1 IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 27 TH DAY OF SEPTEMBER 2012 B E F O R E THE HON BLE MR.JUSTICE JAWAD RAHIM BETWEEN: W.P. NO. 62487/2012 (GM-POLICE) AND: THE NEW INDIA ASSURANCE COMPANY LIMITED REGIONAL OFFICE, MTP HUB, SRINATH COMPLEX, NCM HUBLI, REPRESENTED BY SRI UMAKANT M KAKODKAR ASSISTANT MANAGER. PETITIONER (BY SRI. LAXMAN B.MANNODDAR, ADV.) 1. THE STATE OF KARNATAKA, REPRESENTED BY THE SECRETARY TO HOME DEPARTMENT, VIDHANA SOUDHA, BANGALORE. 2. THE CIRCLE POLICE INSPECTOR, NAVALAGUND, DIST: DHARWAD. 3. SIDDAPPA S/O SANGAPPA ANGADI, AGED ABOUT: 66 YEARS, OCC: DRIVER, R/O BEHIND K.S.R.T.C.DEPOT, NEAR SCHOOL NO.6, GADAG.
2 4. SMT.POONAM W/O DR.RAVINDRA WADONE, AGE: 28 YEARS OCC:BUSINESS R/O. KALASAPUR ROAD, GADAG. RESPONDENTS (BY SRI P.H.GOTKHINDI, AGA FOR R1 & R2, SMT. SHASHIKALA L.DESAI (YENAGI), ADV.FOR R3, SRI.SHIVAKUMAR S.BADAWADAGI, ADV.FOR R4. ) *** THIS PETITION IS FILED UNDER ARTICLE 226 AND 227 OF CONSTITITION OF INDIA TO QUASH THE INVESTIGATION IN CRIME NO.165/2010 ON ANNIGERI POLICE AND SUBMISSION OF CHARGE SHEET IN CC. NO.78/2011 ON THE RESPONDENT NO.3, PENDING ON THE FILE OF CIVIL JUDGE (JR.DN.) AND JMFC., NAVALAGUND AS PER ANNEXURE-C. THIS PETITION IS COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING: ORDER Insurance Company is in writ action invoking Article 226 & 227 of the Constitution of India to quash the investigation in Cr. No.165/2010 of Annigeri Police Station and the charge sheet filed in C.C. No. 78/2011 against the
3 respondent No.3 on the file of the learned Civil Judge (Jr. Dvn.) & JMFC, Navalagund vide Annexure-C. 2. The learned counsel for petitioner insurance company would submit they received notice from the Motor Accident Claims Tribunal, Gadag in M.V.C. No. 81/2011 wherein it was shown vehicle bearing registration No. KA- 22/N-4901 was insured with the petitioner insurance company and was involved in motor vehicle accident on 27.12.2010 on National Highway No.63 near the land of one Sharif Sab Sabjekhanavar near Arer Bridge. 3. In the said accident Smt. Poonam W/o Ravindar Wodone who was travelling with her husband and her daughter Neha in Swift Car bearing registration No. KA-26 / M-2958 became victim of rash and negligent driving of the vehicle Tempo Trax bearing registration No. KA-22 N/4901. Consequent to such accident her husband who was driving car suffered injuries and succumbed to the same. She also suffered injuries. Two claim petitions in MVC No.81/2011 and 82/2011 were filed by her seeking
4 compensation regarding pecuniary and non-pecuniary loss as a result of death of her husband and injuries to her person. 4. The insurance company claims to have verified after receipt of the notice that the vehicle bearing registration No. KA-22 N-4901 was not involved in the accident. It is based on the statement of one of the victim i.e., the respondent No.4. It is contended that in the first statement Smt. Poonam (R4) has deposed while travelling with her husband Ravindra and daughter Neha from Hubli to Gadag, her husband was driving the car at high speed and despite her request to drive slowly he did not control the speed and consequently when they reached Arer Bridge he lost control due to which car capsized resulting in injuries to her and her husband. On information received by one Arun father of Dr. Ravindra, he visited the spot and injured were shifted to hospital. Cr. No.165/2010 was registered on the basis of the complaint submitted by one Manohar S/o Krishnappa Kushtagi in Annigere Police Station. Thereafter, the statement of other witnesses like
5 Bharti, W/o Arun Wadone and Poonam were recorded on 27.12.2010, wherein also they reiterated that it was due to neglect driving of Dr. Ravindra himself. Charge sheet was filed in C.C. No.78/2011 in which he was shown as the accused. 5. He submits that 23 days later the Circle Inspector of Police, Navalgund took up investigation and has re-recorded the statement of witnesses, in which they have stated involvement of the vehicle KA-22 N-4901. The tempo-trax which hit the vehicle of Ravindra and created imbalance, due to which accident occurred. 6. The insurance company thus contends that the charge sheet filed against the respondent No.2 is therefore, not revealing true facts. In the first instance, it was said Ravindra himself was responsible while in the charge sheet filed now it is shown respondent No.3 as the offender. 7. On perusal of the records made available it would show that in the first instant ie., registration of report of occurrence was neither on the basis of the statement of
