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2017 DIGILAW 1175 (KAR)

New India Assurance Co. Ltd. v. Lalita

2017-09-01

H.B.PRABHAKARA SASTRY

body2017
JUDGMENT : 1. The present appellant was the respondent No.2 – Insurance Company before the II Addl. Civil Judge (Sr.Dn.) and Addl. Motor Accidents Claims Tribunal, Hubballi (henceforth referred to as ‘The Tribunal’, for brevity). The present respondents 1 to 4 had preferred a claim petition under Section 166 of the Motor Vehicles Act before the Tribunal. The present respondent No.5 was respondent No.1 before the Tribunal, who was arrayed in his capacity as the owner of the alleged offending vehicle. 2. The summary of the case of the claimants in the Tribunal was that, on 03.06.2004 at about 00.30 hours on P.B. Road near Nursery farm house at Jigalur Village, the deceased Rudrappa (husband of the respondent No.1 herein), was proceeding on his motorcycle bearing registration No.KA-25/U-2096. At that time, a Goods Tempo vehicle bearing registration No.CTW-5812 coming from Shiggaon side being driven by its driver in a rash and negligent manner, dashed to the motorcycle, in which accident the deceased Rudrappa sustained injuries and succumbed to it. Claiming that they were dependent on the income of the deceased, the claimants had claimed a compensation of Rs.10,00,000/- from the respondents therein arraying them as the owner and insurer of the alleged offending vehicle respectively. The Tribunal after recording the evidence led before it and hearing both sides, by the impugned judgment and award allowed the claim petition in part and awarded a compensation of Rs.5,03,060/- with interest thereupon at 6% p.a. payable by respondents 1 and 2 to the claimants before it. It is the said judgment and award, the insurer has challenged in this appeal. 3. The only contention taken up in the memorandum of appeal as well as the argument of the learned counsel for the appellant is that, the alleged offending vehicle Goods Tempo bearing registration No.CTW-5812 has been falsely implicated in the case. It is also the further argument of the learned counsel for the appellant that the said vehicle was involved falsely at a belated stage in the criminal case by the police and that there are no materials to show that the said vehicle was actually the alleged offending vehicle. It is also the further argument of the learned counsel for the appellant that the said vehicle was involved falsely at a belated stage in the criminal case by the police and that there are no materials to show that the said vehicle was actually the alleged offending vehicle. It is also his further argument that the Motor Vehicle Inspector’s report at Ex.R2 mentions no external damages to the said offending vehicle, which corroborates the defence taken by the Insurance Company as well the evidence of RW1 to the effect that the said vehicle was falsely implicated. 4. The learned counsel for the claimants in his argument submitted that, when the vehicle has dashed to the motorcycle making both the rider and the pillion rider to fall on earth and fled away from the scene, for a rustic villager, it is very difficult to make a distinction between the lorry and goods tempo, as such, he has identified the said vehicle as a lorry. It is his further argument that the pillion rider, who was an eyewitness to the incident, was examined as RW2, who in his evidence has clearly given the identity of the vehicle along with its registration number, as such the contention of the appellant that the goods tempo has been falsely implicated cannot be sustained. 5. The appellant – Insurance Company has not denied or disputed the date, time, place and the manner of occurrence of the accident. However, it’s only contention is about the identity of the alleged offending vehicle. In that regard, the learned counsel for the appellant drew the attention of this Court to Exs.P1, P2 and P4, which are the certified copies of the complaint, FIR and the supplementary statement recorded by the police in the criminal case pertaining to the accident in question. However, the very same complainant in his further statement at Ex.P4, after seeing the Goods Tempo shown to him, has identified the said Goods Tempo bearing registration No.CTW-5812 as the offending vehicle. But the said further statement is also based on the information said to have been given to the complainant, as such, his information is not first hand information. However, the very same complainant in his further statement at Ex.P4, after seeing the Goods Tempo shown to him, has identified the said Goods Tempo bearing registration No.CTW-5812 as the offending vehicle. But the said further statement is also based on the information said to have been given to the complainant, as such, his information is not first hand information. At the same time, it cannot be ignored of the fact that the police after completing the investigation have filed a charge sheet against the driver of the alleged offending vehicle bearing registration No.CTW-5812 showing the said vehicle as the vehicle involved in the accident as an offending vehicle. That being the case, the charge sheet, which is the result of the due investigation conducted by the competent Investigating Officer is to be considered rather than a mere complaint which has set the criminal law in motion at the first instance. Had really the contention of the present appellant that the vehicle bearing registration No.CTW-5812 has been falsely implicated, he could have summoned the said Investigating Officer as a witness and examined him. He cannot pick a stray document like a complaint or a vehicle Inspection Report and project them as the sole document to establish the identity of the alleged offending vehicle. No doubt, in Ex.R2, there is no mention about any external damage to the Goods Tempo bearing registration No.CTW-5812. But it cannot be ignored that the said vehicle is shown to have dashed to a two wheeler motorcycle, which is a smaller vehicle. Compared to the size, weight and force of the vehicle, it cannot be expected in all such cases that the offending vehicle which is a heavy vehicle and larger vehicle compared to the damaged motorcycle, to sustain some external damages necessarily. 6. Secondly, the learned counsel for the appellant – Insurance Company also drew the attention of this Court to the evidence of PW2 and submitted that the said witness in his cross-examination has admitted a suggestion as true that it was the lorry coming in a high speed dashed to the motorcycle and fled the scene. No doubt, the said witness has admitted the said suggestion as true. But the very same witness in his cross-examination in the next sentence has called the said vehicle also as ‘Gaadi’ (UÁr). No doubt, the said witness has admitted the said suggestion as true. But the very same witness in his cross-examination in the next sentence has called the said vehicle also as ‘Gaadi’ (UÁr). Added to that, he has further stated that he had disclosed the registration number of the said vehicle to the complainant, who lodged the complaint. That means, the evidence of PW2 shows that he has identified the said vehicle as a motor vehicle but not specifically in the manner of a six wheeler heavy goods vehicle ‘lorry’, but he has identified it as a goods career, which in his understanding can be identified in the terms like lorry and Gaadi. 7. That apart, the said witness in his examinationin- chief has stated and identified the offending vehicle with its registration number. His stray statement made in the examination-in-chief has not been categorically denied in his cross-examination. Furthermore, his one more statement in his cross-examination that he had disclosed the registration number of the offending vehicle (UÁr) has also not been denied from the respondent’s side in the Tribunal. If that were to be the case, it makes it clear that immediately after the incident, PW2 being an eyewitness, has identified the vehicle, noticed its registration number, however, the complainant being the only informant through PW2, has omitted to mention the said registration number in his complaint. By that itself, it cannot be inferred that the said vehicle bearing registration No. CTW-5812 was not involved in the accident and that it was falsely included at a subsequent stage. As such, the only contention as well the argument of the learned counsel for the appellant that the said vehicle bearing registration No.CTW-5812 has been falsely implicated in the matter, cannot be accepted. 8. Barring this, I do not find any other grounds worth to be considered in this appeal. Accordingly, I proceed to pass the following order: ORDER The appeal stands dismissed. The amount in deposit, if any, made by the appellant be transmitted to the Tribunal below without any delay.