Smt Roopa Vs M/S National Insu Co. Ltd.

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 06.03.2013 PASSED IN MVC NO.155/2011 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE, ADDITIONAL MACT, CHITRADURGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA NO. 4461/2013

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BETWEEN:

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NATIONAL INSURANCE CO., LTD., CHITRADURGA BRANCH.

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THROUGH ITS REGIONAL OFFICE NO.144, SUBHARAM COMPLEX M G ROAD, BANGALORE-560 001. REP. BY ITS ASSISTANT MANAGER MR.R. LAKSHMANA RAO.

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...APPELLANT

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(BY SRI. B C SEETHARAMA RAO, ADVOCATE)

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HC-KAR

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AND:

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SMT. ROOPA AGED ABOUT 24 YEARS W/O LATE JAGADEESH

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KUM. JYOTHI AGED ABOUT 4 YEARS D/O LATE JAGADEESH SINCE MINOR, REP. BY HER MOTHER THE FIRST RESPONDENT HEREIN.

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SMT HANUMAKKA AGED ABOUT 62 YEARS W/O LATE KARIYAPPA

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ALL ARE RESIDENTS OF HIREBENNUR VILLAGE, CHITRADURGA TALUK.

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SRI PRASANNA KUMAR G M, MAJOR S/O MURUGENDRAPA G, R/O CHIKKABENNUR VILLAGE CHITRADURGA TALUK.

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(OWNER OF BAJAJ MOTOR CYCLE NO.KA.16/U-5229) ...RESPONDENTS

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(BY SRI. B L KUMAR, ADVOCATE FOR R1 TO R3, R2 IS MINOR REPRESENTED BY R1, R4 SERVED, BUT UNREPRESENTED)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 06.03.2013 PASSED IN MVC NO.155/2011 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND ADDITIONAL MACT-VI, CHITRADURGA.AWARDING A COMPENSATION OF RS. 4,48,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL DEPOSIT.

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HC-KAR

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THESE APPEALS, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE UMESH M ADIGA

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ORAL JUDGMENT

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Both these appeals arises out of the judgment and award dated 06.03.2013 passed in MVC.No.155/2011 on the file of the II Additional Senior Civil Judge, MACT-6, Davanagere (for short 'Tribunal'). MFA.No.4765/2013 is filed by the claimants and MFA.No.4461/2013 is filed by the insurer.

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The claimants have filed appeal seeking for enhancement of the compensation. The insurer has filed the appeal on the ground of false implication of the vehicle.

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The parties are referred to as per their ranking before the Tribunal.

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It is the case of the claimant that on 11.11.2010 around 10.30 p.m. the deceased Jagadish and PW-2 - Prabhudeva were going on the motor cycle bearing registration No.KA-16U-5229 towards Kariyamanahalli.

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HC-KAR

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Prabhu deva was riding the said motor cycle and deceased was the pillion rider. Around 10.30 p.m, when they reached near the pond of Kariyammanahatti village, the rider of the said motorcycle rode it rashly and negligently, as a result of it, the deceased fell down from the vehicle and sustained injury. He was shifted to Bharamasagara Government Hospital and for higher treatment, he was shifted to SSIMS Hospital, Davanagere. While undergoing treatment, he succumbed to injuries on 13.11.2010.

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On 13.11.2010, one Manjanna lodged the complaint as per Ex.P2 and on that basis, Cr.No.434/2010 of Bharamasagara police station was registered. It is further contended that deceased was aged about 29 years. He was an agriculturist and businessman, earning Rs.10,000/- per month. The claimant No.1 is the wife and claimant No.2 is the daughter and claimant No.3 is the mother of the deceased. They were dependent upon the earnings of the deceased. With these reasons, they prayed to award compensation of Rs.15 lakhs.

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HC-KAR

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Respondent No.1 in his written statement admitted the facts of the accident. He further contended that the vehicle was insured with respondent No.2 and in the event if claim petition is allowed, respondent No.2 be directed to pay the compensation.

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Respondent No.2 in his written statement denied the contentions of the claimants. It is further contended that the motorcycle bearing No.KA-16-U-5229 was not at all involved in the alleged accident and that there was a delay of two days in lodging the complaint. Claimants fabricated story of accident and in collision with owner of the vehicle it was falsely implicated. The claimants, therefore were not entitled for compensation. It also denied liability on the ground of violation of terms and conditions of the insurance policy. With these reasons, prayed to dismiss the claim petition.

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8. On the basis of rival contentions, the Tribunal

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framed necessary issues for its determination.

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HC-KAR

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The claimants to prove their case examined three

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witnesses as PW-1 to 3 and marked documents as per Exs.P1 to Ex.P8. Respondent No.2 examined one witness as RW-1 and marked documents as per Ex.R1 and R2. The Tribunal after hearing the parties held in its judgment that Jagadeesh died in the road traffic accident caused by rash and negligent riding of the vehicle by PW-2.

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Learned counsel for claimants vehemently

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contended that PW-2 was the rider of the motorcycle. He admitted in his evidence that he was the rider of the vehicle and the deceased was the pillion rider; when he applied the brake, the deceased fell down and sustained injuries; and while undergoing treatment, he succumbed to injuries. In the cross-examination of PW-2, nothing was brought out to discard his evidence. PW-3 is the complainant, he stated about lodging the complaint and also stated that the deceased was a pillion rider. These facts though challenged in their cross-examination by the respondent No.2 but were not disproved. Ex.P1 to P6 corroborates the contention of the claim petitioners. The investigating officer, without any

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HC-KAR

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reason, observed in Ex.P7 that accident had taken place due to negligence of the deceased, but nothing is mentioned in the charge sheet. For some reasons, he suspected that the accident had taken place due to negligence of deceased Jagadeesh. Merely, because the charge sheet was filed against the deceased, it is not a reason to discard the case made out by the claimant. Thus, the claimants have prayed to allow the appeal and enhance the amount of compensation.

