Research › Search › Judgment

Karnataka High Court · body

2023 DIGILAW 325 (KAR)

Divisional Manager v. P. M. Govinda Naidu

2023-02-24

C M JOSHI

body2023
JUDGMENT : C M Joshi, J. This appeal is directed against the judgment and award dated 11.03.2010 in MVC No.756/2007 passed by the learned Motor Accident Claims Tribunal IX, Ballari (for short "the Tribunal"). The insurance company aggrieved by the said judgment and award has approached this Court in appeal. 2. The parties are referred to as per their ranks before the Tribunal for the sake of convenience. 3. The brief facts of the case are as follows: The petitioner before the Tribunal contended that on 06.04.2007 while he was going by walk towards KSRTC Bus depot, at about 4.30 p.m., the rider of the motorcycle bearing registration No.KA-34/J-523 came from hind side of the petitioner and dashed him causing injuries and he was taken to VIMS hospital, Ballari where he took treatment as an inpatient. The said motorcycle belonged to respondent No.2 before the Tribunal and it was duly insured by the respondent No.3- insurance company. The petitioner claimed compensation of Rs.8,00,000/-. After service of notice to respondents, respondents 1 to 3 appeared before the Tribunal. Respondents 1 and 2 did not file their written statement however, respondent No.3-insurance company filed its written statement denying the contents of the petition. Respondent No.3-insurance company disputed the age, income and occupation of the petitioner and also disputed its liability on the ground that the said vehicle was not at all involved in the accident. It was contended that the motorcycle involved in the accident as per FIR and the complaint was bearing registration No.KA-34/K-6246 but not the motorcycle bearing registration No.KA-34/J-523. It was alleged that latter motorcycle was implicated to claim compensation and therefore, the petition is liable to be dismissed. Apart from that it was also contended that the quantum of compensation claimed by the petitioner was highly exorbitant and untenable in law. 4. On the basis of the above pleadings, the Tribunal framed necessary issues and the petitioner was examined as PW1 and a witness was examined as PW2 and Exs.P1 to 13 were marked in evidence. One of the officials of the respondent No.3-insurance company was examined as RW1 and a copy of the policy was marked as Ex.R1. After hearing the arguments, the Tribunal awarded a compensation of Rs.97,580/- and directed the respondent No.3-insurance company to deposit the compensation amount. Aggrieved by the said judgment and award, the insurance company is before this Court. 5. One of the officials of the respondent No.3-insurance company was examined as RW1 and a copy of the policy was marked as Ex.R1. After hearing the arguments, the Tribunal awarded a compensation of Rs.97,580/- and directed the respondent No.3-insurance company to deposit the compensation amount. Aggrieved by the said judgment and award, the insurance company is before this Court. 5. The insurance company contends that although there was fraud and misrepresentation a alleged by it, the Tribunal has erroneously ignored the documentary evidence on record and directed the insurance company to pay the compensation amount. It was contended that the Tribunal has erred in not considering the fact that the rider of the motorcycle bearing registration No.KA-34/J-523 had pleaded guilty before the Criminal court and the Tribunal saddled the liability upon the appellant-insurance company but the Tribunal ought to have held that when a fraud and misrepresentation was alleged, the pleading guilty of the rider of the motorcycle could not have been a relevant fact. Therefore, it was contended that the judgment and award passed by the Tribunal is against the settled propositions of law. Apart from that, it also contended that the partial permanent disability @ 8% affecting a lower limb of the petitioner was also disproportionate to the injuries alleged and as such, the quantum of compensation is also improper and it is highly exorbitant without any basis. 6. On issuance of notice by this Court, the respondent No.1 who was petitioner before the Tribunal appeared through his counsel. Respondents 2 and 3 who were respondents 1 and 2 before the Tribunal did not appear despite service of notice. The trial Court records were secured and the arguments by learned counsel for the appellant as well as the learned counsel appearing for respondent No.1 were heard. 7. The learned counsel appearing for the appellant apart from making submission as mentioned in the appeal memo contended that the FIR mentions a different motorcycle and the charge-sheet mentions a different motorcycle and therefore, it has to be inferred that the motorcycle bearing registration No.KA-34/J-523 was not involved in the accident but it was the motorcycle bearing registration No.KA-34/K- 6246. In support of his contention, he placed reliance on a decision in the case of Oriental Insurance Company Limited v. Premalatha Shukla and others, (2007) 13 SCC 476. 