Allowed

The Manager v. Smt Shabeen Taj

Karnataka HC19 Jul 2023MFA/7936/2016

Case brief

AI extract

What is this about?

In this Miscellaneous First Appeal against a Motor Accident Claims Tribunal award, the Karnataka High Court held that the claimants failed to discharge their burden of proving the accident involved the insured vehicle or specific respondents, as key witnesses including the alleged complainant denied involvement and the driver was acquitted in criminal proceedings. The Court set aside the Tribunal'

What did the court decide?

The appeal is allowed; the impugned judgment and award of the Tribunal are set aside; the claim petition is dismissed; the deposit amount is refunded to the appellant.

The Manager Vs Smt Shabeen Taj — Insurance | Karnataka HC (2023)

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1 - NC: 2023:KHC:25128-DB MFA No.7936/2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19^TH DAY OF JULY, 2023

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PRESENT

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THE HON'BLE MRS JUSTICE K.S.MUDAGAL

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AND

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THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR MISCELLANEOUS FIRST APPEAL NO.7936/2016 (MV-D)

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BETWEEN:

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THE MANAGER NEW INDIA ASSURANCE CO. LTD NO 2-B, UNITY BUILDING ANNEX MISSION ROAD, BENGALURU – 560027

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BY REGIONAL OFFICE

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III PARTY HUB, MAHALAXMI CHAMBERS M G ROAD BANGALORE – 560 001 BY IT’S MANAGER

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…APPELLANT

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(BY SRI.C.R. RAVISHANKAR, ADVOCATE)

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AND:

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SMT SHABEEN TAJ

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

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AGE 31 YEARS

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W/O LATE MOHAMMED YOUNIS

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UNNAMED MALE CHILD MINOR

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AGED ABOUT 10 YEARS S/O LATE MOHAMMED YOUNIS

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MOHAMMED SAB AGED ABOUT 65 YEARS

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S/O LATE ABDUL GAFFAR SAB

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SMT MABUBI

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AGED ABOUT 55 YEARS W/O MOHAMMED SAB

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ALL ARE RESIDING AT NO.9, 4^TH ‘A’ MAIN ROAD, METRO LAYOUT

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NC: 2023:KHC:25128-DB MFA No.7936/2016

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NAYANDANAHALLI BENGALURU – 560 039

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SINCE RESPONDENT NO.2 IS MINOR REPTD. BY HIS MOTHER AND NATURAL GUARDIAN, I.E., RESPONDENT NO.1

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B R DEVARAJA URS SINCE DEAD BY LR.

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5A. SMT.LEELA URS W/O LATE B.R.DEVARAJA URS MAJOR

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R/AT CHATRA VILLAGE, BIDADI POST RAMANAGARA TALUK & DISTRICT BENGALURU RURAL – 571 511 … RESPONDENTS

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(BY SRI N R NAIK, ADVOCATE FOR R1-R4; NOTICE TO PROPOSED R5(A) IS HELD SUFFICIENT V/C/O DTD:18.01.2023)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S 173(1) OF MV ACT, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 23.09.2016 PASSED IN MVC NO.4520/2006 ON THE FILE OF THE VIII ADDITIONAL SMALL CAUSES JUDGE, XXXIII ACMM, MEMBER, MACT, BENGALURU, AWARDING A COMPENSATION OF RS.20,33,000/- WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL REALIZATION.

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

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JUDGMENT

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Challenging the award in MVC No.4520/2006 on the file of the VIII-Additional Small Causes Judge and MACT (SCCH-

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5), Bengaluru respondent No.2/Insurer has preferred this appeal.

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2 Appellant was respondent No.2, respondent Nos.1 to 4 were the claimants and respondent No.5 was respondent

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No.1 in MVC No.4520/2006 before the Tribunal. For the purpose of convenience, the parties will be referred to henceforth according to their ranks before the Tribunal.

