(Prayer: This Miscellaneous First Appeal is filed under Section 173 (1) of Motor Vehicles Act, 1988 against the Judgement and Award dated 16.05.2007 passed in MVC No. 143/2005 on the file of the Civil Judge (Senior Division) and Motor Accident Claims Tribunal, Muddebihal, awarding a compensation of Rs.9,26,592/- with interest @ 6% p.a. from the date of petition till realisation.)
1. Heard the learned Counsel for the appellant and the learned Counsel for the respondents.
2. The appellant is the insurance company which had insured a vehicle involved in an accident leading to the claim petition.
3. The facts are as follows:
Respondents 1 to 7 are the widow, the children and the mother of the deceased Imamsab Balabatti. It transpires that Imamsab Balabatti, while going on his motor cycle bearing No.KA-28/J-9709, on 15.5.2004, at about 11.30 a.m., to Muddebihal from Balabatti and when he was nearing Chalami Thanda, an auto rickshaw bearing registration No.KA-28/J- 6102, which is said to have been driven in a rash manner and at speed, had dashed against the motor cycle, resulting in Imam Sab sustaining grievous injuries and being admitted to a hospital and having died as a result of the injuries at about 3.30p.m., on the same day. It was claimed that the accident was witnessed by one Basavaraj Eranna Badiger and Shivanagouda Ninganagouda Biradar and three others of Bagalkot, who were travelling as passengers in the auto rickshaw on the date of the accident. It also transpires that a First Information Report of the accident was lodged by the brother of the deceased Imamsab to the effect that the accident had taken place on account of rash riding by his brother Imamsab and there was no mention of any auto rickshaw involved in the accident. It further transpires that the first petitioner, the widow, had by coincidence met the eye witnesses namely, Basavaraj Iranna Badiger and Shivanagouda Ninganagouda Biradar, who had informed her of having been the eye witnesses to the accident, as a result of which, her husband died. It is, on receiving such information, that she had approached the Police, who did not entertain her complaint. Therefore, she had filed a private complaint, which was also dismissed on the ground that there was no material, on which a case could be instituted. It is in this background that she had ultimately filed a claim petition seeking compensation in a sum of Rs.15,00,000/- and the court below has ultimately accepted her claim and awarded compensation in a sum of Rs.9,26,592/-. It is that which is under challenge in the present appeal.
4. The learned Counsel for the appellant would contend that the entire claim is fraudulent and given the sequence of events and the circumstances that are apparent from the material on record, the claim is engineered only to secure illegal benefit of the compensation and is without any basis. It is pointed out that the initial report of the accident was lodged by none other than the brother of the deceased, who has not named any auto rickshaw being involved in the accident and the case has been closed on the footing that it was an accident inflicted on himself by the deceased. It is eight months later that by sheer coincidence, the claimant claims to have met the eye witnesses, who in turn, informed her of the accident. The very evidence of the eye witnesses would indicate that they did not have any chance to verify the identity of the rider of the motor cycle nor the registration number of the motor cycle. It is also strange that the said witnesses had noticed the number of the auto rickshaw, which, in normal human conduct, is not expected. A passenger using an auto rickshaw would not note the auto rickshaw number and memorise it and remember it eight months later. It is on the basis of this claim that the claimant - respondent no.1 had been informed of the accident even though the witness has stated that he had not noticed the identity of the rider of the motor cycle nor the registration number of the motor cycle and there being no explanation as to how the said witness met or had occasion to meet the respondent no.1 and inform her of the incident, unless it was deliberately engineered to make out a false claim. It is also pointed out that the witnesses PWs - 2 and 3 have also stated that they had informed the brother the deceased of the identity of the auto rickshaw and the driver of the auto rickshaw. It is indeed unusual that no action was taken on the basis of such information and it is the claimant - respondent no.1, who had belatedly sought to make out a case against the insured vehicle only in order to extract the compensation illegally from the appellant. It is in this vein that the learned Counsel would seek to point out other discrepancies in the case of the claimants to demonstrate that the material on record does not support or even lend any credence to the case of the respondent - claimants. The learned Counsel would submit that in an identical case involving a motor cycle and a mini goods lorry, a claim having been raised by the legal heirs of the motor cyclist, to the effect that there was an accident involving the mini lorry, has been negated by a division bench of this court in the case of Veerappa and another vs. Siddappa, 2009 ILR KAR 3562. In that, there was inconsistency between the report of the manner in which the motor cyclist had died in the first instance and a later complaint being lodged only to lay foundation for a claim petition before the Motor Accident Claims Tribunal and the Tribunal having negated such claim, the same was affirmed by a division bench of this court. The said decision is sought to be pressed into service to demonstrate that it would apply on all fours to the present case on hand as a similar claim is also sought to be set up in the face of the total inconsistency between the initial complaint of the manner in which the accident had occurred and the fraudulent claim being made against the insured vehicle only to have an illegal benefit of the compensation and seeks that the judgment and award of the Tribunal be set aside.
