Sri. Shivaswamy Vs Smt. Savithramma

SRI. SHIVASWAMY, S/O. PARAMASHIVA GOUNDER, AGED ABOUT 58 YEARS, R/AT B. GUNDAPURA VILLAGE, MANGALA POST, KOLLEGALA TALUK, CHAMARAJANAGARA DISTRICT - 571 440.

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…APPELLANT

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(BY SRI. K.V. NARASIMHAN, ADVOCATE)

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AND:

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SMT. SAVITHRAMMA

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SINCE DEAD BY HER LRS:

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Digitally signed by KAVYA R Location: High Court of Karnataka

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MAHENDRA

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S/O. LATE NINGARAJAPPA, AGED ABOUT 38 YEARS, R/AT KONGARAHALLI VILLAGE, KOLLEGALA TALUK, CHAMARAJANAGAR DISTRICT - 571 440.

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SMT. NAGAMANI

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D/O. LATE NINGARAJAPPA, AGED ABOUT 30 YEARS, R/AT NANJEVADEYARA DODDI, KOLLEGALA TALUK,

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NC: 2025:KHC:24860 MFA No. 5627 of 2016

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HC-KAR

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CHAMARAJANAGARA DISTRICT - 571 440.

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UNITED INDIA INSURANCE COMPANY DR. RAJKUMAR ROAD, SOUTHERN EXTENSION, KOLLEGALA, CHAMARAJANAGARA DISTRICT - 571 440.

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…RESPONDENTS

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(BY SMT. P.C. SUNITHA, ADVOCATE FOR R1 AND R2; SRI. B.C. SEETHARAMA RAO, ADVOCATE FOR R3)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 18.04.2016 PASSED IN MVC NO.352/2010 ON THE FILE OF THE ADDITIONAL DISTRICT & SESSIONS JUDGE, MEMBER, MACT, CHAMARAJANAGAR, SITTING AT KOLLEGAL, AWARDING COMPENSATION OF Rs.3,60,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.

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THIS APPEAL, 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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This appeal is filed by the respondent No.1/owner of the vehicle challenging the judgment and award dated 18^th April 2016, passed by the learned Additional District and Sessions Judge and Member of MACT., Chamarajanagara, sitting at Kollegala, (for short `Tribunal'), in MVC No.352/2010.

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HC-KAR

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For the sake of convenience, the parties are

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referred to as per their ranking before the Tribunal.

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Brief facts of the case are that, on 23.05.2010, the deceased-Savithramma was going as a pillion rider on motorcycle bearing registration No.KA-15-E-6747 and Mahesh S/o Mahadevappa was riding the said motorcycle. At about 3.00 p.m. on Gundapura Road, near Krishnegowda land, rider of the motorcycle bearing registration No.KA-10-J-2144 rode his vehicle in rash and negligent manner and hit the motorcycle wherein the deceased was proceeding. As a result, she fell down from the vehicle and sustained severe head injuries. She was shifted to Cauvery Hospital Mysore and she took treatment as inpatient from 23.05.2010 to 30.06.2010 and again from 20.07.2010 to 23.07.2010. Due to the injuries sustained in the accident, she suffered permanent disability.

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The claim petition was filed on 15.12.2010 and during the pendency of the said claim petition, Savithramma was said to have died due to the injuries sustained in the accident and both her son and daughter were impleaded as parties in the said claim petition. However, they have not

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pleaded in the amended claim petition that Savithramma died due to the injuries sustained in the accident and even they have not claimed the compensation on the basis of her death in the said vehicle accident.

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Respondent No.1 was the rider and owner of the offending vehicle. He appeared before the Tribunal but has not filed any objections. Respondent No.2/insurer, filed the written statement contending that there is a delay of 6 days in filing the complaint, which indicates that the case was concocted and the vehicle belonging to respondent No.1 was falsely implicated in this case just to claim the compensation. It also denied all the averments in the claim petition and prayed for the dismissal of the claim petition.

