Karnataka High Court

Smt Archana W/O Subhas Ghodake And Ors vs Sri Nuruddin S/O Babu Shaikh And Anr on 13 February, 2025

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                                                   MFA No. 200716 of 2021




                             IN THE HIGH COURT OF KARNATAKA,

                                    KALABURAGI BENCH

                        DATED THIS THE 13TH DAY OF FEBRUARY, 2025

                                          BEFORE
                             THE HON'BLE MR. JUSTICE C M JOSHI

                        MISC. FIRST APPEAL NO.200716 OF 2021 (MV-D)
                   BETWEEN:

                   1.   SMT. ARCHANA W/O SUBHAS GHODAKE,
                        AGE: 32 YEARS, OCC: H.H. WORK,

                   2.   KUMARI KALAPANA D/O SUBHASH GHODAKE,
                        AGE: 13 YEARS, OCC: STUDENT,

                   3.   KUMARI SUNIKA D/O SUBHASH GHODAKE,
                        AGE: 10 YEARS, OCC: NIL,

                   4.   KUMARI SWATHI D/O SUBHASH GHODAKE,
                        AGE: 13 YEARS, OCC: NIL,

                   5.   KUMARI RADHIKA D/O SUBHASH GHODAKE,
                        AGE: 7 YEARS, OCC: NIL,
Digitally signed        (APPELLANTS NO.2 TO 5 ARE MINORS,
by LUCYGRACE
                        SINCE REPRESENTED BY THEIR NATURAL
Location: HIGH
COURT OF                GUARDIAN MOTHER APPELLANT NO.1).
KARNATAKA

                   6.   SHRI NANA @ NANASO S/O BHUTALI GHODAKE,
                        AGE: 63 YEARS, OCC: H.H. WORK,

                   7.   SMT. MALLAMMA W/O NANA @ NANASO GHODAKE,
                        AGE: 58 YEARS, OCC: H.H. WORK,
                        ALL ARE R/O: INGALAGI,
                        TQ. AND DIST. SOUTH SOLAPUR,
                        NOW RESIDING AT TAKKE, ATHANI ROAD,
                        VIJAYAPUR-586 101.
                                                            ...APPELLANTS
                   (BY SRI. BASAVARAJ R. MATH, ADVOCATE)
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                                            NC: 2025:KHC-K:1028
                                      MFA No. 200716 of 2021




AND:

1.   SRI. NURUDDIN S/O BABU SHAIKH,
     AGE: 46 YEARS, OCC: BUSINESS,
     R/O: RAM NAGAR, JOPADAPATTI,
     STATION ROAD, AKKALKOT,
     DIST. SOLAPUR-413 216.

2.   THE BRANCH MANAGER,
     THE NEW INDIA ASSURANCE CO. LTD.,
     BRANCH OFFICE, 1ST FLOOR,
     HANAMASHETTY BUILDING,
     GURUKUL ROAD,
     VIJAYAPURA-586 101.


                                               ...RESPONDENTS

(BY SRI. SUDARSHAN M., ADV. FOR R2;
V/O DTD. 25.07.2023, NOTICE TO R1 IS HELD SUFFICIENT)


       THIS MFA IS FILED UNDER SECTION 173 (1) OF THE


MOTOR     VEHICLES   ACT,   PRAYING    TO    SET    ASIDE   THE


IMPUGNED     JUDGMENT   AND    AWARD        DATED   05.08.2019


PASSED BY THE II ADDL. SENIOR CIVIL JUDGE AND MACT VII,


AT VIJAYAPURA IN MVC.NO.1732/2015 AND PLEASED TO


ALLOW THE CLAIM PETITION.



       THIS APPEAL COMING ON FOR FURTHER HEARING, THIS

DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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                                            MFA No. 200716 of 2021




CORAM:     HON'BLE MR. JUSTICE C M JOSHI


                        ORAL JUDGMENT

(PER: HON'BLE MR. JUSTICE C M JOSHI)

Heard the learned counsel for the appellants and the

respondent No.2.

02. Being aggrieved by the judgment in

MVC.No.1732/2015 dated 05.08.2019, by the learned II

Additional Senior Civil Judge and MACT, VII at Vijayapura,

the petitioners are before this Court in appeal.

03. The factual matrix of the case is that on

25.05.2015 the husband of the petitioner No.1 namely

Subhash was proceeding on his motorcycle bearing

Reg.No.MH-13-BK-3061 from Akkalkot to Hannur road and

the vehicle bearing Reg.No.MH-13-N-8868 came from

opposite direction in a rash and negligent manner and

while overtaking another vehicle, dashed to the motorcycle

of the deceased. The deceased - Subhash fell down and

died at the spot. Thereafter, the body of the deceased was

taken to Rural Hospital, Akkalkot and a post mortem was

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conducted. Thereafter, the body came to be disposed of.

