The Divisional Manager, Tata Aig General Insurance Co., Ltd. vs Rajeshwari & Ors.

Heard Sri S.S. Aspalli, learned counsel for the appellants, and Sri Basavaraj R. Math, learned counsel for respondent Nos.1 to 3.

This appeal is filed, impugning the judgment and award dated 07.10.2021 passed in MVC No.172/2017 on the file of the Senior Civil Judge and MACT, Humnabad (for short, ‘the Tribunal’).

This appeal is filed by the insurer, denying its liability on the ground of false implication. The claimants filed a petition seeking compensation for the accidental death of Gurulingappa, who died in the accident that occurred on 04.01.2017, involving a motorcycle bearing Registration No. KA-02/H-5811 and a lorry bearing Registration No. MP-21/H-0593 (for short’ ‘the offending vehicle’).

The owner of the offending vehicle, filed objections denying the averments made in the claim petition and also contended that the accident occurred due to the negligence of the deceased. The insurer filed objections denying the averments made in the claim petition and also contended that the accident occurred due to the negligence of the deceased. The Tribunal held that the accident occurred due to the negligence of the driver of the offending vehicle. In view of the valid insurance policy, the Tribunal directed the insurer to deposit the compensation.

Sri S.S. Aspalli, learned counsel appearing for the appellant-insurer, submits that the accident occurred on 04.01.2017. However, the complaint was filed on 05.01.2017. It is submitted that, as per Ex.P2-complaint and Ex.P1-FIR, the complaint was lodged against an unidentified vehicle. It is submitted that, based on the additional statements of PWs.2 and 3, as per Exs.R14 and R13, the offending vehicle came to

It is further submitted that PWs.2 and 3 have given consistent statements before the police, the Tribunal, and the JMFC Court in the criminal proceedings, insofar as the occurrence of the accident is concerned. It is submitted that further statements were recorded as per Exs.R13 and R14 to implicate the offending vehicle.

It is further submitted that PW-2 has categorically admitted that he had not seen the offending vehicle involved in the accident, as stated before the police and in the affidavit filed in support of his examination-in-chief. It is submitted that the Tribunal, without examining the above aspects, has erroneously fastened the liability on the insurer.

Sri Basavaraj R. Math, learned counsel appearing for respondent Nos.1 to 3-claimants, submits that the complaint and FIR were lodged based on the statements of PWs.2 and 3, who are eyewitnesses. It is submitted that any contradictions in their testimonies in the criminal proceedings cannot be applied to the present case, having regard to the degree of proof required. It is submitted that, insofar as a motor vehicle compensation case is concerned, the test is one of preponderance of probabilities and not proof beyond reasonable doubt.

It is further submitted that the offending vehicle was identified and seized within a short distance from the place of the accident. The Tribunal, based on the evidence on record, has rightly held that the accident was caused by the offending lorry and occurred due to the negligence of its driver. As the insurance policy was in force, the Tribunal directed the insurer to pay the compensation. It is submitted that no ground is made out for interference.

The learned counsel placed reliance upon the judgment of the Hon’ble Supreme Court in the case of Bimla Devi and others vs. Himachal Road Transport Corporation and others, (2009) 13 SCC 530.

Considered the submissions made by the learned counsel for the parties and perused the record.

The core issue in the appeal is the involvement of the offending vehicle in the accident. Ex.P2 is the complaint filed by a relative of the deceased against an unknown vehicle. Based on the said complaint, the FIR came to be registered as per Ex.P1. Neither the complaint nor the FIR states the type of vehicle involved in the accident. The further statements of the complainant were recorded as per Exs.R4 and R5 on 05.01.2017 and 06.01.2017, respectively, wherein the source of information is stated to be PWs.2 and 3. The statements of PWs.2 and 3 were recorded by the police as per Exs.R13 and R14. It is stated therein that, while PWs.2 and 3 were travelling in the opposite direction to the offending vehicle, the offending vehicle dashed against the deceased, resulting in his death. The description of the colour of the vehicle given by both the witnesses is not identical. Not only is the vehicle number mentioned, but even the name of the driver is stated by PWs.2 and 3.

PWs.2 and 3 were examined as prosecution witnesses in the criminal proceedings initiated against the driver and owner of the offending vehicle in C.C. No.90/2017, before the JMFC, Humnabad. Both the witnesses turned hostile and categorically stated that they had not witnessed the accident. During their cross-examination by the prosecution, after treating them as hostile witnesses, all the suggestions put to them were denied. Apart from this, PW.2 was examined before the Tribunal. In the affidavit filed in lieu of examination-in-chief, he stated that he had witnessed the accident. However, in the cross-examination conducted by the insurer, he admitted that, at the time of the accident, he was inside a hotel and, on hearing the sound, he came out, but did not see the offending vehicle at that time. This admission is contrary to Exs.R13 and R14. Thus, if Exs.R10, R11 and the evidence of PW.1 are examined, the evidence suffers from material contradictions and cannot be safely relied upon unless corroborated by other independent evidence.

When the complaint was lodged on 05.01.2017, even the type of the vehicle was not mentioned. Even assuming that, as the accident occurred late in the night, the vehicle number could not be noted, there ought not to have been any difficulty in mentioning the type of vehicle involved. When PW.2 admitted in his cross-examination that he was inside the hotel at the relevant point of time, the detailed description of the vehicle, including its colour and even the name of the driver, raises serious doubt regarding the credibility of his version.

Further reliance is placed on Ex.R16, the Motor Vehicle Accident Report, to establish the involvement of the offending vehicle. The involvement of the two-wheeler in the accident is not in dispute. However, the nature of the damages found on the impugned offending vehicle cannot be said to have been caused due to its impact with the two-wheeler. Such extensive damage to the lorry could neither be expected nor appears probable in an impact involving a two-wheeler. Therefore, Ex.R16 is of no assistance to the claimants.

The reliance placed by learned counsel for the respondent in Bimla Devi (supra), is inapplicable to the facts of the present case.

The next question is with regard to the conduct of the owner of the vehicle. The owner appeared before the Tribunal and filed objections denying the averments made in the claim petition. The involvement of the vehicle in the accident was categorically denied. Though the owner participated in the proceedings before the Tribunal and cross-examined PW.2, no cross-examination of PWs.1 and 3 was conducted. Mere filing of the charge sheet is not sufficient to establish the involvement of the vehicle unless it is corroborated by other reliable evidence. It is a settled position of law that a charge sheet by itself cannot constitute conclusive evidence.

The Tribunal discarded the contradictory statements by applying the provisions of the Evidence Act. It is, however, well settled that the provisions of the Evidence Act, 1872, do not apply stricto sensu to summary proceedings under the Motor Vehicles Act, 1988. The insurer, by producing Exs.R10, R11, R13, R14, R15 and R16, has established a probable defence that the offending vehicle was not involved in the accident, and there is no cogent evidence to prove its involvement. The finding recorded by the Tribunal is contrary to the evidence on record and, therefore, cannot be sustained.

Accordingly, the following: