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Judgment
A.V. Chandrashekara, J.
All these appeals have arisen out of the judgment and award dated 18.3.20009 passed by the Court of II Addl. Civil Judge (Sr.Dn.) and MACT, Chitradurga MVC 306/2007 clubbed with MVC 307/2007, 313/2007, 314/2007, 315/2007, 317/2007 and 415/2007.
On 9.11.2006 Ningappa, claimant in MVC 306/2007, Neelappa, claimant in MVC 307/2007, Ramalakshmamma, claimant in MVC 313/2007 and Thippeswamy, claimant in MVC 314/2007 were traveling in an auto rickshaw bearing No. KA-16-A-2333. These claimants are respondent No. 1 in MFA 6458/2009, 6466/2009, 6467/2009 and 6468/2009 respectively. The auto rickshaw bearing No. KA-16-A-2333 belonged to one Siddappa and it had been insured with M/s. Oriental Insurance Co. Ltd-appellant. Insurance policy was valid as on the date of accident.
Nirmala, claimant in MVC 317/2007, Sampige, daughter of Nirmala and claimant in MVC 315/2007 and Siddppa, owner of auto bearing KA-16-A-2333 in MVC 415/2007 were traveling in another auto rickshaw bearing No. KA-16-A-2472. The auto rickshaw bearing No. KA-16-2472 was validly insured with IFFCO Tokyo Insurance Co. Ltd. and insurance policy was valid as on the date of accident. They were also traveling on the same day 9.11.2006.
On 9.11.2006, both these auto-rickshaws were proceeding on D.S. Halli-Chitradurga road from opposite direction and accident took place between these auto rickshaws and claimants in both these auto rickshaws were injured. Hence, claimants chose to file separate claim petitions seeking compensation and attributing negligence on the part of Mr. Ravi, the driver of auto bearing No. KA-16-A-2333.
The learned Judge of the Tribunal has come to the conclusion that Ravi, driver of auto rickshaw bearing No. KA-16-A-2333 was solely negligent and therefore mulcted the liability on the insurer of auto rickshaw bearing No. KA-16-A-2333 i.e., Oriental Insurance Co. Ltd.
In all these appeals, the learned counsel for the appellant-Oriental Insurance Co. Ltd., has contended that the Tribunal has not properly analysed the oral and documentary evidence and it has adopted a pedantic approach. The Tribunal has placed heavy reliance on the aspect of Ravi, the driver pleading guilty to the charges leveled against him by the Criminal Court and that there is inconsistencies in the version of claimants regarding the cause for the accident.
Heard Sri. K. Suresh, learned counsel for the appellant and Sri. B.C. Seetharama Rao, learned counsel for Iffco Tokyo Insurance in all these appeals. Claimants who are respondent No. 1 in all these appeals have been duly served but unrepresented.
It is true that there is some variance in the evidence of claimants. In all the claim petitions filed by the claimants under Section 166 of MV Act, entire negligence is attributed to Mr. Ravi, the driver of the auto rickshaw bearing No. KA-16-A-2333. Admittedly, injured were passengers in two auto rickshaws. A case came to be registered against Ravi, the driver of auto rickshaw bearing No. KA-16-A-2333 in Crime No. 512/2006 and on the basis of the first information lodged by Nirmala claimant in MVC 317/2007 who was traveling in auto rickshaw bearing No. KA-16-A-2472. Statement of Ningappa claimant in MVC 306/2007 recorded under Section 161 of Cr.P.C., is marked as Ex. R-1. In the statement given to the police, it is mentioned that auto rickshaw bearing No. KA-16-A-2333 was driven in a rash and negligent manner and it dashed against the auto rickshaw bearing No. KA-16-A-2472 as a result of which all the inmates sustained injuries. In a case like this, statement recorded by the police under Section 161 of Cr.P.C. is admissible in evidence and there is no reason to disbelieve the same.
Apart from that the driver of the auto rickshaw bearing No. KA-16-A-2333 was the accused in charge sheet filed by the jurisdictional police in C.C. No. 369/2007 before the JMFC Court, Chitradurga for the offence punishable under Section 279, 337 and 338 of IPC. He has pleaded guilty of the charges leveled against him. Consequently, he was convicted by the learned JMFC and sentenced to pay Rs. 1,550/- in all. The certified copy of the order sheet maintained in Crime No. 369/2007 is marked and made available at Ex. R-2. There is no reason to disbelieve the same. The oral evidence of claimants has to be assessed in the light of Ex. R-2. The Tribunal has assessed the oral and documentary evidence in the light of Ex. R-2 and the inconsistencies in the version of the claimants will not gain much importance since the very driver of the auto rickshaw bearing No. KA-16-A-2333 has pleaded guilty.
On reassessment of pleadings and evidence, no interference is called for in regard to the finding of the Tribunal in holding that driver of auto rickshaw bearing No. KA-16-A-2333 was solely responsible for the accident in question.
What is argued by the learned counsel for the appellant is that four claim petitions had been filed in regard to accident that took place in relating to auto rickshaw bearing No. KA-16-A-2333 and the insurance policy covers risk of three passengers only.
It is true that four claimants who are inmates of the offending vehicle had filed separate claim petitions. It is true that insurance policy covers risk of three persons only. Neelappa claimant in MVC 307/2007 has been awarded compensation of Rs. 6,000/- and is reported to be dead after filing appeal before this Court in MFA 6466/2009 and the same is evident from endorsement made by process surveyor. Therefore, the said appeal will have to be allowed in the light of death of Neelappa long after the accident and further there is no nexus between the injuries sustained by him in the accident and death. Therefore, the appellant-insurance company is not liable to indemnify the legal representatives of deceased Neelappa.
Siddappa S/o. Bheemappa claimant in MVC 415/2007 was the registered owner of auto rickshaw bearing No. KA-16-A-2333 driven by Ravi. Being the owner of the offending auto rickshaw bearing No. KA-16-A-2333, he is not entitled to claim any compensation. Hence, MFA 6471/2009 arising out of MVC 415/2007 is to be allowed. Hence, appellant-insurance company is not liable to indemnify the claimant Siddappa in MVC 415/2007.
In this view of the matter, no good grounds are made out to interfere with the judgment and award of the Tribunal relating to quantum of compensation and attributing negligence to Mr. Ravi, the driver of auto rickshaw bearing No. KA-16-A-2333.
In the result following order is passed:
ORDER
MFA 6458/2009, 6467/2009, 6468/2009, 6545/2009 and 6469/2009 filed by the appellant-insurance company are dismissed. The appellant-insurance company is directed to indemnify the claimants in these five appeals.
MFA 6466/2009 filed by the appellant-insurance company is allowed. The appellant-insurance company is exempted from indemnify the legal representatives of the deceased Neelappa, claimant in MVC 307/2007.
MFA 6471/2009 filed by the appellant-insurance company is allowed. The insurance company is exempted from indemnifying the claimant Siddappa, since he is the owner of the auto rickshaw bearing No. KA-16-A-2333 and claimant in MVC 414/2007
Amount in deposit in MFA 6466/2009 and MFA 6471/2009 is ordered to be refunded to the appellant-Insurance company.
Amount in deposit in MFA 6458/2009, 6467/2009, 6468/2009, 6545/2009 and 6469/2009 is ordered to be transferred to the jurisdictional MACT.
Parties to bear their own costs.