New India Assurance Co. Ltd. vs Hanumantha Reddy and Others

C.R. Kumaraswamy, J—This Miscellaneous First Appeal is filed under Section 173(1) of MV Act against the judgment and award dated: 03.03.2015 passed in MVC. No. 341/2014 on the file of the Principal Civil Judge, CJM, MACT-3, Chitradurga, awarding a compensation of Rs. 12,00,500/- with interest at 9% p.a. from the date of petition till the deposit.

I have heard the learned counsel for the appellant.

The case of the claimant in the Claims Tribunal is as under:-

Claimant No. 1 is the wife, claimant Nos. 2 to 5 are the children, claimant Nos. 6 and 7 are the parents of the deceased S. Venkatesh. The said Venkatesh as usual left his house for his bangle business on 13.4.2014 at about 7.00 a.m. along with one Obanna, on his motor cycle bearing registration No. KA-16-EA-2917, as a pillion rider and when they were proceeding in between Ghataparthi-Bhoganahalli, at about 10.40 a.m. the rider was riding the same in a rash and negligent manner and due to that, the deceased fell down from the motor cycle and sustained head injury, immediately, he was taken to Government hospital, Challakere and shifted to Government hospital, Chitradurga. Consequently, he succumbed to the injuries. The dead body was shifted to village to perform last rites.

It is also stated in the claim petition that the accident occurred due to the rash and negligent riding of the rider of the motor cycle involved in the accident.

Respondent No. 1 being the owner, respondent No. 2 being the insurer of the motor cycle, are jointly and severally liable to pay the compensation.

In response to the notice issued, respondent No. 1 appeared through his advocate and filed his objection statement, wherein he has denied and disputed case of the claimants and various averments. He has also stated that the rider was not at all responsible for the alleged incident. However, he was holding valid and effective Driving Licence and the vehicle was insured with the second respondent, and hence, liability, if any, is to be fixed against respondent No. 2.

The second respondent - Insurance Company has filed the objection statement stating that the owner has to prove that the vehicle was insured with the second respondent and terms of the policy conditions are fulfilled, otherwise, the company is not liable to indemnify the insured.

The Claims Tribunal has framed the following issues:

"1. Whether the petitioners prove that, Sri. Venkatesh, has died due to the accidental injuries in road traffic accident occurred on 13.1.2014 at about 7.00 a.m. near Ghataparthi village, Challakere taluk due to rash and negligent manner of riding of motor cycle bearing registration No. KA-16-EA-2917 by its rider?

Whether the petitioners are entitle for compensation? If so, at what quantum and from whom?

What order or award?"

The Claims Tribunal has answered Issue No. 1 in the affirmative, Issue No. 2 in the partly in the affirmative and Issue No. 3 as per the final order.

The Claims Tribunal has perused the F.I.R., spot mahazar, intimation given to the hospital, inquest, PM report, IMV report, genealogical tree, residential address proof document, death certificate, chargesheet and school document. These documents clearly reveal that immediately, after the incident, that is, on the same day, at about 6.30 p.m. information was given to the police and accordingly, registered the case against one P.T. Obanna, S/o. Thippeswamy. Of course, P.W. 1 is not a witness to the incident and at the same time, R.W. 1 is also not a witness to the incident. But, the documents and the evidences clearly support the case of the claimant. Mahazar has been drawn and at that point of time the Investigation Officer has noticed the blood stain at the spot and after further investigation they submitted the charge sheet against the said person.

The Claims Tribunal at paragraph-13 has mentioned that the rider was not holding Driving Licence to ride the motor cycle. Therefore, Obanna, S/o. Thippeswamy has been falsely implicated. The person who is shown in Driving Licence is not a person who was riding the motorcycle. As per the admission elicited in the cross-examination of P.W. 1 in her village, Ghataparthi village, there are many persons by name Obanna and Thippeswamy. On the basis of this admission, the rider has been falsely implicated just to claim compensation from the insurance company.

