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2023 DIGILAW 1373 (KAR)

Shivalingappa v. Mallikarjun

2023-12-07

CM JOSHI, R.DEVDAS

body2023
JUDGMENT : CM Joshi, J. Being aggrieved by the dismissal of the petition under Section 166 of M.V. Act, in MVC No.126/2015 by the learned Senior Civil Judge and MACT, Humnabad, the petitioners have approached this Court in appeal. 2. Though the matter is listed for admission, with the consent of learned counsel appearing for both the parties, it is taken up for final disposal. 3. It is the case of the petitioners that on 12.11.2014, the deceased Veeresh along with his friends and one Sandeep Kumar went on the motorcycle to go to Hyderabad. The deceased Veeresh was rider of the motorcycle bearing registration No.KA-51/R-4852 and Sandeep Kumar was the pillion rider. His friend and another went on another motorcycle. It was contended that near Khaja Factory on Gulbarga-Humnabad road at about 10.30 a.m. the rider of the offending motorcycle bearing registration No.KA-32/K-4731, its rider Mallikarjun drove the same in a rash and negligent manner and dashed to the rear side of the motorcycle of the deceased resulting in his fall and head injury and Veeresh died on the spot. The petitioners contended that the deceased Veeresh was bachelor aged about 29 years working as a Manager in Ayyappa Road Lines and earning Rs. 20,000/- per month. The petitioner Nos.1 and 2 being the parents and petitioner Nos.3 and 4 being the sisters were depending on the income of the deceased and therefore they are entitled for the compensation of Rs. 20,00,000/- from the owner and insurer of the offending motorcycle bearing registration No.KA-32/K-4731. The respondent No.1 was the owner of the said vehicle and respondent No.2-Insurance Company being the insurer are liable to pay compensation to the petitioners. 4. After service of notice, the respondent No.2- Insurance Company appeared before the tribunal and resisted the petition contending that no such accident had taken place as alleged by the petitioners. However, it alleged that the petitioners have colluded with the police and have cooked up a false case against the respondents. It contended that the said motorcycle has been falsely implicated in this case in order to make unlawful gain, inter-alia, denying the age, income and occupation of the deceased and contended that there is violation of terms and conditions of the policy. 5. On the basis of the above pleadings, the tribunal framed the following issues; 1. It contended that the said motorcycle has been falsely implicated in this case in order to make unlawful gain, inter-alia, denying the age, income and occupation of the deceased and contended that there is violation of terms and conditions of the policy. 5. On the basis of the above pleadings, the tribunal framed the following issues; 1. Whether the petitioners prove that the deceased Veeresh died in the accident dated 12.11.2014 at about 10.30 p.m. near Khaja company, on Humanbad-Gulbarga road within the limits of Humnabad police station, due to the rash and negligent driving of the driver of the motorcycle Hero Honda bearing Reg. No.KA32/ K-4731 by its driver. 2. Whether the claimants prove that the deceased was earning Rs. 20,000/- per month from his Manager work, in Ayyappa road line and was having an age of 29 years at the time of accident? 3. Whether the respondent proves that the amount of compensation claimed is exorbitant and excessive one? 4. Whether the claimants are entitled for any compensation? If so how much? 5. What order or award? 6. The petitioner No.1 was examined as PW.1 and 3 witnesses were examined on their behalf as PWs.2 to 4 and Exs.P1 to 13 were marked. After hearing the arguments, the tribunal answered issued Nos.1 to 4 in the negative and dismissed the petition. 7. Being aggrieved by the said judgment of dismissal, the petitioners have approached this Court contending that the tribunal has grossly erred in holding that the petitioners are not entitled for the compensation. It is alleged that the tribunal did not appreciate the evidence in the proper perspective and it failed to notice the charge sheet filed against the respondent No.1, which should have been accepted by the tribunal. 8. On issuance of notice by this Court, respondent No.1 did not appear despite service of notice and respondent No.2 appeared through its counsel. 9. We have heard the arguments made by both the sides. 