CMA/1737/2000 of United India Insurance Co Ltd Vs Enumula Mandankka on 30 December 2009

ORDER:

This Appeal, under Section 173 of the MotorVehicles Act (‘the Act’, for short), has been preferred bythe 2[nd] respondent insurer in O.P.No.91 of 1996,aggrieved by the Award passed by the Motor AccidentClaims Tribunal-cum-Additional District Judge, Adilabad(henceforth referred to as ‘the Tribunal’), dated 14-05-1998, allowing the claim made by respondents 1 to 4herein, in a sum of Rs.1,00,000/-.

The facts, which are relevant for our inquiry, are in avery narrow compass.

It is stated that on 31-05-1995, at about 4-00 pm,an accident was caused involving a tractor and trailorbearing registration Nos. API T 8642 & 8643,respectively. The tractor was owned by the 1[st]respondent in O.P., who is the 5[th] respondent herein. Itwas insured with the appellant company. The tractor wasgoing to Kamarvelly and when it reached near the houseof one Gajjela Pentaiah in Narayanapur Village, one ofthe loading-unloading labour by name Krishnamurthy, felldown from the trailor due to the rash and negligentmanner of driving of the said tractor. He sustained multiple injuries all over his body and succumbed tothose injuries. The Police at Rebbena Police Station,have registered a case in Crime No.54 of 1995 underSection 304-A IPC. The 1[st] respondent herein, who wasthe 1[st] claimant, was the wife of the deceasedKrishnamurthy. Respondents 3 and to 4 herein are theparents of the deceased Krishnamurthy, while the 2[nd]respondent was, said to be, his dependant brother. Itwas stated that at the time of death Sri Krishnamurthywas aged about 22 years and was earning Rs.1,500/- permonth.

The 1[st] respondent owner in the O.P., remained exparte.

The appellant insurance company contested thematter. It specifically averred that the accident had notoccasioned due to rash or negligent driving of the tractor-trailor by its driver. It was specifically averred that one SriD. Ganapathi was actually driving the said tractor-trailorand that the said Ganapathi did not have a drivinglicense and hence, the 1[st] respondent owner, in collusionwith the local police, has falsely implicated one SriM.Chilkaiah, as if he had driven the tractor instead of SriD. Ganapathi. It was specifically averred that the 1[st]respondent owner in the O.P., has bribed the local policeby paying them a sum ranging between Rs.13,000/- toRs.17,000/- for the said purpose and that a specific casein Crime No.56 of 1995 was registered against the concerned Sub-Inspector of Police and others for falselyregistering the FIR in Crime No.54 of 1995. Thus, theparties have gone and participated in the trial of the O.P. On behalf of the claimants, 4[th] claimant, father of thedeceased was examined as PW-1 and he also gotmarked five exhibits viz., Exs.A-1 to A-5.

On behalf of the insurance company none hasbeen examined. PW-1 is not an eyewitness to theincident. He deposed about the relationship of theindividual claimants with the deceased, his monthlyincome and narrated as to how he learnt of the accidentresulting in the death of Sri Krishnamurthy on 31-05-1995.

Ex.A-1 is the certified copy of the FIR registeredby the Police Station Rebbena, in Crime No.54 of 1995 tovouch for the accident that occurred on 31-05-1995,resulting in the death of Sri Krishnamurthy, all due to rashand negligent driving of the tractor by its driver. Ex.A-2 isthe certified copy of the postmortem examination report ofthe deceased Krishnamurthy, wherein it has been clearlyfound that the deceased died all because of multipleinjuries sustained by him in the accident. Ex.A-3 is thecertified copy of the check-report filed by the MotorVehicle Inspector, indicating that there is no mechanicalfailure of the tractor-trailor for the accident to have beencaused. Ex.A-4 is the copy of the charge sheet filed inCrime No.54 of 1995 against Sri D. Ganapathi. Ex.A-5 is

the copy of the Judgment rendered by the Court ofJudicial First Class Magistrate, Asifabad, in C.C.No.445of 1995, acquitting the accused, who are the policepersonnel, against whom the appellant insurancecompany has specifically made allegations of corruptionand falsification of record.

The Tribunal has found, as a fact, that the tractor-trailor was driven by M. Chilakaiah and only because ofthe rash and negligent manner of driving of the saidChilakaiah, the accident had occasioned. Going by theminimum annual income of Rs.15,000/-, as specified inthe Schedule appended to the Act, the Tribunal hasarrived at the amount of compensation payable asRs.1,70,000/- (wrongly specified as Rs.1,17,000/-). However, since, the claimants have confined the claimto Rs.1,00,000/-, which is less than the quantum ofeligible compensation receivable by them, the Tribunalhas, therefore, awarded a sum of Rs.1,00,000/-. The 1[st]claimant was awarded Rs.50,000/-, while the 3[rd] and 4[th]claimants, parents of the deceased, were awarded thebalance amount of Rs.50,000/-, to be shared equally bythem. The 2[nd] claimant, who is, said to be, thedependant brother of the deceased, was rightly denied tobe paid any amount of compensation. As noticed supra,it is this Award, which is challenged for its correctnessand validity in the above Appeal.

I have head Sri T. Mahender Rao, learned Standing Counsel for the appellant insurance company and Sri V.Ravi Kiran Rao, learned counsel for the respondent-claimants 1 to 4.

