1- in the High Court of Karnataka, Dharwad Bench
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-1- IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 07 TH DAY OF DECEMBER 2020 BEFORE THE HON’BLE MR. JUSTICE V. SRISHANANDA M.F.A. NO.24690/2011 C/W MFA CROB.NO.953/2013 (MV) IN MFA NO.24690/2011 BETWEEN THE DIVISIONAL MANAGER, THE NATIONAL INSURANCE CO. LTD., DIVISIONAL OFFICE, 1732, IST FLOOR, RAMDEV GALLI, BELGAUM ...APPELLANT (By Sri. RAJESH B. RAJANAL, ADV. ) AND 1 . SRI. MAHANTESH BHIMASHEPPA VAKKUND @ DODMANI, AGE: 39 YEARS, OCC: AGRICULTURE, R/O HOLINAGALAPUR, TQ. BAILHONGAL, DIST. BELGAUM 2 . SMT. GADIGEWWA W/O MAHANTESH VAKKUND @ DODMANI AGE: 29 YEARS, OCC: HOUSE WIFE, R/O HOLINAGALAPUR, TQ. BAILHONGAL, DIST. BELGAUM 3 . SHRI. DILAWARSAB KHANDUSAB TORGAL, AGE: MAJOR, OCC: BUSINESS, R/O YEKKUNDI, -2- TQ. SAUNDATTI, DIST. BELGAUM …RESPONDENTS (By Sri. PRASHANT S. KADADEVAR, ADV. FOR R1 & R2. Sri. M.S.WANTAMURI, ADV. FOR R3.) THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 24.06.2011, PASSED IN MVC NO.MVC NO.961/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE & ADDL. M.A.C.T. BAILHONGAL, AWARDING THE COMPENSATION OF RS.1,80,000/- WITH INTEREST AT THE RATE OF 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DSEPOSIT. IN MFA CROB. NO.953/2013 BETWEEN 1 . SRI. MAHANTESH BHIMASHEPPA VAKKUND @ DODMANI, AGE: 41 YEARS, OCC: AGRICULTURE, R/O HOLINAGALAPUR, TQ. BAILHONGAL, DIST. BELGAUM. 2 . SMT. GADIGEWWA W/O MAHANTESH VAKKUND @ DODMANI AGE: 31 YEARS, OCC: HOUSE WIFE, R/O HOLINAGALAPUR, TQ. BAILHONGAL, DIST: BELGAUM. ...CROSS OBJECTORS (By Sri. PRASHANT S. KADADEVAR, ADV. ) -3- AND 1 . SHRI DILAWARSAB KHANDUSAB TORGAL AGE: MAJOR, OCC: BUSINESS, R/O. YEKKUNDI, TQ: SAUNDATTI, DIST: BELGAUM. 2 . THE DIVISIONAL MANAGER, THE NATIONAL INSURANCE CO. LTD., DIVISIONAL OFFICE, 1732, IST FLOOR, RAMDEV GALLI, BELGAUM …RESPONDENTS (By Sri. MURUGHENDRA S. WANTMURI, ADV. FOR R3 (ABSENT) SRI RAJESH B.RAJANAL, ADV. FOR R2.) THIS MFA CR.OB IN MFA NO.24690/2011 IS FILED UNDER ORDER 41 RULE 22 R/W RULE 33 OF C.P.C. 1908, AGAINST THE JDUGMENT AND AWQARD DTD: 24.06.2011 PASSED IN MVC NO.961/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE AND ADDL. MACT BAILHONGAL, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. THESE APPEAL AND CR.OB. COMING ON FOR HEARING , THIS DAY, THE COURT DELIVERED THE FOLLOWING: JUDGMENT Insurance Company has filed this appeal challenging the Judgment and Award dated 24 th June 2011 in MVC -4- No.961/2010 on the file of Civil Judge (Senior Division) and Addl. MACT, Bailhongal (hereinafter referred to as “the Tribunal” for short). In the very same appeal, the claimants have filed cross objection which is numbered as MFA Cr.Ob.No.953/2013 seeking enhancement of compensation. 2. The brief facts, which are necessary for disposal of the appeals are as under: Akshata Dodmani, aged about 11 years lost her life in an accident that occurred on 07.12.2009 at about 17.00 hours when she had gone to attend nature call near the land of Mahadevayya Tavagadmath in Munavalli village. The claimants are the parents of said Akshata Dodmani, who had filed claim petition under Section 166 of the Motor Vehicles Act, contending that when Kum. Akshata Dodmani had been to attend the nature call and was sitting near the land of Mahadevayya Tavagadmath at Munvalli road, a maxi cab bearing No.KA-24-5458 came in a rash and negligent manner and dashed against Kum.Akshata -5- Dodmani and she succumbed to the accidental injuries. Therefore, the parents have laid a claim for awarding suitable compensation. 3. In pursuance of the notice issued, Insurance Company appeared and filed detailed written statement denying the claim petition averments in toto. Based on the rival contentions, the Tribunal raised the following issues: “1. Whether petitioners prove that on 07.12.2009 at about 17.00 hours on Munavalli- Bailhongal road, near the land of Shri.Mahadevayya Tavagadmath at Mallur village, within the limits of Saundatti Police 58 Station, in view of negligent use of a Maxi Cab No.KA-24-5458, an accident took place resulting in the death of Akshata Mahantesh Vakkund @ Dodmani? 2. Whether the petitioners are entitled for compensation? If so, at what extent and from whom? 3. What order? -6- 4. In order to prove the claim petition averments, father of the deceased Mahantesh Bhimasheppa Vakkund was examined as P.W.1 and an eye-witness Basayya as P.W.2. Nine documents were relied on by the claimants which were exhibited and marked as Exs.P1 to P.9. On behalf of the respondents, officer of the Insurance Company is examined as R.W.2 and owner of the vehicle bearing No.KA-24-5458 is examined as R.W.1 who exhibited the photo copy of the registration certificate, tax card, cover note pertaining to vehicle bearing No.KA-24- 5458 and the driving licence of the driver. Since the documents produced were photo copies, they were not marked as exhibits in the evidence of R.W.1. 