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Judgment
P.D. Waingankar, J.—Both these appeals under Section 173(1) of M.V. Act are arising out of the judgment and award dated 24.7.2009 in MVC No. 2638/2006 on the file of MACT, Bailhongal.
The facts which gave rise to these appeals are as under:-
It is alleged by the claimants that on 11.5.2006 Subhash Baburao Hesarur was riding the motor cycle bearing No. KA-25/H-5994 on Bailur-Kittur road. At about 8.30 p.m. when he reached near Giriyal cross, a car bearing No. CND-345 came from behind in rash and negligent manner and while over-taking the motor cycle, the car dashed against the motor cycle from behind. As a result of the impact, the motor cycle dashed against the road-side baniyan tree which resulted in instantaneous death of the rider on account of head injuries sustained. His wife and children filed a claim petition under Section 166 of M.V. Act claiming compensation. The claim petition was opposed by the owner and insurer of the car. The insurance company categorically denied the very involvement of the car in the said accident and claimed that the car has been falsely implicated in order to get compensation. It is alleged that the rider of the motor cycle Subhash Baburao Hesarus on account of rash and negligent riding unable to control the motor cycle dashed against the road-side baniyan tree and died on the spot. It is purely a case of self accident. Hence, the owner and insurer of the car sought for dismissal of the claim petition as not maintainable.
The claim petition came up for consideration before the tribunal, before whom, on behalf of the claimants, first claimant Smt. Shanta, Wife of deceased Subhashchandra Hesarur was examined as PW-1 and one Veerabasayya Mahabaleshwar Muppinmath, who lodged the complaint in connection with the said accident was examined as PW-2. As many as 13 documents were marked as Exs-P1 to P13. On behalf of the insurance company, its branch manager Sri. P.D. Patil, was examined as RW-1. Exs-R1 to R4 were marked. The tribunal upon appreciation of evidence recorded a finding that the accident and the resultant death of the deceased was on account of rash and negligent driving of the car bearing No. CND-345, consequently, the tribunal awarded a total compensation of Rs. 6,27,800/- to the claimants.
Aggrieved by the judgment and award and the finding as to the involvement of the car in question, the insurer of the car-Oriental Insurance Company Limited preferred MFA No. 23401/2009, whereas, the claimants have preferred MFA No. 21197/2010 for enhancement of the compensation awarded.
I have heard both the learned counsel appearing for the claimants and the respondent insurance company. Perused the records including the judgment and award passed by the Tribunal.
In view of rival contentions taken by the parties, the following points would arise for my determination:-
"1. Whether the tribunal is justified in recording a finding that the accident occurred due to rash and negligent driving of the car bearing No. CND 345?
Whether the compensation awarded by the tribunal is just and reasonable?
Re-point No. 1:-
The main contention of the insurance company is that it is a case of self-accident, but the claimants in collusion with the police have falsely implicated the car in question after due deliberation just to claim compensation, though the car was not at all involved in the accident. On the other hand, it is the case of the claimants that while deceased Subhashchandra Baburao Hesarur was riding his motor cycle bearing No. KA-25/H-5994, the car bearing No. CND 345 came from behind in rash and negligent manner and while over-taking the motor cycle, it dashed against the motor cycle from behind and as a result of the impact, the motor cycle dashed against the road-side baniyan tree and the rider of the motor cycle died on the spot. In order to find out whether the car was really involved in the said accident, it is necessary to go through the oral evidence of PW-2-Veerabasayya Mahabaleshwar Muppinmath and the documentary evidence placed on record by the parties. It is not in dispute that the accident occurred on 11.5.2006 at about 8.30 p.m. near Giriyal cross on Bailur-Kittur road wherein rider of the motor cycle died on the spot. In connection with the said accident, Cr. No. 88/2006 came to be registered in Kittur police station within whose jurisdiction the accident occurred for the offences punishable under sections 279, 304-A IPC.
