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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 25TH DAY OF JUNE 2012
BEFORE
THE HON’BLE MR.JUSTICE K.N.KESHAVANARAYANA
MFA.No.8578 OF 2008 (MV)
BETWEEN:
New India Assurance Co. Ltd.,Branch Office, 1st Floor,Mayur Complex, Next to PIA Bhavan,Peenya,
Bangalore-560 058.By New India Assurance Co. Ltd.,Divisional Office,Mayur Complex, Next to PIA Bhavan,Peenya,Bangalore-560 058.
By its Manager. ... Appellant
[By Sri.O.Mahesh, Advocate]
AND:
1. Gopal @ Gopalkrishna,S/o Munivenkatappa,Aged 36 years,Residing at Kalyanapura,Magadi Taluk,
Bangalore Rural District.
2. Prakash S/o Govindaiah,Aged Major,Residing at No.44, Harthi,Magadi Taluk,
Bangalore Rural District. ...Respondents
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[By Sri.K.V.Naik for Sri.Shripad.V.Shastri, Advocate for R-1;Notice to R-2 held sufficient vide order dated 14.3.2012]
This Miscellaneous First Appeal is filed underSection 173 (1) of MV Act, against the judgment andaward dated 29.2.2008 passed in MVC No.3883/2007on the file of the I Additional Judge, Member, MotorAccident Claims Tribunal, Metropolitan Area, Bangalore
(SCCH-11), awarding a compensation of Rs.2,87,300/-from the date of petition till realisation.
This Appeal coming for hearing on this day, thecourt delivered the following:
J U D G M E N T
This appeal by the insurer is directed against the
judgment and award dated 29.2.2008 passed by the I
Additional Judge & MACT, Bangalore in
MVC.No.3883/07.
2. Respondent No.1- filed the above said claim
petition under Section 166 of the Motor Vehicles Act
seeking compensation of Rs.3 Lakhs for the personal
injuries said to have been sustained by him in a motor
vehicle accident that occurred at about 2.30 p.m. on
22.10.2006 near Lekkanahalli colony of Nelamangala-
Kunigal Road (NH-48). In the claim petition, the
claimant averred that on the date of the accident, he
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was proceeding as a pillion rider on the motor cycle
bearing registration No.KA-04-ER-8056 ridden by his
friend one Ananth Kumar from Solur towards
Kalayanapura and when they reached near Lekkenahalli
Colony, a Maxi Cab bearing registration No.KA-03-B-
252 driven by its driver in a rash and negligent manner
came from opposite direction and dashed against the
motor cycle as a result he sustained fracture of right
femur, dislocation of the right ankle joint, fracture of
both bones of right leg etc. and immediately he was
shifted to Government Hospital at Nelamangala from
where after the first aid treatment, he was shifted to
Sanjay Gandhi Hospital, Bangalore, where he was
treated as inpatient. The claim petition was filed
against the owner and insurer of Maxi Cab bearing
registration No.KA-03-B-252.
3. The owner of Maxi Cab arrayed as respondent
No.1 before the Tribunal though appeared through his
counsel, however did not file any objections nor
contested the petition. The insurer of the said Maxi Cab
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arrayed as respondent No.2 before the Tribunal
contested the petition and disputed the involvement of
Maxi Cab bearing registration No.KA-03-B-252 in the
accident. It further contended that according to the
complaint and the First Information Report, the vehicle
which caused the accident was a Tempo Traveler
bearing registration No.KA-52-253 but subsequently in
collusion with the police, charge sheet came to be filed
against the driver of the Maxi Cab bearing registration
No.KA-03-B-252 and thereby they have falsely
implicated the vehicle in question though it had not
been involved in the alleged accident. The appellant –
insurer admitted issuance of policy in respect of the
said vehicle and its validity as on the date of the
accident. In the light of the said contention, the insurer
sought for dismissal of the claim petition.
