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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 25TH DAY OF JUNE 2012

BEFORE

THE HON’BLE MR.JUSTICE K.N.KESHAVANARAYANA

MFA.No.8578 OF 2008 (MV)

BETWEEN:

New India Assurance Co. Ltd.,Branch Office, 1st Floor,Mayur Complex, Next to PIA Bhavan,Peenya,

Bangalore-560 058.By New India Assurance Co. Ltd.,Divisional Office,Mayur Complex, Next to PIA Bhavan,Peenya,Bangalore-560 058.

By its Manager. ... Appellant

[By Sri.O.Mahesh, Advocate]

AND:

1. Gopal @ Gopalkrishna,S/o Munivenkatappa,Aged 36 years,Residing at Kalyanapura,Magadi Taluk,

Bangalore Rural District.

2. Prakash S/o Govindaiah,Aged Major,Residing at No.44, Harthi,Magadi Taluk,

Bangalore Rural District. ...Respondents

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[By Sri.K.V.Naik for Sri.Shripad.V.Shastri, Advocate for R-1;Notice to R-2 held sufficient vide order dated 14.3.2012]

This Miscellaneous First Appeal is filed underSection 173 (1) of MV Act, against the judgment andaward dated 29.2.2008 passed in MVC No.3883/2007on the file of the I Additional Judge, Member, MotorAccident Claims Tribunal, Metropolitan Area, Bangalore

(SCCH-11), awarding a compensation of Rs.2,87,300/-from the date of petition till realisation.

This Appeal coming for hearing on this day, thecourt delivered the following:

J U D G M E N T

This appeal by the insurer is directed against the

judgment and award dated 29.2.2008 passed by the I

Additional Judge & MACT, Bangalore in

MVC.No.3883/07.

2. Respondent No.1- filed the above said claim

petition under Section 166 of the Motor Vehicles Act

seeking compensation of Rs.3 Lakhs for the personal

injuries said to have been sustained by him in a motor

vehicle accident that occurred at about 2.30 p.m. on

22.10.2006 near Lekkanahalli colony of Nelamangala-

Kunigal Road (NH-48). In the claim petition, the

claimant averred that on the date of the accident, he

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was proceeding as a pillion rider on the motor cycle

bearing registration No.KA-04-ER-8056 ridden by his

friend one Ananth Kumar from Solur towards

Kalayanapura and when they reached near Lekkenahalli

Colony, a Maxi Cab bearing registration No.KA-03-B-

252 driven by its driver in a rash and negligent manner

came from opposite direction and dashed against the

motor cycle as a result he sustained fracture of right

femur, dislocation of the right ankle joint, fracture of

both bones of right leg etc. and immediately he was

shifted to Government Hospital at Nelamangala from

where after the first aid treatment, he was shifted to

Sanjay Gandhi Hospital, Bangalore, where he was

treated as inpatient. The claim petition was filed

against the owner and insurer of Maxi Cab bearing

registration No.KA-03-B-252.

3. The owner of Maxi Cab arrayed as respondent

No.1 before the Tribunal though appeared through his

counsel, however did not file any objections nor

contested the petition. The insurer of the said Maxi Cab

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arrayed as respondent No.2 before the Tribunal

contested the petition and disputed the involvement of

Maxi Cab bearing registration No.KA-03-B-252 in the

accident. It further contended that according to the

complaint and the First Information Report, the vehicle

which caused the accident was a Tempo Traveler

bearing registration No.KA-52-253 but subsequently in

collusion with the police, charge sheet came to be filed

against the driver of the Maxi Cab bearing registration

No.KA-03-B-252 and thereby they have falsely

implicated the vehicle in question though it had not

been involved in the alleged accident. The appellant –

insurer admitted issuance of policy in respect of the

said vehicle and its validity as on the date of the

accident. In the light of the said contention, the insurer

sought for dismissal of the claim petition.

