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Karnataka High Court · body

2011 DIGILAW 1166 (KAR)

National Insurance v. A. Siddayya Hegde

2011-12-02

AJIT J.GUNJAL, H.S.KEMPANNA

body2011
Judgment :- This appeal is by the insurer challenging the liability fastened on the ground the car MEG 1060 insured with them is not involved in the accident. 2. For the sake of convenience the parties in this appeal would be referred to by their rankings as they are arrayed in the claim petition before the Tribunal. 3. The factual matrix of the case are as follows:- 4. The claimants who are the parents of the deceased-Ratnakar Shetty instituted claim petition under Section 163A of the M.V. Act, 1988 (hereinafter referred to as ‘the Act’ for short) before the Tribunal claiming compensation in a sum of Rs.10,00,500/- on account of the death of their deceased son in a motor accident that took place on 6.11.1998 at about 8.45 p.m. near Sanagal situated on Koteshwwara-Vadwadi main road involving the motor car bearing Regn.No.MEG 1060, owned and driven by the first respondent and insured with the second respondent at the relevant point of time. 5. It is the case of the claimants that the deceased was aged about 26 years working as a clerk in Advocate’s office and was also a Pigmi Collector earning Rs.3,300/- p.m. He was hale and healthy as on the date of the accident. On account of the untimely death of the deceased in the impugned accident they have lost their sole bread earner apart from being subjected to deep mental shock and agony. Accordingly, they sought for grant of compensation from the respondents. 6. After service of notice, the first respondent driver-cum-owner did not appear and therefore, he was placed exparte. The second respondent insurer appeared and contested the claim of the petitioners. They contended that the accident in question has not taken place on account of the rash and negligent driving of the offending car by its driver, the first respondent. The car in question was insured with them and their liability if any is governed by the terms and conditions of the policy issued in favour of the first respondent. They further specifically contended that there is no nexus between the alleged accident and the car bearing No.MEG 1060. The said car had never dashed against the motor cycle bearing Regn.No.KA-20-H-7609 belonging to the deceased on which the deceased was proceeding at the time of accident. They further specifically contended that there is no nexus between the alleged accident and the car bearing No.MEG 1060. The said car had never dashed against the motor cycle bearing Regn.No.KA-20-H-7609 belonging to the deceased on which the deceased was proceeding at the time of accident. The deceased himself was rash and negligent in riding his motor cycle, due to which it skidded on account of which the deceased fell down to a road side ditch resulting in sustaining severe injuries to which he has succumbed. The police have also filed final report in C.C.No.1804/98 stating that the accident in question has taken place on account of the rash and negligent riding of the deceased himself. They also denied all other averments made in the claim petition and contended that they are not liable to pay any compensation. Accordingly, they sought for dismissal of the petition as against them. 7. On the basis of the above pleadings the tribunal framed the following issues:- 1. Whether petitioners prove that deceased Rathnakara Shetty had met with an accident on 6.11.1998 at about 8.45 p.m. at Sangal of Vakwadi village on Koteshwara-Vakwadi main road while he was proceeding towards his house from Kundapura? 2. Whether petitioners that the said accident has occurred solely due to the rash and negligence on the part of the driver of the car bearing Reg.No.MEG 1060 and the deceased had sustained fatal injuries on his person and succumbed to his injuries? 3. Whether the 2nd respondent insurance company proves that the deceased Rathnakara Shetty was not holding valid and effective driving licence to drive the motor cycle as on the date of the accident? 4. Whether 2nd respondent proves that the insurance company is not at all liable for any compensation for the reasons as stated in para 13 of the written statement? 5. Whether petitioners are entitled for compensation? If so, to what extent and from whom? 6. What order or award? 8. The claimants in support of their case got examined the first claimant, father of the deceased as PW1 and an eye-witness to the accident by name Raghuram Shetty as PW2. They produced in all four documents which came to be marked as exhibits P1 to P4. 9. On behalf of the respondents, they examined two witnesses by name Narayana Devaraya Merje-CPI and the first respondent as DW’s 1 and 2. They produced in all four documents which came to be marked as exhibits P1 to P4. 9. On behalf of the respondents, they examined two witnesses by name Narayana Devaraya Merje-CPI and the first respondent as DW’s 1 and 2. They produced in all 9 documents which came to be marked as exhibits D1 to D9. 