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Judgment
Ram Mohan Reddy, J.—Since common questions of law and that of fact arise for decision making, with the consent of the learned Counsel for the parties, petitions are clubbed together, and though listed for hearing on IA, are finally heard and disposed of by this order.
MFA Nos. 480/2011 and 482/2011 filed by the Insurance Company arise out of common judgment and award dated 04th October 2010 in MVC Nos. 4889/2008 and 4890/2008 of the III Addl. Senior Civil Judge and Member Motor Accident Claims Tribunal, Bengaluru (SCCH-18), (for short ''MACT''), insofar as it relates to clamping liability on the insurer of the motor vehicle being an autorickshaw bearing certificate of registration KA-51/2413 on the assertion that it was not involved in the accident.
MFA No. 11441/2011 filed by the insurer of the autorickshaw bearing certificate of registration KA-51/2413, aggrieved by the judgment and award dated 12th August 2011 in MVC No. 5317/2008 of the XXI Addl. Judge, Member MACT, Court of Small Causes, Bengaluru, is insofar as it relates to clamping liability on the insurer, on the premise that the autorickshaw was not involved in the accident.
On 22.06.2008, at about 8.15 pm, one Muniraju, respondent No. 1 in MFA No. 480/2011 arising out of MVC No. 4889/2008 riding the motor cycle bearing certificate of registration KA-51/Q-2340 with the pillion by name Govindachari/respondent No. 1 in MFA No. 482/2011 arising out of MVC No. 4890/2008 on Anekal-Jigani Road and at Madapattana village, it was alleged that the driver of the autorickshaw bearing certificate of registration KA-51/2413 came from Anekal-Jigani road, at a high speed and in a rash and negligent manner and dashed against the motor cycle, resulting in the fall of both the claimants, suffering simple and grievous injuries and were treated for the injuries at Sparsha Hospital. Alleging that the claimants sustained permanent disability, filed claim petitions registered as MVC Nos. 4889/2008 and 4890/2008.
MVC No. 5317/2008 is instituted by the respondent Nos. 1 to 4 in MFA No. 11441/2011, for compensation, invoking Section 163A of the Motor Vehicles Act, 1989, claiming compensation of Rs. 6,00,000/- on account of death of one Irfan Pasha, son of Naseemunnisa, respondent No. 1 and respondent Nos. 2 to 4 his siblings. According to the claimants, deceased Irfan Pasha was traveling in the autorickshaw bearing certificate of registration KA-51/2413 from Anekal to Jigani on 22.06.2008 at about 8.15 pm and when the autorickshaw reached S.V. Engineering shop, Madapattana Grama, driven in a high speed and in a rash and negligent manner, the driver lost control over the autorickshaw and dashed against the motor cycle bearing certificate of registration KA-51/Q-2340 (rider and pillion, arraigned as respondent No. 1 in MFA Nos. 480/2011 and 482/2011), due to the said impact, succumbed to grievous injuries en route to the hospital. In the petition, the owner/insured of the autorickshaw when arraigned as respondent No. 1, though served, remained absent and unrepresented and was placed ex-parte, while the appellant arraigned as respondent No. 2, entered appearance and resisted the claim by filing written statement. Thus the petitions registered as MVC Nos. 4889/2008, 4890/2008 and 5317/2008 claim compensation for injuries and death arise out of the very same accident that occurred on 22.06.2008 at 8.15 pm near S.V. Engineering Shop, Madapattana Grama on Anekal Jigani Road, involving the autorickshaw bearing certificate of registration KA-51/2413. Claimants in MVC Nos. 4889/2008 and 4890/2008 being the rider and pillion rider of the motor cycle claim compensation for injuries, while claimants in MVC No. 5317/2008 the mother and brothers of deceased Irfan Pasha, an inmate/passenger in the autorickshaw, claim compensation for death.
In all the claim petitions, the common defence of the appellant in its written statement is that the autorickshaw bearing certificate of registration KA-51/2413 was not involved in the accident, on the premise, that Govindachari, claimant in MVC No. 4990/2008, lodged a complaint stating that while traveling as a pillion rider in the motor cycle bearing certificate of registration KA-51/Q-2340, at a distance, he saw the autorickshaw coming at a high speed and dashed against the motor cycle, as a result of which the appellant fell down and after getting up, noticed that the autorickshaw was bearing certificate of registration MH-02/Z-2996 and driver was one Irfan Pasha, as disclosed in the FIR Ex.P.1, while in the charge sheet, Ex.P.9, the offending vehicle was described as autorickshaw bearing certificate of registration KA-51/2413. Hence it was asserted that the autorickshaw bearing certificate of registration KA-51/2413 insured by the appellant was not involved in the accident while it was the autorickshaw bearing certificate of registration MH-02/Z-2996, involved in the accident.
Sri O. Mahesh, learned counsel for appellants/insurer, while pointing to the statement of Govindachari the pillion rider, before the police authorities, as recorded in the FIR/Ex.P.1 stating that the offending vehicle was the autorickshaw bearing certificate of registration MH-02/Z-2996 and therefore, the charge sheet stating that the autorickshaw with certificate of registration KA-51/2413 is involved in the accident is a fraud played on the Insurance Company. Learned counsel further points to the averments in the written statement denying the factum of the insured vehicle''s involvement in the accident as well as the suggestion in cross examination of P.W.2/Govindachari and depositions of RW-1/Officer of the Insurance Company denying that the insured vehicle was the offending vehicle. Learned counsel further submits that there are judgments of the Division Bench of this Court observing that when there is discrepancy over recording the registration numbers of the motor vehicle in the FIR and in the charge sheet, then the Investigating Officer would have to be examined to clear the discrepancy and in the absence of which MACT in the present case was not justified in concluding that the insured vehicle was involved in the accident and fastening the liability on the Insurance Company.
