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Judgment
Rathnakala, J.—Both these appeals are directed against the judgment and award dated 17th July 2014 passed in M.V.C.No. 7895/2010 by the XII Additional Small Causes Judge and Member, M.A.C.T., Bangalore, (for short �the Tribunal�) whereby the claim petition filed under Section 166 of the Motor Vehicles Act, 1989, by the dependants/legal heirs of the deceased late Basavamadappa allegedly in a road traffic accident dated 14.6.2010 is partly allowed by awarding compensation of Rs. 19,96,467/-.
M.F.A.No.7133/2014 is filed by the insurer, denying the involvement of the Ashok Leyland lorry bearing registration No. TN-45/ AK-5688 in the accident, thereby denying the liability to cover the risk of the owner of the said vehicle.
M.F.A.No.7522/2014 is by the claimants being dissatisfied with the quantum of compensation of Rs. 19,96,467/- as insufficient. However, it is the submission of both learned Counsels that the crux of the matter lies in the identity of the vehicle involved in the accident not the quantum of compensation awarded.
Succinctly stated, it was alleged in the claim petition that on 14.6.2010 at 6.45 p.m., Basavamadappa was proceeding on his motor cycle bearing registration No. KA-04/EM-9464 on NH-7 Bangalore-Hosur Road from Attibele to Hosur on duty. Near Attibele Border Arch, the lorry bearing registration No. TN-45/AK-5688 came behind the motor bike with high speed in a rash and negligent manner and dashed against the motor cycle, as a result, Basavamadappa sustained severe fatal injuries and died at the spot. He was aged 47 years and was working as a Police Constable earning salary of Rs. 13,000/- per month. The claimants are his widow, minor children and parents. The owner of the vehicle remained absent, hence, was placed ex parte. The Insurance Company denied its liability.
The Tribunal on the above pleadings framed the following issues:
Whether the petitioner proves that deceased Basavamadappa died in a road traffic accident on 14.6.2010 at about 6.45 p.m. on NH-7, Bangalore-Hosur road, near Attibele Border Arch, Attibele, Bangalore, due to the rash and negligent driving of the driver of the lorry bearing No. TN-45/AK-5688?
Whether petitioners are entitled for any compensation? If so to what extent and from whom?
The Tribunal on consideration of the entire oral and documentary evidence on record partly allowed the claim petition and awarded compensation of Rs. 19,96,467/- with interest @ 6% per annum jointly and severally against the owner and insurer.
Sri. B. C. Seetharama Rao, learned Counsel appearing for the appellant/insurance Company in M.F.A.No. 7133/2014 submits, the entire case made out by the claimants is false and fabricated. When the insurer had seriously disputed the involvement of the lorry bearing registration No. TN-45/AK-5688, the Tribunal ought to have adverted to the material brought on record that there was no mention of the registration number of the lorry in the FIR prepared on 14.6.2010. In the complaint, the offending vehicle was shown as �Canter goods vehicle� by the Transport Operator whereas the charge-sheet was filed against the driver of the Ashok Leyland lorry. The complainant himself being a Transport Operator, there was no chance for him to misidentify the vehicle involved in the accident. The FIR was sent to the jurisdictional Magistrate only on 16.6.2010. No eye-witness was examined by the claimants to prove the involvement of the lorry. The complainant had turned hostile to the entire prosecution case in the criminal case. Another eye-witness viz., Nataraj also turned hostile to the prosecution case. The victim of the accident being the Police Constable attached to Attibele Police Station, in all possibility, the lorry is fixed to see the claimants make illegal gain. The driver had not pleaded guilty in the criminal case and before the Tribunal also had testified that he has not caused accident. The Tribunal has acted upon misrepresented version of PW-1, manipulated Police records and the fake charge-sheet of the criminal case. It was a perverse observation of the Tribunal that charge-sheet filed against the driver of the lorry is not challenged by the insurer. The very acquittal of the driver from the charges in the criminal case will not admit any expectation to challenge the charge-sheet by the insurer against the third party. The offending vehicle was a Canter goods vehicle as disclosed by the complaint lodged at the earliest point of time. The finding of the Tribunal regarding involvement of the insured lorry bearing registration No. TN-45/AK- 5688 and the consequent liability on the insurer/appellant is contrary to the material available on record and probabilities of the case. Hence the award requires to be set aside.
