IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH BEFORE THE HON BLE MR.JUSTICE K.SOMASHEKAR MFA NO.20826/2009 (MV)

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1 : 1 : IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 16 TH DAY OF MARCH 2017 BEFORE THE HON BLE MR.JUSTICE K.SOMASHEKAR BETWEEN: MFA NO.20826/2009 (MV) United India Insurance Company Limited Represented by its Divisional Manager S.G. Rane, Divisional Office, Karawar. APPELLANT (By Sri. Laxman B. Mannoddar, Advocate) AND: 1.Anandu Govind Rane, Since dead by his L.R. (A) Smt. Anitha W/o.Anand Rane, 47 years, Occ: House Hold Work, R/o.Chinchwada, Sadashivgad Tq:Karawar, Dist: Karawar 2.Maheshwar S/o.Yesu Kadam 62 years, Occ: Owner cum Driver of Vehicle No.KA R/o.Chinchawada, Sadashivgad Karawar Taluka.... RESPONDENTS (By Sri.A.S. Patil, Advocate for R.1(A) proposed L.R. of respondent No.1; Sri.Ravi V. Hosamani, Adv. for R-2)

2 : 2 : This appeal is filed under Section 173(1) of M.V. Act against the judgment and award dated passed in MVC.No.333/2007 on the file of the 2 nd Additional Motor Accidents Claims Tribunal at Karawar, awarding compensation of Rs.32,000/- with interest at the rate of 6% per annum from the date of the petition till the date of deposit. This appeal coming on for hearing this day, the Court delivered the following:- JUDGMENT Heard the learned counsel for the appellant and the learned counsel for the respondents. 2. This appeal by the Insurance Company is preferred against the judgment and award dated passed in MVC.No.333/2007 on the file of the 2 nd Additional Motor Accidents Claims Tribunal at Karawar, directing the Insurance Company to deposit the compensation amount and to recover the same from the 2 nd respondent-owner. 3. The parties are referred to as per their rank before the Tribunal.

3 : 3 : 4. The factual matrix of the appeal are as under: On at about 4.00 p.m. when the petitioner was proceeding on Gaongeri-Majali road near KPTCL Pole 239 on his Bajaj M-50 bearing Regn.No.KA- 30-J8471 on the left side of the road towards Majali, the Tata-407 vehicle being driven by the first respondent in a rash and negligent manner came from backside on wrong side of the road and hit him as a result of which he fell down sustained grievous injuries. The first respondent who stopped the vehicle for a moment left the accident place without taking him to hospital for treatment. Fifteen minutes after the accident, he fell unconscious due to the bleeding from his ear and also grievous injuries suffered by him in the said accident. He was shifted to Gurukripa Nursing Home, Kajubad, Karwar, who referred him to the District Hospital, Karwar, who after giving initial treatment, referred him for expert and special treatment to Goa Medical College, Bambolim, Goa. As he was unconscious, the police

4 : 4 : wrongly recorded the complaint from his wife that the petitioner himself met with an accident eventhough she was not an eye witness and not aware of the time and fact of the accident which was caused by the first respondent. On coming to know about the same after his discharge, he approached the PSI, Chittakul Police Station and reported the fact of the accident caused by the first respondent stating that he has seen the first respondent when he stopped the vehicle for a moment and he is acquainted with the vehicle of the first respondent. The petitioner became almost deaf due to the injuries caused to his ear. He has sustained fracture of his skull and fracture of both clavicle bone and spent Rs.50,000/- towards treatment. Hence, he filed claim petition seeking compensation of Rs.5.75,000/-. After service of notice, respondents 1 and 2 appeared and first respondent filed written statement denying the averments in the claim petition and contended that he has a valid driving licence and the

5 : 5 : vehicle is insured with the respondent No.2 and hence, respondent No.2 is liable to pay the compensation and sought for dismissal of the claim petition. Respondent No.2 filed written statement contending that the petitioner himself was negligent and got injured due to rash and negligent driving of Bajaj M-50 vehicle and therefore, sought for dismissal of the claim petition. Based on the pleadings of the parties, the Tribunal framed the following issues:- 1.Whether the petitioner proves that he sustained injuries in a road traffic accident that occurred on at about 4.00 p.m. at Gaongeri, Majali road near KPTCL Police No.239, due to the rash or negligent act of the driver of the Tata Company Tempo bearing Regn.No.KA- 30/1800? 2.Whether the petitioner is entitled for compensation? If so, how much and from whom? 3.What Award or order? The petitioner in order to establish his case, examined himself as P.W.1 and got marked documents

6 : 6 : at Exs.P-1 to P9. The second respondent got examined the Administrative Officer of the Insurance Company as R.W.1 and the PSI of Chittakula P.S. as R.W.3 and got marked the documents as Exs.R1 and R-2. The first respondent got himself examined as R.W.2. However, no documents were got marked. On appreciation of the oral and documentary evidence, the Tribunal answered Issue Nos.1 and 2 in the affirmative awarding compensation of Rs.32,000/- with interest and directing the second respondent to pay compensation and recover the same from the first respondent. It is this which is under challeng in this appeal. 5. The learned counsel for the appellant during the course of his argument has contended that the judgment and award passed by the Tribunal is contrary to law, facts, evidence and material on record. The first respondent was not holding valid and effective driving licence as the same was renewed on i.e.