The Claims Tribunal at paragraph-14 has mentioned that whether sufficient material is placed to establish the alleged accident. Here in this case, the first respondent has not seriously challenged the case of the claimants. The witnesses who have deposed before the Tribunal are not the eye witnesses. Therefore, whether there is any falsity in the claim made by the petitioners or not. In Ex. P1, it has been clearly mentioned that one P.T. Obaiah, S/o. Thippeswamy was riding the motorcycle. As per chargesheet, there is no mention that the rider was not holding the Driving Licence. That apart, the learned counsel for the petitioner has filed a copy of Driving Licence pertaining to Obaiah T, S/o. Thippeswamy P. There is some doubt with regard to mentioning of initial pertaining to that person will not play a vital role to establish that, that person has been falsely implicated just to claim compensation. Here, there is no delay in giving information to the police and on the next day, itself mahazar was drawn. The deceased died on the date of accident. Therefore, the Claims Tribunal relying on the documentary evidence placed by P.W. 1, clearly depicts her contention. Just by filing affidavit by the officer of second respondent, without ascertaining the correct facts, is not sufficient to destroy the evidence of P.W. 1.

The Claims Tribunal has awarded the compensation as under:

Since in the claim petition, the claimant was restricted to the extent of Rs. 10,00,000/-, the Claims Tribunal has awarded the compensation of Rs. 10,00,000/- with interest at 9% p.a.

Learned counsel for the appellant submits as under:

It is the specific case of the Company that the rider of the motor cycle is one T. Obaiah, S/o. Thippeswamy. The appellant has also tendered evidence. The claimant has produced the Driving Licence of P.T. Obaiah, S/o. Thippeswamy. The Claims Tribunal has erred in foisting the liability on the appellant. The learned Judge failed to note that the police after investigation, have charge sheeted one P.T. Obaiah, S/o. Thippeswamy without conducting thorough investigation with regard to identity of the person. The Police could not have filed the chargesheet. Therefore, the Claims Tribunal in foisting the liability on the appellant - Insurance Company is improper. Ex. P2, the F.I.R. which is lodged by one B.A. Srinivas, S/o. Anjinappa, reveals that the deceased Venkatesh was traveling in the vehicle driven by P.T. Obanna. The learned Judge grossly erred in taking the income of the deceased at Rs. 6,500/- p.m. Therefore, the fastening the liability on the Insurance Company is improper.

I have carefully examined the judgment of the Claims Tribunal. The Claims Tribunal has properly appreciated the evidence. There is no delay in lodging the F.I.R. No proof is produced by the respondent that there is an embellishment or improvement in the facts or circumstance of the case. No doubt, there may be some mistake in initial that itself will not go to the root of the case. Besides, the appellant has not examined the Investigating Officer to discover the identity of P.T. Obaiah or Obaiah. It is for the Investigating Officer to identify who was driving the vehicle at the time of accident. But unfortunately the appellant has not examined nor summoned who laid the chargesheet and the Police Officer who registered the F.I.R. at the earliest point of time.

The appellant has also not examined the RTO to establish his case that the rider of the motor cycle was not having the Driving Licence. The identity of the person can be discovered only by examining the Investigating Officer or the person who registered the case at the earliest point of time and they are not examined in this case. Examining the officer of the Insurance Company i.e. R.W. 1 who is not an eye witness may not come to the rescue of the Insurance Company. In my view, the finding recorded by the Claims Tribunal is sound and proper.

The year of accident is ''2014''. The income assessed by the Claims Tribunal is Rs. 6,500/-. For the year 2014 accident, the income assessed at Rs. 6,500 for the bangle business is reasonable. Though the Claims Tribunal arrived at the compensation of Rs. 12,00,500/-, but awarded a sum of Rs. 10,00,000/- is just and reasonable. I have examined the findings recorded by the tribunal and also materials placed before this court. In my view findings recorded by tribunal is sound and proper. Exercising power under order XLI Rule 11 of CPC, since appeal lacks merits, it is dismissed.

In the result, I pass the following:

ORDER

This Miscellaneous First Appeal is dismissed.

The entire compensation amount deposited in the High Court shall be transmitted to the concerned Claims Tribunal.

Since the main matter has been disposed of, I.A. 1/2015 filed for stay does not survive for consideration and the same is disposed of.