Partly allowed

Sujatha v. Balakrishna Shetty

Karnataka HC5 Jun 2023MFA/4694/2017

Case brief

AI extract

What is this about?

This High Court dismissed the claimants' appeal and allowed the insurer's appeal. The Court held that the accident was not proved as the Tribunal relied solely on a charge sheet without examining corroborative evidence, especially given the acquittal of the driver in criminal proceedings.

What did the court decide?

MFA No.4694/2017 dismissed; MFA No.4202/2017 allowed; Impugned judgment/set aside; Claim petition dismissed; Amount refunded to insurer.

Sujatha Vs Balakrishna Shetty — Insurance | Karnataka HC (2023)

¶1

1 - NC: 2023:KHC:20033-DB MFA No. 4694/2017 C/W MFA No. 4202/2017

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 5^TH DAY OF JUNE, 2023

¶4

PRESENT

¶5

THE HON'BLE MRS. JUSTICE K.S.MUDAGAL

¶6

AND

¶7

THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR MISCELLANEOUS FIRST APPEAL NO.4694/2017 (MV-D)

¶8

C/W

¶9

MISCELLANEOUS FIRST APPEAL NO.4202/2017 (MV-D)

¶10

IN M.F.A. No.4694/2017

¶11

BETWEEN:

¶12

SUJATHA AGED ABOUT 42 YEARS D/O LATE VITTAL HEGDE

¶13

KUMARI SRIMATHI AGED ABOUT 40 YEARS D/O LATE VITTAL HEGDE

¶14

Digitally signed by K S RENUKAMBA Location: High Court of Karnataka

¶15

HARSHA

¶16

AGED ABOUT 32 YEARS S/O LATE VITTAL HEGDE

¶17

ALL ARE R/AT "SANTHOSH NILAYA" HULLI PANJARA JEDDU RATTADY VILLAGE POST: RATTADY KUNDAPURA TALUK - 576 101

¶18

…APPELLANTS

¶19

(BY SMT. SWATHI.G HEGDE, ADV. FOR SRI. PAVANA CHANDRA SHETTY H,ADV.)

¶20

¶21

NC: 2023:KHC:20033-DB MFA No. 4694/2017 C/W MFA No. 4202/2017

¶22

AND:

¶23

BALAKRISHNA SHETTY AGED ABOUT 60 YEARS S/O LATE MAHABALA SHETTY R/AT SRIDEVI HOUSE NO.28, HALADY VILLAGE POST: HALADY KUNDAPURA TALUK 576 101

¶24

PUNITH KUMAR AGED ABOUT 30 YEARS S/O BALAKRISHNA SHETTY R/O KULUNJE VILLAGE POST: KULUNJE KUNDAPURA TALUK - 576 101

¶25

THE MANAGER NATIONAL INSURANCE CO LTD., BRANCH KUNDAPURA KUNDAPURA - 576 101

¶26

BHASKAR HEGDE AGED ABOUT 48 YEARS S/O LATE VITTHAL HEGDE R/O HAMBALLI, YERLAPPALI VILLAGE POST: GOVINDPURA KARKALA TALUK - 576 101

¶27

SUDHAKARA HEGDE AGED ABOUT 46 YEARS S/O LATE VITTHAL HEGDE R/AT BALIMANE NAARPAL VILLAGE POST: SEETHANADI KARAKALA TALUK - 576 101

¶28

SANTHOSH HEGDE AGED ABOUT 38 YEARS S/O LATE VITTHAL HEGDE R/AT SAI CATERING SERVICE NEW IDEA CORNER, 2ND FLOOR 17-A, COOPERAGE ROAD

¶29

3 - NC: 2023:KHC:20033-DB MFA No. 4694/2017 C/W MFA No. 4202/2017

¶30

KOLABA COUNCIL HALL MUMBAI - 400 039

¶31

SATHISH HEGDE AGED ABOUT 34 YEARS S/O LATE VITTHAL HEGDE R/O PWD STAFF CANTEEN NO.25, MURZBAN ROAD BHANDKAM BHAVAN POST MUMBAI - 400 001 …RESPONDENTS

¶32

(BY SMT. GEETHA RAJ., ADV. FOR R3; NOTICE TO R1, R2 & R4 TO R7 ARE DISPENSED WITH V/O/DATED:23.09.2021)

¶33

THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 12.01.2017 PASSED BY THE COURT OF SENIOR CIVIL JUDGE AND ADDL. MACT AT KUNDAPURA IN MVC NO.632/2015 TO THE EXTENT OF DISALLOWED CLAIM AND ALLOW THIS APPEAL BY ENHANCING THE COMPENSATION.