5. The learned Counsel for the respondents would contend that insofar as the alleged inconsistency in the complaint in the first instance being lodged by the brother of the deceased and the said complaint being silent as to the involvement of an auto rickshaw, can be explained by the fact that the complainant was not an eye witness to the accident. He had proceeded on the basis of the hearsay statements. Further, even the respondent no.1 - claimant had no idea of the manner in which the accident had occurred and it is only when she was indicated by PWs 2 and 3 of the accident, that she has made all attempts to bring the auto rickshaw driver to book, by seeking to lodge a criminal case. The fact that the criminal case is not maintainable does not take away the right of the claimants to seek compensation under the provisions of the Motor Vehicles Act, 1988 (Hereinafter referred to as the 'MV Act', for brevity). The evidence of PWs - 2 and 3 is categorical, in that, they have stated that they were passengers travelling in the auto rickshaw at the time of the accident. The fact that they have not noticed the details of the registration number of the motor cycle or the clear identity of the deceased is not unusual. The fact of the matter remains that the driver of the auto rickshaw was known to them as he was from the same village as the witnesses. It is that which has enabled them to also notice the auto rickshaw number atleast before tendering the evidence before the tribunal and this would explain the fact that they had been able to mention the registration number of the auto rickshaw and the incident having been informed to the brother of the deceased and the brother allegedly not having taken further action in this regard, is not unusual as there was no benefit, which the brother would have derived and he had no incentive to take any further action. It is however on the claimants learning about the said incident, further steps have been taken. It cannot be said to be unbelievable or impossible coincidence, though uncanny, and it would certainly enable the claimants to lodge a claim, supported by the direct evidence of the eye witnesses. This is the turning point in the claimants having established a case and the Tribunal has also proceeded on the footing that the dismissal of the criminal case by itself does not dilute the claim for compensation, as the claim petition can be decided on principles and therefore, the evidence of the claimant - respondent no.1 and that of PWs.2 and 3, which has been tested in cross-examination, was sufficient to support the claim petition and the Tribunal has accordingly allowed the petition, which could certainly be sustained. The learned Counsel for the respondents, would therefore, seek that the appeal be dismissed.
6. In the light of the above rival contentions, the primary question is whether the probability of respondent no.l having learnt of the identity of the vehicle and the driver involved in the accident, which resulted in the death of her husband, is plausible. For the coincidence, it cannot be said that it is implausible. The fact that the witnesses and the driver of the auto rickshaw are from the same village and the admitted circumstance that the auto rickshaw was driven away after the accident without the same being reported to the Police and though there was an attempt on the part of the witnesses to inform the brother of the deceased, no further action having been taken, cannot be said to be beyond human conduct. It is also not unusual. The fact that respondent no.1, after having learnt about the identity of the auto rickshaw having lodged a claim petition is also not impermissible. The Tribunal was sufficiently satisfied in exercising its discretion of accepting the claim petition on the basis of the evidence tendered. The vehement arguments canvassed by the learned Counsel Shri Nadagouda appearing for the appellant, though create a strong suspicion of the sequence of events as narrated by the claimants, it is not implausible and cannot be negated completely. The fact that the complainant, who was the brother of the deceased, in the first instance had not mentioned the involvement of the auto rickshaw and had squarely placed the blame on his brother as being the cause for the accident, by itself would not take away the right of the claimant to file a claim petition on the basis of the information belatedly gathered. Secondly, the brother of the deceased also having been told by the witnesses PWs 2 and 3 of the involvement of the auto rickshaw and the manner in which the accident had occurred and he not having taken any action allegedly, is also not beyond human conduct. Therefore, in the facts and circumstances and on the basis of the evidence that is tendered, it cannot be said that the present case on hand is covered on all fours by the decision in Veerappa, supra. The facts of that case certainly are different from the facts of the present one and it is also to be noticed that there were no eye witnesses to the accident, which was the subject matter in Veerappa supra. Therefore, the tribunal in that case had dismissed the claim petition and it was affirmed by a division bench. Therefore, no mileage could be gained from reference to the said decision and it cannot be applied to the facts and circumstances. Accordingly, the appeal stands dismissed.