The petitioners who are the dependents of the deceased

have approached the Tribunal claiming compensation on

account of the death of the deceased - Subhash from the

owner and insurer of the offending vehicle.

04. On being served with the notice, the respondent

No.1 owner of the offending vehicle did not appear and

therefore, placed ex-parte. The respondent No.2 insurance

company appeared and resisted the petition by filing

written statement. The respondent No.2 denied the

involvement of the vehicle in the accident. It also denied

that the driver of the offending vehicle had effective and

valid driving license to drive the same. It also denied the

age, income and occupation of the deceased. Inter-alia it

contended that the compensation claimed is highly

exorbitant, imaginary and untenable in law. It alleged that

the accident had occurred on account of the rash and

negligent driving of the deceased himself. Therefore, the

liability cannot be fastened upon the respondent No.1. The

Tribunal framed appropriate issues which read as below:-

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I. Whether the petitioners prove that, the deceased has

sustained grievous injuries due to actionable rash

and negligent act of driver of Cruiser Tempo bearing

Reg.No.MH-13-N-8868 in the Motor Vehicle Accident

on the date, time and place as being asserted.?

II. Whether the respondent No.2 proves that due to

violation of policy conditions, insurer is not liable to

pay the compensation.?

III. Whether petitioners are entitled for the

compensation.? If so how much and from whom.?

IV. What order or award.?

05. The petitioner No.1 was examined as PW.1 and

Ex.P.1 to 9 were marked in the evidence. The respondent

No.2 - insurance company did not adduce any evidence,

but the Ex.R.1 to 3 were marked by consent of both the

parties, they are the insurance policy, driving license of

the driver of the offending vehicle and the R.C. book

extract.

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06. After hearing both the sides, the Tribunal came

to the conclusion that the petitioners have failed to prove

that the vehicle owned by respondent No.1 and insured by

respondent No.2 was involved in the accident. Therefore,

it dismissed the petition.

07. Being aggrieved by the same, the petitioners

are before this Court in appeal.

08. The learned counsel appearing for the

appellants submits that the Tribunal has erred in

dismissing petition. It is submitted that though the police

had taken note of the death of the deceased - Subhash,

the Akkalkot North police failed to register an FIR. It is

submitted that the alleged FIR, which was registered on

07.08.2015, which is nearly after 02 months of the

offence, narrates that the accident had occurred on

25.05.2015 and even then the FIR came to be registered

only after tracing the offending vehicle. It is pointed out

that an irregular investigation done by the police, cannot

in anyway act prejudicial to the interest of the petitioners.

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It is contended that the Akkalkot police knew about the

accident on 25.05.2015 and even the petitioners were

unaware of the offending vehicle, since the deceased -

Subhash was found by some passerby and he had

informed the petitioners. Therefore, when the respondent

- Insurance Company has not led any evidence to show

that there is connivance between the petitioners and the

police and also that the tracing of the offending vehicle by

the police was faulty, the insurance company cannot seek

absovelment of its liability.

09. It is further contended that the investigating

officer, on the basis of the statement made by CW.7 and

8, identified the vehicle which committed the accident and

then one of the police official of the police station himself

made a report and registered the FIR. None of the hands

of the petitioners were involved in registration of the FIR

on 07.08.2015. Therefore, the petitioners cannot be

denied of the compensation. It is also pointed out that the

FIR and charge-sheet has not been challenged either by

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the driver or owner of the said vehicle. Hence, he seek an

indulgence of this Court and submit that there being

sufficient evidence regarding the assessment of the

compensation, this Court be pleased to allow appeal and

assess the compensation by awarding the just and

reasonable compensation.

10. Per contra, the learned counsel appearing for

the respondent No.2 - insurance company contend that as

on the date of accident, it was the CW.6, who had

informed about the accident to the police. He had not seen

the accident and he only informed that the deceased had

succumbed to the death and the motorcycle had fallen

near a bridge on the right side of the road. Therefore, he

had suspected that the deceased had fallen down from the

motorcycle and had died. This was the first information

which had reached the police station and therefore, the

subsequent involvement of the vehicle owned by the

respondent No.1 and insured by respondent No.2 is

doubtful circumstance. He contends that after more than

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02 months, the statements of CW.7 and 8 were recorded

by the police and on that basis they have registered FIR. It

is pointed out that the delay clearly indicates that there is

connivance between the petitioners and the police in

implicating the vehicle owned by respondent No.1 and

insured by respondent No.2. Therefore, he seeks the

dismissal of the appeal.