¶34

IN M.F.A.No.4202/2017

¶35

BETWEEN:

¶36

M/S. NATIONAL INSURANCE COMPANY LTD.,

¶37

KUNDAPURA BRANCH

¶38

KUNDAPURA

¶39

REPRESENTED BY REGIONAL OFFICE

¶40

SITUATED AT SUBHARAM COMPLEX

¶41

NO.144, M.G. ROAD

¶42

BANGALORE-560 001

¶43

REPRESENTED BY C.K. PARIMALA

¶44

…APPELLANT

¶45

(BY SMT. GEETHA RAJ,. ADV.)

¶46

AND:

¶47

MRS. SUJATHA AGED ABOUT 42 YEARS

¶48

4 - NC: 2023:KHC:20033-DB MFA No. 4694/2017 C/W MFA No. 4202/2017

¶49

KUMARI SRIMATHI AGED ABOUT 40 YEARS

¶50

MR. HARSHA AGED ABOUT 32 YEARS

¶51

ALL ARE CHILDREN OF LATE VITTAL HEGDE R/O. "SANTHOSHA NILAYA" HULI PANJARA JEEDU RATTADY VILLAGE KUNDAPURA TALUK POST: RATTADY-576 227

¶52

MR. BALAKRISHNA SHETTY AGED ABOUT 60 YEARS S/O. LATE MAHABALA SHETTY RESIDING AT SRIDEVI HOUSE NO.28, HALADY VILLAGE KUNDAPURA TALUK POST: HALADY-576 227

¶53

MR. PUNITH KUMAR AGED ABOUT 30 YEARS S/O. BALAKRISHNA SHETTY R/o KULUNJE VILLAGE KUNDAPURA TALUK POST: KULANJE-576 227

¶54

MR. BHASKER HEGDE AGED ABOUT 48 YEARS S/O. LATE VITHAL HEGDE R/O HAMBALLI, YERLAPPALLI VILLAGE KARKALA TALUK, POST: GOVINDAPURA-574 104

¶55

MR. SUDHAKARA HEGDE AGED ABOUT 46 YEARS S/O. LATE VITHAL HEGDE R/O. BALLIMANE, NAARPAL VILLAGE KARKALA TALUK POST: SEETHANADI-574 104

¶56

- 5 - NC: 2023:KHC:20033-DB MFA No. 4694/2017 C/W MFA No. 4202/2017

¶57

MR. SANTHOSH HEGDE AGED ABOUT 38 YEARS S/O. LATE VITHAL HEGDE R/O. NEW IDEA CORNER, 2^ND FLOOR 17-A, COOPERAGE ROAD KOLABALA COUNCIL HALL MUMBAI-400 039

¶58

MR. SATHISH HEGDE AGED ABOUT 34 YEARS S/O. LATE VITHAL HEGDE R/O. PWD STAFF CANTEEN NO.25, MUZABAN ROAD BHANDKAM BHAVAN

¶59

FORT MUMBAI-400 001 …RESPONDENTS

¶60

(BY SMT. SWATHI.G HEGDE, ADV. FOR SRI. PAVANA CHANDRA SHETTY H,ADV. FOR R1 TO R3 AND R9; R4, R5, R6 AND R8 ARE SERVED; R1 TO R3, R6, R8 AND R9 ARE LRS’ OF R7)

¶61

THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 12.01.2017 PASSED BY THE COURT OF THE SENIOR CIVIL JUDGE AND MOTOR ACCIDENTS CLAIMS TRIBUNAL, KUNDAPURA IN MVC NO.632/2015.

¶62

THESE APPEALS COMING ON FOR HEARING THIS DAY, K.S. MUDAGAL J., DELIVERED THE FOLLOWING:

¶63

JUDGMENT

¶64

These appeals arise out of the award in MVC No. 632/2015 passed by the Senior Civil Judge and Addl. MACT, Kundapur.