4. In the light of the pleadings of the parties, the
Tribunal framed the following issues:
1. Whether the petitioner proves that on
22.10.2006 at about 2.30 p.m. near
Lekkenahalli Colony on NH-48
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Nelamangala –Kunigal Road he being the
pillion rider in the Hero Honda motor
cycle bearing registration No.KA-04-ER-
8056 had met with an accident due to
rash and negligent driving of Maxi Cab
bearing registration No.KA-03-B-252 by
its driver and he had sustained injuries.
in the accident as averred?
2. Whether the petitioner is entitled for
compensation and if so, what amount
and from whom?
3. What order and award?
5. In support of his case, the claimant examined
himself as PW.1 and also examined Dr.Prakashappa, as
PW.2. He placed reliance on the documentary evidence
placed on record marked as Ex.P.1 to P.78. On behalf
of the insurer, one of its Officer was examined as RW.1
and the insurer relied on documentary evidence marked
as Exs.R.1 to R.4.
6. After hearing both sides and on assessment of
the oral and documentary evidence, by the judgment
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under appeal, the Tribunal answered issue No.1
regarding actionable negligence in the affirmative in
favour of the claimant, holding that the claimant has
proved the accident alleged involving Maxi Cab bearing
registration No.KA-03-B-252 and his sustaining the
injuries in the said accident. In that view of the matter,
the Tribunal held that both the owner and insurer of the
said vehicle are responsible to compensate the claimant.
7. Having regard to the nature of the injuries
sustained by the claimant as well as the duration of the
treatment, the Tribunal awarded a sum of
Rs.2,97,300/- as compensation under different heads
as under:
1. Towards pain and agony Rs. 70,000/-
2. Towards medical expenses, conveyance, nourishment and attendant charges Rs. 42,300/-3. Towards future medical treatment Rs. 10,000/-4. Towards loss of future earning capacity Rs.1,35,000/- due to permanent disability5. Towards Loss of income during the period of treatment Rs. 15,000/-6. Towards future unhappiness and Rs. 25,000/- loss of amenities . . Total Rs.2,97,300/- .
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The Tribunal directed the appellant – insurer to
pay the entire compensation with interest at 6% per
annum from the date of the petition till the date of
payment. Aggrieved by the said judgment and award,
the insurer is in appeal before this Court.
8. I have heard Sri.O.Mahesh, learned counsel
appearing for the appellant-insurer as well as
Sri.K.V.Naik for Sri.Sripad V. Shastri, learned counsel
appearing for the respondent-claimant. Perused the
records made available.
9. The main contention urged by the learned
counsel for the appellant is that the finding recorded by
the Tribunal on issue No.1 with regard to the actionable
negligence and involvement of the vehicle in question, is
highly perverse and is without any basis. It is his
contention that the Tribunal has failed to notice that
there is a clear attempt on the part of the claimant in
collusion with the officials of law enforcing agencies to
falsely implicate the vehicle in question in the accident
though it was not responsible for the alleged accident.
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Drawing the attention of this Court to the contents of
the complaint lodged at the earliest point of time by the
younger brother of the rider of the motor cycle on which
the claimant stated to have been proceeded as pillion
rider, the learned counsel contended that in the said
complaint, there is clear indication that the accident
occurred as a result of Tempo Traveler bearing
registration No.KA-52-253 dashing against the motor
cycle and subsequently without any basis, charge sheet
came to be filed against the driver of the vehicle in
question. He also pointed out that though as per the
complaint allegations, immediately after the accident,
the claimant was shifted to Government Hospital at
Nelamangala where he was treated initially before he
was shifted to Sanjay Gandhi Hospital, Bangalore, the
claimant deliberately has not produced any document
from the Government Hospital at Nelamangala.
According to the learned counsel, had the MLC Register
extract from the Government Hospital at Nelamangala
been produced, it would have thrown light as to what
kind of history had been furnished before the said
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Hospital, therefore, non-production of such document
entails drawing of an adverse inference against the
claimant about subsequent conduct of attempt to
implicate the vehicle which was not involved in the
alleged accident. Therefore, he sought for setting aside
the judgment and award and dismissal of the claim
petition against the Insurance Company.