10. The Tribunal on considering the oral and documentary evidence on record held that the accident in question has taken place on account to the rash and negligent driving of the Car MEG 1060 by its driver, the first respondent as such, the claimants have established actionable negligence. Further, the Tribunal looking to the evidence on PW1 and the documents placed on record awarded a sum of Rs.3,44,500/- with interest at 6% p.a. from the date of the petition till realization. It further saddled the liability of payment of compensation on the second respondent-insurer. 11. The appellant-insurer being aggrieved by the judgment and award fastening liability on them are in appeal before this Court. 12. The learned Advocate appearing for the appellant-insurance Company assailing the impugned judgment and award contended that the Tribunal has committed grave error in fastening the liability on them despite the material i.e. the evidence and the documents placed on record reveal that the accident has not occurred due to the actionable negligence of the driver of the car bearing Regn No.MEG 1060. He further contended that the material on record clearly discloses that the deceased has died on account of his rash and negligent riding of the motor cycle and therefore, the impugned judgment and order of the Tribunal fastening liability on them is not sustainable. Elaborating his submission he submitted that the evidence of the alleged eye witness PW2 Raghuram Shetty cannot be believed to hold that the car in question is involved in the accident having regard to the admission given by him in the cross examination and further in view of the evidence of DW1 and DW2 coupled with the documents Exhibits D1 to D9 which clearly reveal that the accident in question has not taken place on account of the accident in question has not taken place on account of the rash and negligent driving of the Car bearing Regn.No.MEG 1060. The car in question involved in the accident is planted to make a wrongful gain and therefore, the impugned order of the Tribunal fastening liability on them cannot be sustained. In support of his submissions he relied on the decision reported in 1981 ACJ 422 in the case of Savithri Bai & ors. – vs. Doddappa and ors. 13. Per contra, Sri. S.P. Shakar, learned senior counsel appearing on behalf of the respondents/claimants supporting the impugned judgment and award of the Tribunal, contended that in a case of this nature the Court has to look into preponderance of probabilities and strict standard of proof beyond reasonable doubt cannot be expected. In the present case the evidence of PW2-Raghuram Shetty clearly reveals that it is the car MEG 1060 belonging to the first respondent which dashed against the motor cycle of the deceased and as nothing suspicious is brought out in his cross examination, there is no reason to discard his evidence. In view of the same, the impugned judgment and award does not call for any interference. In support of his submission he placed reliance on the decision reported in AIR 2009 SC 2819 in case of Bimla Devi & ors. –vs-Himachal Road Transport Corpn. & Ors. Insofar as exhibits D1 to D9 and the evidence of DW’s 1 to 2, he contended that the same does not enure to the benefit of the appellant as the statements relied upon are not an admission made by an adversary and they being 162 statements of the witnesses recorded by the police during the course of investigation can be used only for contradicting or eliciting omissions as such the same will have no relevance to the facts of the case. In support of this submission he relied upon the decisions reported in AIR 1959 SC 1012 in the case of Tahsildar Singh and another –vs- State of U.P., AIR 1962 Supreme Court 399 in the case of Tori Singh and another –vs- State of Uttar Pradesh and AIR 1974 Supreme Court 117 in the case of Biswanath Prasad and others –vs- Dwaraka Prasad and others. 14. 14. Taking the rival submissions into consideration, the evidence and the documents placed on record, the points that arise for our consideration in this appeal are:- i) Whether the appellant-insurer has established that the car MEG 1060 insured with them is not involved in the accident, as such no liability can be fastened on them? ii) Whether the impugned judgment and order fastening the liability on the appellant/insurer calls for interference or is sustainable? 