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Claimant No.1 is the wife, claimant No.2 is the minor child and claimant Nos.3 and 4 are the parents of deceased Mohammed Younis. On 11.04.2006 at about 10.00 p.m. Mohammed Younis met with an accident near Billakempanahalli village on Bengaluru-Mysuru road within the limits of Bidadi police station and he died on the spot.

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Claimants filed MVC No.4520/2006 against the respondents claiming that Mohammed Younis was traveling in Auto-rickshaw bearing registration No.KA-02/8842 belonging to respondent No.1. It was contended that the said Auto-rickshaw was being driven by one Manjunath in a rash and negligent manner in high speed and hit against the stationary Canter lorry bearing registration No.KA-05/7640 from hind side leading to the accident. It was further contended that the claimants were all dependents on the income of the deceased and due to his death they have

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suffered the damages to the tune of Rs.30,00,000/-. It was further contended that respondent Nos.1 and 2 being the registered owner and insurer of the Auto-rickshaw No.KA02/8842 are liable to compensate the damages to the claimants.

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Respondent Nos.1 and 2 contested the petition denying the involvement of Auto-rickshaw No.KA-02/8842 in the alleged accident, Manjunath being the driver of the said Auto-rickshaw and actionable negligence on his part in the accident. They contended that Mohammed Younis himself was driving Auto-rickshaw bearing registration No.KA-02/195 with Manjunath as the passenger in the said Auto-rickshaw, he drove Auto-rickshaw No.KA-02/195 rashly and negligently and hit against Canter lorry and died.

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Before the Tribunal, in support of their case, claimants examined claimant No.1 as PW.1 and one Eshwar the employer of the deceased as PW.2, got marked Exs.P1 to P13. Initially on behalf of respondents, RWs.1 and 2 were examined and certain documents were marked. The trial Court at the first instance by judgment dated 22.10.2007 dismissed the claim petition holding that claimants have failed

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to prove the involvement of Auto-rickshaw No.KA-02/8842 or the occurrence of accident in the manner alleged.

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The claimants challenged that order before this Court in MFA No.8553/2008(MV). This Court by the judgment dated 15.06.2012 allowed the said appeal and remanded the matter to the Tribunal, holding that the investigator’s report Ex.R6 cannot be held proved, unless Devaraj Urs the owner of Auto-rickshaw and Manjunath the driver of the Auto-rickshaw whose statements were part of Ex.R6, were examined. This Court directed the Tribunal to afford reasonable opportunity to both the parties to adduce additional evidence and then dispose of the matter. After such remand, claimants did not adduce any further evidence. Respondent No.2 examined RWs.3 to 5 and got marked Exs.R9 to R27.

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The Tribunal on hearing the parties by the impugned judgment and award held that the occurrence of accident due to actionable negligence on the part of Manjunath the driver of the Auto-rickshaw No.KA-02/8842 was proved by Exs.P1 to P8 i.e., FIR, UDR report, spot mahazar, sketch of scene of accident, PM report, IMV report, Inquest report and charge sheet. The Tribunal further held

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that the respondents have not rebutted the said evidence by examining Manjunath the driver of the Auto-rickshaw and Investigating Officer. The Tribunal held that respondent No.2 has fabricated the investigation report Ex.R.6 and that has no evidentiary value.

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The Tribunal on assessment of the other evidence awarded compensation of Rs.20,33,000/- to the claimants on different heads as per the table below:

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Sl. No.	Particulars	Compensation awarded in Rs.
1.	Loss of dependency	14,58,000/-
2.	Loss of Estate	1,00,000/-
3.	Transport, Burial & Obsequies	25,000/-
4.	Loss of consortium	1,00,000/-
5.	Love and affection for petitioner No.1,3 & 4	3,00,000/-
6.	Love and affection for petitioner No.2	50,000/-
	Total	20,33,000/-

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The insurer has challenged the said award.