10. On the other hand, learned counsel for the
respondent - claimant sought to justify the judgment
and award passed by the Tribunal and contended that
the finding recorded by the Tribunal as to the actionable
negligence is based on the evidence placed on record
and that the mistake in mentioning the registration
number of the vehicle has been explained by the very
complainant based on which the Investigating Officer
subsequently filed charge sheet against the vehicle in
question which caused the accident. Therefore, he
contended that there are no grounds to interfere with
the judgment passed by the Tribunal.
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11. In the facts and circumstances of the case and
in the light of the submissions made on both sides, the
points that arise for my consideration are,
1. Whether the Tribunal is justified in
answering issue NO.1 in the affirmative?
2. Whether the vehicle in question was not
involved in the accident alleged?
12. Even according to the allegations made in the
claim petition, the claimant was proceeding as pillion
rider on the motor cycle bearing registration No.KA-04-
ER-8056 ridden by his friend Ananth Kumar. Ex.P.1 is
the true copy of the FIR in Crime No. 215/2006 of
Kudur Police Station. The said case was registered on
the basis of the complaint lodged by one Kunthi Kumar
son of Garuda Venkataiah resident of Kalyanapura at
3.00 p.m. on 23.10.2006. The accident said to have
occurred at about 2.30 p.m. on 22.10.2006. From this
it is clear that the complaint came to be lodged about 24
hours after the accident.
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13. As per the contents of the complaint, at about
2.30 p.m. on 22.10.2006, when the complainant was
standing near Lekkenahalli Colony of NH-48 waiting for
a bus to go to Mahadevapura, at that time he saw a
Tempo Traveler coming from Bangalore side towards
Kunigal driven by its driver in a rash and negligent
manner and the driver swayed the vehicle to the
extreme right side of the road and dashed against a
Hero Honda motor cycle which came from the opposite
direction, as a result, the rider and pillion rider of the
motor cycle fell down; however, the driver of the Tempo
Traveler did not stop the vehicle and fled away from the
place and he noticed that the vehicle which caused the
accident was bearing registration No.KA-52-253; that
immediately when he came near the motor cycle, he
noticed that the rider was none other than his elder
brother Ananth Kumar and pillion rider was one Gopal
of his village and the motor cycle had been damaged
severely; that immediately he shifted both the rider and
pillion rider who had sustained injuries in a vehicle to
the Government Hospital at Nelamangala and admitted
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them there; that as per the advice of the Doctor, Gopal
was shifted to Sanjay Gandhi Hospital, Bangalore while
Ananth Kumar continued to take treatment as inpatient
in the Government Hospital at Nelamangala. Therefore,
the complainant sought action against the erring driver
of the vehicle bearing registration No.KA-52-253. Based
on that complaint, case came to be registered against
driver of Tempo Traveler bearing registration No.KA-52-
253.
14. Ex.P.3 is the true copy of the spot mahazar.
According to the contents of this spot mahazar, drawn
between 4.15 p.m. and 5.00 p.m. on 23.10.2006, the
vehicle which caused the accident is shown as Tempo
Traveler bearing registration No.KA-52-253. However
according to the police, subsequently the complainant
made further statement a copy of which is marked as
Ex.P.73 on 23.10.2006 itself wherein he said to have
disclosed that by mistake he has furnished the
Registration No. of the vehicle which caused the
accident as Tempo Traveler bearing registration No.KA-
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52-253, on the other hand, the vehicle which caused
the accident was Maxi Cab bearing registration No.KA-
03-B-252. He said to have further clarified that his
brother Ananth Kumar did not take treatment as
inpatient in the Government Hospital at Nelamangala.
On the basis of this alleged further statement said to
have been made by the complainant, the police filed
charge sheet against one Srinivasa Murthy son of
Govindaiah as driver of the Tempo Traveler bearing
registration No.KA-03-B-252.
As could be seen by Ex.P.74, certified copy of the
order sheet in C.C.No.157/2007 on the file of the Civil
Judge (Jr.Dn.) & JMFC, Magadi, said Srinivasa Murthy
appeared before the court and pleaded guilty for the
accusation made against him, based on which he was
convicted and sentenced to pay fine.
