Karnataka High Court

Mahadevappa vs Mallikarjuna M on 29 February, 2024

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MFA No. 2149 of 2019

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 29TH DAY OF FEBRUARY, 2024

BEFORE

THE HON'BLE MR. JUSTICE T.G.SHIVASHANKARE GOWDA

MFA NO.2149 OF 2019 (MV-I)

BETWEEN:

1. MAHADEVAPPA
S/O LATE CHANNAMALLAPPA
AGED ABOUT 62 YEARS

2. A.M.MANJU
S/O MAHADEVAPPA
AGED ABOUT 36 YEARS

BOTH ARE R/AT AKKAMMANA
KOPPALU VILLAGE, MALAVALLI TALUK
MANDYA DIST - 570 021

3. PUSHPA
Digitally signed by MALA W/O PARAMESH, D/O MAHADEVAPPA
KN
AGED ABOUT 32 YEARS, HULLEGALA
Location: HIGH COURT
OF KARNATAKA VILLAGE, MALAVALLI TALUK
MANDYA DIST - 560 021 ... APPELLANTS

(BY SRI.M.Y.SREENIVASAN, ADV.)

AND:

1. MALLIKARJUNA M.
S/O MAHADEVAPPA

2. MADALAMBIKE
W/O MALLIKARJUNA M.

RESPONDENT NOS.1 & 2 ARE R/AT NO.163
VENKATASWAMY REDDY BUILDING
GROUND FLOOR, 8TH CROSS
BENGALURU - 560 021

3. THE BRANCH MANAGER
BAJAJ ALIANZ GENERAL INSURANCE
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MFA No. 2149 of 2019

CO. LTD. NO.363, SRIHARI COMPLEX
SEETHAVILAS ROAD, MYSURU - 570 007
... RESPONDENTS

(BY SRI.B.PRADEEP, ADV. FOR R3;
R1 AND R3 ARE SERVED BUT UNREPRESENTED)

THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 05.12.2018,
PASSED IN MVC NO.659/2017, ON THE FILE OF THE SENIOR
CIVIL JUDGE AND MACT, MALAVALLI DISMISSING THE CLAIM
PETITION FOR COMPENSATION.

THIS MFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 12.01.2024 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:

JUDGMENT

In this appeal, the petitioners have challenged

the judgment and award dated 05.12.2018 in

M.V.C.No.659/2017 passed by the Senior Civil Judge

and M.A.C.T., Malavalli ('the Tribunal' for short).

2. For the sake of convenience, the parties

shall be referred to as per their status before the

Tribunal.

3. Brief facts of the case are, on 19.03.2017 at

about 11:30 pm, the wife of 1st petitioner, mother of

petitioners No.2, 3 and respondent No.1, by name

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Guruthayamma, the deceased, was standing in front

of her house at Akkammanakoppalu Village of

Malavalli Taluk waiting for the procession of God

Basaveshwara in the street. At that time,

respondent No.1 drove the Maruti Swift Car bearing

Reg.No.KA-51/C-8672 in front of the house on the

reverse direction and dashed against the deceased.

As a result, she fell down and the car ran over her

hip and leg. She was treated at Government

Hospital, Malavalli, during transit to General

Hospital, Mandya, she succumbed to death.

Contending that she was aged 55 years, doing

agriculture and milk vending, earning Rs.20,000/-

per month, the petitioners being the dependants,

approached the Tribunal for grant of compensation

of Rs.30,00,000/-. Claim was opposed by the

Insurance Company of the car denying the very

accident, alleging the fraud. The Tribunal has

framed the following issues:

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1) Whether the petitioners prove that, the accident was solely due to rash and negligent driving of driver of offending vehicle?

2) Whether the petitioners prove that, due to impact deceased succumbed to injuries as alleged?

3) Whether the petitioners are entitle for compensation ? If so, to what extent and from whom?

4) What order or Award?

4. The Tribunal after holding enquiry, by

impugned judgment, dismissed the claim petition.

Aggrieved by the same, the petitioners have filed

this appeal on various grounds.

5. Heard the arguments of

Sri. M.Y. Sreenivasan, learned counsel for the

petitioners and Sri. B. Pradeep, learned counsel for

the Insurance Company.