4. In the light of the pleadings of the parties, the

Tribunal framed the following issues:

1. Whether the petitioner proves that on

22.10.2006 at about 2.30 p.m. near

Lekkenahalli Colony on NH-48

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Nelamangala –Kunigal Road he being the

pillion rider in the Hero Honda motor

cycle bearing registration No.KA-04-ER-

8056 had met with an accident due to

rash and negligent driving of Maxi Cab

bearing registration No.KA-03-B-252 by

its driver and he had sustained injuries.

in the accident as averred?

2. Whether the petitioner is entitled for

compensation and if so, what amount

and from whom?

3. What order and award?

5. In support of his case, the claimant examined

himself as PW.1 and also examined Dr.Prakashappa, as

PW.2. He placed reliance on the documentary evidence

placed on record marked as Ex.P.1 to P.78. On behalf

of the insurer, one of its Officer was examined as RW.1

and the insurer relied on documentary evidence marked

as Exs.R.1 to R.4.

6. After hearing both sides and on assessment of

the oral and documentary evidence, by the judgment

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under appeal, the Tribunal answered issue No.1

regarding actionable negligence in the affirmative in

favour of the claimant, holding that the claimant has

proved the accident alleged involving Maxi Cab bearing

registration No.KA-03-B-252 and his sustaining the

injuries in the said accident. In that view of the matter,

the Tribunal held that both the owner and insurer of the

said vehicle are responsible to compensate the claimant.

7. Having regard to the nature of the injuries

sustained by the claimant as well as the duration of the

treatment, the Tribunal awarded a sum of

Rs.2,97,300/- as compensation under different heads

as under:

1. Towards pain and agony Rs. 70,000/-

2. Towards medical expenses, conveyance, nourishment and attendant charges Rs. 42,300/-3. Towards future medical treatment Rs. 10,000/-4. Towards loss of future earning capacity Rs.1,35,000/- due to permanent disability5. Towards Loss of income during the period of treatment Rs. 15,000/-6. Towards future unhappiness and Rs. 25,000/- loss of amenities . . Total Rs.2,97,300/- .

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The Tribunal directed the appellant – insurer to

pay the entire compensation with interest at 6% per

annum from the date of the petition till the date of

payment. Aggrieved by the said judgment and award,

the insurer is in appeal before this Court.

8. I have heard Sri.O.Mahesh, learned counsel

appearing for the appellant-insurer as well as

Sri.K.V.Naik for Sri.Sripad V. Shastri, learned counsel

appearing for the respondent-claimant. Perused the

records made available.

9. The main contention urged by the learned

counsel for the appellant is that the finding recorded by

the Tribunal on issue No.1 with regard to the actionable

negligence and involvement of the vehicle in question, is

highly perverse and is without any basis. It is his

contention that the Tribunal has failed to notice that

there is a clear attempt on the part of the claimant in

collusion with the officials of law enforcing agencies to

falsely implicate the vehicle in question in the accident

though it was not responsible for the alleged accident.

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Drawing the attention of this Court to the contents of

the complaint lodged at the earliest point of time by the

younger brother of the rider of the motor cycle on which

the claimant stated to have been proceeded as pillion

rider, the learned counsel contended that in the said

complaint, there is clear indication that the accident

occurred as a result of Tempo Traveler bearing

registration No.KA-52-253 dashing against the motor

cycle and subsequently without any basis, charge sheet

came to be filed against the driver of the vehicle in

question. He also pointed out that though as per the

complaint allegations, immediately after the accident,

the claimant was shifted to Government Hospital at

Nelamangala where he was treated initially before he

was shifted to Sanjay Gandhi Hospital, Bangalore, the

claimant deliberately has not produced any document

from the Government Hospital at Nelamangala.

According to the learned counsel, had the MLC Register

extract from the Government Hospital at Nelamangala

been produced, it would have thrown light as to what

kind of history had been furnished before the said

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Hospital, therefore, non-production of such document

entails drawing of an adverse inference against the

claimant about subsequent conduct of attempt to

implicate the vehicle which was not involved in the

alleged accident. Therefore, he sought for setting aside

the judgment and award and dismissal of the claim

petition against the Insurance Company.