8. In support of his contention, he placed reliance on a decision in the case of Oriental Insurance Company Limited v. Premalatha Shukla and others, (2007) 13 SCC 476. 8. Per contra, learned counsel appearing for the respondent No.1 submitted that though initially FIR mentioned the vehicle number as KA-34/K-6246, the investigation revealed that it was the motorcycle bearing registration No.KA- 34/J-523 and this can be found in the panchanama which was conducted on the very next day of registration of the FIR. It is contended that the FIR is only a statement which sets the criminal law in motion and when the investigation proceeds, the investigating officer may find the correct vehicle which caused the accident and therefore, the charge sheet becomes more relevant in the matter. It is submitted that when the Tribunal is faced with two documents in the form of FIR and Charge sheet, it is the charge sheet which gains importance and precedence over the FIR. In support of her contention, she has relied on catena of decisions. 9. The submissions by both the sides poses a question as to whether the charge sheet which is resultant effect of the investigation has to be given credence or whether it is the FIR which gets precedence over the charge sheet before the Tribunal. It is relevant to note that the Court has to consider the evidence that can be deduced from all the documents which are placed before it. It cannot restrict to a fact mentioned in a particular document in order to base its decision. In the case on hand, it is not in dispute that the FIR was lodged by mentioning the vehicle number as KA-34/K-6246. The investigating officer in discharge of his statutory duties investigated the matter and found that it was the motorcycle bearing registration No.KA- 34/J-523 which had caused the accident. In other words, the FIR was instrumental in setting criminal law in motion and investigating officer found that it was the motorcycle bearing registration No.KA-34/J-523 which caused the accident but not the vehicle bearing registration No.KA-34/K-6246. In that view of the matter, it is the vehicle which is mentioned in the charge sheet gains much credence but not one which is mentioned in the FIR. 10. The learned counsel appearing for the appellant places reliance on the decision in the case of Premalatha Shukla (referred to supra). In that view of the matter, it is the vehicle which is mentioned in the charge sheet gains much credence but not one which is mentioned in the FIR. 10. The learned counsel appearing for the appellant places reliance on the decision in the case of Premalatha Shukla (referred to supra). In this decision it was held that the proof of rashness and negligence on the part of the driver of the vehicle is sine-qua-non for maintaining an application under Section 166 of the Motor Vehicles Act. The factual matrix in the said case was that a tempo trax and a truck had collided and petition was filed by an inmate of the tempo trax. The registration number of the truck could not be traced out but the FIR unequivocally mentioned that it was a truck driver who was negligent in causing the accident. There was no allegation made against the tempo trax driver in which the claimant was travelling. When the compensation was claimed against the owner and insurer of the tempo trax, though the police papers showed that the truck was negligent, the Apex Court held that when the negligence is alleged against the truck driver a petition against the tempo trax owner and its insurer cannot be entertained. It is pertinent to note that even after investigation, it was not found that there was any negligence by the tempo trax driver but the negligence remained with the truck driver, who was not traced. Therefore, when the final closure report did not implicate the tempo trax driver as a wrong doer, the Hon'ble Apex Court held that the petition is not maintainable. 11. In the case on hand, the investigating officer has come to the conclusion that the vehicle which caused the accident is KA-34/J-523 and accordingly filed charge sheet against the rider of the said motorcycle. The petition invariably alleged rash and negligent driving as against the rider of the motorcycle. Therefore, the question of negligence which is sine-qua-non for the maintainability is established. 12. The learned counsel appearing for the petitioner-respondent No.1 placed reliance on the decision in the case of Kusuma Lata and others v. Satbir and others, 2011 ACJ 926 . The petition invariably alleged rash and negligent driving as against the rider of the motorcycle. Therefore, the question of negligence which is sine-qua-non for the maintainability is established. 