11. It is further submitted that in case this Court is

of the opinion that the respondent No.2 has not led

evidence before the Tribunal, the matter may be

remanded to the Tribunal. In this regard he relies on the

judgment in the case of United India Insurance

Company Limited vs. Rajendra Singh and others1.

12. The perusal of the FIR, which is at Ex.P.1 and

the translated copy of which is at Ex.P.1 (a) discloses that

the ASI Jayawant made a statement, which was basis for

the FIR. In the said statement, it is mentioned that certain

(2000) 3 SCC 581

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case was registered in number 6/2015. On the basis of the

said enquiry, the ASI Jayawant, made certain investigation

and only thereafter the Crime No.128/2015 was registered

by the said police station. In other words, the investigation

had commenced on 25.05.2015 itself, but a formal FIR

was registered on 07.08.2015.

13. The perusal of Ex.P.1 discloses that the

investigation commenced on 25.05.2015 on the basis of a

statement made by one Dilip Vishwanath Kajale. He had

seen at about 7:00 p.m. on 25-05.2015 that a motorcycle

had fallen on the right side near the bridge. Therefore, he

stopped his vehicle and then saw that the deceased -

Subhash had fallen down and his motorcycle had also

fallen down with the damages and the deceased -

Subhash had died. Immediately, he went to police station

and informed the same. He suspected that the deceased -

Subhash had fallen down on his own. Obviously, the said

Dilip was not an eyewitness to the accident. Thereafter,

the police visited the spot and then shifted the body of the

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deceased - Subhash to the hospital, where the deceased -

Subhash was identified by the family members of the

deceased - Subhash. The body was subjected to post

mortem. Thereafter, it was handed over to the family

members. The spot mahazar was also conducted on the

very next day of the accident i.e., on a 26.05.2015, which

is produced at Ex.P.2. Therefore, it is evident that the

investigation had started on the date of the accident itself

and this falsifies the contention of the insurance company

that the investigation started only after 07.08.2015.

14. The Ex.P.1 further discloses that at the time of

the enquiry, they recorded the statement of one

Suryakant and Manik, who are none else than CW.7 and 8.

They had stated that though they did not see the accident,

they had heard the sound of collision of the vehicles while

they were at some distance. They had stated that in the

curving when the Cruiser vehicle was overtaking a bus,

they heard the sound of an accident. But, however they

had not visited the spot after the accident. They also

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stated that the Cruiser vehicle had passed them also. On

the basis of such statement, the investigating officer

traced the Cruiser vehicle and enquired the owner of the

vehicle i.e., Nuruddin. The owner - Nuruddin had informed

that one Anil was the driver of the vehicle. He also stated

that Anil had informed about an accident and on that

basis, a detailed statement was recorded by the police.

Then the vehicle was seized under a mahazar, which is at

Ex.P.7. Thus, after tracing the said vehicle, they

completed the investigation and then they have filed the

charge-sheet.

15. It is pertinent to note that until the Cruiser

vehicle bearing Reg.No.MH-13-N-8868 was traced, a

formal FIR in Crime No.128/2015 was not registered by

the Akkalkot North police. This averment in Ex.P.1 clearly

depict that initially either the petitioners or anybody else

had not traced as to which vehicle had caused the

accident. Only after the statement of CW.7 and 8 were

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recorded, the investigating officer came to know about the

Cruiser vehicle. Only on the basis of the statement of the

owner of the vehicle, the driver was traced and he was

chargesheeted. This turn off events and circumstances

narrated in Ex.P.1, supported by the spot mahazar at

Ex.P.2, the seizure of the vehicles later as per Exs.P.6 and

7, the inquest and the p.m. report, which are at Exs.P.3

and 4 and the charge-sheet at Ex.P.8 show that the

investigation cannot be faulted. The procedure followed by

the police in not registering the FIR on 25.05.2015, but

proceeding with the investigation on the basis of a case

which is shown as Mo.A.No.6/2015 (which is in Marathi),

presumably a case of unnatural death, may not fit well in

the investigation contemplated under the Cr.P.C. The

police should have registered the FIR and if it was found

that the deceased himself had driven the vehicle in a rash

and negligent manner, a closure report could have been

filed by them.