Ex-P1 is the FIR registered in Crime No. 88/2006. The crime came to be registered on the basis of the complaint lodged by Ramesh Ramappa Madiwalar of Honapura in Bailhongal Taluk. A written complaint came to be lodged immediately after the accident i.e., at 9.30 p.m. on 11.5.2006. In the complaint, it is stated by the complainant Ramesh Ramappa Madiwalar that on 11.5.2006, the complainant alongwith his uncle Kushappa Malappa Madiwalar were proceeding on the motor cycle bearing No. KA-25/L-7389 at about 8.45 p.m. in order to purchase spare parts from Kittur. When the motor cycle reached near Giriyal cross, they saw Hero Honda motor cycle bearing No. KA-25/H-5994 had fallen near baniyan tree and nearby the motor cycle, deadbody of one person was lying with head injuries and injuries to his knees which were profused bleeding. The front portion of the motor cycle was substantially damaged. On closer observation of the deadbody, they came to know that the deadbody was that of one Subhaschandra Baburao Hesarur of Dharwad and while he was proceeding on the motor cycle from Bailur towards Kittur side on account of rash and negligent riding, he lost control over the motor cycle and thereby the motor cycle dashed against the roadside baniyan tree situated on the southern side of the road and died on the spot. It is also stated in the complaint that the accident might have occurred at about 8.30 p.m., thereafter he informed the family members of the deceased over telephone and lodged the complaint against the deceased himself stating that on account of rash and negligent riding of the motor cycle, unable to control the same, the deceased dashed against the baniyan tree.
As I have already stated, crime came to be registered at 09.30 p.m. Thus in Ex-P1-FIR, the accused is shown as deceased Subhashchandra Baburao Hesarur, resident of Dharwad-rider of the motor cycle-KA-25/H-5994. Having lodged the complaint as per Ex-P2 on 11.5.2006 on the strength of which, FIR came to be registered as per Ex-P1, the police recorded further statement of the very same person i.e., Ramesh Ramappa Madiwalar-the complainant on 12.5.2006, wherein he has admitted that Ex-P2-complaint was recorded at his instance, wherein, he has stated that since the deceased died in the accident and that he had not seen the accident, but, infact, while the deceased was riding his motor cycle towards Kittur, a car bearing No. CND-345 dashed against the motor cycle from behind and due to the force, the motor cycle went and dashed against the roadside baniyan tree and the rider of the motor cycle died. If it is really so, nothing prevented the complainant from stating the same in the complaint given by him immediately after the accident as per Ex-P2. Therefore, it appears that though the deceased died on account of his own negligence, in order to claim compensation, the car bearing No. CND 345 has been implicated by the claimants in collusion with the police. Though on behalf of the claimants, the complaint, further statement of the complainant, spot panchanama, spot sketch, post-mortem report, the motor vehicle accident reports'' have been produced, they have not produced the seizure panchanama in respect of seizure of the vehicles for the reasons best known to them. Ex-P7 is the Motor Vehicle Inspector''s report in respect of motor cycle bearing No. KA-25/H-5994, which the deceased was riding at the time of the accident. The same reveals extensive damage was caused to the front portion of the motor cycle. In Ex-P7, there is a note stating that ''another motor vehicle No. CND-345 separate accident report submitted''. From Ex-P7, it is seen that the motor cycle involved in the accident was inspected by the Motor Vehicles'' Inspector on 15.5.2006 at 4.15. p.m. on the date of the requisition itself, when the motor cycle was seized by the police is not forthcoming. Ex-P8 is the Motor Vehicles Inspector report in respect of vehicle bearing No. CND 345. It shows that the requisition was received for inspection on 17.5.2006 and the vehicle was inspected on 18.5.2006 at 4.00 p.m. In Ex-P8, there is also a note that "another motor cycle No. KA-25/H-5994, separate accident report submitted". Thus it is clear that requisition was sent on 15.5.2006 to the Motor Vehicles Inspector to inspect the motor cycle and to give his report. It appears that after the inspection of the motor cycle on 15.5.2006 by the Motor Vehicles Inspector, the car No. CND 345 has been falsely implicated and another requisition came to be forwarded to the Motor vehicles Inspector on 17.5.2006 to inspect the car and give his report. There was no reason for the police to issue two different requisitions on two different dates for inspection of two different vehicles. That also creates doubt in the mind of the Court that the car bearing No. CND 345 has been subsequently implicated in this case in order to claim compensation.