15. Re. Point No.1: It is the case of the claimants that deceased Ratnakar Shetty on the date of accident i.e. On 6.11.1998 was proceeding on his Motorcycle bearing No.KA-20-H-7609 from Kundapura to his house situated at Vakwadi village via Koteshwara – Vakvadi main road. When he was near Sanagal on the said road, the motor car bearing Regn.No.MEG 1060 owned and driven by the first respondent came at a high speed in a rash and negligent manner and dashed against the motor cycle on which the deceased was proceeding due to which he fell down, sustained grievous injuries and succumbed to the same who was declared dead when he was taken to Surgeons hospital at Kundapura. The claimants in support of their case, as already pointed out, have examined the first claimant, father of the deceased as PW1 and one Raghuram Shetty PW2 as an eye witness to the accident. Admittedly, PW1 is not an eye witness to the accident as he was informed of the accident as per his evidence by his neighbour and therefore, his evidence is of no avail in any manner to consider that the accident in question has taken place due to the fault of the driver of the offending motor car. But PW2 Raghurama Shetty who has been examined as eye witness to the accident in his evidence has stated that on 6.11.1998 at about 8.45 p.m. he was proceeding on his Luna Moped via Koteshwara-Vakwadi road and the deceased Ratnakara Shetty was proceeding on his motor cycle in front of him at distance of about 25 to 30 ft. At that time the car bearing Regn.No.MEG 1060 came from the eastern side i.e. from the opposite direction at a high speed in a rash and negligent manner driven by its driver and dashed against the motor cycle of the deceased Rathnakar Shetty. At that time the car bearing Regn.No.MEG 1060 came from the eastern side i.e. from the opposite direction at a high speed in a rash and negligent manner driven by its driver and dashed against the motor cycle of the deceased Rathnakar Shetty. On account of the impact deceased fell down and sustained grievous injuries and succumbed to the same. He has further stated that he noted the registration number of the car, thereafter went near a shop and brought some persons and took the deceased to the Surgeons hospital at Kundapura where he was declared as having been dead. His evidence further discloses that thereafter he proceeded to Kundapura police station and filed his complaint at about 1 a.m. before the SHO one H.S. Ramappa as per Ex.P1 wherein he has mentioned that the accident has taken place on account of the car MEG 1060 dashing against the motor cycle of the deceased. His evidence clearly discloses that at the time of impact, as he was following the deceased on his luna moped he has seen the car dashing against the Motor cycle of the deceased. 16. As against this it is the specific case of the respondents that the accident has not taken place on account of rash and negligent driving of the motor car bearing No.MEG 1060 by the first respondent, on the other hand, it is on account of rash and negligent riding of the motor cycle by the deceased himself. It is their case that on account of rash and negligent riding of the motor cycle by the deceased, it has skidded at the spot of the accident, due to which, the deceased went and fell into a ditch located on the left side of the road, resulting in injuries to him, to which he succumbed. Therefore, it is their case that there is no nexus between the car in question insured with them and the motor cycle ridden by the deceased involved in the accident. The car in question has been planted subsequently in order to make wrongful gain. 17. Therefore, it is their case that there is no nexus between the car in question insured with them and the motor cycle ridden by the deceased involved in the accident. The car in question has been planted subsequently in order to make wrongful gain. 17. In support of their contention they have examined DW.1-the Circle Inspector of Police, who has investigated the case and has submitted final report stating that the accident has taken place on account of rash and negligent riding of the deceased and that of DW2, the first respondent-owner/driver according to whom he has not caused the accident and that his vehicle bearing No.MEG 1060 is not involved in the accident. The evidence of DW1 reveals that he has recorded the statement of witnesses during the course of investigation, which are at Exs.D1 to D8. No doubt, these documents reveal that the car in question is not the vehicle in the accident. Learned counsel for the appellant/insurer placing reliance on the evidence of DW.1 coupled with DW.2 – first respondent/driver/owner and Exs.D.1 to D.8 contends that the vehicle that is the car bearing No.MEG-1060 insured with the appellant/insurer is not involved in the accident. He further deriving support from the decision of a Division Bench of this Court reported in 1981 ACJ 422 in the case of Savithri Bai and Ors. Vs. Doddappa and Ors., contended that since the said statements have been got marked through the evidence of DW.1 investigating officer, who has recorded the same, during the course of investigation in which they have stated that the car in question is not involved in the accident, though they are statements made under Section 162 of Cr.P.C, they could be made use of in this proceedings as it amounts to an admission made by them. We are unable to accept the said contention of the learned counsel for the appellant/insurer for the reason that the admission made in