Ex.P.78 is B-register extract relating to the vehicle
bearing registration No.KA-52-253, according to which
the said vehicle is a luxury Taxi manufactured by Tata
Motors.
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Ex.P.60 is the admission record and case sheet
maintained in Sanjay Gandhi Hospital. According to
Ex.P.60, the person who was admitted was Gopal aged
35 years son of Munivenkatappa, resident of
Mahadevapura in Nelamangala Taluk, Bangalore
District. However, the said particulars are subsequently
changed to Gopalaiah resident of Basavenahalli, Magadi
Taluk, Bangalore district on the basis of the affidavit
and an application filed by the claimant before the RMO
of the Hospital. As per the contents of the affidavit,
which is available in the case sheet, the claimant who
met with an accident on 22.10.2006 was admitted to
Sanjay Gandhi Hospital by an unknown person and the
said unknown person said to have furnished his
address wrongly as resident of Mahadevapura of
Nelamangala Taluk, Bangalore District. According to
the said affidavit the claimant is a permanent resident
of Basavenahalli village, Magadi Taluk, Bangalore
District. Very strangely in the cause title of the claim
petition, the petitioner is described as resident of
Kalyanapura, Solur Hobli, Bangalore Rural District. In
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the cross-examination, the claimant examined as PW.1
has admitted that the motor cycle was being ridden by
his friend Ananth Kumar. It is further elicited from him
that Kunthi Kumar referred to as complainant in Ex.P1
is his friend. He has admitted that in the complaint
lodged in respect of the accident, Registration No. of the
vehicle which caused the accident has been mentioned
as Tempo Traveler bearing registration No.KA-52-253.
According to PW.1, he does not know the Registration
No. of the vehicle which caused the accident. According
to him, he came to know from one Kumar who is the
son of his elder brother that the vehicle, which caused
the accident, was Maxi Cab bearing registration No.KA-
03-B-252. Very strangely, neither the complainant nor
the rider Ananth Kumar nor the said Kumar referred to
in the cross-examination of PW.1 who said to have
disclosed the Registration No. of the vehicle which said
to have caused the accident, have been examined before
the Tribunal.
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15. Yet another very strong circumstance to doubt
the case of the claimant is non-production of the
document from the Government Hospital at
Nelamangala. As noticed supra, even according to the
claimant, immediately after the accident he was taken
to the Government Hospital at Nelamangala. At that
time, either the claimant himself or the person who took
him to the Hospital would have disclosed the history to
the Doctor. It is not forthcoming as to what history had
been furnished before the Doctor in the Government
Hospital at Nelamangala. The claimant has deliberately
suppressed the said document. As noticed supra, in
order to get the name and address changed in the case
sheet maintained in Sanjay Gandhi Hospital, the
claimant goes to the extent of filing an affidavit that
some unknown person shifted him to the Hospital and
gave improper particulars whereas according to the
contents of the complaint-Ex.P.1, Kunthi Kumar, the
younger brother of the rider of the motor cycle was an
eye-witness and he shifted both the injured to the
Hospital at Nelamangala and from there, the claimant
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was shifted to Sanjay Gandhi Hospital. Therefore, it
cannot be believed that some unknown person had
taken him to Sanjay Gandhi Hospital. This
circumstance creates great amount of doubt as to
whether the case sheet Ex.P.60 pertains to this claimant
at all and there appears to be an attempt on the part of
the claimant to get his name introduced into the case
sheet which perhaps pertains to a person by name
Gopala son of Munivenkatappa, resident of
Mahadevapura in Nelamangala Taluk. It is also
interesting to note that in the admission record Ex.P.60,
the father’s name of the patient admitted was initially
written in the pencil and thereafter it is over written in
the ink pen as Munivenkatappa. Though the claimant
is a resident of Kalyanapura village, in Ex.P.60 the
altered village name is mentioned as Basavanahalli.
