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2022 DIGILAW 644 (KAR)

National Insurance Company Ltd. v. Rathnamma

2022-05-19

J.M.KHAZI

body2022
JUDGMENT J.M. Khazi, J. - This appeal is by respondent No. 1-Insurance company challenging the impugned judgment and award, whereby the Tribunal has quantified the compensation in a sum of Rs. 5,07,500/- with interest at 6% p.a. and directed respondent Nos. 1 and 2 to deposit Rs. 1,52,250/- being 30% of the total compensation and thereby attributing 70% negligence on the part of the deceased. 2. For the sake of convenience the parties are referred to by their rank before the Tribunal. 3. FACTS: It is the case of the petitioners that they are the wife, children and mother of deceased-Kumaraswamy. On 13.10.2007 at about 11.30 p.m., deceased was moving on Hero Honda Motor Cycle bearing registration No. KA-43-H-4012 slowly and cautiously on the left side of Basettihalli Industrial Area. In front of Taffee Factory, a lorry bearing registration No. KA-34-A-5426 (hereinafter referred to as offending vehicle) driven by its driver in a rash or negligent manner, in a high speed came and dashed against the motor cycle of the deceased from his back side. Due to the impact, deceased fell down and sustained grievous injuries. While undergoing treatment at M.S. Ramaiah Hospital, Bengaluru, deceased succumbed to the injuries on 06.11.2007. 3.1. Deceased was doing catering business at Plot No. 7A, Industrial Area, Doddaballapura and getting profit of Rs. 20,000/- per month. Being the wife, children and mother, petitioners are entitled for compensation. Respondents are liable to pay the compensation as the Insurer and Insured of the offending vehicle. 4. Respondent No. 1 appeared through counsel and filed written statement admitting the coverage of the offending vehicle, but its liability is subject to the terms and conditions of the Policy. It has disputed that at the time of the accident, the driver of the offending vehicle was holding a valid driving license. It has denied the involvement of the offending vehicle and the manner in which the alleged accident took place as well as the age, occupation and income of the deceased. 5. Respondent No. 2 has also denied the averments with regard to the age, occupation and income of the deceased. Since the offending vehicle was covered by a valid Policy issued by respondent No. 1, in the event of allowing the petition, respondent No. 1 is liable to indemnify him. 6. Based on these pleadings, tribunal has framed issues. 7. 5. Respondent No. 2 has also denied the averments with regard to the age, occupation and income of the deceased. Since the offending vehicle was covered by a valid Policy issued by respondent No. 1, in the event of allowing the petition, respondent No. 1 is liable to indemnify him. 6. Based on these pleadings, tribunal has framed issues. 7. At the first instance, during the course of enquiry, petitioner No. 1 is examined as PW-1, one witnesses as PW-2 and Ex. P1 to P13 were marked for petitioners. 8. On the other hand, on behalf of respondent No. 1, RW-1 is examined. The driver of the offending vehicle is examined as RW-2 and Ex. R1 and 2 were marked. 9. By judgment and award dated 05.08.2010, the Tribunal partly allowed the claim petition granting compensation in a sum of Rs. 7,25,000/-, but held that deceased has contributed 30% negligence to the accident and therefore, petitioners are entitled for compensation in a sum of Rs. 5,07,500/- being 70% of the total compensation and directed respondent Nos. 1 and 2 to jointly and severally to pay the same. 10. Respondent No. 1 challenged the said judgment and award in MFA No. 191/2011, whereas petitioners filed MFA. No. 2733/2011 for enhancement. Vide judgment and order dated 06.08.2013 this Court was pleased to set aside the judgment and award dated 05.10.2010, remanded back the matter to the Tribunal with a direction to allow both parties to let in evidence on the question whether driver of the lorry or deceased or both of them were negligent and if so to what extent and thereafter pass necessary order. 11. After the remand on behalf of the petitioners two more witnesses are examined as PWs-3 and 4. 12. On the other hand after remand on behalf of the respondent No. 1 one witness is examined as RW-3. However, after the remand the Tribunal has not determined the compensation afresh, but only gave finding with regard to the extent of contributory negligence i.e., it held that deceased was negligent to the extent of 70% and the extent of negligence on the part of the driver of the offending vehicle was 30%. However, while calculating the 30% of compensation awarded, instead of calculating it at 30% of Rs. 7,25,000/-, which comes to Rs. 2,17,500/-, it has calculated the same with reference to Rs. However, while calculating the 30% of compensation awarded, instead of calculating it at 30% of Rs. 7,25,000/-, which comes to Rs. 2,17,500/-, it has calculated the same with reference to Rs. 5,07,500/- and arrived at the figure Rs. 1,52,250/- and held that petitioners are entitled for the same with interest at 6% p.a. 13. Petitioner and Respondent No. 2 have not challenged the impugned Judgment and Award. 