the said statements could be made use of only against a person making the same and not in favour of a person who wants to make use of the same by virtue of what is contemplated under Section 21 of the Indian Evidence Act. In the decision relied upon by the learned counsel for the appellant/insurance company adverted to above it is held as follows:- “(a) Motor Vehicles Act, 1939, section 110 – Compensation application – Evidence Act, 1872, sections 17 and 21 – Criminal Procedure Code, 1973 section 162 – Admission in criminal cases – Statement made by owner of the truck before police during investigation with respect to evidence – Whether admissible in the proceeding before the Claims Tribunal – Held : yes; and section 162 Criminal Procedure Code would not be a bar. 12. The Tribunal has further committed a mistake in thinking that Ext.P6 the statement made by the owner of the truck before the Investigating Officer specifically and in clearly admitting that the accident was caused by the truck in question on the said date and time could not be relied upon and that it could be used only for the purpose of contradicting the witness as contemplated under Section 145 of the Indian Evidence Act. 13. Two questions of law arise on this aspect for our consideration; they are: (1) Whether the statement made by a witness in the criminal case during investigation could be used in a civil proceeding for any purpose? (2) Whether an admission made by a concerned person in his statement before the police can be relied upon as substantive evidence? 14. Section 162 of Crl.P.C. speaks about the use of statements before the police made during investigation. It reads: “1. No statement made by any person to a police officer in the course of an investigation under this Chapter, shall if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made.” Thus, it is quite obvious that such statement should be used as mentioned in section 162 Cr.P.C. at an enquiry of trial in respect of any offence under investigation at the time when such statement was recorded. Thus, it becomes manifest that the restriction contemplated in Section 162 Cr.P.C. is confined only to the trial of the offence which was under investigation during which the statement was recorded. 15. Thus, it becomes manifest that the restriction contemplated in Section 162 Cr.P.C. is confined only to the trial of the offence which was under investigation during which the statement was recorded. 15. In the case of Purushottam Jethanand –vs- State of Kutch, the Supreme Court has observed thus: “The statutory right of the accused to be furnished with statements relates to a trial in respect of the very offence which was investigated and does not apply to a trial for a non-cognizable offence in respect of which there has been in fact no investigation. The proviso to section 162(1) which gives the right to obtain copies relates to ‘such inquiry or trial’, i.e. to enquiry or trial of any offence under investigation (under this chapter) at the time when the statement was made.” In other words, what is contained in section 162 Cr.P.C. directly relates only to the trial of the offence under investigation in a criminal case when statements of the witnesses were recorded and not to any other case. 15. In the case of Pattammal v. N. Munuswami, the High Court of Madras has made it clear that the statement recorded by the police during investigation of a criminal case can be used in a civil proceeding and if the statement amounts to an admission it can be used as a piece of substantive evidence. In that case the High Court of Madras has observed thus: “In the course of a police enquiry with respect to a theft case against A, one B made a statement that she had been intimate with A and lived with him as his wife. Later on, in the proceedings under Section 488 taken up by B against her husband C, the Court treating the statement made by B to the police as admission of adultery by her, refused maintenance to her.” This Court in that connection has held: That section 162 did not forbid the statement made by B in the police enquiry to be used in the proceeding under Section 488 because the proceeding under section 488 could not be said to be the trial in respect of the offence under investigation at the time when the statement under section 162 was made by B. The statement was admissible. This Court has also ruled: “That the statement made by B were admissions which could be used against her under Section 21 Evidence Act also, Section 25 Evidence Act would not prohibit their admission in respect of proceedings under section 488.” Therefore, it is obvious that an admission made by the owner of the truck before the police during investigation of the criminal case against the driver would be relevant and admissible in the proceedings before the tribunal. Section 162 of the Criminal Procedure Code would not be a bar.” A perusal of the above decision reveals owner of the truck had given a statement before the Investigating