6 Poonam nor any other occupant of the vehicle. It was on the basis of the statement given by one Manohar S/o Krishnappa Kushtagi and FIR in Cr. No.165/2010 was registered. Thereafter, Poonam has been questioned, it appears she stated that her husband was driving rashly and negligently, due to which accident occurred, but did not resulted in filing of the charge sheet. Investigation is proceeding further is and taken over by the Circle Inspector of Police, Navalagund and during further investigation has recorded statement of other witnesses and second statement of Poonam. 8. On the basis of such material he has filed charge sheet in C.C. No.78/2011. The charge sheet filed is by the Circle Inspector of Police, Navalgund, in which the respondent No.3 is shown as accused. FIR registered earlier in which name of Dr. Ravindra was shown as accused has been substituted by respondent No.3. 9. In this writ petition the person, who is arraigned as accused in C.C. No.78/2011 is brought into party array
7 as respondent No.3. he is duly represented through learned counsel Smt. Shashikala L.Desai, who has not questioned the charge sheet filed against respondent No.3 or the allegation he is responsible for the accident. Respondent No.1 and 2 are represented by the State and they taken firm stand that investigation was in the right earnest on the basis of the fact finding the final report was filed after having conducted motor vehicle inspection. Respondent No.4 is Claimant, ie., Poonam herself, who is also represented by learned counsel Mr. Shivakumar S.Badawadagi and he supports the version in the charge sheet filed by the Police against respondent No.3. 10. The question is in view of this fact situation whether the first charge sheet is to be quashed or as to whether fresh investigation should be ordered? 11. The learned counsel has relied on certain case laws to meet this point, which are as hereunder: (1) BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD., vs SMT. LAKSHMAMMA &
8 OTHERS 2008 KANT. MAC 145 (KANT.); (2) NATIONAL INSURANCE CO. LTD. vs DIRECTOR GENERAL OF POLICE & OTHERS III (2006) ACC 558 (DB); (3) Unreported decision in the case of UNITED INDIA INSURANCE CO. LTD., vs THE LABOUR OFFICER & WORKMEN S COMPENSATION COMMISSIONER & OTHERS DD 12-03-2010. 12. The unreported decision referred to by the learned counsel is of the Division Bench. Therefore, I would like to advert to it first. It is to be noticed that Division Bench of this Court accepting the writ appeal set aside the order passed by the learned single Judge and quashed the final report in C.C. No. 694/2001 and directed fresh investigation. The facts under which said order came to be passed could be noticed from para-6, which is self explanatory and reads thus: The statements of parents disclose that Sunita while trying to escape molestation by the accused, she fell down from the Jeep. The final report filed by the IO is totally a dishonest investigation. The material witnesses are not examined in the criminal case. The final report does not give any reason to show that the
9 theory of death caused by fall from a Jeep while trying to escape molestation is incorrect. There are virtually three theories putforth to explain the cause of death. One version is the molestation theory, second was that the deceased was a Hamal in the Jeep and the third version in MVC No. 367/2001 is that the deceased was a tailor by avocation and that she was an inmate of the Jeep. The accident has occurred on account of the rash and negligent driving. The three inconsistent theories make the case doubtful to believe that the deceased was a Hamal in the Jeep. The order of the WC Commissioner is bad in law. Accordingly, the award is set aside. For the reasons and discussions made above, the final report filed in C.C. No.694/2001 on the file of JMFC Chikamagalur is quashed. The CID is directed to reinvestigate the case in Crime No.39/2001 of Aldur P.S. Chikamagalur District and to submit a fresh report. The appeal and the writ petition are allowed. The amount in deposit in the appeal is to be refunded to the appellant. 13. From the said facts it is clear that the claimant in the Workmen s compensation claim contended that Sunita was working under the owner of the jeep and she was travelling in the Jeep at that time along with accused. But her parents, who examined as witnesses, gave different version that accused was driving the jeep and attempted to molestate her, but in an attempt to escape she jumped out
10 of the jeep fell down suffering injuries. The third version was she was a tailor by profession and travelling as an occupant in the jeep. There were different theories and this Court has taken note of all those facts set aside the final report and directed fresh action. No proposition of law is laid. Therefore, this decision on facts is not applicable. 14. The second decision referred to by the learned counsel is of the Division Bench of Madras High Court totally on different footing and different proposition. The judgment of the High Court quoted above is rendered in the following circumstances: The writ petition in the form of Public Interest Litigation was filed before Madras High Court, which was accepted by learned Single Judge. The learned Single Judge directed the Committee be formed by the order dated 29.10.2003 in Contempt Petition No.431/2003. The learned Single Judge directed to constitute a Central Agency headed by the Deputy Inspector of Police, CB CID, Chennai for the purpose of looking into all the complaints relating to bogus claims before the Motor Accident Claims Tribunals filed