14. Respondent No. 1 has filed this appeal contending that while remanding the case, this Court has given a specific direction to examine whether the driver of the offending vehicle or the deceased or both of them were negligent, if so, to what extent. However, without examining the scope of the remand, the tribunal has erred in casually attributing 30% negligence to the driver of the offending vehicle. 14.1 The learned counsel representing respondent No. 1 submits that tribunal has failed to appreciate the evidence of the Investigating Officer who has clearly deposed that there was no negligence whatsoever on the part of the driver of the offending vehicle. As directed by this Court in the remand order, the tribunal has also not examined whether the driver of the offending vehicle had taken all precautions while parking the same. The inordinate delay of seven days in filing the complaint is not explained. The quantum of compensation granted is on the higher side. 15. Heard arguments of both sides and perused the record. 16. As noted earlier vide judgment and award dated 06.08.2013 in MFA No. 191/2011 c/w MFA No. 2733/2011, the matter was remanded to the Tribunal for fresh disposal. At para-9 of the said order, it was observed by this Court that as per Ex. P2, 3, 4 and Ex. R1 and 2 it is established that accident occurred while the offending vehicle was parked by the side of the road inside the industrial area and it was the deceased who dashed his motor cycle on the back portion of the offending vehicle which was stationery. P2, 3, 4 and Ex. R1 and 2 it is established that accident occurred while the offending vehicle was parked by the side of the road inside the industrial area and it was the deceased who dashed his motor cycle on the back portion of the offending vehicle which was stationery. It is further observed that this fact is corroborated by the evidence of the driver of the offending vehicle and such being the case, it has become necessary to examine whether the driver of the offending vehicle was in any way negligent in causing the accident, i.e., whether the driver of the offending vehicle has taken sufficient precaution by ensuring that the parking of the lorry would not cause any injury to or death of any person. It is further held that to ascertain these facts it is necessary to remand the matter and accordingly this Court remanded the case reserving the liberty to both parties to adduce further evidence to ascertain whether the driver of the offending vehicle was negligent in causing the accident or whether both the driver of the offending vehicle as well as the deceased were negligent resulting in accident or the deceased himself was negligent resulting in the accident. 17. At the outset it is relevant to note that after the remand petitioners have not amended their pleadings i.e. the claim petition to include the averments to the effect that the driver of the offending vehicle had parked the same without taking precautionary measures i.e., by switching on the parking lights and that was the reason for the accident. In fact they could not amend their pleadings as their entire case is based on the charge sheet filed against the driver of the offending vehicle alleging that he caused the accident by his rash or negligent driving and dashed the offending vehicle against the motor cycle of the deceased from his back side. After the remand, all that the petitioners have done is to examine PWs-3 and 4 who have given evidence by deposing that the offending vehicle was parked negligently by the side of the road without taking any precaution and that has contributed towards the accident. 18. After the remand, all that the petitioners have done is to examine PWs-3 and 4 who have given evidence by deposing that the offending vehicle was parked negligently by the side of the road without taking any precaution and that has contributed towards the accident. 18. However, the testimony of PWs-3 and 4 is contradictory to the evidence of PWs-1 and 2, according to whom the accident occurred while the offending vehicle was being driven by its driver in a rash or negligent manner and it has collided against the motor cycle of the deceased from his back side resulting in the deceased sustaining injuries and ultimately he succumbed to the said injuries. In the light of this contradictory testimony placed on record by the petitioners it is to be examined whether there was any negligence on the part of the driver of the offending vehicle in contributing to the accident. 