10. On the other hand, learned counsel for the

respondent - claimant sought to justify the judgment

and award passed by the Tribunal and contended that

the finding recorded by the Tribunal as to the actionable

negligence is based on the evidence placed on record

and that the mistake in mentioning the registration

number of the vehicle has been explained by the very

complainant based on which the Investigating Officer

subsequently filed charge sheet against the vehicle in

question which caused the accident. Therefore, he

contended that there are no grounds to interfere with

the judgment passed by the Tribunal.

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11. In the facts and circumstances of the case and

in the light of the submissions made on both sides, the

points that arise for my consideration are,

1. Whether the Tribunal is justified in

answering issue NO.1 in the affirmative?

2. Whether the vehicle in question was not

involved in the accident alleged?

12. Even according to the allegations made in the

claim petition, the claimant was proceeding as pillion

rider on the motor cycle bearing registration No.KA-04-

ER-8056 ridden by his friend Ananth Kumar. Ex.P.1 is

the true copy of the FIR in Crime No. 215/2006 of

Kudur Police Station. The said case was registered on

the basis of the complaint lodged by one Kunthi Kumar

son of Garuda Venkataiah resident of Kalyanapura at

3.00 p.m. on 23.10.2006. The accident said to have

occurred at about 2.30 p.m. on 22.10.2006. From this

it is clear that the complaint came to be lodged about 24

hours after the accident.

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13. As per the contents of the complaint, at about

2.30 p.m. on 22.10.2006, when the complainant was

standing near Lekkenahalli Colony of NH-48 waiting for

a bus to go to Mahadevapura, at that time he saw a

Tempo Traveler coming from Bangalore side towards

Kunigal driven by its driver in a rash and negligent

manner and the driver swayed the vehicle to the

extreme right side of the road and dashed against a

Hero Honda motor cycle which came from the opposite

direction, as a result, the rider and pillion rider of the

motor cycle fell down; however, the driver of the Tempo

Traveler did not stop the vehicle and fled away from the

place and he noticed that the vehicle which caused the

accident was bearing registration No.KA-52-253; that

immediately when he came near the motor cycle, he

noticed that the rider was none other than his elder

brother Ananth Kumar and pillion rider was one Gopal

of his village and the motor cycle had been damaged

severely; that immediately he shifted both the rider and

pillion rider who had sustained injuries in a vehicle to

the Government Hospital at Nelamangala and admitted

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them there; that as per the advice of the Doctor, Gopal

was shifted to Sanjay Gandhi Hospital, Bangalore while

Ananth Kumar continued to take treatment as inpatient

in the Government Hospital at Nelamangala. Therefore,

the complainant sought action against the erring driver

of the vehicle bearing registration No.KA-52-253. Based

on that complaint, case came to be registered against

driver of Tempo Traveler bearing registration No.KA-52-

253.

14. Ex.P.3 is the true copy of the spot mahazar.

According to the contents of this spot mahazar, drawn

between 4.15 p.m. and 5.00 p.m. on 23.10.2006, the

vehicle which caused the accident is shown as Tempo

Traveler bearing registration No.KA-52-253. However

according to the police, subsequently the complainant

made further statement a copy of which is marked as

Ex.P.73 on 23.10.2006 itself wherein he said to have

disclosed that by mistake he has furnished the

Registration No. of the vehicle which caused the

accident as Tempo Traveler bearing registration No.KA-

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52-253, on the other hand, the vehicle which caused

the accident was Maxi Cab bearing registration No.KA-

03-B-252. He said to have further clarified that his

brother Ananth Kumar did not take treatment as

inpatient in the Government Hospital at Nelamangala.

On the basis of this alleged further statement said to

have been made by the complainant, the police filed

charge sheet against one Srinivasa Murthy son of

Govindaiah as driver of the Tempo Traveler bearing

registration No.KA-03-B-252.

As could be seen by Ex.P.74, certified copy of the

order sheet in C.C.No.157/2007 on the file of the Civil

Judge (Jr.Dn.) & JMFC, Magadi, said Srinivasa Murthy

appeared before the court and pleaded guilty for the

accusation made against him, based on which he was

convicted and sentenced to pay fine.

