(PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA)
1. This appeal is filed by the respondent No.2
2. For sake of convenience, the parties are
referred to as per their ranking before the Tribunal.
3. Brief facts of the case are that:
The deceased Manjunath was son of the claimant and
he met with an accident on 03.12.2008 at Tadsinakoppa
village by user of Tractor bearing registration
No.KA-25/T-0020 driven by its driver in a rash and
negligent manner. Deceased was aged about 19 years and
working as coolie and earning Rs.4,500/- per month and
contributing his income to the family. Claimant is mother
of deceased, filed petition to claim compensation.
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4. Respondent No.2-the insurer, filed written
statement denying the contentions of the claimant and
contended that the accident was not taken place as stated
in the claim petition. The deceased was negligently,
sitting on the mudguard of the tractor and slipped at the
time of running of the vehicle. Due to his negligence, he
fell down and sustained injuries. In view of the said
reasons the insurer is not liable to pay the compensation.
It is also contended that liability of the respondent No.2 is
restricted to terms and conditions of the policy of
insurance and holding of valid and effective driving license
by driver of the vehicle.
5. Based on the rival contentions of the parties,
the Tribunal has framed the following issues:
"1) Whether the petitioner proves to be the only
dependant of deceased Manjunath?
2) Whether petitioner proves that on 3/12/2008 at
the burial ground on Itigatti road the tractor
bearing No.K.A.25/T 0020 was driven in high
speed rash and negligent manner and dashed
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pedestrian Manjunath causing RTA and resulted
in his death?
3) Whether R.2 proves that deceased Manjunath was
un-authorised passenger in tractor bearing
No.KA 25/T 0020 at the time of RTA?
4) From whom and how much the petitioner is
entitled for just and fair compensation?
5) What order of decree?"
6. The Tribunal recorded the evidence of claimant
as PW-1 and got marked Exhibits P1 to P8. Respondent
No.2 examined one witness as RW-1 and got marked
Exhibits R1 to R4.
7. After hearing both sides and appreciating the
materials available on record, the Tribunal accepted the
contentions of the claimant and awarded compensation of
Rs.3,44,000/-. The Tribunal held that respondent Nos.1
and 2 jointly and severally liable to pay the compensation.
Said judgment is challenged in this appeal by insurer.
8. The main contention of the appellant is that the
accident had not taken place as contended in the
charge sheet or the claim petition. According to Ex.P2, the
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deceased was sitting on the mudguard of the tractor and
when the driver of the tractor drove it over a ditch, the
deceased lost balance and fell down and sustained
injuries. Traveling on the mudguard is not permissible and
moreover the liability of the person traveling on the
mudguard is not covered under the insurance policy.
Hence insurer is not liable to pay compensation. In
support of said contention, learned counsel for appellant
relied upon the Judgment of Full Court in the case of
Gadhilingapa @ Gadhilingappa and Another vs. K.Guleppa
and Others1.
9. It is further contended that, subsequently at the
time of filing the charge sheet, the investigating officer
changed scenario of the accident and it is stated in the
further statement of complainant as well as other
witnesses that the victim was going by walk at the side of
the road when driver of the tractor dashed against him
and caused the accident. In view of the reasons stated in
ILR 2021 KAR 3377
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the complaint, claimant is not entitled for compensation to
be paid by the respondent No.2.
10. Learned counsel for the claimant submits that
after investigating of the matter, the charge sheet was
filed and the complaint mistakenly stated before the
police, at the time of lodging the complaint, that the
deceased was sitting on the engine of the tractor. On the
next day, when it was noticed by the complainant, he has
given further statement, wherein he has stated that the
victim was standing at the side of the road. Due to his old
age, he could not see properly and thought that victim was
sitting on the engine of the vehicle. On the basis his
further statement, the investigating officer recorded the
examined witnesses and on conclusion of the
investigation, charge sheeted the driver of the vehicle.
Respondent No.2 did not challenge the said charge sheet.
In support of said contention, learned counsel for
respondent relied upon the Judgment in the case of Bajaj
Allianz General Insurance Co.Ltd. vs. Smt.Lakshmamma
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and others2. He further submits that the Tribunal
considered the appellant's contentions and rightly rejected
the same. There are no reasons to interference with the
said findings.
11. The following questions are arises for the
determination.
(i) Whether the Tribunal erred in not
accepting the contention of the
appellant-respondent No.2 that the
accident had taken place when the
deceased was traveling on the mudguard
of the tractor, as stated in the FIR?