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Learned counsel for insurer contends that PW-2 in his evidence has stated that he sustained injuries in the accident and the vehicle was damaged. However, the motor vehicle inspection report reveals no damage to the vehicle.

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The complaint was lodged two days after the accident, and no justifiable reason was given to condone the delay. PW-2 himself was responsible for the accident. He sustained injuries but he did not take treatment, without assigning any reason. The accident occurred on 11.11.2010. The vehicle

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was inspected on 25.11.2010 and according to PW-2, respondent No.1 got released the said vehicle from the Court

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HC-KAR

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within three days from the date of accident. The said evidence is not consistent. He further contends that accident took place due to negligence of the deceased. He

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had no driving license as per the evidence of PW-1. The claimants realized they might not receive compensation if the accident had occurred due to his negligence and without driving license, so they made a false case that the accident had taken place due to negligence of PW-2. The claimants are not challenging the charge sheet filed against the deceased and did not file objections to the final report filed

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by the investigation officer as per Ex.P11. These facts were not considered by the Tribunal, and erroneously awarded the compensation. Therefore, it is prayed that insurer's appeal be allowed and the impugned judgment be set aside.

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The following questions arises for my

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determination:

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i. Whether accident was caused due to negligence of deceased jagadeesh?

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HC-KAR

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Whether the Tribunal is justified in holding that the accident had taken place due to negligence of PW2.

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ii. Whether Tribunal was justified in awarding the compensation.

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iii. Whether claimants are entitled for enhancement of the compensation?

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iv. What order?

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Point Nos.1 to 3 : These points are interconnected and are taken up together for discussion.

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The fact of the accident is not in dispute. The serious dispute is, who was riding the vehicle at the time of the accident? As stated above, the accident took place on 11.11.2010. In the evidence of PWs.1 to 3, it is clear that the deceased Jagadeesh sustained fatal injuries; immediately after the accident, the deceased was shifted to Government Hospital at Bharamasagara for treatment and later was shifted to SSIMS Hospital, Davanagere. Any person, who took the injured to the hospital must have narrated the facts of the accident or the history of the injuries sustained by

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HC-KAR

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Jagadeesh, to the concerned medical officer. If such M.L.C., information is given normally, the matter would be reported to the concerned police station. In this case, there is no material on record indicating whether such intimation was given to any concerned police station or not.

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Looking at Ex.P1 - the FIR, it appears that, the concerned police received information from PW-3 - Manjanna. Even he had visited the spot of the incident, as per the information given to him by PW-2, but he did not give any complaint about the incident. Only after the death of Jagadeesh, a report was given to Bharamasagara police station. Moreover, there is delay of two days in filing the complaint, which is not properly explained. Not reporting of accident to nearest police station crates serious doubt of accident.

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As per the statement of Manjanna at Ex.P2 , PW2 - Prabhudeva was riding the vehicle at the time of the accident and deceased was a pillion rider. PW-2 in his evidence has stated that he left the vehicle at the spot of the

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HC-KAR

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incident and took the injured Jagadeesh to the hospital, thereafter, the vehicle was released to its owner. Ex.P3 shows the said vehicle was seized on 25.11.2010. If the vehicle was available at the spot of the incident, then why did the investigating officer not seize the vehicle immediately and requested the concerned Motor vehicle Inspector for inspection of the vehicle. The said vehicle was inspected on 25.11.2010, which is noted in Ex.P6. According to the said report, there was no damage to the vehicle. However, as per the evidence of PW-2, there were several damages to the said vehicle. The said fact is not consistent.

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Further, the investigating officer submitted a charge sheet against the deceased Jagadesh. According to Ex.P7, the deceased was riding the said vehicle in a rash and negligent manner, due to which the vehicle fell down and deceased sustained injuries and succumbed to the injuries. Undisputedly, the said final report has not been challenged by the claimants. There are no materials on record to over come the said final report submitted by the investigating officer, who was entrusted to investigate the said case.

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HC-KAR

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PW-1 in her cross-examination has stated that

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her husband had no driving license to drive the motor cycle. It is the consistent submission of counsel for the insurer that since the deceased had no valid driving license and if it found that he was riding the motorcycle without license and caused the accident, the legal heirs may not get the compensation. To overcome the same, PW-2 was planted as a rider of the motor cycle. Considering the materials available on record, the said contention cannot be ruled out. During the course of investigation, the investigating officer, who honestly

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investigated the crime found that, due to the negligence of deceased the accident had taken place and hence charge sheet was filed against him. That report was accepted by the Court and it was not challenged by the claimants. Hence, the claimants have failed to prove that the accident took place due to negligence of PW-2 - Prabhudeva. The Tribunal has not considered these facts and materials available on record and has erroneously held that the deceased died due to rash and negligent act of PW-2. The said findings are erroneous and call for interference by this

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HC-KAR

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Court. Accordingly, I answer the above said point No.1 in the affirmative and point Nos.2 and 3 in the Negative.

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Point No.4 - The Tribunal has assessed the

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compensation. Since the claimant utterly failed to establish that accident had taken place due to rash and negligent riding of the motorcycle by PW-2. Final Report filed by the police in Cr.No.434/10 reveal that the accident occurred due to negligence of the deceased, there is no question of reassessment of the compensation or enhancement of the compensation awarded by the Tribunal. For the said reasons, point No.4 is answered in the 'Negative'.

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