5. Based on the oral and documentary evidence on record, Tribunal allowed the claim petition in a sum of Rs.1,80,000/- with 6% interest per annum. 6. Learned counsel for the Insurance Company Sri.Rajesh B.Rajanal vehemently contended that Tribunal grossly erred in allowing the claim petition as vehicle -7- bearing No.KA-24-5458 was not at all involved in the accident as could be seen from the plaint averments wherein the vehicle number has been shown as KA-24- 5448 which pertains to an autorickshaw and which fact has been totally ignored by the Tribunal and saddled the liability on the Insurance Company and therefore, sought for allowing the appeal. 7. Per contra, learned counsel for the claimants- cross objector vehemently contended that the mistake in mentioning the vehicle number in the complaint has been rectified before the investigating agency by furnishing correct number of offending vehicle and police have also recorded the further statement of the complainant which is available on record and Tribunal has taken into consideration further statement as well as the chargesheet filed by the police against the driver of the vehicle bearing No.KA-24-5448 and also the contents of panchanama and has rightly held that the offending vehicle is a vehicle -8- bearing No.KA-24-5448 and thus, sought for dismissal of the appeal of the Insurance Company. 8. Further, Sri.Prashanth Kadadevar, learned counsel for the claimants submits that Tribunal grossly erred in allowing the claim petition in a meager sum and in this regard, he relies on the judgment of the Hon’ble Apex Court in the case of KISHAN GOPAL AND ANOTHER vs. LALA AND OTHERS reported in AIR 2013 SC (CIVIL) 2465 and sought for enhancement of compensation. 9. In view of the rival contentions, the following points would arise for consideration: 1) Whether the finding recorded by the Tribunal that vehicle bearing No.KA-24- 5458 is responsible for the accidental death of Kum.Akshata Dodmani is erroneous? 2) Whether the quantum of compensation awarded by the Tribunal is just compensation? -9- 10. The answer to the above points is in the negative for the following reasons: REASONS 11. The main thrust of the argument on behalf of the Insurance Company is that the vehicle number is mentioned as KA-24-5448 in the complaint an despite the same, in collusion with the owner of the vehicle bearing No.KA-24-5458, investigating agency and claimants have concocted the documents to file false chargesheet against the driver of the tempo trax bearing No.KA-24-5458 which has been ignored by the Tribunal while recording the finding that vehicle bearing No.KA-24-5458 is responsible for the accidental death of Kum. Akshata Dodmani. 12. In this regard, Sri.Rajesh B.Rajanal, learned counsel drew the attention of this Court to the complaint averments. 13. This Court meticulously perused the complaint averments and other police investigation papers which -10- were produced before the Tribunal. No doubt, in the complaint, it has been specifically mentioned that the number of the offending vehicle is KA-24-5458. However, there is further statement recorded by the investigation agency on 07.12.2009 wherein the complainant has furnished the vehicle number as KA-24-5458. 14. Apart from the registration number, the investigation agency also bestowed its attention to the panchanama wherein vehicle No.KA-24-5458 has been seized and they compared the chassis number and engine number. It is also pertinent to note that in the complaint, there is a specific mention that the description of the vehicle as four-wheeler. Admittedly, Registration No.KA- 24-5448 is that of an autorickshaw which is a three- wheeler. Mere wrong mentioning of the registration number of the vehicle in the complaint would not ipso facto result in the fact that a false vehicle has been implicated in the accident. P.W.2 who is the officer of the Insurance Company in his cross-examination clearly admits that the -11- engine number and chassis number of vehicle bearing No.KA-24-5458 tallied with the engine and the chassis number in the panchanama. Said aspects of the matter is properly appreciated by the Tribunal in the impugned judgment. In view of the above discussion, the argument put forth on behalf of the Insurance Company that the vehicle number KA-24-5458 is not involved in the accident cannot be countenanced. Accordingly, Point No.1 is answered.