10. Learned counsel appearing for the appellants/petitioners submits that the tribunal failed to appreciate the evidence of PWs.1, 3 and 4 and the police papers which were produced by the petitioners. He contends that PW.3 came to know about the accident and then he had informed PW.1-Shivalingappa, who came to the spot and thereafter the complaint came to be lodged. 10. Learned counsel appearing for the appellants/petitioners submits that the tribunal failed to appreciate the evidence of PWs.1, 3 and 4 and the police papers which were produced by the petitioners. He contends that PW.3 came to know about the accident and then he had informed PW.1-Shivalingappa, who came to the spot and thereafter the complaint came to be lodged. It is contended that non filing of the complaint by PW.3 or PW.4 would not be of much significance when the turn of events have been narrated by PWs.1, 3 and 4 and said narration is corroborated by the investigation made by the police. Therefore, he contends that the tribunal failed to appreciate the evidence in the proper perspective and petitioners should have been awarded the just and reasonable compensation entitled by them. In support of his contention he placed reliance on the decision in the case of Sumangala v. Virupakshi and Others 2012 Kant MAC 61 (Kant), wherein a Division Bench of this Court had held that if there is any discrepancy in the charge sheet which had been filed by the police, the said charge sheet should have been challenged before the higher authorities of the police department by filing of the writ of mandamus for re-investigation and therefore the charge sheet should be accepted by the tribunal. He also relied on the decision in the case of National Insurance Company Ltd. v. Chamundeswari and Others 2022 Kant MAC 9 (SC) rendered by the Hon'ble Apex Court, wherein it was held that if any evidence before the tribunal runs contrary to the contents in the FIR, the evidence which is recorded before the tribunal has to be given weightage. He also relied on the decision in the case of Saroj and Others v. Het Lal and Others 2011 Kant MAC 247 (SC), wherein it was held that when the involvement of the vehicle is admitted by the owner, the Courts could not have held that it was a hit and run case. 11. Per contra, learned counsel appearing for the respondent No.2-Insurance Company submitted that PW.4-Sandeep Kumar was the pillion rider of the deceased Veeresh and he has not filed any complaint to the police. 11. Per contra, learned counsel appearing for the respondent No.2-Insurance Company submitted that PW.4-Sandeep Kumar was the pillion rider of the deceased Veeresh and he has not filed any complaint to the police. He also points out that PW.4 states before the tribunal that he was present at the spot for about two hours but there is no such evidence by PW.3 who says that within a few minutes of the accident he has visited the spot. Therefore, the very involvement of the vehicle owned and ridden by respondent No.1, who was none else than the friend of deceased Veeresh becomes doubtful. He contends that when the accident had occurred at about 10.00 p.m., if the PW.4 had sustained minor injuries nothing prevented him from going to the police station which was admittedly about 4 kms from spot and inform the police. Nothing also prevented him from informing PW.1 about the accident. He points out that respondent No.1 and the pillion rider had not informed the PW.1 or the police of the accident but they simply vanished from the spot. Therefore, he contends that the charge sheet cannot termed to be true account of the events which had taken place and therefore the tribunal has rightly disbelieved the story of the petitioners. He also points out that the presence of PWs.3 and 4 was not narrated by PW.1 while filing the complaint. He further points that PW.2 happens to be the employer of the deceased Veeresh as well as PW.3. He contends that the very involvement of the vehicle is in doubt. Therefore, circumstances or the police investigation did not show the involvement of motorcycle owned by respondent No.1 satisfying the requirement of principles of preponderance of probability. 12. After hearing the arguments by both sides, the points that arise for our consideration; (a) Whether the vehicle owned by respondent No.1 and insured by respondent No.2 was involved in the accident on the night of 12.11.2014? (b) If so, whether the petitioners are entitled for the compensation and what is the quantum? 