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16. It is pertinent to note that the investigation

conducted by the police, particularly the statement made

by Jayawant in the FIR - Ex.P.1 has not been rebutted by

the insurance company or the owner of the vehicle, in any

way. The said Jayawant or the CW.7 and 8 have not been

summoned or examined to show that the report of the

investigating officer, who has filed the charge-sheet is

incorrect.

17. Under these circumstances, the conclusions

reached by the Tribunal that there was no such accident

and the issue No.1 is not proved by the petitioners is

prima-facie incorrect and without properly appreciating the

evidence on record. Though, contention was taken that the

collusion between the petitioners and the police is not

ruled out, but there is no evidence to show that there was

such collusion. The Tribunal could not have presumed

certain aspects which are not borne out of the record. A

delay in filing the complaint itself cannot be a reason to

doubt the involvement of the vehicle.

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18. In the case on hand, the investigation had

started on the date of the accident itself and such

investigation conducted by the police has not been shown

to be fallacious. Therefore, when such evidence placed on

record is not shown to be incorrect or collusive or

fraudulent, the Tribunal clearly erred in holding that there

was no such accident. On the part of the PW.1, obviously

she is ignorant of the manner in which the accident had

occurred. She was not an eyewitness and therefore,

nothing is elicited even in her cross-examination. Even

then, the cross-examination of the PW.1 do not disclose

that there is any connivance between the petitioners and

the police. Hence, the finding of the Tribunal on issue No.1

is not sustainable in law.

19. The judgment of the Apex Court, in the case of

the United India Insurance Company Limited vs.

Rajendra Singh and others, cannot be made applicable

to the case on hand, since the allegation of fraud was

contended by the insurance company and it had sought for

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setting aside the judgment by resorting to Sections 151,

152 and 153 of CPC, seeking recall of the awards. In such

circumstances, the Apex Court had remanded the matter

to the Tribunal afresh to decide the dispute. In the case on

hand, ample opportunity was given to the respondent

No.2. Therefore, there is no reason to remand the matter

to the Tribunal.

20. In the result, the involvement of the vehicle

owned by respondent No.1 and insured by respondent

No.2 in the accident is proved. Consequently the

respondents No.1 and 2 are jointly and severally liable to

pay the compensation to the petitioners.

21. The Tribunal even though had framed the issue

regarding the quantum of the compensation in the form of

issue No.2, has not dealt with the same. When an issue

has been framed, the compensation should have been

quantified by it. The remand of the matter for the purpose

of the assessment of the compensation is not required,

since the evidence is already available.

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22. The deceased - Subhash was aged about 32

years as mentioned in p.m. report at Ex.P.4. The

petitioners contend that the deceased - Subhash was

agriculturist and coolie. There is no material to show the

income of the deceased - Subhas. Therefore, the notional

income of Rs.8,000/- is considered by this Court, which is

in consonance with the notional income considered for the

purpose of settlement of disputes before the Lok-Adalath

in pursuance to the guidelines issued by the KSLSA.

Hence, the loss of dependency is calculated as Rs.8,000/-

+ Rs.3,200/- = Rs.11,200/- x 12 x 16 x 3/4 =

Rs.16,12,800/-.

23. In addition to it, the petitioners are also entitled

for a sum of Rs.52,000/- under head of loss of consortium.

A sum of Rs.19,500/- towards funeral expenses. A sum of

Rs.19,500/- towards the loss of a Estate, after escalating

10% per every 03 years in the light of the dictum of Apex

Court in the case of National Insurance Company

Limited vs. Pranay Sethi2.

(2017) 16 SCC 680

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24. Thus, the petitioners are entitled for a sum of

Rs.17,03,800/- under the following heads:-

  Sl.    Heads                       Compensation          Awarded

  No.                                by this Court

  1.     Loss of dependency          Rs.16,12,800/-

  2.     Loss of consortium          Rs.52,000/-

  3.     Funeral expenses            Rs.19,500/-

  4.     Loss of Estate              Rs.19,500/-

         Total                       Rs.17,03,800/-

        25.   Hence,   appeal      deserves     to    be     allowed.

Therefore, the following;


                          ORDER


  I. The appeal is allowed.


 II. The       appellants   are     entitled    for   a     sum      of

Rs.17,03,800/- along with interest at the rate of 6%

p.a. from date of petition till the date of deposit.

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III. The respondent No.2 - insurance company is directed

to deposit the entire compensation amount along

with interest, before the Tribunal within a period of

06 weeks.

IV. After such deposit is made by the insurance

company, the petitioner No.1 is entitled for 25% of

the compensation amount. The petitioners No.6 and

7 are entitled for 10% of the compensation amount