Karnataka High CourtG K Munireddy vs United India Insurance Company Ltd on 2 February, 2018Author:H.B.Prabhakara SastryBench:H B Prabhakara SastryM.F.A. No.1226/2010 C/W M.F.A. No.1227/2010

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 2ND DAY OF FEBRUARY 2018

                         BEFORE

     THE HON'BLE DR.JUSTICE H B PRABHAKARA SASTRY

                   MFA.No.1226/2010 (MV)
                             C/W
                   MFA No.1227/2010 (MV)
IN M.F.A. No.1226/2010
Between:
Sri. G.K. Munireddy,
S/o Gopalappa,
Aged 36 years,
Khethagana Halli,
Srinivaspura Taluk,
Kolar District.
                                                ...Appellant
       (By Sri. Chandra Mohan J.G., Advocate)


And:

1.     M/s. United India Insurance
       Company Ltd.,
       'By its Manager',
       No. XIV 488/A, Gandhi Road,
       Madanapalli Branch,
       Chittoor District,
       Andhra Pradesh.

2.     Sri. Janab S. Mahaboob Basha,
       S/o Syed Sahee,
       Major, 'A' Subhash Road,
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       Madanapalli Town,
       Chittoor District,
       Andhra Pradesh.
                                           ... Respondents

       (By Sri. B.C. Seetharama Rao, Advocate for R1;
           R2 Served)

      This appeal is filed underSection 173(1)of MV Act
against the judgment and award dated 06.11.2009 passed
in MVC No.284/2007 on the file of Principal District Judge
and Member, MACT, Kolar, dismissing the petition claimed
for compensation.

IN M.F.A. No.1227/2010
Between:
Sri. Narasimha Reddy,
S/o Gopalappa,
Aged 35 years,
Khethagana Halli,
Srinivasapura Taluk,
Kolar District.
                                                ...Appellant
       (By Sri. Chandra Mohan J.G., Advocate)

And:

1.     M/s. United India Insurance
       Company Ltd.,
       'By its Manager',
       No. XIV 488/A, Gandhi Road,
       Madanapalli Branch,
       Chittoor District,
       Andhra Pradesh.

2.     Sri. Janab S. Mahaboob Basha,
       S/o Syed Sahee,
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     Major, 'A' Subhash Road,
     Madanapalli Town,
     Chittoor District,
     Andhra Pradesh.
                                           ... Respondents

     (By Sri. K.N. Srinivasa, Advocate for R1;
         R2 Served)

      This appeal is filed underSection 173(1)of MV Act
against the judgment and award dated 06.11.2009 passed
in MVC No.285/2007 on the file of Principal District Judge
and Member, MACT, Kolar, dismissing the petition claimed
for compensation.

     These appeals coming on for hearing this day, the
Court delivered the following:
                  COMMON JUDGMENT

     Both these appeals are arising out of the

common judgment passed in MVC Nos.284/2007 and

285/2007 by the Principal District Judge & MACT,

Kolar, (hereinafter referred to as 'The Tribunal', for

short), by its judgment and award dated 06.11.2009.

Both the claim petitions came to be dismissed. Being

aggrieved by the same, the claimants before the

Tribunal have preferred these two appeals.
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     2. Respondent No.1-Insurance Company in both

the appeals is being represented by its counsel.

Respondent No.2 the owner of the alleged offending

vehicle though has been served with notice has

remained unrepresented.     Lower Court records were

called for and the same are placed before this Court.

     3. Heard arguments from both sides and perused

the materials placed before this Court.

     4. The summary of the case of the claimants as

could be gathered from the materials placed before

this Court is that on 01.01.2006 at about 8.00 p.m.

the present appellants were traveling on a motorcycle

as a rider and a pillion rider.   While they were near

S.V.M.S. Petrol Bunk at Madanapalli within the State

of Andhra Pradesh, a lorry with registration No.AP-03-

T-9518 being driven by its driver in a rash and

negligent manner came from the opposite side and

dashed to the two wheeler on which the present
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appellants were riding. Due to the said accident, both

of them sustained injuries and they were shifted to

Hospital where they were given treatment. Contending

that they had sustained injuries at the rash and

negligent driving of the alleged offending vehicle/lorry,

the claimants preferred their claim petitions before the

Tribunal underSection 166of Motor Vehicles Act and

prayed for awarding of compensation in their favour.

The Tribunal by its impugned judgment and award

dated 06.11.2009 dismissed both the claim petitions

of the appellants observing that the claimants before

it failed to prove the occurrence of accident in the

manner as depicted in their claim petitions.            Being

aggrieved by the said judgment of the Tribunal, the

claimants have preferred the present appeals.

     5. Learned Counsel for the appellants in his

argument submitted that even after admitting that

without   any   delay   after   the   accident,   FIR    was
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registered against the driver of the Lorry and that the

charge-sheet was also filed by the Police against the

driver of the Lorry, the Tribunal was not justified in

rejecting their claim with the observation that there

was some discrepancy in the alleged description of the

injury in FIR with the charge-sheet.        The further

reasoning of the Tribunal to the effect that since the

driver of the Lorry itself has shifted the injured to the

Hospital, it cannot be believed that there was any rash

and negligent driving on the part of the driver is also

not a proper reasoning.     With this, learned Counsel

submitted to set aside the impugned judgment and

award and to remand the matter for its further

proceeding   to   the   Tribunal   in   quantifying   the

compensation.

     6. Learned Counsel for the respondent No.1-

Insurance Company in his argument vehemently

submitted that neither in the FIR nor in the charge-
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sheet filed by the Investigating Officer, there is any

charge alleged attracting the offence punishable underSection 279of the Indian Penal Code.      Further, the

FIR has been registered for the offence underSection

337of the Indian Penal Code, whereas the charge-

sheet has been filed for the offence underSection 187of the Motor Vehicles Act and underSection 338of the

Indian Penal Code. As such, the Tribunal has rightly

observed that there was no rash and negligent driving

on the part of the alleged offending vehicle.