19. As evident from the material placed on record, Ex. P7 is the charge sheet filed against the driver of the offending vehicle alleging that he caused the accident by his rash or negligent driving and dashed against the motor cycle of the deceased from his back side. PW-3 Raju and PW-4 P.N. Prakash are the witnesses who are examined subsequent to the remand. In the charge sheet this PW-3 Raju is cited as CW-2 and PW-4 P.N. Prakash is cited as CW-8. As noted earlier, subsequent to the remand these two witnesses have deposed that the offending vehicle was parked in a negligent manner without switching on the parking lights, as a result of which accident occurred. In the charge sheet, PW-4 P.N. Prakash is cited as a witness to the spot mahazar. However he has given evidence as though he is an eye witness to the accident. 20. It is pertinent to note that neither PW-1 Smt. Rathnamma nor the complainant-T.K. Nagaraju are eye witnesses to the incident. In fact in the complaint the said T.K. Nagaraju has stated that he came to know about the incident form one B.K. Shivakumar. This B.K. Shivakumar who is examined as PW-2 has not deposed who were all present when the incident took place. Even though he is claimed to be an eye witness, during his cross-examination he has stated that police have not recorded his statement. This B.K. Shivakumar who is examined as PW-2 has not deposed who were all present when the incident took place. Even though he is claimed to be an eye witness, during his cross-examination he has stated that police have not recorded his statement. PW-3 Raju who is examined after the remand has not deposed as to the presence of PW-2 B.K. Shivakumar at the scene of occurrence. As evident from the judgment in C.C. No. 285/2008, copy of which is taken from the High Court website, in fact he has not been examined in the criminal case. Before the Tribunal, he has claimed that at the relevant point of time, he was working in a Denim Factory situated within the industrial area and at the time of accident he was proceeding to his house to have dinner and at that time he was working in the third shift. 21. Admittedly, petitioners have not produced any documents to show that PW-2 B.K. Shivakumar was working in the said factory and that too in the third shift so as to probabalize his presence at the scene of occurrence. Petitioners have also not produced his statement recorded by the police to corroborate his evidence regarding his presence at the scene of occurrence. 22. According to the charge sheet at Ex. P7, CW-8 P.N. Prakash is a witness to the spot mahazar and CW-7 B.K. Shivakumar who is examined as PW-2 in this case is an eye witness as well as witness to the inquest. However, PW-3 Raju has deposed that neither of them were present at the spot when the mahazar was drawn. One more important aspect is that PW-3 Raju during his cross-examination has specifically deposed that he informed the police about the accident on the next day of the accident when police drew the mahazar. He has specifically deposed that mahazar was drawn on the next day of accident. It is pertinent to note that though the accident occurred on 30.10.2007 and the deceased succumbed to injuries on 06.11.2007, the complaint came to be filed only on 07.11.2007. The police have drawn the mahazar on 07.11.2007. This witness has deposed as though on the very next day of the accident the police came to the spot and he informed the police about he having witnessed the said incident. The police have drawn the mahazar on 07.11.2007. This witness has deposed as though on the very next day of the accident the police came to the spot and he informed the police about he having witnessed the said incident. This also creates doubt as to the veracity of his testimony that he has witnessed the accident and he is also a witness to the spot mahazar. In fact he has admitted that the mahazar was not drawn at the place of accident. 23. Petitioners have chosen to examine PW-4 P.N. Prakash as though he is an eye witness to the incident and that at the relevant point of time he was running a tea stall near the place of occurrence and as such he had an occasion to witness the incident. However, no documents are produced to evidence the said fact. During his cross-examination when questioned whether he has given any statement before the police to the effect that the offending vehicle hit the motor cycle from its back side, he has replied saying that the incident has not taken place in such a manner. When questioned whether the police have filed a false case, the witness has replied in the affirmative thereby indicating that though the incident had taken place in a different manner, the charge sheet has been filed by making some other allegations. This witness has stated that lorries would be parked inside the factory when they come for loading and unloading which supports the case of the respondent No. 1 that at the time of accident, the offending vehicle was inside the industrial area parked in front of the factory for the purpose of loading the material and it was not a highway. 