Research › Search › Judgment

Karnataka High Court · body

2023 DIGILAW 442 (KAR)

Sabiya v. Aminuddin I. Chabusksavar

2023-03-15

R.DEVDAS, RAJESH RAI K

body2023
JUDGMENT/ORDER Rajesh Rai K, J. - This appeal is directed against the judgment and order dated 02.07.2015 passed in MVC No.1950/2013 by III Addl. Senior Civil Judge and Member, MACT, Belagavi (for short' Tribunal'). 2. Brief facts which are relevant for the purpose of disposal of this appeal are that on 29.01.2013, the deceased (Hasim Ibrahim Tade) was going by walk on Darbar Galli Road, on the left side of the road at about 12.20 a.m., at that time the driver of the car bearing No.KA-22/N-8959 coming from CBS circle towards Shaniwarkoot in a rash and negligent manner, dashed the deceased and after the accident, the driver of the Car and PWs.2 and 3 shifted the injured in the said car to District Hospital for treatment. Inspite of treatment, he died. Hence, a claim petition was filed by the appellants i.e. family members of the deceased Hasim Ibrahim Tade under Section 166 of M.V. Act, 1988, before the Tribunal for award of compensation. 3. Before the Tribunal, in order to prove their case, the appellants/claimants got examined 3 witnesses i.e. PWs.1 to 3 and got marked 15 documents as per EX.P.1 to P15A. On the other hand, respondent No.2 i.e. Insurance Company got examined two witnesses as RW-1 and RW-2 and also got marked two documents as per EX.R1 and R2. 4. After hearing the learned counsels on both the sides and on assessment of oral as well as documentary evidence, the Tribunal passed a judgment, dismissing the claim petition filed by the petitioners under Section 166 of MV Act, 1988. Hence, claimants have challenged the said impugned judgment in this appeal. 5. We have heard the learned counsel for both the parties. 6. The learned counsel for appellants/claimants vehemently contended that the judgment and award passed by the Tribunal is erroneous, illegal and contrary to the facts and evidence on record. As such, the same suffers from perversity and illegality. He would further contend that the Tribunal failed to consider the material and evidence on record. Among three witnesses examined before Tribunal i.e. PWs.1 to PW.3, PW.1 is none other than the wife of the deceased, clearly deposed about the manner in which the accident was caused due to the rash and negligent driving of the car bearing Regn.No.KA-22/N-8959 by it's driver. Among three witnesses examined before Tribunal i.e. PWs.1 to PW.3, PW.1 is none other than the wife of the deceased, clearly deposed about the manner in which the accident was caused due to the rash and negligent driving of the car bearing Regn.No.KA-22/N-8959 by it's driver. Further PW.2 who is the brother of the deceased has also clearly deposed about the rash and negligent driving of the driver of the offending vehicle bearing No.KA-22/N-8959. He clearly deposed that the said accident was witnessed by the PW.3 who in turn called him and informed about the accident, thereby he immediately rushed to the spot. At that time, the Police officials were also present and all of them including the driver of the car took the injured to the District Hospital, Belagavi for treatment. However, doctor declared him as brought dead. 7. Further, the learned counsel relies on the evidence of PW.3 who is none other than eye witness to the alleged accident. According to the evidence of PW.3, on 29.01.2013, in the mid-night, he witnessed the accident caused to the deceased by car bearing No.KA-22/N-8959 proceeding towards Shanivarkoot and the driver of the said car was driving the car in a rash and negligent manner. As such, the counsel for the appellants submits that there is no reason to disbelieve the evidence of these three witnesses since, they clearly deposed about the manner in which the accident was caused. Accordingly to him, Tribunal totally failed to consider the evidence of these three witnesses and dismissed the claim petition filed by the appellants / claimants. Learned counsel further contends that though the jurisdictional Police filed a C-report (Un-traceable case), later, PW.2 filed a protest petition and after hearing the said protest petition and also by considering the evidence and material available on record, the trial Court rejected the C-report and took cognizance of the case for the offences punishable under Sections 279 and 304A of IPC and Section 134(a)(b) r/w 187 of MV Act and directed to register the case against the accused-respondent No.1- Aminuddin I. Chabusksavar and as such the learned counsel submits that the impugned judgment is liable to be set aside. 8. 