Officer stating that the truck owned by him was involved in the accident and that statement was got proved by the claimants in their case by examining the Investigating Officer as PW.4. In this case the claimants are not relying upon the said statements. On the other hand, it is the insurer who is relying upon the said statements in support of their case. Since it is not an admission made by adversary, the same cannot be made use of by the appellant-insurer as contended by them. On the other hand, the statements having been recorded under Section 162 of Cr.P.C. as rightly contended by the learned senior counsel for the claimants, could be made use of for the purpose of contradicting the witnesses under Section 145 of the Evidence Act or for the purpose of proving the admission or for proving any omissions made during the course of evidence in the trial, as held by Apex Court in the decisions relied upon by the learned counsel for the claimants/respondents AIR 1959 SC 1012 in the case of Tahsildar Singh and another –vs- State of U.P., AIR 1962 Supreme Court 399 in the case of Tori Singh and another –vs- State of Uttar Pradesh. Further the, Apex Court in the case of Bharath Singh vs. Bhagirathi reported in AIR 1966, S.C. 405 has observed in para 19 of the judgment thus:- “Admissions have to be clear if they are to be used against the person making them. Admissions are substantive evidence by themselves, in view of sections 17 and 21 of the Indian Evidence Act, though they are not conclusive proof of the matters admitted. Admissions are substantive evidence by themselves, in view of sections 17 and 21 of the Indian Evidence Act, though they are not conclusive proof of the matters admitted. We are of opinion that the admissions duly proved are admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether that party when appearing as witness was confronted with those statements in case it made a statement contrary to those admissions. The purpose of contradicting the witness under section 145 of the Evidence Act is very much different from the purpose of proving the admission. Admission is substantive evidence of the fact admitted while a previous statement used to contradict a witness does not become substantive evidence and merely serves the purpose of throwing doubt on the veracity of the witness.” Thus, the Supreme Court has made it very clear that an admission becomes a piece of substantive evidence against the person who makes it under Sections 17 and 21 of the Evidence Act and that it is not even necessary for the person relying on it to confront the said admission to the witness who has made it. This proposition of law laid down by the Supreme Court is further reiterated in the case of Bishwanath v. Dwaka Prasad, wherein His Lordship Justice Krishna Iyer who delivered the judgment for the Bench has observed in para 8 of the judgment thus: “There is cardinal distinction between a party who is the author of a prior statement and a witness who is examined and is sought to be discredited by use of his prior statement. In the former case, an admission by a party is substantive evidence if it fulfils the requirements of section 21 of the Evidence Act; in the latter case a prior statement is used to discredit the credibility of the witness and does not become substantive evidence. In the former there is no necessary requirement of the statement containing the admission having to be put to the party because it is evidence proprio vigore; in the latter case the court cannot be invited to disbelieve a witness on the strength of a prior contradictory statement unless it has been put to him, as required by section 145 of the Evidence Act. This distinction has been clearly brought out in the ruling in Bharat Singh’s case.” 18. This distinction has been clearly brought out in the ruling in Bharat Singh’s case.” 18. In the instant case, Exs.D.1 to D.8 are the statements’ recorded by DW.1 investigating officer during the course of investigation, which the appellant wants to rely in their favour in support of their case. It is not their case that the said statements are given by the opposite party in which event they can be made use of in this proceedings. Though Ex.D1 is the statement of PW2 made before DW1, since his statement is not clear indicating that car in question is not the one involved in the accident, the same also does not enure to the benefit of the appellant-insurer. Therefore, the said statements Exs.D.1 to D.8 in our view does not come to the aid of the appellant/insurer, as they are not the statements made by adversary, to be taken as admissions coming within the ambit of Section 17 and Section 21 of the Indian Evidence Act. Apart from this, DW.2 - owner has come out with the version of his vehicle having not been involved in the accident before the police on 13.11.1998 a week after the accident and before the tribunal on 17.12.2004, the date on which he has tendered evidence before the Court. Therefore, what we