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From the rival contentions of the parties, the Tribunal framed necessary issues, for its determination.

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The claimant to prove his case examined two witnesses as PW-1 and PW-2 and marked 14 documents, as per Exs.P-1 to P-14. Respondents examined two witnesses as RW-1 and RW-2 and marked documents as Exs.R-1 to R-5.

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HC-KAR

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The Medical Officer who had treated the deceased in

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the hospital was examined as CW-1 and marked documents as Exs.C-1 to C-5.

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The Tribunal initially heard the matter and passed the judgment and award dated 25.08.2012. The Tribunal dismissed the claim petition.

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The said award dated 25.08.2012 was challenged by the Present claimants before this Court in MFA No.10849/2012 (MV). During hearing of said appeal, appellant appears to have raised a point that, although there was no specific pleading, the death of Savithrama resulted from the injuries sustained in the accident. This was intended to enable the claimants to prove that contention. The division Bench of this Court, vide judgment dated 09.07.2014, allowed the appeal and remanded the matter to the Tribunal for reconsideration. This Court also permitted both the parties to produce additional oral and documentary evidence, if any.

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Undisputedly, both the parties have not led any additional evidence after the remand of the matter. The

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HC-KAR

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Tribunal after hearing both the parties, vide impugned judgment dated 08.04.2016, allowed the petition and awarded the compensation of Rs.3,60,000/-. From the reasoning, it appears that the Tribunal found out the fraud was played by the claimants as well as respondent No.1, so as to obtain compensation from respondent No.2. Therefore, the Tribunal exonerated respondent No.2 and directed respondent No.1 to pay the compensation. The same is challenged by respondent No.1 in the present appeal.

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I have heard the arguments and perused the

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records.

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Learned counsel for the appellant (Respondent No.1-owner of motor bike) contended that after remanding the matter, the claimants have not examined any witness to prove that there was nexus between death and injuries sustained by the deceased, except the fact that the appellant pleaded guilty before the Criminal Court, wherein a criminal case was registered against him. He has not played any active role in filing of the motor vehicle compensation case. There was no material to believe that he had played fraud on the insurance

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company for the benefit of the claimants and moreover the insurer has not led any evidence in this regard. Merely pleading guilty in a criminal case cannot be considered as collusion with the claimants or owner of the vehicle. Therefore, the findings of the Tribunal are erroneous. The Tribunal held that Respondent No.1 is liable to pay the compensation and that the vehicle was insured with Respondent No.2, hence it is liable to indemnify the owner. With these reasons, he prayed to set aside the impugned judgment.

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Learned counsel for the claimants contended that a criminal case was registered against respondent No.1 for causing the accident in question. He had pleaded guilty before the Criminal Court. The charge sheet and enclosures prove his involvement in the vehicle accident. The said charge sheet was not challenged by both the respondents. The Tribunal has given much importance to Ex.P-5. The doctor was examined in this case by the respondents as CW-1. The deceased had sustained grievous head injuries. Ex.C-1 reveals these facts. Therefore, in all probability death was due to injuries sustained in the said accident. However, the Tribunal has not considered the same.

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HC-KAR

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The learned advocate for appellant further contended that the Tribunal assessed the quantum, but directed the respondent No.1-owner of the vehicle to pay the compensation on the ground that there was collusion between claimants and respondent No.1, without any basis. Therefore, the said finding is erroneous and it is submitted that respondent No.2/insurer be directed to pay the compensation.

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The claimants have not filed any appeal against the impugned judgment and award. Respondent No.1 filed the appeal praying to set aside the impugned award passed by the Tribunal, as the Tribunal had fastened the liability on him to pay the compensation. Even the claimants have not challenged the fact that the Tribunal did not consider whether Savithramma's death was due to injuries sustained in the accident. Therefore, there is no need to reconsider the said fact.