Countering the above submission, Sri. Shripad V. Shastri for the appellants/claimants submits that, it is made out from the Post-mortem report that the deceased suffered crush head injury and died due to shock as a result of the said head injury. It also probabalizes from the complaint lodged before the jurisdictional Police by one Sudeep that one Canter goods vehicle since hit the motor cycle on which the deceased was travelling from behind, the rider of the motor cycle fell down and succumbed to the grievous injuries at the spot itself. Spot mahazar is drawn in the presence of witnesses by the Investigating Officer. As per the IMV report, both vehicles were found damaged. Though the claimants did not examine the eyewitnesses, the evidence brought on record by the Insurance Company by examining the complainant and the driver of the Ion is sufficient to rule out suspicion now expressed by the insurer. The discrepancy alleged by the Insurance Company in respect of description of the vehicle involved is for the reason that, Ashok Leyland lorry was modified to transport live stock. Hence, the complainant mistook the lorry for the Canter vehicle. There is no merit in the contention of the appellant/insurer and M.F.A.No. 7133/2014 may be dismissed.
In the backdrop of the above submission, we have perused the impugned judgment and award of the Tribunal so also the evidence available on record.
The Insurance Company in its objection statement filed to the main petition had contended that the accident occurred due to the negligence of the deceased; since he was working in the Police Department, the claimants in collusion with the Police and other officials created the documents for claiming damages There was a specific denial of the occurrence of the accident at the alleged date, time and place due to the negligence of the driver of the offending vehicle. The first claimant/widow of the deceased was the sole witness examined on behalf of the claimants but she was not the eye-witness to the incident. However, the P.S.I., who registered the case, the Inspector of Police, who investigated the matter and filed charge-sheet to the court and the complainant, examined by the insurer as RWs-1 to 3 respectively have turned hostile to the defence case. However, the driver of the lorry bearing registration No. TN-45/AK-5688 denied involvement of his lorry in the accident.
The matter for our concern is, the Tribunal while answering issue No. 1 affirmatively for the claimants, took exception on the respondent/insurer for not examining the Motor Vehicle Inspector, who examined the vehicle to show how the damages are caused in the said accident, not challenging the charge-sheet filed against the driver of the lorry and not examining their Investigating Officer. That prompted the Tribunal to record its finding that the lorry bearing registration No. TN-45/AK-5688 was driven by the driver/RW-5 and that the offending vehicle was driven in a rash and negligent manner and caused the accident.
It is the elementary principle of the Evident Act that the initial burden of proof would be on the party, who comes to the court first seeking relief. In terms of Section 101 of the Evidence Act, the burden of proving the fact rests on the party, who substantially asserts the affirmative and not on the party, who denies it. When the fact is proved in affirmative or evidence is led to prove the same, onus shifts on the other side to negate the existence of such a fact. Despite knowing the stand of the respondent/insurer that they are denying the involvement of the lorry, the claimants did not furnish evidence of an eye-witness to the incident. There is no discussion in respect of Exs.R1, R3 to R5 and R7 to R10 and also about the contention raised by the appellant/insurer. The approach of the Tribunal in ignoring the basic principles of the Evidence Act, in trusting reverse burden on the Insurance Company to prove its contention, is beyond the well established principles of law and procedure and the impugned judgment and award founded on improper and superficial appreciation of evidence cannot be sustained. The matter requires re-consideration for the discussion supra.
In the light of the foregoing reasons, we pass the following order:
M.F.A.No.7133/2014 filed by the Insurance Company is allowed. The judgment and award dated 17th July, 2014 passed in M.V.C. No.7895/2010 by the XII Additional Small Causes Judge and Member, M.A.C.T., Bangalore, is hereby set-aside.
The matter is remanded to the Tribunal for fresh consideration in the light of the observation made supra, with a direction to permit both parties to adduce additional evidence/rebuttal evidence, if any application is filed by them to that effect.
The Tribunal is directed to dispose of the application filed by the parties within a time frame of four months from the date of appearance of the parties.
Without waiting for any notice from the Tribunal, the parties are directed to appear before the Tribunal on 28.04.2016 at 11.00 a.m. either personally or through their Counsel and collect the further date of hearing.
M.F.A.No.7522/2014 filed by the claimants stands disposed of.
All contentions are kept open.
Registry is directed to transmit the case records to the Tribunal forthwith.
The amount deposited by the insurer in M.F.A.No.7133/2014 shall be refunded to the insurer through the Counsel.
In view of disposal of main appeals, I.A. No. 1/2014 filed in M.F.A. No.7133/2014 for stay does not survive for consideration, hence, stands disposed of as having become infructuous.