Karnataka High Court

M/S National Insurance Company Ltd vs Mrs. Prabhavathi on 9 September, 2024

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                                                              NC: 2024:KHC:36636
                                                            MFA No.6257 of 2016
                                                    C/W MFA CROB No.139 of 2021



                          IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                            DATED THIS THE 9TH DAY OF SEPTEMBER, 2024
                                             BEFORE
                     THE HON'BLE MR. JUSTICE T.G. SHIVASHANKARE GOWDA
                         MISCELLANEOUS FIRST APPEAL NO.6257/2016 (MV-D)
                                               C/W
                                  M.F.A. CROB NO.139/2021 (MV)


                    IN M.F.A. No. 6257/2016

                    BETWEEN:

                    M/S. NATIONAL INSURANCE COMPANY LTD.,
                    NO.371/A, 3RD FLOOR
                    PRESTIGE SHOPPING ARCADE
                    RAMASWAMY CIRCLE, MYSORE
                    REP. BY REGIONAL OFFICE
                    NO.1, SUBHARAM COMPLEX
                    M.G. ROAD, BANGALORE-560 001.

                                                                    ...APPELLANT
Digitally signed by
PRAJWAL A
                     (BY SMT. GEETHA RAJ, ADV.,)
Location: HIGH COURT
OF KARNATAKA
                    AND:

                    1.    MRS. PRABHAVATHI
                          W/O LATE RAMACHANDRA
                          AGED ABOUT 36 YEARS.

                    2.    KUMARI SINDHU
                          D/O LATE RAMACHANDRA
                          AGED ABOUT 16 YEARS.

                    3.    MASTER MAHENDRA
                          S/O LATE RAMACHANDRA
                          AGED ABOUT 12 YEARS.
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                                       NC: 2024:KHC:36636
                                     MFA No.6257 of 2016
                             C/W MFA CROB No.139 of 2021



4.   KUMARI SHENCHU
     D/O LATE RAMACHANDRA
     AGED ABOUT 8 YEARS.

5.   SMT. KAMALAMMA
     W/O RANGAIAH
     AGED ABOUT 71 YEARS.

     GUARDIAN R1 DISCHARGED
     AS PER COURT ORDER
     DATED 07.06.2024.

     RESPONDENT 2 TO 4 ARE MINORS
     REP. BY THEIR NATURAL GUARDIAN
     AND MOTHER 1ST RESPONDENT
     SMT. PRABHAVATHI
     ALL ARE R/OF. YARAGAMBALLI VILLAGE
     YELLANDUR TALUK
     CHAMARAJNAGAR DISTRICT-571313.

6.   SRI. NATARAJU
     S/O PARASAIAH
     DRIVER OF TRACTOR
     R/OF. YARAGAMBALLI VILLAGE
     YELLANDUR TALUK
     CHAMARAJANAGAR DISTRICT-571313.

7.   SRI. NAGARAJAPPA
     S/O GURUMALLAPPA
     OWNER OF TRACTOR
     R/OF. G. MARAHALLI VILLAGE
     BELAGULI VILLAGE
     NANJANAGUD TALUK
     MYSORE DISTRICT-570024.

                                          ...RESPONDENTS
(BY SRI. H. RAMACHANDRA, ADV., FOR R1 TO R5
R2 TO R4 ARE MINORS REP. BY R1
R6 SERVED AND UNREPRESENTED
   SRI. S.B. HALLI AND
 SRI. G.C. SHANMUKHA, ADV., FOR R7)
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                                          NC: 2024:KHC:36636
                                     MFA No.6257 of 2016
                             C/W MFA CROB No.139 of 2021



     THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:02.02.2016 PASSED IN MVC
NO.238/2013 ON THE FILE OF THE PRINCIPAL DISTRICT
JUDGE, MACT, CHAMARAJANAGAR, AWARDING GLOBAL
COMPENSATION OF Rs.7,74,400/- WITH INTEREST @ 6% P.A.
FROM THE DATE OF PETITION TILL REALIZATION.


IN M.F.A. CROB NO.139/2021

BETWEEN:

1.   SMT. PRABHAVATHI
     W/O LATE RAMACHANDRA
     AGED ABOUT 40 YEARS.

2.   KUM. SINDHU R
     D/O LATE RAMACHANDRA
     AGED ABOUT 21 YEARS.
     [SHE WAS MINOR WHEN
     MFA NO.6257/2016 WAS FILED
     BY THE RESPONDENT, HER
     VAKALATH IS FILED IN THIS APPEAL].

3.   MASTER MAHINDRA
     S/O LATE RAMACHANDRA
     AGED ABOUT 17 YEARS.

4.   KUM. SHENCHU
     D/O LATE RAMACHANDRA
     AGED ABOUT 12 YEARS.

     GUARDIAN APPELLANT
     DISCHARGED AS PER
     COURT ORDER DTD:7.6.2024.