13. A perusal of the FIR produced at Ex.P1 discloses that the deceased Veeresh had left the house at about 8.00 p.m. along with his friends Mallikarjun and Pintu saying that he is going to Hyderabad. (b) If so, whether the petitioners are entitled for the compensation and what is the quantum? 13. A perusal of the FIR produced at Ex.P1 discloses that the deceased Veeresh had left the house at about 8.00 p.m. along with his friends Mallikarjun and Pintu saying that he is going to Hyderabad. It is stated that at about 11.30 a.m. Humnabad Traffic Police called him over phone and informed that the deceased Veeresh had died in a road traffic accident at Humnabad Industrial Area at Gulbarga road and therefore he went to the spot and then found the body of the deceased Veeresh was kept in the Government Hospital at Humnabad. At the spot of the accident, the motorcycle was not available but there were pieces of indicator of the motorcycle and there were scratch marks. It was stated that the motorcycle had caused the accident at about 10.15 p.m. and the rider of the motorcycle had taken away the motorcycle of the deceased. The endorsement of the police show that the ASI of Humnabad Traffic Police Station had visited the spot on the basis of the information he received from the police station at about 10.30 p.m. and by searching pockets of the deceased, found out the phone numbers of the petitioners and informed them. He also says that the body was shifted to Government Hospital, Humnabad and after showing the body of the deceased to the petitioners and showing the spot of the accident, he returned to the police station on 13.11.2014 and received the complaint and registered the case in Crime No.168/2014. Thus, the FIR came to be registered at 4.00 p.m. on 13.11.2014. 14. The inquest report produced at Ex.P5 show that the inquest was conducted on 13.11.2014 at 7.00 to 7.30 a.m. Obviously, it is prior to the registration of the FIR. In the inquest report, it is mentioned that the death had occurred on account of the accident on the night of 12.11.2014 by an unknown vehicle and the motorcycle of the deceased had been taken away by the rider of the offending vehicle. 15. The vehicle seizure mahazar produced by the petitioners at Ex.P4 show that it was conducted on 24.11.2014 and it was stated that PW.4-Sandeep Kumar was present and he produced the motorcycle which was ridden by the deceased Veeresh and it was bearing registration No.KA-51/R-4852. 15. The vehicle seizure mahazar produced by the petitioners at Ex.P4 show that it was conducted on 24.11.2014 and it was stated that PW.4-Sandeep Kumar was present and he produced the motorcycle which was ridden by the deceased Veeresh and it was bearing registration No.KA-51/R-4852. At the same time, the accused Mallikarjun was also present and he also produced the motorcycle ridden by him and it was bearing registration No.KA-32/K-4731. It is evident that on 24.11.2014, PW.4-Sandeep Kumar as well as Mallikarjun were traced and they had stated the story that Mallikarjun had dashed his motorcycle to the motorcycle of the deceased Veeresh. 16. The manner in which the Investigating Officer could trace the said Sandeep Kumar as well as Mallikarjun is not available on record. Ex.P8-charge sheet discloses that only the first page of the charge sheet is produced and the subsequent papers, list of witnesses are not forthcoming. In Ex.P8, it only show that a charge sheet is laid against the rider of the motorcycle i.e., Mallikarjun. 17. PW.1 in his affidavit states that Mallikarjun had dashed his motorcycle against the motorcycle of the deceased Veeresh and therefore he had died. There are no details as to how he came to know about the fact that Mallikarjun had dashed the motorcycle to the motorcycle of the deceased Veeresh. In the cross-examination, it is elicited that the factum of the accident was informed to him by the owner of the Ayyappa Road Lines and therefore he went to the spot. It is elicited that the police were present at the spot and on the same night at 1.00 a.m. he came to know that Mallikarjun had dashed against the motorcycle of the deceased. Obviously, the said statement is not available on record and he did not mention the same in his affidavit evidence. He denies that he had lodged the complaint stating that some unknown person had dashed against the motorcycle of the deceased. Thus, his evidence is contrary to Ex.P1. The endorsement of ASI of Humnabad Traffic Police Station show that he