12. The learned counsel appearing for the petitioner-respondent No.1 placed reliance on the decision in the case of Kusuma Lata and others v. Satbir and others, 2011 ACJ 926 . In this decision, the Hon'ble Apex Court held that the disclosure of the registration number of the vehicle on the next day of registration of the FIR would not disentitle the claim for compensation from the insurance company. Simply because the vehicle number was not mentioned in the FIR, the claimant cannot be thrown out from claiming compensation by the Tribunal. 13. Similar view is also expressed by the Division Bench of this Court in MFA No.5573/2008 C/w MFA No.20383/2009 (between Smt. Laxmi and others v. Sri. Mallareddy and others) disposed on 16.01.2012 wherein it was held that there may be discrepancy between the FIR and the charge sheet material but none else the charge sheet material will have to prevail in law. 14. I have also perused the decisions in the case of Bimla Devi and others v. Himachal Road Transport Corporation and others, 2009 ACJ 1725 , Vimladevi and others v. National Insurance Company and others, 2019 ACJ 454 , Sunita and others v. Rajasthan State Road Transport Corporation and another, 2019 ACJ 801 and lastly Bhimavva and others v. Shankar and others, 2005 ACJ 301 . The factual matrix in these matters are totally different and they do not come even near to the facts of the present case. Therefore, I do not intend to elaborate on them. 15. In view of the foregoing reasons, the contention of the appellant-insurance company that the discrepancy in FIR and the charge sheet has to enure to the benefit of the insurer cannot be accepted. When the charge sheet mentions the vehicle insured by the appellant herein, it is the charge sheet which takes precedence over the FIR. The FIR culminates with the charge sheet and therefore, unless the appellant establishes independently that it was the motorcycle bearing registration No.KA-34/K-6246 which had caused the accident, he cannot depend upon the averments made in the FIR. 16. Obviously, the spot panchanama which is produced at Ex.P3 was drawn on the next day of the accident. The FIR culminates with the charge sheet and therefore, unless the appellant establishes independently that it was the motorcycle bearing registration No.KA-34/K-6246 which had caused the accident, he cannot depend upon the averments made in the FIR. 16. Obviously, the spot panchanama which is produced at Ex.P3 was drawn on the next day of the accident. The reason for mentioning the vehicle number as KA-34/J-523 in the panchanama as well as in subsequent documents including the charge sheet, appear to be the statement of the witnesses. Therefore, it was incumbent upon the insurance company to establish that the charge sheet which is culmination of the investigation was incorrect. In the absence of any such material on record, it is not possible to accept the contention of the appellant herein. 17. Coming to the question of quantum of compensation, the petitioner had sustained segmental fracture of tibia and fracture of 1/3rd of fibula of the right leg. The Tribunal awarded a sum of Rs.25,000/- towards pain and suffering, a sum of Rs.11,500/- towards medical expenses on the basis of bills produced, a sum of Rs.3,000/- towards attendant charges and a sum of Rs.3,000/- towards nourishment and extra-nourishment charges and taking the income of the petitioner at a sum of Rs.100/- per day, it awarded a sum of Rs.6,000/- towards loss of income during the laid up period and considering shortening of the leg by 2 cm and the disability @8% it awarded a sum of Rs.46,080/- towards future loss of earnings. Thus, the total sum of Rs.97,580/- was awarded to the Tribunal and I do not find any reason to hold that the said determination of the quantum of compensation is erroneous in any way. Therefore, there are no cogent reasons which show that the quantum of compensation awarded is also incorrect. 18. In view of the discussions made supra, the appeal is bereft of any merits and as such, the same is liable to be dismissed. Hence, the following: ORDER The appeal is dismissed. The judgment and award dated 11.03.2010 in MVC No.756/2007 passed by the learned Motor Accident Claims Tribunal IX, Ballari is hereby confirmed. The appellant-insurance company is directed to deposit the compensation amount along with interest determined by the Tribunal within a period of four weeks from today, if not deposited already. Hence, the following: ORDER The appeal is dismissed. The judgment and award dated 11.03.2010 in MVC No.756/2007 passed by the learned Motor Accident Claims Tribunal IX, Ballari is hereby confirmed. The appellant-insurance company is directed to deposit the compensation amount along with interest determined by the Tribunal within a period of four weeks from today, if not deposited already. The amount in deposit, if any, made by the appellant-insurance company, along with records is ordered to be transmitted to the concerned Tribunal, forthwith. In view of disposal of the main appeal, pending interlocutory applications, if any, do not survive for consideration and are disposed of accordingly.