6. It is the contention of learned counsel for the

petitioners that the accident is genuine, no fraud is

played; the allegation that the son of the deceased

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himself drove the car in reverse direction and hit

against the deceased; immediately, the deceased

was taken to the hospital, the complaint was also

filed to the Police without any delay; respondent

No.1 was prosecuted by the Police and after

investigation, he has been charge sheeted in

C.C.No.95/2017; the deceased was subjected to

post-mortem, cause of death has been established

by producing autopsy report; in spite of it, the

Tribunal doubted the veracity of the accident and

dismissed the claim petition. It is further contended

that the Tribunal did not assess the compensation

and he sought for interference.

7. Per contra, learned counsel for the Insurance

Company has contended that the deceased has fell

down in the village on her own; car was not involved

in the accident; there was a deity procession going

on in the village at 11:30 pm, during that time,

traffic of the village was jammed and there is no

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scope for moving vehicle. Due to the self-fall, she

was taken to the Government Hospital, Malavalli,

where history was furnished that she fell down and

sustained the injuries. On the next day of incident,

the vehicle as well as the complaint was invented

and an accident case is tailored for the sake of

compensation. On behalf of the Insurance

Company, the Medical Officer who recorded the

M.L.C. has stated before the Tribunal that the history

furnished was self-fall and there is no report of

accident. The Tribunal has correctly appreciated the

evidence placed by both the parties and rightly

recorded its finding that the deceased had sustained

injuries due to fall, taking advantage of her death,

complaint has been invented, implanting the car

belonging to the family. It is further contended that

respondent No.1 being the driver, respondent No.2

being the owner, were none other than son and

daughter-in-law being made as respondents, who did

not file their written statements, contesting their

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claim; PW-1 is not an eye witness to the accident,

without filing any proof, the petitioners asking for

compensation is unsustainable and he supported the

impugned judgment.

8. I have given my anxious consideration to the

arguments addressed on both sides and also perused

the materials on record.

9. The relationship between the petitioners,

respondents No.1 and 2 with the deceased is not in

disputed. Daughter-in-law is the owner, son is the

driver of the car, husband and 2 other children are

the claimants before the Tribunal. The Trial Court

records are made available before this Court. In

spite of driver and owner of the car are represented

through their Advocates, they did not file their

written statements. They have also not entered the

witness box, nor adduced any evidence. The

Insurance Company alone filed its written statement.

The evidence on behalf of the petitioner is the

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testimony of petitioner No.2 as PW-1 and Exs.P1 to

P8; among them, Exs.P1 to P7 are the Police

investigation papers, such as F.I.R., spot mahazar,

spot sketch, I.M.V. report, inquest report, post-

mortem report and charge sheet. No eye witnesses

are examined before the Court.

10. The testimony of petitioner No.2 before the

Tribunal did point out that he was not an eye witness

to the accident. When he came back, he had seen

his mother was fallen. When he did not see the

accident, his assertion that he was an eye witness to

the accident cannot be relied upon. He was not

aware that which portion of the car had hit against

his mother and also which portion of the car was

damaged. This demonstrates that PW-1 is not an

eye witness to the accident. Apart from his

testimony, there is no evidence which explains the

accident in question. Ex.P6/post-mortem report

did point out that "the cause of death of the

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deceased was due to Hemorrhagic shock as a result

of great vessel injury". The person who conducted

the autopsy is not examined before the Tribunal to

explain whether such injury sustained by the

deceased was on account of accident?

11. The contention of Insurance Company that

the deceased though sustained injuries, it was not

due to the involvement of the car in question. The

deceased being an aged lady, might have fallen in

the village and immediately taken to the

Government Hospital, she was treated and

unfortunately, succumbed to death.

12. RW-1 Dr. Prashanth Kumar. K.V, who was

on duty, examined the deceased at 00:45 am on

20.03.2017 at Government Hospital, Malavalli. She

was accompanied by respondent No.1, she was

conscious and she had informed him that she

sustained injuries due to fall. For the reason of

injury to her thigh, she was referred to Government

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Hospital, Mandya. He has recorded in the M.L.C.

herself. During the course of cross-examination, it is

elicited that if a car tyre ran over on thighs, such

injuries are possible. But, according to the Doctor,

the deceased herself was conscious, well-oriented,

she informed him that she fell down and sustained

the injuries. If the car ran over thighs of the

deceased, she could have told him that the car had

hit against her. In the M.L.C. register, it was clearly

recorded that the injury was due to fall. This goes to

show that before the Doctor, who is a neutral

person, within half an hour of the accident, it was

informed that the injury was due to fall. At that

time, respondent No.1 was with the mother, even he

did not inform the Doctor that the car ran over her

thigh.