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The Tribunal, in the impugned judgment, did

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not take into account the death of Savithramma during the pendency of the appeal, allegedly due to injuries sustained

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in the accident. The claimants had filed MFA No.10849/2012, and based on their submissions, the matter was remanded to allow them to prove that Savithramma's death resulted from those injuries. Despite being given an opportunity by the Tribunal, the claimants failed to produce any evidence in this regard.

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The accident occurred on 23.05.2010, and Savithramma passed away on 02.06.2011—nearly a year later. Admittedly, she did not die in the hospital. Following her death, the matter was reported to the police, and a post-mortem examination was conducted. Under these circumstances, the Court cannot conclude, merely based on assumptions or the available material on record, such as Ex.C-1, that her death was caused by injuries sustained in the accident. The said contention of claimants is not acceptable. These materials were available before remand of the matter by this Court. To prove said facts matter was remanded. Therefore, there is no change of status even after remand of the case. Hence, contention of claimant that Tribunal

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on the basis of available materials could have held that death of Savithramma was due to injuries sustained in the accident; is not tenable.

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The Tribunal awarded the compensation only under the heads 'medical expenses', 'conveyance charges' and 'loss of earnings during the period of treatment', believing that the death was not caused due to the injuries sustained in the accident. These facts do not require reconsideration.

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The only dispute between the parties in the present case is the involvement of the vehicle in causing the accident in question. PW-1 is a claimant. He was not a witness to the incident. In his evidence he has narrated the facts of the case and stated that the accident occurred on 23.05.2010. He also stated that the accident occurred due to the negligence of respondent No.1, who pleaded guilty before the criminal Court and paid fine. In his cross-examination, respondent No.1 has not disputed his contention and he adopted the further cross-examination of respondent No.2. Respondent No.2 in his cross-examination, suggested that the

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rider of the vehicle had no valid license. Therefore, he colluded with respondent No.1 to obtain compensation, thus, a false story was narrated and the complaint was filed after seven days.

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The rider of the motorcycle was examined as PW-2. In his evidence, he has stated that on 23.05.2010, when he was riding the vehicle, respondent No.1 came from the opposite direction in a rash and negligent manner and hit against his vehicle. As a result, Savithramma fell down and sustained head injury. Thereafter, respondent No.1 ran away from the spot of the incident even without informing the police. He also mentioned the injuries sustained in the incident. In his crossexamination, respondent No.1 suggested that, at the time of the accident, persons who were present near the spot told him the name of Respondent No.1 and that he was unconscious after the accident. In his cross-examination, respondent No.2 once again suggested that he had no license to ride the said vehicle. Therefore, in collusion with respondent No.1, a false complaint was given 7 days after the date of accident.

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HC-KAR

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Undisputedly, the complaint was lodged on 29.05.2010 before the concerned police station by PW-2. Ex.P5 shows that PW-2 took the deceased-Savithramma, to Cauvery Hospital. The contents of Ex.P-5 reveal that he gave a statement before the concerned medical officer that "alleged history of fall while traveling in two-wheeler (TVS)". It appears that the patient was initially treated at Holy Cross Hospital, Kamagere and JSS hospital. Thereafter, she was brought to Cauvery Hospital. Since it was reported at Cauvery Hospital that the lady fell from the motorcycle, therefore sustained injuries and hence, the concerned doctor has not informed about the incident to the nearest police station.

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The delay of 7 days in informing the police about the incident by either PW-1 or PW-2 is not properly explained. Both of them contended that they were taking care of Savithramma. Therefore, they were unable to file a complaint in time. According to the medical records, she was in the hospital till 30.06.2010 and her condition was not improved during the treatment. Delay in lodging complaint and also from the history given to the doctor in the hospital, leads to an

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inference that both claimant and owner of offending vehicle colluded and created a story of accident.