8. Per contra, learned counsel for the 2nd respondent-Insurance Company would submit that the trial Court rightly rejected the claim petition and the judgment under appeal does not suffer from any perversity or illegality since the Tribunal on proper appreciation of oral and documentary evidence has recorded the findings, which are sound and reasonable. Therefore, the same does not call for any interference by this Court. He further contends that by perusal of Ex.P2-complaint, lodged by the brother of the deceased who is examined as PW.2 at the earliest point of time after the accident i.e. on 29.01.2013, reveals that unknown vehicle dashed against the deceased and accordingly, EX.P1-FIR was registered against un-known persons. He would further contend that after a detailed investigation, jurisdictional Police filed C-report as per Ex.P.5 and on perusal of Ex.P.5-C-report, it clearly depicts that the accident occurred on 29.01.2013 at about 12.30 a.m. Some unknown vehicle driven by un-known driver coming from CBS Circle towards Shaniwarkoot in rash and negligent manner near Darbargalli cross dashed against the deceased, due to which deceased died. As such, the Police also failed to prove the involvement of the offending vehicle i.e. vehicle bearing No.KA-22/N-8959 insured with the second respondent in the accident. He would further contend that though PW.3 claimed himself to be an eye witness to the accident, according to him, he informed about the accident to PW.2-brother of the deceased, but on perusal of Ex.P.2 lodged by the brother of the deceased, it does not disclose about the said aspect which clearly creates a doubt in the version of PW.3 and also PW.2. Hence, the counsel submits that the Tribunal has rightly rejected the claim of the petitioners/claimants and dismissed the petition. Accordingly, he prays to dismiss the appeal. 9. We have bestowed our anxious consideration to the submissions made by the learned counsel for the parties and also perused the material available on record including trial court records. 10. Having heard the learned counsel for the parties and having perused the records, it is undisputed fact that on 29.01.2013, the accident took place near Darbar Galli, Belagavi and due to the same, deceased by name Hasim Ibrahim Tade died. 10. Having heard the learned counsel for the parties and having perused the records, it is undisputed fact that on 29.01.2013, the accident took place near Darbar Galli, Belagavi and due to the same, deceased by name Hasim Ibrahim Tade died. To that effect, the brother of the deceased PW.2 lodged complaint as per EX.P.2 before the jurisdictional Police and based on the same, FIR in Crime No.22/2013 registered as per EX.P.1 against unknown persons and unknown vehicle. It is also not in dispute that PW.2-brother of the deceased lodged the complaint against some unknown driver and unknown vehicle. Later during the course of investigation, jurisdictional Police had drawn spot panchanama as per Ex.P3 and spot sketch as per Ex.P.4. However, Police failed to trace the vehicle which caused the accident to the deceased. As such, Police filed final C-report to the Court that the vehicle which caused accident is not traceable, as per Ex.P.5. Nevertheless, the said C-report was challenged by the complainant by filing protest petition and also by examining two witnesses i.e PW.1 and PW.2. Later, trial Court after considering the evidence of those two witnesses, rejected the C-report and has taken cognizance against the accused/respondent No.1 by name Aminuddin I. Chabusksavar, the owner of the offending vehicle for the offence punishable under Sections 279 and 304A of IPC and Section 134(a)(b) r/w 187 of MV Act,1988. Hence, by perusal of the above materials, it can be concluded that the accident took place on 29.01.2013 and the brother of PW.2 deceased died due to the said accident. The next aspect of the matter is that whether respondent No.1 who claims to be the owner of the offending vehicle bearing No.KA-22/N-8959 was driving the vehicle on the relevant date, place and time and caused the accident to the deceased and thereby responsible for death of the deceased. 11. It could be seen from the records and evidence of witnesses that PW.1-wife of deceased is a hearsay witness and she deposed that after the accident to her husband, immediately she rushed to the spot of accident and herself, PWs.2 and 3 along with Police officials shifted the injured to the hospital. According to her, the said accident was caused by the driver of the car bearing No.KA-22/N-8959. However, during the course of investigation, she failed to give any statement before the Police. 12. According to her, the said accident was caused by the driver of the car bearing No.KA-22/N-8959. However, during the course of investigation, she failed to give any statement before the Police. 