had visited the spot after receiving the information from police station and none were present at spot, including PW.4-Sandeep Kumar. The motorcycle of the deceased Veeresh was also missing. The said missing of the motorcycle of the deceased is also mentioned under the signature of PW.1 in Ex.P1. The endorsement of ASI of Humnabad Traffic Police Station show that he had visited the spot after receiving the information from police station and none were present at spot, including PW.4-Sandeep Kumar. The motorcycle of the deceased Veeresh was also missing. The said missing of the motorcycle of the deceased is also mentioned under the signature of PW.1 in Ex.P1. If, PW.1 knew that the motorcycle of Mallikarjun had dashed against the motorcycle of deceased Veeresh, on which the PW.4 was the pillion rider, nothing prevented him to mention in the FIR which was prepared at 4.00 p.m. on the next day. 18. PW.2 in his affidavit evidence states that he is the owner of Ayyappa Road Lines and the deceased Veeresh was working as Manager in Ayyappa Road Lines. He states that he was paying a sum of Rs. 20,000/- to the deceased Veeresh as salary. He does not say anything that he had informed about the death of the deceased Veeresh to PW.1. In the cross-examination by learned counsel for the Insurance Company, it is elicited that he is only a booking agent but not the owner. He admits that he has not obtained any permission from the panchayath to run the said business and he had not informed any labour authorities in respect of his business. He only produced the alleged salary certificate as per Ex.P12. 19. PW.3-Sharana s/o Shivaji Reddy, states about the accident as if he was an eye-witness and also states that the deceased was working as a Manager at Ayyappa Road Lines. In the cross-examination, he states that he was an eye-witness to the accident and he was coming from Humnabad towards Gulbarga, on his two-wheeler. He states that the deceased Veeresh had fallen on the road and he identified him and informed the owner of Ayyappa Road Lines, as he was working as coolie in Ayyappa Road Lines. He admits that he did not see the accident happening and he only came to the spot after some time of the accident. Thus, his evidence shows that at about 10.00 p.m., he had reached the spot and informed the owner of Ayyappa Road Lines. 20. PW.4-Sandeep Kumar, happens to be the pillion rider of the deceased Veeresh. He admits that he did not see the accident happening and he only came to the spot after some time of the accident. Thus, his evidence shows that at about 10.00 p.m., he had reached the spot and informed the owner of Ayyappa Road Lines. 20. PW.4-Sandeep Kumar, happens to be the pillion rider of the deceased Veeresh. He says that at about 10.15 p.m. while deceased Veeresh was riding the motorcycle, the respondent No.1-Mallikarjun drove his motorcycle bearing registration No.KA-32/K-4731 in a rash and negligent manner and dashed to the motorcycle of the deceased Veeresh. In his affidavit, soon after the accident the said Mallikarjun ran away from the spot. He says that the police came to the spot had taken the dead body of the deceased Veeresh to the hospital. In the cross-examination, it is elicited that he had sustained minor injuries and therefore he has not taken any treatment. It is elicited that he had informed PW.1 and his family members about the accident and he was at the spot for about two hours. He states that he did not call the ambulance since he had no currency in his mobile. He says that he also did not go to the police station after arrival of PW.1 and petitioner No.2. He admits that he and deceased Veeresh had consumed alcohol. He admits that he did not call Mallikarjun over phone also. Strangely, he does not say anything about the disappearance of the motorcycle of the deceased Veeresh. 