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Dr.Shivananda was examined as CW-1. In his evidence, he has stated that "the patient-Savithramma was brought to their hospital on 23.05.2010 with history of road traffic accident". In his cross-examination, he has stated that on 23.05.2010, at the time of admission, the concerned medical officer recorded the details of history of the incident i.e. how the accident occurred. The wound certificate produced along with the case sheet given by the Cauvery Hospital, Mysore, identified by him, and he states that the history of injuries indicates "a fall from a motorcycle".

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If we examine the evidence of PW-2 wherein respondent No.1, suggested that the right handle of his motorcycle came into contact with another motorcycle approaching from the opposite direction, and that he saw Respondent No.1 at the scene of the accident. In his further cross-examination, he referred to the note made

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by the medical officer at Cauvery Hospital regarding the registration number of the vehicle involved in the incident. However, he did not establish before the doctor that the accident occurred due to the involvement of the vehicle belonging to Respondent No.1. These facts create doubt on the claimant's case concerning the involvement of the alleged offending vehicle in the incident.

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It is pertinent to note that respondent No.1 pleaded guilty and paid fine. It is true that only on that basis, it cannot be inferred that the claimants and respondent No.1 colluded together and he pleaded guilty because of such collusion. In many other cases, an adverse inference can be drawn when the rider accused in a criminal case voluntarily pleads guilty. In the present case, there are Three reasons to infer an adverse finding against Respondent No.1;

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The first one is he did not even inform the police regarding the incident in question, even when his

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vehicle was involved in the accident. The second one is Ex.P-5, wherein PW-2 himself stated before the doctor that while travelling on the motorcycle, Savithramma fell from it. Thirdly, after the death of Savithramma, in all probability PW-1 and respondent No.2 should have intimated the said fact to the concerned police regarding the death of the Savithramma, and that her death was caused due to injuries sustained in the accident, however, they kept quiet. Had they filed any such additional report before the concerned police station, it could have had certain repercussions regarding Respondent No.1's plea of guilt. He may have been required to undergo a sentence of imprisonment since he had pleaded guilty to offences punishable under Section 279 and 338-A of the IPC.

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Therefore, it can be inferred that just to save the respondent No.1 from the conviction for the offence punishable under Section 304-A of IPC., death was not reported to police. The said conduct of both claimants and respondent No.1 leads to an inference that both of them

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colluded and created a story. The intention of both is obviously to get compensation from respondent No.2. Hence, Tribunal rightly exonerated insurer from its liability to pay compensation and directed the respondent No.1 to pay the same. There is no error in the said finding and hence, do not call for interference.

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The Tribunal has not assessed the

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compensation on the basis of death of Savithramma, but considered it as an injury case and decided the matter. After the remand of the case, the claimants have not led any further evidence or amended the pleading and prove that the death of Savithramma was due to the injuries sustained in the accident. The Tribunal relying on the principle of law laid down in the case of Veerappa vs. Siddappa and Ors., rendered by the Division Bench of this Court in MFA No.8488/2004, held that in the facts and circumstances, this case claimants and respondent No.1 played fraud on Tribunal and respondent No.2 to claim compensation. Hence, absolved of the liability of insurer

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and directed owner of the vehicle to pay compensation. I

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do not find any reasons to interfere in the said findings.

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In the result, I proceed to pass the following:

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ORDER

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i) The Appeal is dismissed.

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ii) The judgment and award dated 18^th April 2016, passed in MVC.No.352/2010, by the Additional District and Sessions Judge and Member of MACT, Chamarajamagara, sitting at Kollegala, is confirmed.

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iii) If any amount deposited by the appellant before this Court same shall be transmitted to the Tribunal for disbursement.

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iv) Draw award accordingly.

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Registry is directed to send back the records along with a copy of this judgment to the concerned Tribunal.

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Sd/(UMESH M ADIGA) JUDGE

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AMA List No.: 1 Sl No.: 10 CT: BHK

Sri. Shivaswamy v. Smt. Savithramma

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Sri. Shivaswamy v. Smt. Savithramma

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