On behalf of the claimants, one Veerabasayya Mahabaleshwar Muppinmath has been examined as PW-2 as eyewitness to the accident. In para 2 of his affidavit, in the form of his evidence, it is very clearly stated that on 11.5.2006 at about 8.30 p.m., he had seen the accident, wherein deceased died. Further he has stated that on 11.5.2006, at about 8.15 p.m., he was taking one Shivanana Mallappa Jakoti to a Doctor at Kittur on his motor cycle as he had stomach ache. When he reached near Giriyal cross, deceased Subhashchandra Baburao was riding the motor cycle bearing No. KA-25/H-5994 ahead of him and at that time, a car bearing No. CND 345 came in rash and negligent manner, went ahead by overtaking his motor cycle and dashed against the motor cycle of the deceased from behind and as a result of the impact, the motor cycle of the deceased dashed against the roadside baniyan tree with a great speed and thereby the deceased died on the spot. Further he has stated that he got down from his motor cycle saw the deceased, he was waiting for a vehicle to shift him to the hospital, but, since the condition of Shivanand Mallapa Jakoti - the pillion rider on his motor cycle was serious, he left the place and went to the hospital at Kittur. But, since the Doctor was not there, he purchased the tablets and came back. The evidence of PW-2 and the story created by him in his evidence is impossible to believe. It has been created just to involve the car in question in the said accident, though the car was not at all involved in the accident. If he had really seen the accident and if he was really waiting for some vehicle in order to shift deceased Subhashchandra Baburao Hesarur to the hospital, definitely, he must have come across the complainant Ramesh Ramappa Madiwalar on the spot, who came to the spot within 10-15 minutes and in turn he ought to have narrated the manner as to how the accident occurred to the complainant. The very fact that the complainant reached the spot within 10-15 minutes of the accident and that PW-2 was waiting for a vehicle at the spot after seeing the deceased is impossible to accept. From the perusal of the evidence, both oral and documentary, it appears to me that though the accident occurred on 11.5.2006 and the crime came to be registered against the deceased himself, the car No. CND 345 has been falsely implicated on 15.5.2006 to claim compensation. To implicate the car, the further statement of the complainant has been created as if it was recorded on 12.5.2006. The police officer simply cannot give go-bye to the earlier statement made by the complainant hardly within one hour from the time of accident. Of-course, the police had filed charge-sheet against the driver of the car CND 345 as per Ex-P9. The tribunal in para 18 of its judgment has observed that the charge-sheet came to be filed against the driver of the car and that charge-sheet has not been challenged either by the owner or insurer of the car. The insurance company has no locus-standi to challenge the charge-sheet. Merely because charge-sheet is filed by the police, the tribunal cannot go by the charge sheet and decide the claim petition. At the most, charge-sheet can be one piece of evidence in order to decide the claim petition but not all. Thus the claimants, owner of the Car and the police colluded with each other and falsely implicated the car in question though car was not at all involved in the accident and was not in picture at all in the complaint filed by the complainant within one hour of the accident. It is the case of self-accident. The deceased himself unable to control the speed of the motor cycle went and dashed against the roadside baniyan tree. The tribunal without appreciating the evidence in its proper perspective has wrongly come to the conclusion that car bearing No. CND 345 was involved in the accident placing sole reliance on charge sheet and it is because of rash and negligent driving of the car, the accident occurred. The Tribunal has to assess the evidence independently which the tribunal failed. As such, the finding recorded by the tribunal to that effect is liable to be set-aside. In the result, I pass the following order:-
MFA No. 23401/2009 filed by Oriental Insurance company Limited is allowed.
MFA No. 21197/2010 filed by the claimants is dismissed. Consequently, MVC No. 2638/2006 on the file of MACT, Baihongal is hereby dismissed as not maintainable.