7 : 7 : after the date of the accident, which fact has been noticed by the Tribunal in the impugned judgment and the same is proved by producing extract of driving licence and leading evidence in support of the same. Therefore. Tribunal ought not to have considered the evidence of R.W.1 and fastened the liability on respondent No.1 which is against the principles laid down by the Supreme Court in the decision reported in ACJ Further, in support of his contention, he has relied on the decision reported in New India Assurance Company Limited.vs. G.N. Gopalagowda and another reported in 2006 ACJ 2771 wherein at Paragraph (5) it is held as under:- Petitioner is a police constable. The charge-sheet does not explain the divergent and contra material in the F.I.R. Exh.R1 to sustain the chargesheet against the auto driver. Evidently, it appears to be a case of fraud on the Court and misuse of official position by the petitioner with the connivance of investigating officer in concocting a false case to make

8 : 8 : unlawful gain and to cause unlawful loss to the public money. and submits that the ratio laid down in the aforesaid case is aptly applicable to the facts of the present case. 6. Per contra, learned counsel for the respondent has contended that the complainant in the criminal case is none other than the wife of the injured petitioner. However, she is not at all an eye witness to the incident. Moreover, it is not the defence of the respondents that claimant s wife is an eye witness to the incident. Even as per the FIR and complaint somebody has brought her husband injured in the accident at about 4.45 p.m. on that day. Even FIR, supports the case of the petitioner that the petitioner s wife is not at all an eye witness to the accident. This aspect has been considered by the Tribunal while considering the evidence of P.W.1 and also the documents at Exs.P1 to P9 produced by the petitioner. It is further pointed out that in the decision reported in 2008 ACJ Page-113, murder was converted into death in the accident case.

9 : 9 : Hence, the said decision is not applicable to the facts of the present case. The circumstances of the above said citations are entirely different than the circumstances of this case on hand. Merely, because, the petitioner is working as Police, it cannot be said that he played fraud on the Court misusing his official position in connivance with Investigating Officer in concocting a false case to mulct unlawful liability on the Insurance Company. The injuries suffered by the petitioner are indicated in the wound certificate produced as per Ex.P6. Considering the evidence and documents produced by the petitioner, the Tribunal has awarded compensation in a sum of Rs.32,000/- under various heads. Therefore, there are no substance in the contention of the counsel for the Insurance company calling for interference with the impugned judgment and award in the present appeal. Hence, he seeks for dismissal of the appeal 7. However, learned counsel during the course of his argument has placed reliance on the decision

10 : 10 : reported in [2008 Kant M.A.C.145(Kant)] in the case of Bajaj Allianz General Insurance Company Limited.vs. Smt. Lakshmamma and others wherein at Paragraph 6, it is held thus:- 6.Then, coming to the question of involvement of the vehicle, admittedly charge-sheet is filed against the driver of the vehicle, the owner has not denied the accident. FIR is registered in Crime No.10/05 by the Malur Police. If really the vehicle was not involved, if a false case has been lodged and if the owner has colluded with the claimants, it was for the Insurance Company to challenge the same to quash the charge-sheet and to direct the police to investigate properly and file an appropriate case for having lodged a false case when there was no accident and vehicle in question had not been involved. The learned counsel for the appellant submits that after case was filed, the matter was entrusted to a private agency for investigation and according to the report of the investigation of a private agency, the vehicle in question had not been involved in the accident. But, we cannot place reliance on a report submitted by a private agency when a charge-sheet is filed by the police after a detailed investigation and when the driver and owner of the vehicle have not disputed about the involvement of the vehicle in question. Therefore, this

11 : 11 : point is also answered against the appellant. 8. In this regard, it is relevant to state that P.W.1 has been examined to establish the case wherein he has stated that he has spent Rs.50,000/- towards medical expenses, travelling and treatment, conveyance and attendant charges. But, he has not at all produced medical bills to support his alleged claim. This fact was also considered by the Tribunal keeping in view the evidence of P.W.1 and also considering the documents Exs.P1 to P9. Ex.P1 is the copy of FIR, Ex.P2 is the copy of spot panchanama conducted by the I.O.; Ex.P3 is the copy of seizure panchanama, Ex.P4- is the copy of IMV report; Ex.P5 is the copy of charge sheet and Ex.P6 is the wound certificate which reveals the injuries suffered by the petitioner in the accident. Whereas, in the impugned judgment it is observed that the insurance policy of the vehicle of the first respondent discloses that any person including the insured shall hold an effective driving licence at the time of the accident and he is not

12 : 12 : disqualified from holding or obtaining such licence. Hence, there is a breach of condition of Insurance police Ex.R2 subsequent renewal of license in the year 2007 by the first respondent is immaterial in as much as, the said renewal shall not be from the date of expiry of license i.e. from and as such the Insurance Company is not liable to pay compensation. However, relying on the decision reported in AIR 2009 (NOC) Page 1434 Kar, the Tribunal has held that the Insurance company has to pay compensation and recover the said amount from the insured-owner-respondent No.1. As such the second respondent-insurance Company is liable to pay compensation and recover the said amount from the insured i.e. insured- respondent No.1 has to indemnify the said compensation amount to the Insurance company-respondent No For the aforesaid reasons, there is no substance in the grounds urged by the learned counsel for the appellant calling for interference with the impugned judgment and award.

13 : 13 : 10. The appeal is devoid of merits and is accordingly, rejected. *alb/-. Sd/- JUDGE

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