     7. Both the claimants have got themselves

examined as PWs.1 and 2 before the Tribunal. Both of

them in their evidence have reiterated the contention

taken up by them in their respective claim petitions,

wherein they have specifically stated that the accident

in question has occurred solely due to the rash and

negligent driving of the driver of the alleged offending

vehicle which was a mini Lorry.     In support of their
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contention, they have produced documents in Exs.P1

to P5 which are the copies of the FIR, charge-sheet,

wound certificates and the scene of the offence of

sketch respectively. It cannot be ignored that though

the owner of the vehicle was served in the Tribunal,

but he has not chosen to file his written statement. It

was only the respondent-Insurance Company which

has contested the matter.      Except making denying

statements in its written statement, nothing much has

been stated in the written statement filed by the

respondent-Insurance Company in the Tribunal.

     8. A perusal of the FIR which is at Ex.P1 goes to

show that in the complaint, the complainant who was

the rider of the motorcycle has specifically stated that

the accident in question has occurred when the

offending lorry came in a high speed from the

opposite direction and dashed to the two wheeler in

which   himself   alongwith    the   pillion   rider   were
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traveling.    As such, at the first instance itself in the

complaint lodged by him, the complainant has alleged

of rash and negligent driving on the part of the alleged

offending vehicle i.e., the Lorry.    However, the case

registering authority has registered the complaint and

submitted FIR only for the offence punishable underSection 337of the Indian Penal Code. Merely because

the case registering authority has not shownSection

279of the Indian Penal Code in the FIR, that would

not   take     away    the   value   of   the   complaint

accompanying the FIR, wherein a specific allegation of

alleged rash and negligent driving has been made

against the driver of the alleged offending vehicle.


      9. Secondly, after completing the investigation,

the Investigating Officer has filed charge-sheet as

could be seen at Ex.P2. In the said charge-sheet, the

Investigating Officer has specifically observed that the
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complaint has been lodged       by    the complainant alleging

that the driver of a mini Lorry bearing No. AP-03-T-9518

drove the same in a high speed and rash and negligent

manner and dashed against the TVS Champ bearing

registration No.CNK-2728           as a result,       LWs.1 and

2   were sustained      grievous    injuries.     With such an

observation made by him and without              giving   his final

conclusion as to what his investigation has revealed, the

Investigating Officer has jumped only to quote few

Sections i.e.,Section 338of the Indian Penal Code andSection 134(b)read       withSection 187of Motor Vehicles

Act, as the offences for which the accused is liable

for punishment.      It was expected of an Investigating

Officer to mention in the charge-sheet as to what his

investigation has revealed and to what conclusion he           has

arrived   at and then he has to say that his investigation

has   revealed   that    the   accused     has    committed     an

offence punishable under a particular Section/Sections of
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particular statute. Merely quoting a particular Section

does not confine the scope of the charge-sheet only to

those Sections mentioned within it. It is for the Court

which tries the particular case to ascertain and to

assess whether the charges made in the charge-sheet

are the only Sections for which the accused has to be

tried or whether those Sections mentioned in the

charge-sheet required any alteration or modification in

the form of addition or deletion of any other offences,

of course, as per the procedure laid down under law.


      10.     In   the     instant       case,     the   Tribunal

without      considering   the        complaint    accompanying

the FIR and the contents of the charge-sheet, in

the light      of the evidence given by PWs.1 and 2

it    proceeded      independent           of     the    evidence

of PWs.1 and 2, confined itself to the FIR and charge-

sheet and arrived at a conclusion that since in

the   FIR,    the offence shown is Section 337 of the
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believable.

     Secondly, to decide issue No.1, it also dwelt on the

point of the rider of the motorcycle possessing any valid

Driving Licence and arrived at a conclusion that the

rider of the motorcycle could not establish that he had

an effective Driving Licence to ride the motorcycle.

Thirdly, it attributed a reason that since the driver of

the Lorry has shifted the injured and got them

treatment in the Hospital, at the first instance, it

cannot be believed that there was rash and negligent

driving on the part of the driver of the Lorry. It has to

be said that all the reasoning given by the Tribunal to

answer issue No.1 in the negative would not sustain.

     11. In view of the analysis made above, the

Tribunal was expected to appreciate the evidence of

PWs.1 and 2 taking the aid of Exs.P1 to P5 as they
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have been placed before it. In such an exercise, it would

not be expected of the Tribunal to give its own reasoning

or finding as to the intention of the driver in shifting the

injured to the Hospital and the alleged non-possession of

the Driving Licence by the rider of the motorcycle. Thus

the finding of the Tribunal has to be necessarily termed as

perverse and erroneous.      As such, the judgment under

appeals deserves to be set aside and the matter requires

to be remanded with a direction to the Tribunal to dispose

of the matter afresh in accordance with law after hearing

arguments afresh. Accordingly, I proceed to pass the

following:

                           ORDERThe appeals are allowed in part.

      The judgment and award passed by the Principal

District Judge & MACT, Kolar in MVC Nos.284/2007 and

285/2007 dated 06.11.2009 are set aside. The matter is

remitted     to   the   Tribunal   with   a   direction   to
            M.F.A. No.1226/2010 C/W M.F.A. No.1227/201014dispose of the matter afresh in accordance with law as

expeditiously as possible.The parties before this Court who are being

represented by their Counsels are directed to appear

before the Tribunal without anticipating any fresh

notice from it on 5th March 2018.Sd/-JUDGE

JT/-