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Submissions of Sri C.R Ravishankar, learned Counsel for the appellant/Insurer:

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Initial burden of proving that the accident occurred due to actionable negligence on the part of

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Manjunath in driving Auto-rickshaw No.KA-02/8842 and that Mohammed Younis was traveling in the said vehicle as the passenger was not discharged. There was delay in filing the complaint and none of the eyewitnesses were examined by the claimants. Ex.P2 shows that initially case was registered as UDR. Subsequently, on deliberation Auto-rickshaw No.KA02/8842 was implicated. RW.5 the alleged complainant cum eyewitness himself did not support the theory of filing of the complaint. RW.3 the owner of the auto-rickshaw denied the involvement of his auto-rickshaw in the accident. After remand, the Insurer had taken summons to Manjunath, the driver of Auto-rickshaw No.KA-02/8842 who allegedly caused the accident. That was returned with endorsement that ‘he was dead’. Thus the Insurer did all sincere efforts to secure Manjunath to examine before the Court, but could not succeed for the reason beyond its control. Therefore, the Tribunal was in error in holding that respondent No.2 has not examined Manjunath. RW.5 the alleged complainanteyewitness did not support the charge even before the Criminal Court. The Criminal Court on full fledged trial, acquitted Manjunath. The Tribunal ignoring Exs.R16 to R24 the depositions of witnesses in C.C.No.602/2006 and acquittal

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judgment in C.C.No.602/2006, relied on the charge sheet which is unsustainable. Therefore, he seeks dismissal of the petition by allowing the appeal.

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Submissions of Sri N.R Naik, learned Counsel for respondent Nos.1 to 4:

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On the basis of the complaint filed by RW.5, the police on conducting thorough investigation filed charge sheet against Manjunath holding that the accident and consequent death of Mohammed Younis occurred due to rash and negligent driving of Auto-rickshaw No.KA-02/8842. Thereby, the burden of claimants to prove the actionable negligence on the part of Manjunath and involvement of Autorickshaw stood discharged. The same was not rebutted by the respondents. Ex.R6 the private investigation report, as rightly pointed out by the Tribunal has no evidentiary value unless the witnesses who have given statement in the said report are examined. As Manjunath was not examined, the Tribunal justifiably held that the presumptive value of the charge sheet was not rebutted. There is no merit in the appeal and same is liable to be dismissed.

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Considering the submissions of both side and material on record, the questions that arise for determination of the Court are:

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(i) Whether the finding of the Tribunal that Mohammed Younis died due to rash and negligent driving of Auto-rickshaw No.KA02/8842 by its driver Manjunath on 11.04.2006 at 10.00 p.m. near Billakempanahalli village is sustainable?”.

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(ii) Whether the compensation awarded by the Tribunal is just one?”.

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ANALYSIS

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Reg. Point No.1

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The claimants came before the Court alleging that on 11.04.2006 at 10.00 p.m. when Mohammed Younis was traveling as passenger in Auto-rickshaw No.KA-02/8842 driven by one Manjunath the accident took place on account of rash and negligent driving of Auto-rickshaw by the said Manjunath. Therefore claimants have to prove two facts:

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(i) That at the time of accident, Mohammed Younis was traveling as passenger in Auto-rickshaw No.KA-02/8842.

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(ii) Second fact is that, Manjunath drove the said auto-rickshaw in rash and negligence manner so as to endanger human life and hit the canter lorry bearing registration No.KA-05/7640.

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Then the burden shifts to respondents to rebut the claimants’ evidence.

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PW.1 i.e., claimant No.1 and PW.2 the employer of Mohammed Younis were not the eyewitnesses to the incident. Claimants did not choose to examine any of the eyewitnesses. It is no doubt true that RW.5 allegedly filed the complaint as per Ex.P1 on 12.04.2006 at 7.30 p.m. involving Auto-rickshaw No.KA-02/8842 showing one Manjunath as the driver of the auto-rickshaw. But as per the claimants’ own document Ex.P2 shows that the case was initially registered as UDR Case No.15/2006 by Siddapura Police. Thereafter, Bidadi police registered FIR Ex.P1 in Crime No.152/2006 implicating Auto-rickshaw No.KA-02/8842 and Manjunath. Ex.P2 is the communication from inspector of Siddapura police station to Bidadi police transferring the Unnatural Death Report to Bidadi police. Interestingly, the claimants do not even produce the certified copy of the complaint allegedly

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filed by B.S. Nagaraj. The complainant RW.5 was summoned by the Insurer itself and examined. In his deposition he clearly stated that he has not witnessed the accident nor filed the complaint. He admits that he has given evidence before the Magistrate as per Ex.R22. Ex.R22 was his deposition before the Magistrate in C.C.No.602/2006. There also he has disputed having filed the complaint and being present during the spot mahazar. Nothing could be elicited in his crossexamination by the claimants to impeach his evidence.