13. The car hitting the deceased from the

reverse direction and ran over on the leg of the

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deceased was found in the Police records at 08:45

am at 20.03.2017, where the complaint was filed by

petitioner No.2 to the Police that there was an

accident involving the car bearing Reg.No.KA-51/C-

8672. The Police records are subsequent to the

information furnished to the Medical Officer,

Government Hospital, Malavalli.

PW-1 is not an eye witness, no eye witnesses are

examined; cause of death due to the accident is not

explained; respondents No.1 and 2 being the son

and daughter-in-law did not file their written

statements, nor appeared before the Tribunal to give

evidence. This shows absolutely there is no

evidence to support the claim of the petitioners that

respondent No.1 drove the car belonging to his wife

in reverse direction, dashed against his mother,

causing her injuries, resulting her death.

14. On careful perusal of the impugned

judgment, it is pertinent to note that the Tribunal

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has recorded all the aspects, analyzed each and

every point of evidence, came to the conclusion that

the petitioners are taking advantage of the injuries

sustained by the deceased due to fall and also her

subsequent death, have falsely involved the car

belonging to their own family; the information

furnished to the Doctor when the deceased was

brought first time to the hospital does not disclose

the involvement of the car and thereby the Tribunal

doubted the veracity of the accident and evidence

relied upon by the petitioners.

15. The Division Bench of this Court in

Veerappa and Another -Vs.- Siddappa and

Another1 has held at para No.13 that:

"13. ............ Even though the owner of the vehicle in unmistakable terms, has admitted the incident, that admission has no value in the eye of law. He has admitted something about which he has no knowledge and, which he has not seen. It is clear that the said admission is made with the sole object of getting compensation to the claimants as it is the insurance company which will pay, and

ILR 2009 KARNATAKA 3562

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not the owner. Though admission is the best piece of evidence, it cannot be accepted as gospel truth. The Court can insist on proof of facts, if the admission is not satisfactory. In the instant case, since the Court was not satisfied, it wanted the claimants to prove their case independently. The claimants have miserably failed to prove their case. ............"

At para No.15, it is further held as follows:

"15. Fraus et jus numquam cohabitant, Fraud and justice never dwell together, is a pristine maxim which has never lost its temper over all these centuries. Fraud avoids all judicial acts, ecclesiastical or temporal. A judgment or decree obtained by playing fraud on the Courts is a nullity and non est in the eyes of law. Since fraud affects the solemnity, regularity and orderliness of the proceedings of the Court and also amounts to an abuse of the process of Court, the Courts have been held to have inherent power to set aside an order obtained by fraud practised upon that Court. Similarly, where the Court is misled by a party or the Court itself commits a mistake which prejudices a party, the Court has the inherent power to recall its order."

15.1. The Hon'ble Apex Court in North West

Karnataka Road Transport Corporation -Vs.-

Gourabai and Others2 held at para 3 that:

(2009) 15 SCC 165

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"3. The effect of the evidence of the doctor and Exhibit R-1 does not appear to have been looked into by MACT and the High Court. MACT did not place reliance on the document Ext.R-1 on the ground that the brother of the injured stated that he did not know what was written in the document and his signature was taken on one page. This conclusion overlooks the fact that a doctor will not take a signature on a piece of paper mentioning something which is not correct."

16. As seen from the evidence on record,

petitioner No.2 is not an eye witness to the accident.

One of the settled principle of the law of evidence is

that the first version of an incident contains the

kernel of truth. It is the tendency of human beings

to speak the truth immediately. Subsequently, after

due deliberations, the facts can be changed, the

story can be embroidered and a fictional version can

be created. Thus, while appreciating the evidence,

the Courts consider the initial statement as

containing the substratum of truth. In case there is

a change in the factual foundation of the case, the