¶65

The appellants in MFA No.4694/17 were claimant Nos.1

¶66

to 3, respondents in the said appeal were respondent Nos. 1 to

¶67

- 6 - NC: 2023:KHC:20033-DB MFA No. 4694/2017 C/W MFA No. 4202/2017

¶68

7 in MVC No.632/2015. For the purpose of convenience, the parties will be referred henceforth according to their ranks before the Tribunal.

¶69

Claimant Nos. 1 and 2 are the sisters and claimant No.3 and respondent Nos. 4 to 7 are the brothers of deceased Srinivas Hegde. Claimant No.1 is the married sister, claimant No.2 is major sister and claimant No.3 and Respondent Nos.4 to 7 are major brothers of deceased Srinivas Hegde.

¶70

On 10.04.2015 at about 8.00 p.m. Srinivas Hegde was found dead near Forest Guard's house, at Bakudi Mavinakodlu, Kulunje Village, Kundapura Taluk, situated within the limits of Shankaranarayana Police Station of Udupi District. Regarding the incident, claimant No.3 filed complaint dated 10.4.2015 alleging that, some unknown vehicle hit his brother and caused his death and on the information given by one Bhaskar Hegde, he visited the scene of occurrence and found his brother dead.

¶71

On the basis of the complaint, Shankaranarayana Police registered FIR as per Ex.P1 in Crime No.60/2015 against unknown person for the offence punishable under Sections 134(A & B) of Indian Motor Vehicles Act, 1988 and Sections 279 and 304A of Indian Penal Code, 1860. On investigation,

¶72

- 7 - NC: 2023:KHC:20033-DB MFA No. 4694/2017 C/W MFA No. 4202/2017

¶73

Police filed charge sheet as per Ex.P7 against respondent No.2 alleging that on 10.4.2015 at 8.00 p.m. he drove Swift car bearing registration No. KA 20-P-9575 in rash and negligent manner so as to endanger human life, hit victim Srinivas Hegde from hind side and caused his death. At the relevant time, respondent No.1 was the registered owner and respondent No.3 was the insurer of the said car.

¶74

Claimants filed MVC No.632/2015 claiming that the accident and consequential death occurred due to actionable negligence of respondent No.2. They further claimed that they were residing with the deceased and dependent on him. Thus, they claimed compensation of Rs.25,28,000/-. They claimed that respondent No.1 being the owner of the offending vehicle and respondent No.3 being the insurer, were liable to pay the compensation.

¶75

Respondent Nos. 4 to 6 did not appear to contest the matter. Therefore, they were set ex-parte. Respondent Nos. 1,2 and 7 though appeared, did not file written statement or contest the matter. Respondent No.3 insurer alone contested the matter and denied the occurrence of the accident as alleged, the involvement of insured vehicle in the accident, the

¶76

- 8 - NC: 2023:KHC:20033-DB MFA No. 4694/2017 C/W MFA No. 4202/2017

¶77

age, occupation, income of the deceased and the dependency of the claimants on the deceased. The third respondent denied its liability to indemnify the damages.

¶78

To substantiate their claim, first claimant-Smt.Sujatha

¶79

was examined as PW.1 and Balakrishna Shetty as PW.2. On their behalf, Exs.P1 to P10 were marked. Respondent No.3 summoned respondent No.2 as its witness and examined him. The Tribunal, on hearing the parties, by the impugned award, relying on Exs.P1 to 8 more particularly Ex.P7 the charge sheet, held that accident occurred due to the actionable negligence on the part of the respondent No.2-the driver of Car No. KA-20-P9575. The Tribunal further held that claimant Nos.1 to 3 and respondent Nos. 4 to 7 being Class-II heirs of deceased under the Hindu Succession Act, are entitled to maintain the claim petition.

¶80

Relying on Ex.P9 the Notarized copy of the ration card and Ex.P10 the Tribunal held claimant No.2 is unmarried and is a specially-abled sister. Therefore, she was dependent on deceased. The Tribunal further held, claimant Nos. 1 and 3 and respondent Nos. 4 and 7 being the major/married sister and brothers are not the dependents of the deceased.

¶81

- 9 - NC: 2023:KHC:20033-DB MFA No. 4694/2017 C/W MFA No. 4202/2017

¶82

The Tribunal, notionally considered the income of the deceased at Rs.7,000/- and added 30% to the same by way of future prospects and deducted 50% for the personal expenses of the deceased. The Tribunal applied 14 multiplier and awarded compensation of Rs.7,64,400/- on the head of loss of dependency.