12. PW.2 is also none other than the brother of the deceased, who lodged complaint as per Ex.P.2 deposed in his evidence that on 28.01.2013 i.e. on the date of accident, PW.3 informed him about the accident of his brother and immediately he rushed to the spot. During that time, Police officials were also present and the driver of the offending vehicle who caused the accident was also present at the spot of accident. All of them shifted the injured to the District Hospital, Belagavi. However, the doctor declared him as brought dead. By perusal of the cross-examination of this witness, he clearly admitted that he was not an eye witness to the incident and also that he lodged the complaint against unknown persons as per Ex.P.2. Moreover, there is no whisper about the presence of PW.3 in the spot or the information received from him. Hence, by the contents of Ex.P.2 and evidence of PW.2 are quite contradictory. Nevertheless, at the earliest point of time i.e. immediately after accident, PW.2 lodged compliant against unknown vehicle. As such, the evidence of PW.2 does not inspire any confidence in respect of the incident and involvement of the offending vehicle as narrated by him before the Court. PW.3 who claims to be an eye witness to the accident, deposed in his evidence that on the relevant date and time, he was present at the place of incident and witnessed the accident, But, the RW-1 i.e. Investigating Officer in his evidence categorically admitted that he has not recorded the statement of PW.3-Chandru Ningappa Patil nor the said witness has given any statement before him. Further, even PW.2 also while lodging the complaint did not state anything about PW.3, and also about shifting the injured to the hospital. This contradictory version of PW.3 creates a doubt in his evidence that he is a planted witness to the case by PW.1 and PW.2 to support their claim before the Tribunal. 13. Further, even PW.2 also while lodging the complaint did not state anything about PW.3, and also about shifting the injured to the hospital. This contradictory version of PW.3 creates a doubt in his evidence that he is a planted witness to the case by PW.1 and PW.2 to support their claim before the Tribunal. 13. On perusal of evidence of RW.1-investigation officer in the case, who submitted the final report as per Ex.P5, clearly stated that PW.3-Chandru Ningappa Patil did not gave any statement before him and during his investigation, he was unable to trace the vehicle which involved in the accident. Accordingly, he filed C-report as per Ex.P.5. 14. There is no reason to depose falsely by RW.1-the Investigation Officer and also there is no reason to file C-report after investigation, if the accident was really caused by the driver of the offending vehicle bearing No.KA-22 / N-8959. The version of RW.1 supports with contents of Ex.P.2 lodged by PW.2 who is none other than brother of the deceased. As such, it can be easily concluded that the evidence of PWs.1 to 3 is an after taught in order to claim compensation in connection with the death of the deceased and PW.3 deposed before the Court on behest of PW.2. Another aspect of the matter is that though the respondent No.1 admitted the accident, being the owner of the vehicle, in his written statement he stated that driver was employed to his car. Nowhere he had stated in his objection statement that he himself was the driver of the offending car. But, strangely PWs.1 to PW.3 before the Magistrate has specifically deposed that the respondent No.1 was driving the car at the time of accident. Hence, this contradictory version in respect of the driver of the car also creates a doubt in the case of the appellants, since the investigating officer filed final C-report, appellants / claimants have to prove the involvement of the offending vehicle in the accident beyond all reasonable doubts. But the appellants / claimants failed to prove the same. The inconsistent version of the witnesses and the contradictory evidence to the documents produced by them cannot be relied to prove the involvement of the offending vehicle in the accident. As such, the question of fastening the liability on the Insurance Company does not arise. But the appellants / claimants failed to prove the same. The inconsistent version of the witnesses and the contradictory evidence to the documents produced by them cannot be relied to prove the involvement of the offending vehicle in the accident. As such, the question of fastening the liability on the Insurance Company does not arise. Hence, in our considered opinion, trial Court has rightly dismissed the claim petition filed by the appellants / claimants. Accordingly, we pass the following: ORDER The appeal filed by the appellants/claimants is dismissed. The judgment and award dated 02.07.2015 in MVC No.1950/2013 by III Addl. Senior Civil Judge and Addl. MACT, Belagavi is hereby confirmed.