24. On the other hand at the first available opportunity the driver of the offending vehicle i.e., RW-2 Mohammad Bai has deposed that at the time of alleged accident, the offending vehicle was parked on the extreme left side of the road inside the Bashettahalli industrial area and he had switched on the blinkers. He was sleeping inside the offending vehicle waiting for loading of the material. At that time he heard a loud sound and found that the rider of the motor cycle has dashed the motor cycle against the offending vehicle on its back side and has sustained injuries. He was sleeping inside the offending vehicle waiting for loading of the material. At that time he heard a loud sound and found that the rider of the motor cycle has dashed the motor cycle against the offending vehicle on its back side and has sustained injuries. However, before the remand this witness is not cross-examined with regard to the fact of the offending vehicle being parked by the side of the road without switching on the parking lights. He is only cross-examined as to whether he has lodged complaint, etc. 25. Though he has claimed that he went to the police station and narrated how exactly the accident took place, admittedly, the police have not registered any case based on his statement. Only after the death of the deceased, based on the complaint given by his cousin, who is also not an eye witness, the police have registered the case. Only after the remand, the petitioners have chosen to cross-examine RW-2 suggesting that he had parked the offending vehicle in the middle of the road and that he had not put on the parking lights. The suggestion that he had parked the offending vehicle in the middle of the road is falsified by the sketch of the scene of occurrence at Ex. P4 which clearly indicates that the offending vehicle was parked on the extreme left side of the road. 26. Apart from PWs-3 and 4, whose evidence is contradicting the testimony of PWs-1 and 2, after the remand petitioners have not chosen to examine any other witnesses. On the other hand, it is the respondents who have chosen to examine one of the Investigating Officer i.e., Sadashivaiah, who is cited as CW-13 in the charge sheet as RW-3. His evidence is to the effect that on 07.11.2007 he received complaint from one Nagaraju as per Ex. P1 and based on it, he registered a case in Cr. No. 171/2011. He conducted inquest and after subjecting the dead body to port mortem examination, he handed over the same to his relatives. He has also deposed that he visited the spot, drawn the spot mahazar and sketch as per Ex. P3 and 4 and thereafter handed over further investigation to the CPI. He has also deposed that the accident took place inside the Bashettihalli industrial area in front of Taffee Industry. He has also deposed that he visited the spot, drawn the spot mahazar and sketch as per Ex. P3 and 4 and thereafter handed over further investigation to the CPI. He has also deposed that the accident took place inside the Bashettihalli industrial area in front of Taffee Industry. He has also deposed that the place where the accident took place is not a highway but it is a road inside the Bashettihalli industrial area. He has maintained that according to his investigation, the offending vehicle had dashed against motor cycle from its rear side which is contrary to the case put forth by the petitioners subsequent to the remand. Even though Ex. R2 state that MLC report was sent to the jurisdictional police, RW-3 has maintained that he has not received any such report. 27. It is pertinent to note that the evidence of this witness is not disputed by the petitioners by cross-examining him. In fact when the petitioners have built up their case as per the charge sheet filed by the concerned police, which is contrary to the subsequent stand taken by them, there was no scope for the petitioners to cross-examine this witness. 