¶83

The Tribunal in all awarded compensation of

¶84

Rs.8,34,400/- on different heads as per the table below:

¶85

SL. No.	Particulars	Compensation awarded in Rs.
1.	Loss of Dependency	7,64,400/-
2.	Love and Affection	25,000/-
3.	Loss of Estate	25,000/-
4.	Funeral & Obsequies Expenses	20,000/-
	TOTAL	8,34,400/-

¶86

The Tribunal held that respondent Nos. 1 and 3 are jointly and severally liable and respondent No.3 shall indemnify the damages.

¶87

Challenging the quantum of compensation, claimants have preferred MFA No.4694/17. Challenging the finding regarding involvement of insured vehicle, insurer has preferred MFA No.4202/17.

¶88

10 -

¶89

NC: 2023:KHC:20033-DB MFA No. 4694/2017 C/W MFA No. 4202/2017

¶90

Ms. Swathi G. Hegde, learned counsel appearing for

¶91

Sri Pavan Chandra Shetty, Advocate on record for the claimants submits that, on thorough investigation, the Police have filed charge sheet against respondent No.2 which is not challenged by any of the parties. The said charge sheet is the prima facie proof of rashness and negligence on the part of respondent No.2. Further, respondent No.2 was examined as RW.1, he admitted the occurrence of the accident and involvement of the vehicle, therefore, it is not open to respondent No.3 to deny the involvement of the vehicle in the accident. She further submits, the income of the deceased considered by the Tribunal is on the lower side and the compensation awarded on the other heads is also on the lower side.

¶92

In support of her submissions, she relies on the following judgments:

¶93

i). Janabai D/o. Dinkarrao Ghorpade & Ors.vs. ICICI Lombard Insurance¹ .

¶94

ii). M/S National Insurance Company LTD V/s MRS. Shamshad and others² .

¶95

iii) Veerappa and Another Vs Siddappa and Another³ .

¶96

1 (2022)10 SCC 512 Civil Appeal No.5220/2022

¶97

2 MFA No.6641/2017

¶98

3 ILR 2009 KAR 3562

¶99

- 11 - NC: 2023:KHC:20033-DB MFA No. 4694/2017 C/W MFA No. 4202/2017

¶100

iv) Mahadevi W/o Shrishail Kore and others Vs Shivaputra S/o Ramappa Shivasharan and Another⁴ .

¶101

v) The Divisional Manager M/S The Oriental Insurance Company Ltd Vs Rayan Fernandes⁵

¶102

vi) Bajaj Allianz General Insurance Company Ltd Vs B.C.Kumar and Another⁶

¶103

vii) A. Manavalagan V/s A. Krishnamurthy and others⁷

¶104

viii) Manjuri Bera V/s Oriental Insurance Company Ltd and Anr⁸

¶105

Smt. Geetha Raj, representing respondent No.3 -

¶106

Insurer submits that charge sheet is not the conclusive proof of the involvement of the vehicle and negligence on the part of the driver of the insured vehicle. She further submits that, the initial burden of proving occurrence of accident in the manner alleged is on the claimants. PW.1 was not an eye witness and PW-2's evidence militates against claimants themselves. PW.2 was not a charge sheet witness. His evidence shows that he was the employer of claimants. Therefore, he is an interested witness.

¶107

She submits that, the Tribunal without proper appreciation of the evidence has held that the charge sheet is final evidence which decides the rashness and negligence and

¶108

4 MFA No.201689/2016

¶109

5 MFA Nos.7279/2016 C/w MFA No.7110/2016

¶110

6 ILR 2009 KAR 2921

¶111

7 ILR 2004 KAR 3268

¶112

8 (2007) 10 SCC 543

¶113

- 12 - NC: 2023:KHC:20033-DB MFA No. 4694/2017 C/W MFA No. 4202/2017

¶114

the involvement of the insured vehicle in the accident. So far as

¶115

quantum of compensation, she submits that evidence of claimants themselves shows that they were not depending on the deceased. Exs.P9 and 10 were not reliable documents. Even assuming that the deceased was residing with claimant No.2, as per the evidence of PWs.1 and 2, they were all working and had independent income. Therefore, at the most, the compensation has to be awarded on the head of loss of estate.