     THE APPELLANT NO.3 & 4 BEING
     MINORS ARE REP. BY THE 1ST
     APPELLANT SMT. PRABHAVATHI
     AS NATURAL GUARDIAN.
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                                       MFA No.6257 of 2016
                               C/W MFA CROB No.139 of 2021



5.   SMT. KAMALAMMA
     W/O RANGAIAH
     AGED ABOUT 75 YEARS.

     ALL ARE R/AT. YARAGAMBALLI VILLAGE
     YELLANDUR TALUK
     CHAMRAJNAGAR DISTRICT.

                                    ... CROSS OBJECTORS

(BY SRI. H. RAMACHANDRA, FOR CROSS OBJECTORS)

AND:

     M/S. NATIONAL INSURANCE COMPANY LTD.
     NO.371/A, 3RD FLOOR
     PRESTIGE SHOPPING ARCADE
     RAMASWAMY CIRCLE, MYSORE
     REP. BY REGIONAL OFFICE
     M.G. ROAD, BENGALURU-560001.

                                         ...RESPONDENT

(BY SMT. GEETHA RAJ, ADV.,)

    THIS MFA CROB IS FILED UNDER ORDER XLI RULE 22
OF THE CPC AGAINST THE JUDGMENT AND AWARD DATED
02.02.2016 PASSED IN MVC NO.238/2013 ON THE FILE OF
THE PRINCIPAL DISTRICT AND SESSIONS JUDGE AND
MACT CHAMARAJANAGAR, PARTLY ALLOWING THE CLAIM
PETITION    FOR    COMPENSATION     AND    SEEKING
ENHANCEMENT OF COMPENSATION.


    THIS M.F.A. C/W M.F.A. CROB COMING ON FOR
HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS
UNDER:

CORAM:    HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
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                                                 NC: 2024:KHC:36636
                                          MFA No.6257 of 2016
                                  C/W MFA CROB No.139 of 2021



                       ORAL JUDGMENT

Insurance Company has questioned the legality of the

order of the Tribunal whereas the petitioners have filed the

cross objections seeking enhancement of compensation.

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 20.06.2012 at about

11:00 a.m., the husband of the first petitioner, son of the 5th

petitioner, father of the petitioner Nos.2 to 4 by name

Ramachandra, the deceased, while riding on Hero Honda

motorcycle bearing registration No.KA-10 Q-2824 along with

rider and another pillion rider near Sushma High School of

Yaragamballi Village of Yelandur Taluk, a tractor bearing

registration No.KA-09 T-3832 came from the opposite direction

and dashed against the Hero Honda motorcycle, due to which

riders fell down, the deceased sustained injuries, he was

treated at Government Hospital, Chamarajanagar and St.

Joseph's Hospital, Mysuru. In spite of it, he could not survive

and he died on 25.06.2012 in the hospital. The petitioners

approached the Tribunal seeking compensation of

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Rs.42,00,000/-. Claim was opposed by the owner and insurer

of the vehicle. The Tribunal, after taking the evidence and

hearing both the parties vide impugned judgment allowed the

claim petition awarding compensation of Rs.7,74,400/- with 6%

interest and fastened the liability on the owner and insurer of

the tractor to pay the compensation. Insurance Company

pleading that fraud is played, tractor in question was not

involved in the accident, driver has been replaced and

questioning the legality of the judgment has filed appeal

whereas the petitioners seeking enhancement of compensation

have filed their cross objection.

4. Heard the argument of Smt.Geeta Raj, learned

counsel for the Insurance Company and Sri.H.Ramachandra,

learned counsel for the petitioners.

5. It is contended by the learned counsel for the

Insurance Company that on 20.06.2012 itself there was a

complaint filed to the police intimating that the tractor in

question was driven by one Ningaraju, S/o Honnaiah S/o

Nanjaiah. Accordingly, in the FIR, he was shown as accused.

After the death of the deceased, the Investigating Officer files

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the report to the learned JMFC, Yelandur incorporating one

P.Nataraju, S/o Parasaiah as the driver of the tractor. After

involvement of the police officer in the investigation, swapping

of the driver of the tractor has been done and accordingly,

police as well as the owner of the vehicle joined hands together

to assist the petitioners to claim compensation by playing

fraud. Fraud has been proved by the Insurance Company by

examining RW-1 to RW-4. The Tribunal, instead of dismissing

the claim petition, allowed the claim and awarded the

compensation and she sought for dismissal of the petition.

6. Per contra, learned counsel for the petitioners

contended that the person who filed complaint was also injured

in the accident. Since he is illiterate person, the investigation

has brought out that one P.Nataraju, S/o Parasaiah was the

driver of the tractor who has been engaged by Siddanaika alias

Kappannanaika who was put in possession of tractor by

T.P.Mahadevaswamy who is the purchaser of the tractor from

the first respondent. Since RC has not been effectively

changed in the name of T.P.Mahadevaswamy, first respondent

in the legal sense is the real owner and after investigation,

Investigation Officer came to know that one P.Nataraju, S/o

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Parasaiah was the driver of the tractor and accordingly charge

sheet came to be filed. The Tribunal after appreciating the

evidence, accepted the accident. In the year 2012, a person

with no proof of income could have earned not less than

Rs.7,000/- per month, the deceased was aged 43 years old,

there are 5 dependants of the deceased, 25% of future

prospects has to be taken and 1/4 has to be deducted towards

personal expenses, then compensation towards loss of

dependency, conventional heads and medical bills of

Rs.1,64,000/-, together comes to more than Rs.15,20,000/-

whereas the award of the Tribunal at Rs.7,74,400/- is

inadequate and sought for enhancement of compensation.