(ii) What order?
12. The above question is answered in the
negative.
13. The case of the parties is stated in the above
paragraphs. Insurer challenged the judgment of Tribunal
2008 Kant M.A.C.145 (Kant)
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on the basis of Ex.P2, i.e, statement of Shivappa.
According to his earlier statement dated 03.12.2008,
around 8.00 p.m. an unknown person was sitting on the
engine of the tractor and driver of the said tractor was
driving the vehicle in a rash and negligent manner and
caused the accident. The said statement was given to
police was around 2.00 p.m. on 03.12.2008. On the next
date, he gave additional statement before very same
investigating officer, stating that, at the time of lodging
the complaint, he has stated that 'at the time of the
accident deceased boy was sitting on the engine, at the
side of the driver. But in fact he was standing at the side
of the road.' Due to defects in his vision, he mistakenly
stated in the complaint that the said boy was sitting on the
engine of the tractor. Thereby, he corrected his previous
statement given before the investigation officer. The
investigation officer, after examined the witnesses,
submitted a charge sheet. Ex.P7 appears to be incomplete.
List of witnesses, examined by the investigating officer are
not enclosed in the said charge sheet. Insurer accepting
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part of statement of complainant and cleverly ignoring his
further clarificatory statement
14. It is settled principle of law that the FIR is not
encyclopedia. According to Ex.P2, age of the complainant
was 64 years and he has stated that after completion of
his work in his land, he was returning home. Nowhere in
Ex.P2 is it mentioned about the distance between the spot
of the accident and spot wherein he was standing at the
time of the incident. Considering these facts, the further
statement given by complainant that he could not see the
properly due to a defect in his vision cannot be ruled out.
15. It is not brought out from the charge sheet that
complainant was a friend or relative of the deceased.
There was no reason for him to give a false explanation on
the next date, after filing the complaint. Under these
circumstances, only on the basis of a story sentence in
Ex.P2, it cannot be held that the final report filed by the
investigating officer, after a complete investigation of the
matter, was incorrect and inconsistent and not believable.
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16. Respondent No.2 did not produce any other
documents or any other evidence to believe that contents
of the charge sheet are incorrect. Under such
circumstances, the said contention of the appellant is not
tenable. In the case of Gadhilingapa @ Gadhilingappa
(supra) facts are different. If charge sheet had been filed
against driver of the vehicle as stated in Ex.P2, then the
insurer may not have been liable to pay compensation. But
in the present case, the charge sheet shows that the
victim was standing at the side of the road and driver of
the vehicle drove the vehicle in the negligent manner and
dashed against him. Under such circumstances, he was
third party and the said vehicle was insured with
appellant. Therefore, the appellant is liable to pay
compensation.
17. Learned counsel for the respondent vehemently
contended that since the charge sheet was not challenged
by the appellant herein, as held in Bajaj Allianz General
Insurance Co.Ltd. (supra), wherein it is held that if the
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charge sheet is not challenged, the insurer cannot deny
their liability. However, the facts of the present case are
totally different from the facts of that case.
18. The facts of the present accident is not in
dispute, but the manner in which the accident took place is
disputed. In the referred case, the fact of the accident
itself was disputed and it was contented that the vehicle
was falsely implicated just to claim compensation.
Considering those facts and circumstances, the Division
Bench of this Court in the case of Bajaj Allianz General
Insurance Co.Ltd. (supra) held that, in such an event, if
the insurer did not challenge the charge sheet, it cannot
deny his liability. Therefore it has no relevance to the facts
of the present case.
19. There is no serious dispute in respect of the
compensation awarded by the Tribunal. On going through
the assessment of the compensation by the Tribunal, it is
just and proper and does not call for any interference by
this Court. For the aforesaid discussion, I answer the
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above said question in the 'Negative' and proceed to pass
the following :
ORDER
(i) Appeal is dismissed.
(ii) The impugned Judgment and award dated
28.09.2011 in MVC No.125/2009 by the II
Additional Senior Civil Judge, Dharwad is hereby
confirmed.
(iii) The amount in deposit, if any, shall be
transmitted to the Tribunal.
Registry is directed to send back the trial Court
records along with copy of the Judgment to the Tribunal
forthwith.
Sd/-
(UMESH M ADIGA)
JUDGE
RHR /CT-AN
