hospital, Kalaburagi. Obviously the said statement was
recorded by one of the police constable of Farathabad
Police Station. The endorsement by the police shows that
on 28.08.2016 at 8.45 p.m. the SHO Brahmapur Police
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Station informed that it had received a MLC intimation of a
road traffic accident and therefore he went to the
Government Hospital, Kalaburagi and recorded the
statement of the petitioner No.1. He returned to the
police station at 12.30 a.m. on 29.08.2016, he registered
the case in Crime No.124/2016.
16. PW1 had stated before the police that some
unknown person had informed the brother(Siraj) of the
deceased about the accident and the said Siraj had
informed her about the accident. The complaint also
mentioned that she had visited the spot with her friends
and found the motorcycle of her husband as well as the
jeep was at the spot. It is also relevant to note that the
FIR at Ex.P1 does not contain information as to when it
was received by the concerned magistrate.
17. Ex.P3 is the spot mahazar and it shows that the
accident had occurred almost at the centre of the road in
front of Nandikur bus stop. Obviously the motorcycle was
not on the wrong side but it appears that the cruiser
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vehicle jeep was on the wrong side. The Ex.P4 is the MLC
intimation issued by Satya Pioneer Hospital, wherein it was
stated that the accident occurred due to RTA near
Nandikur Tanda at about 5.30 p.m. on 28.08.2016.
Obviously this MLC report does not mention the
description of the vehicle involved in the accident.
18. Ex.P5 happens to be the death summary issued
by the Gangammai Hospital, Solapur. In this document it
is stated that while the patient was going on Gulbarga on
motorcycle near the Central Jail, Gulbarga, unknown
motorcycle dashed to the patient's motorcycle and the
patient got injured and he was given first aid at United
Hospital, Gulbarga and for further treatment he was
shifted to Gangammai Hospital, Solapur.
19. The MVI report produced at Ex.P8 shows that
the Tempo Trax Toofan vehicle bearing No.KA 28/M-3412
had damages on the right headlight and indicator, front
bumper right side and front right wheel mudguard. The
vehicles were inspected on 30.08.2016. The charge sheet
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produced at Ex.P9 shows that none of the eye witnesses,
including PW2 and PW3, examined by the petitioners. It is
not known on what basis the investigating officer had
come to the conclusion that the negligence was on the
part of the driver of the jeep.
20. The above evidence shows that there are
several lacunae in the case of the petitioners.
(a) Firstly though PW1 had given a statement
before the police at about 10.30 p.m., none of the
documents produced by the petitioners show that the
deceased was taken to the Government Hospital,
Kalaburagi at the first instance. There is absolutely no
material on record to show that the deceased was taken to
Govt Hospital, Kalaburagi for treatment.
(b) Secondly the MLC intimation issued by Satya
Pioneer Hospital is produced at Ex.P4 and it shows that it
was received by Station Bazar Police Station on
29.08.2016 at 8.25 a.m. It is not the source of information
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to the police, since the FIR says that intimation was
received by Brahmapur PS.
(c) Thereafter, as contended by petitioners, the
deceased was taken to United Hospital, Kalaburagi.
Except the bill produced at serial No.1 of Ex.P11 and few
other bills, no other document is available to show that the
deceased was treated at United Hospital, Kalaburagi.
(d) It is also pertinent to note that the death
summary was issued by Gangammai Hospital, Solapur and
it shows that the accident occurred at 5.30 p.m. at
Gulbarga near Central Jail and the accident was due to hit
by a unknown motorcycle to the deceased. The PM report
produced by the petitioners at Ex.P7 is issued by the
Medical Officer at V.M.Govt. Hospital, Solapur. The PM
report shows that the accident had occurred on
28.08.2016 at 5.30 p.m. and there was treatment at
United Hospital, Gulbarga and then he was shifted to
Gangammai Hospital, Solapur. There is no reference to
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the treatment taken by the deceased at Govt. Hospital or
Satya Pioneer Hospital.
(e) Another aspect to be noted is that the PW2 and
PW3, though claim to be the eye witnesses to the
accident, they have not given any statement before the
investigating officer and the charge sheet never mentioned
that there were any eye witnesses to the accident. PW2
though states that he was eye witnesses to the accident
and narrates the accident as if he had seen it, in the cross
examination states that he reached the spot after about
20 minutes of the accident.
(f) The vehicles were examined by the Motor
Vehicle Inspector on 30.08.2016. If the vehicle was found
at the spot itself at the time of the accident, there is no
reason as to why the IMV report was conducted on
30.08.2016 after delay of 2 days. The spot mahazar at
Ex.P3 show that it was conducted between 8.00 a.m. to
9.00 a.m. The said spot was shown by Siraj, the brother
of the deceased. It is evident that the said Siraj has not
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been examined by the petitioners before the Tribunal. He
was the first person who reached the spot after the
accident. It is not known from whom the said Siraj had
come to know about the accident involving the said jeep.
(g) Therefore, these discrepancies in the evidence
raise a doubt about the involvement of the vehicle. It is
pertinent to note that none of the records of the Hospital
at Kalaburagi are produced by the petitioners. Nothing
prevented the petitioners to summon or produce the
Hospital records. The only hospital record is that of
Gangammai Hospital, Solapur. Obviously the death
summary issued by Gangammai Hospital shows that the
accident had occurred at Kalaburagi near the Central Jail.
21. On a careful perusal of the evidence on record,
we are unable to agree with the contention of the learned
counsel appearing for the appellants. The Tribunal has
considered these aspects and has rightly come to the
conclusion that the involvement of the vehicle belonging to
the respondent No.1 and insured by respondent No.2 is
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not established. The Tribunal has relied on the decision in
the case of NWKRTC V/s Gourabai and others1,
rendered by the Apex Court, wherein the claim petition
came to be dismissed on account of a mention in the
Hospital records that the injury sustained was due to fall
from 8-10 feet height in the house. It also relied on
several decisions in this regard where it was concluded
that fraud was played in order to make unlawful gain.
When acceptable evidence is not available on record, an
admission by the respondent No.1 that there was an
accident cannot be a ground to hold that the petitioners
are entitled for the compensation from the owner and
insurer of the vehicle.
22. The learned counsel appearing for the
petitioners/appellants has relied on several decisions
which are on the question of quantum. Obviously these
decisions are not relevant. Under these circumstances, we
concur with the conclusions reached by the Tribunal, which
(2009) 15 SCC 165
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had noted these discrepancies and held that the alleged
accident is not believable. Hence, no fault can be found
with the judgment rendered by the Tribunal. Therefore,
the points raised above are answered in the negative.
Hence, the following:
ORDER
The appeal is dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
SMP