are left with in this case is evidence of PW.2 – Raghurama Shetty – eye witness to the accident and that of DW.2 – the owner. PW.2 – Raghurama Shetty as already pointed out has filed the complaint before the police at about 1.00 a.m. on 6.11.1998 within four hours of the accident. He has also clearly mentioned in the complaint – Ex.P.1 that it is the car bearing No.MEG 1060, which came and dashed against the motor cycle of the deceased. Though the learned counsel for the appellant/insurer contended that the police have filed a criminal case against the deceased on the basis of the statements of Exs.D.1 to D.8, it is pertinent to note that DW.1 himself has conducted the inquest on the body of the deceased on 7.11.1998 which is at Ex.P.4. It is noted in Ex.P.4 that one Raghurama Shetty and Doctor have observed the injured on the first occasion and Raghurama Shetty himself has brought the deceased from the spot of the accident. Further PW.2 has stated that he has not given any statement before DW.1. It is noted in Ex.P.4 that one Raghurama Shetty and Doctor have observed the injured on the first occasion and Raghurama Shetty himself has brought the deceased from the spot of the accident. Further PW.2 has stated that he has not given any statement before DW.1. If these materials are taken into consideration, it is very difficult to believe that the car in question has been planted as contended by the learned counsel for the appellant/insurer. Further learned counsel for the appellant/insurer also placing reliance on the damages caused to the vehicle and the injuries found on the deceased contended that the car in question could not have dashed against the deceased deriving support from the spot panchanama. In a case of accident, it is very difficult to disbelieve the evidence of the eye-witness having regard to the damages sustained to the vehicle involved in the accident. As already pointed out DW.2 admittedly has not filed statement of objection. For the first time he comes out with the version that his vehicle is not involved in the accident before the police on 13.11.1998 seven days after the accident and before the Court on 17.12.2004 nearly about six years after the accident. In addition to that the appellant/insurer have taken the contention that the vehicle is not involved in the accident by amending their written statement. In view of the fact that PW.2 has filed his complaint Ex.P.1 within four hours after the accident and as he has also taken the deceased to the hospital at Kundapura along with the assistance of local people where he has been declared as dead, his evidence being trust-worthy stands on higher footing on that of DW.1 & DW.2 – owner of the vehicle. Therefore, having regard to the evidence of PW.2 coupled with FIR – Ex.P.1, spot mahazar – Ex.P.2 and inquest panchanama – Ex.P.4, we have no hesitation to hold that the car bearing No.MEG 1060 is involved in the accident and the claimants have established that the accident is due to actionable negligence of the first respondent/owner driver. Therefore, having regard to the evidence of PW.2 coupled with FIR – Ex.P.1, spot mahazar – Ex.P.2 and inquest panchanama – Ex.P.4, we have no hesitation to hold that the car bearing No.MEG 1060 is involved in the accident and the claimants have established that the accident is due to actionable negligence of the first respondent/owner driver. At this juncture, it is relevant to place reliance on the decision reported in AIR 2009 SC 2819 relied upon by the learned senior counsel for the claimants wherein it is held as follows:- “Motor vehicles Act (59 of 1988) S.166 – Claim petition – Strict proof of accident – Not possible to be given by claimants – Claimants have to establish their case merely on touchstone of preponderance of probability – Standard of proof beyond reasonable doubt could not be applied.” In the present case as already pointed out there is no reason to disbelieve the evidence of PW.2, having regard to his conduct in filing the complaint within four hours after the accident mentioning the car in question is the vehicle involved in the accident. This in our view satisfies the requirement of proof of accident having taken place due to rash and negligent driving of the car MEG.1060 by DW2 the owner/driver as laid down by the Apex Court in the aforesaid decision. The Tribunal on appreciation of the entire material on record has come to the right conclusion in holding that the accident in question has taken place solely on account of actionable negligence of the first respondent/owner in driving his motor car bearing No.MEG 1060 and has rightly fastened the liability on the appellant/insurer. 19. Re-point No.2:- For the reasons adverted to above, we do not find any illegality or infirmity in the judgment and order of the Tribunal fastening the liability on the appellant/insurer calling for our interference. 20. In the result for the foregoing reason, we proceed to pass the following:- ORDER Appeal is dismissed.