Ex.P.78 is B-register extract relating to the vehicle

bearing registration No.KA-52-253, according to which

the said vehicle is a luxury Taxi manufactured by Tata

Motors.

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Ex.P.60 is the admission record and case sheet

maintained in Sanjay Gandhi Hospital. According to

Ex.P.60, the person who was admitted was Gopal aged

35 years son of Munivenkatappa, resident of

Mahadevapura in Nelamangala Taluk, Bangalore

District. However, the said particulars are subsequently

changed to Gopalaiah resident of Basavenahalli, Magadi

Taluk, Bangalore district on the basis of the affidavit

and an application filed by the claimant before the RMO

of the Hospital. As per the contents of the affidavit,

which is available in the case sheet, the claimant who

met with an accident on 22.10.2006 was admitted to

Sanjay Gandhi Hospital by an unknown person and the

said unknown person said to have furnished his

address wrongly as resident of Mahadevapura of

Nelamangala Taluk, Bangalore District. According to

the said affidavit the claimant is a permanent resident

of Basavenahalli village, Magadi Taluk, Bangalore

District. Very strangely in the cause title of the claim

petition, the petitioner is described as resident of

Kalyanapura, Solur Hobli, Bangalore Rural District. In

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the cross-examination, the claimant examined as PW.1

has admitted that the motor cycle was being ridden by

his friend Ananth Kumar. It is further elicited from him

that Kunthi Kumar referred to as complainant in Ex.P1

is his friend. He has admitted that in the complaint

lodged in respect of the accident, Registration No. of the

vehicle which caused the accident has been mentioned

as Tempo Traveler bearing registration No.KA-52-253.

According to PW.1, he does not know the Registration

No. of the vehicle which caused the accident. According

to him, he came to know from one Kumar who is the

son of his elder brother that the vehicle, which caused

the accident, was Maxi Cab bearing registration No.KA-

03-B-252. Very strangely, neither the complainant nor

the rider Ananth Kumar nor the said Kumar referred to

in the cross-examination of PW.1 who said to have

disclosed the Registration No. of the vehicle which said

to have caused the accident, have been examined before

the Tribunal.

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15. Yet another very strong circumstance to doubt

the case of the claimant is non-production of the

document from the Government Hospital at

Nelamangala. As noticed supra, even according to the

claimant, immediately after the accident he was taken

to the Government Hospital at Nelamangala. At that

time, either the claimant himself or the person who took

him to the Hospital would have disclosed the history to

the Doctor. It is not forthcoming as to what history had

been furnished before the Doctor in the Government

Hospital at Nelamangala. The claimant has deliberately

suppressed the said document. As noticed supra, in

order to get the name and address changed in the case

sheet maintained in Sanjay Gandhi Hospital, the

claimant goes to the extent of filing an affidavit that

some unknown person shifted him to the Hospital and

gave improper particulars whereas according to the

contents of the complaint-Ex.P.1, Kunthi Kumar, the

younger brother of the rider of the motor cycle was an

eye-witness and he shifted both the injured to the

Hospital at Nelamangala and from there, the claimant

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was shifted to Sanjay Gandhi Hospital. Therefore, it

cannot be believed that some unknown person had

taken him to Sanjay Gandhi Hospital. This

circumstance creates great amount of doubt as to

whether the case sheet Ex.P.60 pertains to this claimant

at all and there appears to be an attempt on the part of

the claimant to get his name introduced into the case

sheet which perhaps pertains to a person by name

Gopala son of Munivenkatappa, resident of

Mahadevapura in Nelamangala Taluk. It is also

interesting to note that in the admission record Ex.P.60,

the father’s name of the patient admitted was initially

written in the pencil and thereafter it is over written in

the ink pen as Munivenkatappa. Though the claimant

is a resident of Kalyanapura village, in Ex.P.60 the

altered village name is mentioned as Basavanahalli.