11 based on fabricated records. It was directed that whenever complaints of such types are given to the Central Agency so constituted, the Central Agency may have the complaints investigated by any of the Officers attached to it. Therefore, in such an action Committee was constituted who shall receive complaints of bogus claim. One such claim was not accepted. Against it the writ petition was filed. The learned Single Judge rejected it. In the appeal the Division Bench directed the Complaint which investigate in terms of the earlier order passed in the writ petition, no individual case was filed at that stage. Hence, that decision facts is not application. 15. The other decision cited is of the Division Bench of which I was also a member. The facts of that case would show that it was a case of death of the pillion rider of a motorcycle wherein the act of negligence was attributed to the rider. In that the main contention of the insurance was, there was no accident caused by their insured vehicle and the claimants, in order to get compensation, made a false claim. The factors noticed in rendition of the judgment
12 were, respondents, viz., insurer, insured owner of the vehicle and the driver had not participated in the proceedings and in such fact situation, we took the view without questioning the charge sheet indicting the insured owner of the vehicle in question, the insurance company could not resist the claim, and therefore, we held that in the absence of seeking quashing of charge sheet and/or seeking fresh investigation, the insurance company was not entitled to avail the benefit of Section 149 of the Motor Vehicles Act. Consequently, we fastened liability on the insurance company and rejected its defence. 16. The decision deals with interpretation of policy as to whether it is a statutory policy or package policy, as the insurance company had collected Rs.160/- captioned as Basic and Rs.50/- for personal accident to the owner/driver. The issue considered and decided in that decision was liability arising under the insurance policy. The question as to whether the insurance company can seek quashing of charge sheet was not considered or decided. Therefore, that decision also is not applicable.
13 17. Be that as it may, let us examine as to whether the facts of this case justify quashing of charge sheet. The first test that has to be applied is, what should be the stand of the person who is arraigned as offender. Learned counsel for the insurance company fairly did not dispute that respondent no.3 who is shown as driver of the offending vehicle has not questioned it. He has meekly submitted to the jurisdiction of the magistrate to face trial for the offences punishable under Sections 279, 337 and 304A, I.P.C. It would mean that a person against whom such criminal case is registered accusing him of having committed the offence, the insurance company s locus to question it will not be acceptable. 18. In this regard, it would be gainful to refer to the right of the insurance company. The insurance company which issued the policy under the provisions of Section 147 of the Act is obliged under law to honour the claims in terms of Section 147 of the Act. Section 145 defines the insurer, its liability and Section 146 emphasizes the necessity of
14 insurance against third party risk. Once the insurer issues a policy under Section 145 of the Act, its liability is defined under Section 147 and it is permitted to resist fixation of liability as envisaged under Section 149(2) of the Act. 19. The case at hand is one where the insurance company is questioning implication and filing of charge sheet against a person who is not its insured under the policy. The insured under the policy is the owner of the vehicle. Neither he nor the alleged driver of the vehicle has questioned the finding of the I.O. in the charge sheet. In this view, all that could be said is, if the insurance company is justified to resist the claim, firstly it should have obtained permission under Section 170 of the Act and then lead sufficient evidence. Before the Tribunal, such exercise is not undertaken. Secondly, if at all it feels that further investigation is necessary, then the right course as provided under the Criminal Procedure Code by Section 173(8) should have been followed. That would have enabled the jurisdictional magistrate to examine the case on its merit
15 and to decide whether further investigation is necessary, if law permits. 20. Section 173(8) postulates Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the magistrate and, whereupon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-section (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2). This was the efficacious and legal remedy provided which the insurance company has not availed. Instead, it has sought quashing of proceedings which compels me to question its locus.
16 21. As these questions have remained unanswered, thus the grounds in the writ petition, are rejected. Writ petition is dismissed. VK/vgh* SD/- JUDGE