7. I have given my anxious consideration to the

arguments addressed on behalf of both sides and also perused

the materials on record.

8. Ex.P1 is the FIR registered on the basis of Ex.P2

complaint. One Chikkarangaiah is the complainant who is the

father-in-law of the deceased. He goes to Yelandur Police

Station on 20.06.2012 at about 8 p.m. files a complaint that

one Ningaraju, S/o Honnaiah, S/o Nanjaiah drove the tractor

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belonging to Siddanaika alias Kappannanaika, Yaragamballi

Village and caused the accident in the said village at 11:00

a.m. Accordingly, FIR was registered against Ningaraju,

Yaragamballi Village. The FIR was registered by Head Constable

No.156. Thereafter, the investigation is taken over by one

Mahadevanaika C.M., PSI of Yelandur police station who files a

report to the Court on 25.06.2012 that the deceased

succumbed to death and requested the Court to incorporate

Section 304A of IPC in the FIR. In the said report, it is

reported that one P.Nataraju, S/o Parasaiah of Yaragamballi

Village was the driver of the tractor in question. The charge

sheet is filed by one C.M. Krishna Kumar, Circle Inspector of

Police, Yelandur Circle and Column No.12 of the charge sheet

indicates P.Nataraju, S/o Parasaiah as the driver of the tractor

who was arrested on 15.07.2012 and was released on station

bail on the surety of one Siddanaika.

9. Before the Tribunal, on behalf of the petitioners, the

first respondent and complainant Chikkarangaiah were

examined. He has filed an affidavit that one P.Nataraju, S/o

Parasaiah was driving the tractor. He did not offer any

explanation as to why he has mentioned Ningaraju, S/o

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Honnaiah S/o Nanjaiah as the driver of the tractor at the time

of filing complaint. In the course of cross examination, it is

elicited on behalf of the Insurance Company that he has not

given any further statement before the police intimating that

P.Nataraju, S/o Parasaiah was the driver of the tractor and not

Ningaraju, S/o Honnaiah. When PW-1 has not furnished the

details of the driver to the Investigating Officer as P.Nataraju,

S/o Parasaiah then his evidence becomes intact sofar as

complaint filed under Ex.P2 that the driver of the tractor was

Ningaraju S/o Honnaiah.

10. From the argument of the learned counsel for the

Insurance Company it is pertinent to note that the vehicle itself

was not involved in the accident. It is pertinent to note that

second respondent Nagarajappa is stated to be the R.C. owner

and all RTO records stands in his name. The evidence is placed

through him by the Insurance Company that the tractor was

sold to RW-3 Mahadevaswamy on 05.05.2012 itself by signing

Form Nos.29 and 30. RW-3 Mahadevaswamy has not got

changed the RTO records in his name. RW-3 has entered the

witness box confirming that he has purchased the tractor from

RW-1 and he has entrusted the tractor to Siddanaika alias

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Kappannanaika and it is Siddanaika @ Kappannanaika has

engaged the driver and operating the tractor.

11. RW-2 is the person shown as accused in the FIR.

He comes before the Tribunal and speaks that he do not own

any driving licence and he does not know to drive the vehicle.

In view of the contradictory evidence before the Tribunal, who

is the real driver of the tractor at the time of accident is the

question before this Court.

12. The material on record clearly points out that RW-2

was the driver of the tractor at the time of accident. RW-2 hails

from same village, accident took place in the same village,

injured and deceased belongs to the same village. So all are

known persons, there is no confusion in the mind of PW-2 at

the time of filing the complaint. Under such circumstances,

how all of a sudden on 25.06.2012, name of P.Nataraju, S/o

Parasaiah is arrayed as driver and why on 15.7.2012, the

Investigating Officer has arrested said P.Nataraju, S/o

Parasaiah is not forthcoming.

13. On perusal of the entire record, there is no evidence

to show that why P.Nataraju, S/o Parasaiah came in the place

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of Ningaraju is not explained. Though the petitioners are

entitled for compensation, as rightly contended by the learned

counsel for the Insurance Company alleged fraud is to be

explained to be incorrect, driver was not swapped. The

petitioners are required to show evidence to prove that

P.Nataraju, S/o Parasaiah was the driver of the tractor at the

time of accident and not Ningaraju, S/o Honnaiah S/o Nanjaiah

of Yaragamballi Village. In order to clarify all, an opportunity

has to be given to the parties and it is a fit case for remand.

Hence, the impugned judgment and award needs interference,

in the result, the following:

ORDER

i) Both the appeals are allowed-in-part.

ii) Impugned judgment and award is set aside.

iii) Matter is remanded back to the Tribunal to the

stage of further evidence of the petitioners.

iv) The Tribunal shall afford opportunity to both the

parties to lead further evidence to ascertain who

was the real driver of the tractor at the time of

accident and to decide the case on quantum of