The failure on the part of the claimant to produce the

records from the Government Hospital at Nelamangala

to which place he was taken immediately after the

accident and non-examination of the complainant or the

rider of the motor cycle or said Kumar mentioned by the

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claimant in his cross-examination, entails drawing of an

adverse inference against the claimant. The Tribunal,

without considering these intrinsic evidence available on

record, has merely proceeded to accept the case of the

claimant on the premise that the police have filed

charge sheet against the vehicle in question on the basis

of the further statement of the complainant. Neither the

police officer nor the complainant has been examined to

explain the omission in this regard. The complainant is

not an illiterate person. PW.1 admits that the

complainant has studied up to SSLC and he is an

employee in BESCOM. Therefore, he is a literate person

and is in a position to identify the nature of the vehicle

and the Registration Number. The complainant, at the

earliest point of time in the complaint lodged about 24

hours after the accident, has mentioned the

Registration No. of the vehicle which said to have

caused the accident as Tempo Traveler bearing

registration No.KA-52-253. There are no reasons for the

complainant to wrongly mention the Registration No. of

the vehicle which caused the accident. Having regard to

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the evidence on record, I see considerable force in the

contention of the learned counsel for the appellant that

there is a clear attempt on the part of the claimant and

other agencies in falsely implicating the vehicle, which

was not involved in the accident. In this view of the

matter, I am of the considered opinion that the finding

of the Tribunal on issue No.1 is highly perverse and

erroneous and this finding has been recorded as a

result of non-consideration of materials available on

record. Therefore, the finding recorded by the Tribunal

in this regard is highly perverse and illegal. I am

convinced that the evidence on record is sufficient to

indicate that the vehicle in question against which the

claim was made was not involved in the accident and

the Tribunal is not justified in directing the insurer of

the said vehicle to pay the compensation amount

quantified by it. As noticed earlier, the owner of the

said vehicle has remained absent without contesting the

petition. This also lends support to the contention of

the appellant with regard to collusion.

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16. In view of the above discussion, the appeal

deserves to be allowed. Accordingly, the appeal is

allowed. The judgment and award dated 29.2.2008

passed by the I Additional Judge & Member, MACT,

Bangalore in MVC.No.3883/2007 is hereby set aside.

The claim petition is dismissed with cost through out.

The statutory amount in deposit before this Court by

the appellant is ordered to be refunded to the appellant.

SD/-

JUDGE

RS/*

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KNKJ: MFA.NO.8578/2008(MV)27.6.2012

Orders On Being Spoken To

This matter had been listed for hearing on

25.6.2012 and after hearing Sri.O.Mahesh learned counsel

appearing for the appellant and Sri.K.V.Naik for Sri.Sripad

V. Shastri, learned counsel appearing for the respondent-

claimant, the judgment was dictated in the open court on

25.6.2012 dismissing the claim petition by recording a

finding that the involvement of the Maxi Cab bearing

registration No.KA-03-B-252 in the accident alleged is not

established.

Before the judgment is transcribed and the

autograph is signed, Sri.Sripad V. Shastri, moved a memo

requesting this Court to post the matter for being spoken

to with a view to make further submissions. It is on the

said memo, the matter is listed today for being spoken to.

After hearing Sri.Sripad V. Shastri further, I find

nothing for this Court to speak further in the matter. This

court in the judgment has considered all the documents

produced by the claimant as well as the insurer and also

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the circumstances which made this Court to draw an

adverse inference against the claimant and has held that

the involvement of the vehicle bearing registration No.KA-

03-B-252 in the accident alleged is not established and

that the finding of the Tribunal on issue No.1 is perverse.

Therefore, this Court has set aside the said finding and

has dismissed the claim petition, which was filed only

against the owner and insurer of the aforesaid vehicle. The

further submission made by Sri.Sripad V. Shastri is that

the claimant be permitted to pursue his remedy against

the owner and insurer of the vehicle mentioned in the FIR

which is stated to be the vehicle responsible for the

accident. If law permits such a course, the claimant is at

liberty to pursue such remedy, for which leave from this

court is not necessary.

In the light of the above, the judgment dated

25.6.2012 is maintained.

SD/-

JUDGE

RS/*