21. The above evidence shows that PWs.3 and 4 state that they were present at the spot at about 10 p.m., but their evidence is totally contrary to what is mentioned by PW.1 in the FIR at Exs.P1 and 2. It is also against the endorsement of the ASI of Humnabad Traffic Police Station. If, PWs.3 and 4 were present at the spot for about two hours, nothing prevented PW.1 to say that he had been informed by PW.3 or PW.4. Their evidence also does not say as to what had happened to the motorcycle driven by deceased Veeresh. Curiously, PW.4 produced the motorcycle of the deceased Veeresh on 24.11.2014. Therefore, the evidence of PWs.3 and 4 is highly unbelievable and contrary to the contention of PW.1 also. Their evidence also does not say as to what had happened to the motorcycle driven by deceased Veeresh. Curiously, PW.4 produced the motorcycle of the deceased Veeresh on 24.11.2014. Therefore, the evidence of PWs.3 and 4 is highly unbelievable and contrary to the contention of PW.1 also. When the entire investigation papers are not produced by the petitioners before the tribunal, except first sheet of the charge sheet, when there are discrepancies about the involvement of the motorcycle of Mallikarjun and when the conduct of the PW.4 appears to be not of prudent person, we do not find that the testimony of PWs.3 and 4 is worth and placing any reliance. Obviously, the FIR was registered at about 4.00 p.m. as mentioned in the endorsement of ASI. If PWs.1 and 4 knew that it was the respondent No.1-Mallikarjun who caused the accident, nothing prevented PW.1 to inform the same in the FIR. 22. Another important aspect is that PW.3 was working in Ayyappa Road Lines owned by PW.2. The deceased was also working in the said Ayyappa Road Lines. PW.1-Shivalingappa says that he was informed of the accident by the owner of Ayyappa Road Lines. Curiously, he did not mention that it was PW.2. PW.2 claims that he was the owner of the Ayyappa Road Lines, but he did not say that he had visited the spot and had informed the PW.1 about the accident. PW.3 says that he had informed the owner of Ayyappa Road Lines. Thus, the entire evidence available on record did not establish the involvement of the motorcycle driven by respondent No.1. The conduct of PWs.3 and 4 is not worth believing and the conduct of PW.4 is very much questionable. 23. The decision in the case of Saroj and Others was concerning an alleged hit and run case and on an admission by the insurer about the involvement of the vehicle in pleadings, the Hon'ble Apex Court came to the conclusion that the admission of tort-feasor could not have been rejected by the tribunal. In the case on hand, the respondent No.1 has not admitted his involvement in the accident. The insurer has denied the involvement of the vehicle. The conduct of PW.4 is very much questionable and therefore, on facts, the said decision may be distinguished. 24. The decision in the case of National Insurance Co. In the case on hand, the respondent No.1 has not admitted his involvement in the accident. The insurer has denied the involvement of the vehicle. The conduct of PW.4 is very much questionable and therefore, on facts, the said decision may be distinguished. 24. The decision in the case of National Insurance Co. Ltd. v. Chamundeswari, referred supra was in respect of the believability of PWs.1 and 3 but they were not the witnesses mentioned in the FIR. In such circumstances, the Hon'ble Apex Court held that the weightage has to be given to the testimony before the Tribunal and there was no reason to discard the very evidence as they were inmates of one of the vehicle which had met with the accident. In the case on hand, the evidence of PW 3 and 4 is unbelievable and is contradictory to the investigation papers. Moreover, their evidence lacks the actions of a prudent person and cannot be said to be true. 25. The judgment of this Court in The Divisional Manager, Oriental Insurance Company v. Rayan Fernandes and others (MFA No.7279/2016 with connected matters dated 5-1-2021) observed that the charge-sheet submitted by the police cannot be accepted as a gospel truth in all cases. It was observed that the charge-sheet papers viz. spot sketch, spot mahazar would be helpful for the Tribunal to come to a proper conclusion and when the charge-sheet is shown to be flawed and investigation was not proper, they are liable to be rejected. This Court had come heavily on the manner of investigation. In the case on hand also, there is delay in filing the complaint and the interregnum between the time of the accident and the registration of the case is not properly brought on record. The respondent No.1 has maintained a stoic silence regarding the accident and PW.4 is not trustworthy in his evidence before the Court. 26. For foresaid reasons, we find that the involvement of the vehicle insured by the respondent No. 2, owned by respondent No. 1 in the alleged accident is not proved and that no fault can be found in the judgment and award passed by the Tribunal. Consequently, the appeal deserves to be dismissed. Hence, the following: ORDER The appeal is dismissed.