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Similarly, RW.3 who is the owner of Auto-rickshaw No.KA-02/8842 deposed before the Court that his Autorickshaw was not involved in the accident. He had also not supported the case of the police that the accident occurred involving his auto-rickshaw. The Tribunal heavily relies on charge sheet and aforesaid other police records, but Ex.R16 the certified copy of the judgment in C.C.No.602/2006 which was initiated based on Ex.P8-the charge sheet shows that in those proceedings none of the alleged eyewitnesses or other witnesses supported the prosecution case. Therefore, Manjuanth was ultimately acquitted.

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The Tribunal itself admits Ex.P27 the report regarding service of summons on Manjunath in evidence. As per the said report Manjunath died on 05.12.2015. Accepting the same the evidence was closed. Therefore, observation of the Tribunal that the insurer has not chosen to examine Manjunath, therefore its case shall be disbelieved, is contrary to the evidence on record. Respondent No.2 the insurer did all efforts to examine Manjunath but could not examine for the reason beyond its control. He was acquitted on full fledged trial. By such evidence of RWs.3, 5 and Exs.R.16 to R24 and R27, the presumption with regard to charge sheet Ex.P8 stood rebutted. Then the burden was on the claimants to establish the occurrence of accident involving Auto-rickshaw No.KA02/8842 and Manjunath driving the same. But they failed to examine any of the eyewitnesses.

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Under the circumstances there was no need for the insurer to examine the Investigating Officer. If at all the claimants wanted to rely on Ex.P6 the IMV report, Ex.P8 the charge sheet, it was for them to examine the authors of those documents which was not done by them. The Coordinate Benches of this Court in Veerappa and Another Vs Siddappa

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and Another¹ and Mahadevi vs. Shivaputra and another² taking judicial notice of rampant malpractices in the field of motor accident claims and some unscrupulous persons amongst Police Officers, Transport Officers, Doctors and Lawyers in collusion with each other creating documents to make fraudulent claims held that the charge sheet is not the conclusive proof or ultimatum barring the Courts to traverse beyond the same. It was held that the charge sheet has to be appreciated with reference to the other evidence on record.

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The above discussion goes to show that in the context of the other evidence, charge sheet and IMV report were found deficient. The claimants failed to discharge their burden by examining eyewitnesses and authors of Exs.P6 and P8. Despite that the Tribunal relied on the same documents to come to the conclusion that the occurrence of the accident and involvement of Auto-rickshaw No.KA-02/8842 was proved. In the light of the above observation, the finding of the Tribunal that the accident and consequent death of Mohammed Younis was due to rash and negligent driving of Auto-rickshaw No.KA-02/8842 is unsustainable.

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1 ILR 2009 KAR 3562

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2 MFA No.201689/2016 (DD 20.11.2020)

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Reg. Point No.2:

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In view of the finding on point No.1, the question of computing the compensation does not survive for consideration. The appeal deserves to be allowed and claim petition is liable to be dismissed. Hence the following:

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ORDER

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The appeal is allowed.

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The impugned judgment and award of the Tribunal is

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hereby set aside.

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The claim petition in MVC No.4520/2006 is hereby dismissed.

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The amount in deposit shall be refunded to the appellant digitally.

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Sd/JUDGE

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Sd/JUDGE

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PKN

The Manager v. Smt Shabeen Taj

Case brief

What is this about?

What did the court decide?

The Manager v. Smt Shabeen Taj

Case brief

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