Per contra, learned counsel for claimants/injured and claimants of the deceased Irfan Pasha submit that although such a statement was made by Govindachari, as recorded in Ex.P.1/FIR, nevertheless, the police authorities having gone to the spot of accident, noticed both the motor cycle and the autorickshaw fallen on the ground and sustained damages as recorded in the mahazar Ex.P.3 recording the certificate of registration of both the vehicles and damages caused and the location at which the vehicles were found. According to the learned counsel, the spot mahazar/Ex.P.3 drawn on the very next morning by the police officers who seized the vehicles makes it abundantly clear that the vehicle involved in the accident is none other than the autorickshaw bearing certificate of registration KA-51/2413. Learned counsel further points to the suggestion in the cross examination of P.W.2 Govindachari stating that that the accident was not caused by the autorickshaw, but by the rider of the motor cycle to submit that the suggestion also points to admission of a relevant fact that the autorickshaw involved was KA-51/2413 as stated in the examination in chief of P.W.2 since no suggestion is put to P.W.2 over the vehicle bearing certificate of registration MHA-02/Z-2996.
In reply, a faint submission is made by Sri O. Mahesh, learned counsel that the suggestion in cross-examination of P.W.2 over the accident being caused by the rider of the motor cycle which dashed against the autorickshaw, must be read in conjunction with the subsequent suggestion that autorickshaw bearing certificate of registration KA-51/2413 was not involved while involvement was of the autorickshaw bearing certificate of registration MH-02/Z-2996.
Regard being had to the undisputed facts noticed supra, undoubtedly, involvement of two motor vehicles i.e., motor cycle bearing certificate of registration KA-51/Q-2340 of which Muniraju was the rider and Govindachari, the pillion, while Irfan Pasha, who succumbed to injuries was the inmate of the autorickshaw, the question is, whether it was autorickshaw bearing certificate of registration MH-02/Z-2996 or KA-51/2413?
Suffice it to notice that although in the complaint lodged by Govindachari that the vehicle involved was autorickshaw bearing certificate of registration MH-02/Z-2996, nevertheless, when the vehicles found at the spot of accident and seized on the next morning by the police officers, noticed that the motor cycle had fallen on the ground while the autorickshaw had fallen on its right side, while there was no motor vehicle bearing certificate of registration MH-02/Z-2996. The seizure mahazar Ex.P.3 supports the case of the claimants, while, neither the insured nor the insurer have taken step to challenge the said mahazar or its contents. In the light of contents of Ex.P.3 Mahazar, coupled with the fact that the Insurance Company in the cross examination of P.W.2 Govindachari, the complainant asserted by suggesting that the motor cycle dashed the autorickshaw without making reference to the autorickshaw bearing certificate of registration MH-02/Z-2996, the ''MACT'' in my considered opinion was fully justified in concluding that the motor vehicle involved in the accident was the autorickshaw bearing certificate of registration KA-51/2413 and not MH-02/Z-2996.
The submission of Sri O. Mahesh, learned counsel for appellant/Insurance Company that the entire evidence in cross-examination of P.W.2, when read the autorickshaw referred to in the suggestion to P.W.2 is in relation to the autorickshaw bearing certificate of registration MH-02/Z-2996 is unacceptable. P.W.2 in the examination in chief made reference to the autorickshaw bearing certificate of registration KA-51/2413 and not MH-02/Z-2996 and if that is so, then the suggestion that the autorickshaw was not the cause of accident but it was the rider of the motor cycle assumes importance in the appreciation of evidence. The suggestion to P.W.2 over the involvement of the motor vehicle cannot but be an admission of the Insurance Company that it was the autorickshaw bearing certificate of registration KA-51/2413. If autorickshaw bearing certificate of registration KA-51/2413 was not involved in the accident but was MH-02/Z-2996, it is not known as to why RW-1 do not speak to any enquiry in relation to the defence of the Insurance Company. In the absence of an enquiry and material before the MACT, mere denial that the autorickshaw KA-51/2413 was not involved is insufficient.
Looking at it from any angle and more appropriately keeping in mind the fact that Irfan Pasha referred to in the complaint as recorded in the FIR/Ex.P.1 was infact the passenger traveling in the offending autorickshaw who had succumbed to grievous injuries, is a pointer to the fact that what is recorded in the FIR/Ex.P.1 that Irfan Pasha was the driver of the autorickshaw MH-02/Z-2996 is a mistake. Even otherwise, if truly the autorickshaw KA-51/2413 was not involved in the accident, it was for the insurer and insured to challenge the charge sheet and direct the police to investigate the crime and also for perjury for making out a false case.
Yet another failure of the Insurance company to prove the non-involvement of the auto-rickshaw bearing certificate of registration KA-51/2413 as alleged is highlighted in the cross-examination of PW-2 Chowdappa, an eye witness examined by the claimants in MVC 5317/2008 filed for compensation for the death of the passenger in the Auto-rickshaw No. KA-51/2413 wherein it is not even suggested that the motor vehicle involved was auto-rickshaw bearing certificate of registration No. MH-02/Z-2996. That witness spoke to the fact that he saw the accident, the passenger in the autorickshaw having suffered grievous injuries and when taken to Narayana Hrudayala for treatment, was pronounced brought dead. Appreciating the evidence of PW-2, there is no more doubt that the offending vehicle was none other than the auto-rickshaw bearing certificate of registration No. KA-51/2413 and not auto-rickshaw MH-02/Z-2996.
There being no dispute that the appellant is the insurer of the offending vehicle, the MACT was fully justified in clamping the liability on the appellant to pay the compensation.
No other grounds are urged. Appeals are accordingly dismissed. Amount in deposit in each of the appeals are directed to be transmitted to the MACT forthwith.