28. Now coming to Ex. R2 relied upon by respondent No. 1. It is an entry in the register maintained by M.S. Ramaiah Medical Hospital regarding the accident information. As per the entry dated 31.10.2007 at 2.15 a.m., it is stated that one Kumar of Bashettihalli is admitted to the hospital. The next entry is dated 06.11.2007 wherein it is stated that the patient has expired at 6.30 p.m. and the body is shifted to the morgue. In the next page of Ex. R2, on the basis of information provided by the wife of the deceased, an entry is made to the effect that the patient was brought with the history of road traffic accident on 30.10.2007 at about 11.30 p.m. while riding a bike and it collided with a standing lorry. It is also observed that there was smell of alcohol coming from the patient. In the next page of Ex. R2 which relates to history and physical examination, it is stated that the accident occurred while the patient was under the influence of alcohol. Further in the next page it is stated that the injured is a chronic alcoholic since 8 years. The entry in Ex. In the next page of Ex. R2 which relates to history and physical examination, it is stated that the accident occurred while the patient was under the influence of alcohol. Further in the next page it is stated that the injured is a chronic alcoholic since 8 years. The entry in Ex. R2 makes it evident that deceased was a chronic alcoholic since 8 years and at the time of accident also he was under the influence of alcohol and in such an inebriated condition, he dashed his motor cycle against a stationed offending vehicle which was parked on the extreme left side of road inside the Bashettihalli industrial area which was waiting for loading. Deceased who was said to have been running a canteen inside the industrial area has dashed his motor cycle against the stationed offending vehicle resulting in the accident and consequent injuries and ultimately in the death of the deceased. 29. The entire evidence placed on record by the petitioners, instead of helping and improving their case is contradicting it. While PWs-1 and 2 maintained that accident occurred while the offending vehicle dashed the motor cycle on which deceased was proceeding from its back side, the testimony of PWs-3 and 4 is to the effect that the accident occurred on account of negligent parking of the offending vehicle by its driver. The subsequent change of the strategy of the petitioners is only on account of the observations by this Court while remanding the case. When the entire evidence placed on record including the testimony of PWs-1 to 4 and RWs-1 and 2 is tested in the light of the entry made in Ex. R2 it goes to show that it was deceased who was in an inebriated condition dashed his motor cycle against the stationed offending vehicle which was safely and clearly parked on the left side of the road resulting in the accident and consequent death. The concerned police have also not conducted the investigation in a fair manner and on the other hand they have simply build up the case in such a manner so as to help the petitioners to claim the compensation. 30. The Investigating Officers have not at all cared to examine the entries in the medical records to ascertain what actually transpired and how exactly the incident has taken place. 30. The Investigating Officers have not at all cared to examine the entries in the medical records to ascertain what actually transpired and how exactly the incident has taken place. The material on record goes to show that the entire negligence was on the part of the deceased. While passing the impugned judgment and award, the Tribunal has not properly examined the evidence placed on record. It has simply reversed the ratio of negligence as attributed by the Tribunal in the judgment and award dated 05.08.2010 and held that deceased was responsible for 70% of negligence whereas the driver of the offending vehicle was responsible for 30% negligence. However, there is no basis for the Tribunal to come to the conclusion that there was 30% negligence on the part of the driver of the offending vehicle. Findings of the Tribunal to that effect is contrary to the evidence placed on record and as such perverse. On the other hand the evidence placed on record goes to show that it was the deceased who was totally negligent in riding the motor cycle, that too under the influence of alcohol and dashed against the stationed offending vehicle. 31. The petitioners have chosen to file a false complaint and based on such complaint in collusion with the jurisdiction police have managed to get the charge sheet filed against the driver of the offending vehicle. Of course after due trial, the driver of the offending vehicle is acquitted by the criminal court. Admittedly, the same is not challenged by the prosecution or by the victim. When the petitioners have taken a contradictory stand, it is not open to them to challenge the same. In the result, the appeal filed by respondent No. 1-Insurance company deserves to be allowed and consequently, the claim petition filed by the petitioners is liable to be dismissed and accordingly I proceed to pass the following: ORDER (i) Appeal filed by the respondent No. 1 Insurance company is allowed. (ii) The impugned judgment and award dated 09.03.2015 in MVC. No. 8641/2007 is set aside and consequently MVC. No. 8641/2007 is dismissed. (iii) The appellant/respondent No. 1-Insurance company is entitled to withdraw the amount in deposit. (iv) The registry is directed to transmit the trial Court record along with the copy of this order to the Tribunal.