Judgment:
1 R IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE20H DAY OF NOVEMBER, 2020 PRESENT THE HON’BLE MR.JUSTICE S. SUNIL DUTT YADAV AND THE HON’BLE MR.JUSTICE P. KRISHNA BHAT M.F.A.NO.201689/2016 (MV) BETWEEN:
1. Mahadevi W/o Shrishail Kore, Age:
38. years, Occ:H.H.Work, 2. Ramesh S/o Shrishail Kore, Age:
23. years, Occ: Student, 3. Kushibai W/o Danappa Kore, Age:
68. years, Occ: Nil, All are R/o Achakanahalli, Tq. Jath, Dist. Sangli, Now residing at C/o L.S.Umarani, Vajra Hanuman Nagar, Vijayapur, Pin Code No.586101. … Appellants (By Sri Babu H.Metagudda, Advocate) 2 AND:
1. Shivaputra S/o Ramappa Shivasharan, Age:
43. years, Occ: Agriculture, R/o. Kolar Road, Near Jumanal Farm House, Vijayapur, Pin Code No.586101. (Owner of the Tata Indica Car No.KA-28/M-5389).
2. The Branch Manager, Cholamandalam MS General Insurance Co. Ltd., "Dare House"
2. d Floor, No.2 N.S.C.Bose Road, Chennai-60001. … Respondents (Sri Biradar Viranagouda, Advocate for R1; Sri Subhash Mallapur, Advocate for R2) This MFA is filed under Section 173 (1) of MV Act,1988 praying to call for the records in MVC No.1823/2013 on the file of the IV Addl. District & Sessions Judge and Member, M.A.C.T.-XIII at Vijayapur; allow this appeal and set aside the Judgment and Award dated 31/03/2016 passed in MVC No.1823/2013 by the IV Addl. District and Sessions Judge and Member, M.A.C.T.-XIII at Vijayapur and award the compensation of Rs.30,65,000/- with 12% interest and grant such other and further reliefs as this Court deems fit, in the circumstance of the case. 3 This appeal coming on for Final Hearing this day, P.KRISHNA BHAT J., delivered the following:
JUDGMENT
This is a claimants' appeal calling in question the correctness of the judgment dated 31.03.2016 in MVC No.1823/2013 by the learned IV Addl. District & Sessions Judge & MACT No.XIII, Vijayapura.
2. Brief facts of the case as emerging from the claim petition are that on 29.03.2013 between 8.00 p.m. and 9.00 p.m., while deceased Shrishail Kore was riding motorcycle bearing registration No.MH-45/C-1832 towards Achakanahalli, a Tata Indica car bearing registration No.KA-28-M-5389 came in a rash and negligent manner and dashed to the motorcycle and on account of the same, Shrishail Kore died due to impact injuries. The claim petition filed by his dependents came to be dismissed by the impugned judgment by the 4 learned MACT which disbelieved the involvement of the offending vehicle in causing the accident.
3. Learned counsel for the appellants Sri Babu H.Metagudda strenuously contended that the learned Tribunal in dismissing the claim petition has totally overlooked the material evidence produced before the Court and therefore the impugned judgment is unsustainable. He further contended that suggestion put to PW.2 on behalf of the Insurance Company shows that the respondents had not seriously questioned the involvement of the vehicle in causing the accident. He submitted that since the charge sheet was filed after investigation by an independent agency like the police against the offending vehicle, insurance company having not challenged it before the competent authority, cannot question the finding in the same and therefore it has to be held that the offending vehicle was involved in the accident. He further contended that from a 5 comprehensive reading of the evidence, it is crystal clear that the offending vehicle was very much involved in causing the accident and therefore the finding of the learned Tribunal is liable to be set aside and the matter needs to be remanded to the Tribunal for fresh consideration.
4. Learned counsel for the insurance company, per contra, vehemently contended that learned Tribunal has exhaustively considered the evidence of PWs.1 and 2 and also the fact that the vehicle was seized only as late as on 10.07.2013 even though the accident had taken place on 29.03.2013 and had come to the correct conclusion that it is impossible to believe that the offending vehicle was involved in the accident. He submitted that it was not at all possible for the insurance company to challenge the charge sheet and therefore the courts cannot act entirely on the finding of the charge sheet for the purpose of coming to a 6 conclusion that particular vehicle was involved in the accident or not. He submits that the Tribunal has given a correct finding and there is absolutely no material whatsoever to interfere with the same and therefore the appeal should be dismissed.
5. Perusal of the judgment under consideration shows that upon painstaking scrutiny of entire relevant evidentiary material, the learned Tribunal has come to the conclusion that involvement of the offending vehicle in the accident is not proved.
6. We are completely in agreement with the said finding of the learned Tribunal. However, with due deference to the vehement submissions made by learned counsel for the appellant, we deem it appropriate to make reference to the contentions advanced by him and the materials available on record. 7
7. Firstly, as rightly noticed by the learned Tribunal, PW.1 who is the widow of deceased has forthrightly admitted that owner of the offending vehicle arrayed as respondent No.1 is none other than the younger brother of deceased himself. This assumes relevance in this case, because in the complaint lodged immediately after the accident, the vehicle was shown as unknown vehicle and not even the registration number of the vehicle was indicated therein. The alleged offending vehicle came to be produced before the police voluntarily by respondent No.1, younger brother of deceased on 10.07.2013. This large gap between the date of accident and the date of seizure of vehicle as correctly inferred by learned Tribunal points to the dark probability that by collusion this vehicle came to be implicated in this case. If really the offending vehicle was involved in the accident, there was no reason for respondent No.1 who is the brother of deceased not to inform the police about the accident 8 immediately and also produce the vehicle before police investigation purposes immediately.