¶116

She further submits that, initially complaint was filed against unknown person, after 8 days of the accident, CWs.2 and 3 gave further statement implicating the insured vehicle. However, before the Magistrate they turned hostile and ultimately respondent No.2 was acquitted in the Criminal case. Charge sheet witnesses 2 and 3 were not examined by the claimants in this case and there was no explanation for suppression of such evidence. Thus, she seeks dismissal of the claim petition against respondent No.3.

¶117

In support of her submissions, she relies on the judgment of this court in Sri Ashwathappa and another vs. Sri Ravichandra T and another⁹ .

¶118

9 MFA No.4096/2021 (MV-D)

¶119

13 -

¶120

NC: 2023:KHC:20033-DB MFA No. 4694/2017 C/W MFA No. 4202/2017

¶121

On hearing the submissions of both side and on perusal of the material on record, the following questions arise for our consideration:

¶122

(1) Whether the finding of the Tribunal that death of Srinivas Hegde was caused due to rash and negligent driving of Car bearing No.KA 20 P 9575 by respondent No.2 is sustainable?

¶123

(2) Whether compensation awarded by the Tribunal to the claimants is just one?

¶124

ANALYSIS

¶125

The initial burden of proving the fact that on 10.4.2015 at about 8.00 p.m. near Forest Guard's house at Bakudi Mavinakodlu, Kulunje Village, Kundapura Taluk, respondent No.2 drove car bearing No. KA-20- P-9575 in a rash and negligent manner so as to endanger the human life and hit Srinivas Hegde from hind side causing his death, is on the claimants.

¶126

To discharge the said burden, the claimants examined PW.1 i.e. claimant No.1. She was neither an eye-witness to the incident nor the complainant in the criminal case. Claimant No.3 Harsha Hegde had filed complaint Ex.P1 against unknown person. In the complaint it was stated, some unknown vehicle hit the deceased and caused the accident.

¶127

- 14 - NC: 2023:KHC:20033-DB MFA No. 4694/2017 C/W MFA No. 4202/2017

¶128

PW.2 was examined as eye witness. But, he was not

¶129

cited as an eye witness in Ex.P7- the charge sheet produced by the claimants themselves. PW.2 in his affidavit evidence stated that, at the time of accident, he was travelling in the Auto Rickshaw, he witnessed KA-20-P-9575 hitting victim Srinivas Hegde and fleeing away. He was not an ordinary resident of locality where the accident occurred. Therefore, his presence had to be probabilized by the claimants. As already stated in the charge sheet he was not cited as an eye witness.

¶130

In his cross-examination, PW.2 states that he is 73year old and he admits that he has poor eye sight and cannot see properly. He admits that, deceased and the claimants were working in his agriculture establishment. He unequivocally admits that he is deposing at the instance of the claimants. He states that he came to know that the accident took place at night and he does not know what all are the records prepared by the Police and contents of the same. The said evidence of PW.2 shatters the case of the claimants that he was an eye witness.

¶131

- 15 - NC: 2023:KHC:20033-DB MFA No. 4694/2017 C/W MFA No. 4202/2017

¶132

PW.2 further states in his cross-examination that he

¶133

had no impediment to file a complaint before the Police or to give statement before them. He states that before his evidence in this case, he has not revealed the said fact to anybody else. Though he claimed to have witnessed the incident, he states that he is not able to tell where all the victim had suffered injuries. He claims that while travelling in the autorickshaw, he noticed the incident. He has not revealed the registration number of the said autorickshaw. At another breath, he says at the time of incident, there was nobody along with him. Therefore, the evidence of PW.2 was absolutely unreliable to prove the involvement of the insured vehicle or occurrence of the accident in the manner it was alleged.

¶134

So far as the binding nature of the charge sheet in proceeding under the MV Act, in Jana Bai's case referred to supra relied upon by the learned counsel for the appellants, it was not held that charge sheet is the conclusive proof for the Tribunal in deciding the issue. It was only held that the burden of proof of occurrence of the accident in proceeding before the Criminal Court and the MACT are not one and the same, the proceedings before the Tribunal under Section 166 of MV Act

¶135

16 - NC: 2023:KHC:20033-DB MFA No. 4694/2017 C/W MFA No. 4202/2017

¶136

are summary in nature. In that case, the claimant himself was

¶137

the injured/victim of the accident. Therefore, it was held that there was no reason to doubt the veracity of his evidence. Even thereafter, it was held that an application under M.V Act has to be decided on the basis of the evidence lead before the Tribunal. First of all, PW.1 is not an eye witness, PW.2 being the eye witness is highly doubtful. Therefore, the said judgment cannot be justifiably applied to the facts of the present case.

