The National Insurance Company Ltd. vs Roshanabi

K.N. Phaneendra, J.—The present appeal is preferred by the National Insurance Co. Ltd., who is the respondent No. 2 before the trial Court in M.V.C. No. 23/08 on the file of the District Judge (Fast Track) & MACT, Haveri. The respondent No. 1 is represented by the counsel. Respondent No. 3 is the minor represented by respondent No. 1. Respondent Nos. 2 and 4 though served unrepresented. For the purpose of convenience, I would like to retain the ranks of the parties as per their ranks before the trial Court.

A lady by name Roshanabi, along with her two minor children filed a claim petition U/S 166 of the M.V. Act claiming compensation for untimely death of her husband by name Abdul Gafar Rajabali in a motor vehicle accident. The petitioners have claimed compensation on the ground that on 16.01.2005 at about 1.30 p.m. near Kusur Patri bridge of Mundagod-Yellapur road, the husband of the first claimant (deceased Abdul Gafar Rajabali) was proceeding on a bridge on a Bajaj Pulsar motorcycle bearing No. GA-02/P/7159 along with his brother by name Abdul Rasheed as a pillion rider. The said Abdul Rasheed, the rider of the motorcycle drew the vehicle in a rash and negligent manner so as to endanger human life, resulted in the motorcycle hitting the wall of the bridge on the side of the road. The accident has resulted in the death of the husband of the first petitioner by name Abdul Gafar Rajabali who died on the spot itself. The deceased was shifted to Government Hospital and postmortem was conducted, etc. The respondent No. 1-Gouse Mohidin who is the owner of the vehicle in question though served before the trial Court remained exparte. The respondent No. 2 who is the Insurance Company who indemnified the liability of respondent No. 1 contested the proceedings by filing objections disputing correctness of the facts and also liability of the Insurance Company. It is specifically pleaded by the respondent-Insurance Company that the rider of the vehicle had no valid and effective driving licence and it is also contended that the rider himself was at negligence and due to his negligence he lost his life in the accident. Therefore, the legal representatives cannot claim any compensation for the death of the person who was at fault.

The trial Court after framing several issues proceeded to dispose of the case awarding compensation of Rs. 5,13,000/- with interest at the rate of 6% p.a. fastening liability on the respondent Nos. 1 and 2 as that of joint and several.

I have carefully perused the judgment of the trial Court and the materials placed. I have heard the arguments of the learned counsel for the appellant Sri. Rajashekhar S. Arani and also Sri Neelendra D. Gunde, learned counsel for respondent Nos. 1 to 3.

Sri Rajashekhar S. Arani, learned counsel for the appellant strenuously contends before this Court that, the claim petition is u/S 166 of the M.V. Act is not maintainable when the deceased himself was at fault, the legal representatives of the deceased cannot claim compensation u/S 166 of the M.V. Act. Further, he draws my attention to the document, i.e., the first information report, marked before the trial Court at Ex.P.1 submitting that the brother of the deceased by name Abdul Rasheed has filed the first information report specifically stating that on the date of the accident himself and the deceased were moving on the motorcycle. The deceased Abdul Gaffar was riding the vehicle in a rash and negligent manner due to which the accident occurred. But subsequently, he has taken "U" turn at the time of the investigation and during the course of investigation the Police have found that actually the first informant was driving the vehicle and therefore the charge sheet has been laid against the complainant himself exonerating the deceased.

Learned counsel Sri R.S. Arani strenuously contends that the contents of the F.I.R. had been made basis for the purpose of filing claim petition. Therefore, the contents of the F.I.R. has to be taken into consideration. That clearly goes to show that a false case has been foisted against the complainant himself and therefore when the incident happened at the negligence of the deceased himself, no compensation can be claimed under Section 166 of the M.V. Act. Secondly, in support of the grounds urged in the memorandum of appeal, the learned counsel contended that the petitioners colluding with the first informant, have played fraud on the Court, managing the charge sheet to be filed against the complainant himself and the Tribunal has committed serious error in fastening liability on the Insurance Company. He further contended that the Tribunal has utterly failed in presuming the income of the deceased at Rs. 150/- per day without there being any document on record. These are the two major grounds urged before this Court.

Learned counsel Sri N.D. Gunde, on behalf of respondents 1 to 3 strenuously contended that the first information report is only a document which shows that a criminal law has been set into motion. Ultimately, truth or falsity of the information is dependent upon the investigation and charge sheet to be filed before the Court. Therefore, during the course of investigation the Police found that the complainant himself was riding the said vehicle and hence the charge sheet was laid to the Court against the complainant himself before the Criminal Court. Therefore, he contends that contents of the F.I.R. loses its sanctity once the charge sheet has been laid. Therefore, he further contends that the claim petition is very well maintainable U/S 166 of M.V. Act. Secondly he contended that the trial Court has not committed any error in appreciating the evidence with regard to the income and awarding of the compensation.

Though Sri Arani, learned counsel for the appellant initial stages serious in arguing so far as the evaluation of compensation, but later he mainly sticked on the ground with regard to the liability. In this background the Court has to see the materials placed before the Court.