8. PW.2 Sri Laxman Kore is put forward by the claimants as eye-witness to the accident. The short cross-examination of this witness shows that it would have been impossible for him to notice the registration number of the vehicle which had caused the accident. Even if it is assumed that he was an eye-witness to the accident, he has admitted during the cross-examination that he and the deceased belong to the same village and are known to each other. Curiously, he has not lodged any complaint either giving the description of the offending vehicle or giving its registration number to the police and as already noticed, the complaint was bald in regard to the description or registration number of the offending vehicle, except to say that it was an unknown vehicle. This conduct of PW2 does not accord with the 9 conduct of a witness who is known to the deceased rendering his version wholly suspect.
9. PW.2 has further admitted that he had reached the spot of the accident two minutes after its occurrence and by that time, the offending vehicle had already sped away from the spot. This completely takes away the possibilities of PW.2 noting the identity or registration number of the offending vehicle. He has also admitted that the vehicle had whizzed past him within two seconds and particularly, having regard to the fact that the time of accident was between 8.00 p.m. and 9.00 p.m., it was entirely improbable that he could have noted the registration number of the vehicle.
10. Taking into consideration the above said aspect, the learned Tribunal has rightly disbelieved the version of PW.2 that he was eye-witness to the accident. Once PW.2 is disbelieved as eye-witness, what remains is the charge sheet. The charge sheet was filed based 10 on the version of witnesses like PW.2 and others. If the version of PW.2 before the Court rendered him entirely unbelievable, it is difficult to act upon the conclusion arrived at by the Investigating Officer while filing the charge sheet to the effect that offending vehicle was actually involved in the accident.
11. Yet another circumstance which supports this view is that the vehicle itself was seized on the helpful production of the same by respondent No.1, who is none other than the younger brother of deceased on 10.07.2013, a good 103 days after the accident. This also, as rightly observed by the learned Tribunal, probabalises the circumstance that since this was a 'hit and run' case, the vehicle of a close relative was involved taking advantage of the fact that it was covered by insurance policy in order to secure compensation for the death of the deceased. 11
12. A subsidiary issue raised by learned counsel for the appellant needs to be taken note of and addressed not on account of its legal validity, but because of the vehemence with which it was addressed to the court, viz., it was put before us that it was open to the insurance company to challenge the validity of charge sheet by approaching the competent authorities or the jurisdictional courts and since it has failed to do so, the conclusion drawn by the I.O. in the charge sheet is binding on the insurance company and, by the same token, on the Tribunal and this Court. For the said purpose, he placed reliance on the decision of Co- ordinate Bench of this Court dated 15.06.2011 passed in MFA No.30219/2011 (MV).
13. We have, with great respect, perused the entire judgment. From a perusal of the same, we do not find any law laid down in the said judgment of universal application that in all cases where charge sheets were 12 filed, unless Insurance Company challenges the same and obtains writ of mandamus, MACTs are required to act upon the same and proceed to come to a conclusion that the vehicles named as offending vehicles in the charge sheet, without any further proof, are to be taken as the motor vehicles involved in causing the accident, even in cases where evidence produced points to the contrary.
14. Further, we find that in the said judgment, there is no discussion of the relevant provisions of Code of Criminal Procedure or other cognate provisions of law under which the police authorities would investigate and file charge sheets and on the probative value of the charge sheets vis-a-vis the involvement of a motor vehicle in causing the accident before the Tribunals trying the compensation cases. Experience of the recent past shows that instances of fraudulent/collusive involvement of motor vehicles duly covered by insurance 13 policy in accident cases are burgeoning and if the insurance companies are saddled with the burden of challenging the charge sheets filed throughout the country without there being no clear legal mandate to do so, their work would be seriously crippled and they would not be able to do their insurance business without enhancing the premium, thereby further burdening the ever suffering owners of motor vehicles. Even the most liberal reading the provisions of the Motor Vehicles Act, 1988 does not spell out such a requirement.
15. The question is one of fundamental importance - what is the standard of proof applicable in these proceedings?. On whom is the initial burden of proving the accident or, as in this case, involvement of the offending motor vehicle cast?. Is not still the standard of proof one of "preponderance of probabilities"?. Is a mere charge 14 sheet, which in this case is shown to be deficient in truth sufficient to tip the balance only on the premise that insurance company has not dipped deep into its pockets to challenge the charge sheet- what with the toxic nexus between the black sheep among the police, medical professionals and touts of every kind masquerading the field which has become a notorious fact of life. We are afraid, we would be muddling the field further for the already befuddled members of MACT by accepting the arguments of learned counsel for the appellants on this aspect.
16. In any case, in this particular instance, the evidence of PW1 and PW2 clearly show that it is impossible to believe the version of claimants that the offending vehicle was actually involved in the causing of accident. On the other hand, the inference drawn by 15 the learned Tribunal on appreciation of entire evidence that the parties had colluded together to plant the vehicle in question appears natural and it is difficult for us to disagree with the same.
17. For the aforesaid reasons, we do not find any error in the examination of evidence done by the learned member of the MACT and therefore, we are inclined to agree with his finding and the appeal deserves to be dismissed as devoid of merits. Hence, the following: ORDER
Appeal is dismissed. Sd/- JUDGE Sd/- JUDGE NSP/VGR