¶138

The Co-ordinate Bench of this Court in Veerappa

¶139

and another vs. Siddappa and another¹⁰ case referred to supra taking judicial note of rampant malpractices in the field of motor accidents claim cases held that, charge sheet is not the ultimatum barring the Tribunal to traverse beyond that. It was held, that the Tribunal/Court has to examine the entire evidence before it in an integrated manner. In this case also, at the earliest point of time, the police records did not show the involvement of the insured vehicle or respondent-2 as offender in the case. On the basis of further statements of CWs 2 and 3, after 8 days, the vehicle and Respondent No.2 were implicated

¶140

10 (ILR 2009 KAR 3562)

¶141

- 17 - NC: 2023:KHC:20033-DB MFA No. 4694/2017 C/W MFA No. 4202/2017

¶142

in the case. But, CWs 2 and 3 were not examined before the Tribunal.

¶143

RW.1 the alleged offender states that, after two days, somebody told that his vehicle has caused the accident. He was

¶144

treated as hostile witness. In the cross-examination, he has stated that according to him, no accident has taken place due to his negligence. In the cross-examination by the claimant's counsel also, he denied that the accident occurred due to rash and negligent driving on his part and the victim died in that accident. The Tribunal misconstrued the first sentence of the cross-examination of RW.1 by the claimant's counsel without noticing the coma/punctuation between two parts of the said sentence. The said sentence is as follows.

¶145

¥ÁnÃ ¸ÀªÁ®Ä : ²æÃ f. J¸ï. PÉ J¸ï ªÀQÃ®jAzÀ:

¶146

"¥ÉÆÃ°Ã¸ÀgÀÄ F C¥ÀWÁvÀªÀÅ £À£Àß CwªÉÃUÀ ªÀÄvÀÄÛ CeÁUÀgÀÆPÀvÉAiÀÄ ZÁ®£É¬ÄAzÀ DVzÉ, CzÀjAzÀ ²æÃ¤ªÁ¸À ºÉUÉÙ EªÀgÀÄ wÃjPÉÆArgÀÄvÁÛgÉAzÀÄ ¥ÀæPÀgÀtªÀ£ÀÄß zÁR°¹gÀÄvÁÛgÉ J£ÀÄßªÀÅzÀÄ ¸Àj."

¶147

About the filing of charge sheet against him, there is no dispute at all. But charge sheet is not the conclusive proof for the Tribunal or for this Court.

¶148

- 18 - NC: 2023:KHC:20033-DB MFA No. 4694/2017 C/W MFA No. 4202/2017

¶149

During the course of the argument, learned Counsel for respondent No.3 submitted the copy of the judgment in C.C.No.2887/2015 in which respondent No.2 was prosecuted for the very same accident. As per Section 57 of the Indian Evidence Act, 1872, this Court can take judicial Notice of such judgment. The said judgment shows that in that case CWs.2 and 3 who allegedly gave further statement implicating the insured vehicle did not support the prosecution case and they denied having given statement before the police. Considering the same, ultimately the learned Additional Civil Judge and JMFC, Kundapura acquitted the accused namely respondent No.2 herein.

¶150

The above facts and circumstances coupled with the judgment in CC No.2887/2015 show that the charge sheet was not a reliable document. Therefore, there is no merit in the contention that the charge sheet shall be taken as the conclusive proof of the evidence of the occurrence of accident or involvement of the insured vehicle.

¶151

At this stage, learned Counsel for the appellant submits that to give an opportunity to the claimant to examine

¶152

- 19 - NC: 2023:KHC:20033-DB MFA No. 4694/2017 C/W MFA No. 4202/2017

¶153

the Investigating Officer, the matter may be remanded. The evidence of the Investigating Officer is only a formal one. Secondly the Investigating Officer was not examined in C.C.No.2887/2015 itself. Therefore, no purpose will be served by remanding the matter for the purpose of examination of the Investigating Officer. Therefore the said prayer is rejected.

¶154

The accident involving the insured vehicle and respondent No.2 was not proved. The Tribunal without appreciating the evidence in judicious manner, only relying on the charge sheet, allowed the claim petition. Therefore, the same is liable to be set aside.

¶155