Of course Ex.P.1 clearly discloses that the complainant at the initial stages has implicated the deceased Abdul Gafar as the rider of the said vehicle. Learned counsel relied upon the ruling of the Apex Court in this regard reported in CDJ 2009 SC 1028 between Ningamma and another v. United India Insurance Co. wherein the Apex Court has observed, driving of a motor vehicle after borrowing it from the real owner met with an accident without involvement of any other vehicle, would be entitled to compensation u.S 163 of the M.V. Act. It is answered in the negative that the deceased was not the owner of the motorcycle in question. He borrowed such motorcycle from its real owner and he cannot be held to be an employee of the owner and he stepped into the shoes of the owner. Therefore, at his negligence if the accident occurs the legal representatives are not entitled to claim compensation.

The apex Court was dealing with the said matter u.S 163-A of the M.V. Act. The Apex Court was considering the liability of the Insurance Company u.S 163-A of the M.V. Act when there is no contractual liability with the owner and the pillion rider in the policy statutorily the Insurance Company is not liable if the incident happens at the negligence of the rider of the said vehicle. Therefore, the above said ruling, in my opinion, in a straight jacket manner is not applicable so far as this case is concerned. Consideration of the F.I.R. is not in detail discussed in the above case.

Argument of the learned counsel that the appellant herein contends that a fraud has been played by the claimant and the complainant before the trial Court but in order to prove that particular aspect, the fraud which is based on factual aspects of the case, mere production of the F.I.R. without there being corroborative evidence by respondent No. 2, court (merely on the basis of some portion of the F.I.R.) cannot draw any interference that the fraud has been played upon the Court. Further added to that, if I go through the evidence of the respondent No. 2 which examined a person by name Ashok son of Laxman Pai as R.W.1, nowhere in the affidavit it is averred that a fraud has been played by the claimant and the rider of the said vehicle and nowhere it is alleged in the affidavit what type of fraud and why such fraud has been played by the claimant or any person on the Court, no facts have been pleaded in the affidavit. In fact, the affidavit is a very bold affidavit wherein some admissions have been made by R.W. 1. At para No. 3 of the affidavit R.W. 1 has categorically admitted that deceased by name Abdul Gaffar son of Imamsab Rajabali was a pillion rider in the said motorcycle at the time of the accident but the Company has not collected any premium towards pillion rider and as such there is no coverage to the pillion rider. Except this particular sentence nothing has been stated in the affidavit, it is well recognized principle of law that the pleading without evidence the Court cannot rely upon the pleadings of the parties until the same is translated into evidence that has not been done by R.W.1 in this particular case. Therefore, what was pleaded before the Court, that, though in the F.I.R. the complainant has implicated the deceased as rider of the vehicle but subsequently during the course of investigation the complainant himself found to be the rider of the said vehicle, such facts have been fortified, accepted and relied upon by the Insurance Company in the evidence of R.W.1. Therefore, R.W. 1 virtually supported the charge sheet bereft of facts in the F.I.R. Therefore, I am of the opinion, the trial Court considering all these factors, has definitely come to the conclusion that the rider was the complainant himself and not the deceased Abdul Gafar. Therefore, the trial Court has not committed any error in fastening liability on the Insurance Company so far as this aspect is concerned.

Another important aspect to be taken note of is that the deceased Abdul Gafor was on the motorcycle and he died in the accident on the spot itself. Another person who was alive is the brother of the deceased. Therefore, at the time of lodging the complaint he might have felt that if the complaint is lodged against the deceased he can be exonerated himself from the criminal liability. In that intent, if the F.I.R. was lodged, the Court cannot draw any inference that only with an intention to claim compensation, subsequently the charge sheet has been laid against the complainant himself. The other view of the aspect that, if during the course of investigation the Police found that the complainant himself was the rider and only to exonerate himself a false F.I.R. was filed, therefore, that might be the reason the Police have filed charge sheet against the real culprit. Therefore, in my opinion, the F.I.R. is to be read in consonance with the entire charge sheet.

Another point is that the scope and object of S. 145 of Indian Evidence Act. If it is read in proper perspective, whatever may be the previous statement of a person whether it can be taken as an admission or otherwise, that should be tested under S. 145 of the Indian Evidence Act. Therefore, previous statement of a person in writing or reduced into writing and relevant to the matter in question can be tested for the purpose of contradicting the said witness and it cannot be used for any other purposes. In this particular case, the said person was not examined before the Court in order to contradict the same. The statement made by some person, i.e., particularly the complainant in this case, cannot be treated as a statement of admission on behalf of the claimant. Therefore, in that view of the matter also, I do not find any strong reasons to differ from the opinion expressed by the trial Court. Hence the appeal deserves dismissal.

So far as the other aspect is concerned, taking of Rs. 150/- per day as the income of the deceased and evaluation of the compensation, awarding an amount of Rs. 5,13,000/- in favour of the claimant, I do not find any abnormality in assessing the compensation by the trial Court. Hence, the appeal is devoid of merits. Accordingly, the appeal is dismissed.