The failure on the part of the claimant to produce the
records from the Government Hospital at Nelamangala
to which place he was taken immediately after the
accident and non-examination of the complainant or the
rider of the motor cycle or said Kumar mentioned by the
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claimant in his cross-examination, entails drawing of an
adverse inference against the claimant. The Tribunal,
without considering these intrinsic evidence available on
record, has merely proceeded to accept the case of the
claimant on the premise that the police have filed
charge sheet against the vehicle in question on the basis
of the further statement of the complainant. Neither the
police officer nor the complainant has been examined to
explain the omission in this regard. The complainant is
not an illiterate person. PW.1 admits that the
complainant has studied up to SSLC and he is an
employee in BESCOM. Therefore, he is a literate person
and is in a position to identify the nature of the vehicle
and the Registration Number. The complainant, at the
earliest point of time in the complaint lodged about 24
hours after the accident, has mentioned the
Registration No. of the vehicle which said to have
caused the accident as Tempo Traveler bearing
registration No.KA-52-253. There are no reasons for the
complainant to wrongly mention the Registration No. of
the vehicle which caused the accident. Having regard to
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the evidence on record, I see considerable force in the
contention of the learned counsel for the appellant that
there is a clear attempt on the part of the claimant and
other agencies in falsely implicating the vehicle, which
was not involved in the accident. In this view of the
matter, I am of the considered opinion that the finding
of the Tribunal on issue No.1 is highly perverse and
erroneous and this finding has been recorded as a
result of non-consideration of materials available on
record. Therefore, the finding recorded by the Tribunal
in this regard is highly perverse and illegal. I am
convinced that the evidence on record is sufficient to
indicate that the vehicle in question against which the
claim was made was not involved in the accident and
the Tribunal is not justified in directing the insurer of
the said vehicle to pay the compensation amount
quantified by it. As noticed earlier, the owner of the
said vehicle has remained absent without contesting the
petition. This also lends support to the contention of
the appellant with regard to collusion.
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16. In view of the above discussion, the appeal
deserves to be allowed. Accordingly, the appeal is
allowed. The judgment and award dated 29.2.2008
passed by the I Additional Judge & Member, MACT,
Bangalore in MVC.No.3883/2007 is hereby set aside.
The claim petition is dismissed with cost through out.
The statutory amount in deposit before this Court by
the appellant is ordered to be refunded to the appellant.
SD/-
JUDGE
RS/*
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KNKJ: MFA.NO.8578/2008(MV)27.6.2012
Orders On Being Spoken To
This matter had been listed for hearing on
25.6.2012 and after hearing Sri.O.Mahesh learned counsel
appearing for the appellant and Sri.K.V.Naik for Sri.Sripad
V. Shastri, learned counsel appearing for the respondent-
claimant, the judgment was dictated in the open court on
25.6.2012 dismissing the claim petition by recording a
finding that the involvement of the Maxi Cab bearing
registration No.KA-03-B-252 in the accident alleged is not
established.
Before the judgment is transcribed and the
autograph is signed, Sri.Sripad V. Shastri, moved a memo
requesting this Court to post the matter for being spoken
to with a view to make further submissions. It is on the
said memo, the matter is listed today for being spoken to.
After hearing Sri.Sripad V. Shastri further, I find
nothing for this Court to speak further in the matter. This
court in the judgment has considered all the documents
produced by the claimant as well as the insurer and also
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the circumstances which made this Court to draw an
adverse inference against the claimant and has held that
the involvement of the vehicle bearing registration No.KA-
03-B-252 in the accident alleged is not established and
that the finding of the Tribunal on issue No.1 is perverse.
Therefore, this Court has set aside the said finding and
has dismissed the claim petition, which was filed only
against the owner and insurer of the aforesaid vehicle. The
further submission made by Sri.Sripad V. Shastri is that
the claimant be permitted to pursue his remedy against
the owner and insurer of the vehicle mentioned in the FIR
which is stated to be the vehicle responsible for the
accident. If law permits such a course, the claimant is at
liberty to pursue such remedy, for which leave from this
court is not necessary.
In the light of the above, the judgment dated
25.6.2012 is maintained.
SD/-
JUDGE
RS/*