Sri T. Mahender Rao has strenuously contendedthat there is no basis for the Tribunal to have arrived at afinding that the tractor-trailor in question was driven onthe fateful day by Mr. Chilakaiah. It was furthercontended that the Tribunal has grossly erred in nottaking into account and consideration the serious issueinvolving corrupt methods adopted by the local policeand thus, falsely implicating Mr. Chilakaiah.

The appellant insurance company has also takenout a miscellaneous petition in MACMAMP No.4584 of2006, in the above Appeal, to receive; (1) certified copy ofthe judgment rendered in C.C.No.335 of 1995; (2) Xeroxcopy of the petition dated 11-09-1995 filed by theAssistant Superintendent of Police, Bellampalli, beforethe Judicial First Class Magistrate, Asifabad; and (3) theattested copy of the charge-sheet in C.C.No.445 of 1995,as additional evidence.

It is contended that the Assistant Superintendent ofPolice, Bellampalli, on 11-09-1995 filed a report beforethe Judicial First Class Magistrate, Asifabad, in CrimeNo.54 of 1995, setting out that one M.Chilakaiah, S/o SriM.Balaiah, has been falsely implicated as accused inCrime No.54 of 1995, under Section 304-A IPC, by thethen Sub-Inspector of Police, Rebbena Police Station. Itwas also stated in the report that the said Chilakaiah was arrested on 05-06-1995 and he was remanded to judicialcustody instead of the actual accused Sri D. Ganapati. Itwas further stated that the actual accused Sri Ganapathiwas arrested on 13-07-1995 and was later on released on bail. It is,therefore, prayed to discharge Sri M. Chilakaiah from thecase.

From this statement, the learned Standing Counselfor the appellant would contend that a responsible Sub-Divisional Police Officer, who has carried out theinvestigation into the episode, has now gone on recordthat the then Sub-Inspector of Police, Rebbena PoliceStation, has falsely implicated Sri M. Chilakaiah in CrimeNo.54 of 1995, with a view to bailout the owner of thetractor-trailor. It was also contended by the learnedStanding Counsel that the criminal court had,accordingly, discharged Sri M. Chilakaiah andprosecuted Sri D. Ganapathi. A copy of the judgmentrendered in C.C.No.335 of 1995, is also, now sought tobe brought on record. It is worthy to notice that thelearned Judicial First Class Magistrate, Asifabad, whotried C.C.No.335 of 1995, against Sri D. Ganapathi, has,ultimately, acquitted him of the charge laid against. Itwas also appropriate to notice that no one has supportedthe case of the prosecution. In fact, PWs 1 to 3, whowere said to be the eyewitnesses of the accident, havebeen examined. PWs 1 to 3 are, said to be, traveling by the same tractor-trailor. They deposed that thedeceased, who was sitting on the door of the trailor fell offwhen the tractor ran into a ditch. PW-3, in fact, deposedthat one Chilakaiah was driving the crime vehicle at thetime of its accident. Therefore, the criminal court did notconsider it appropriate to convict the accusedD.Ganapathi, it did not consider him to be the one whodrove the crime vehicle.

Now, turning to the charge-sheet filed into CrimeNo.56 of 1995, under Sections 161 and 384 IPC, bookedagainst the then Sub-Inspector of Police, Rebbena PoliceStation, and others, the judgment rendered therein inC.C.No.445 of 1995, has been marked as Ex.A-5 beforethe Tribunal. It is important to notice that the Judicial FirstClass Magistrate, Asifabad, acquitted the accused inC.C.No.445 of 1995. What emerges, therefore, is that,the then Sub-Inspector of Police, Rebbena PoliceStation, and others, who have been prosecuted inC.C.No.445 of 1995, were acquitted, and so was D.Ganapathi, who is alleged by the appellant to havedriven the tractor-trailor on the fateful day. In other words,the allegation leveled by the appellant insurancecompany that it is not Sri Chilakaiah, who was driving thetractor-trailor on the date when the accident occurred, butit is Sri D. Ganapathi, who actually drove the vehicle, didnot gain acceptance.

It will be relevant to notice that the Tribunal isentitled to adopt Summary Procedure in terms of Section

169 of the Act, while conducting an inquiry into the claimslodged under Section 166 of the said Act. It is theappellant insurance company, which took the plea thatthe tractor-trailor has been driven, on the fateful day, bySri D. Ganapathi and the said Ganapathi did not have adriving license to drive the tractor-trailor. It is alsospecifically asserted that Sri M. Chilakaiah was falselyimplicated and shown as the driver of the tractor-trailor. However, these are all pure questions of fact, which canbe established by leading evidence only. In spite oftaking a specific plea in its written statement in oppositionof the claim, the insurance company has not bothered tolead any evidence to that effect. It is not merely enough toleave a suggestion to PW-1, during the course of crossexamination. The burden is lying heavily on theinsurance company, which has propounded the theorythat it is not Sri Chilakaiah, but Sri Ganapathi, wasdriving the vehicle, to establish the said fact. There is noscope for any presumption or inference to be drawn froma mere pleading, in the absence of specific and relevantevidence in that regard. Until and unless the evidence isled in this regard, the corresponding onus or burden toestablish that it is not Sri D. Ganapathi, but Chilakaiah,who drove the tractor-trailor on the said date, does not getshifted on to the claimants. On the contrary, from thecopy of the Judgment placed by the learned StandingCounsel for the appellant in C.C.No.335 of 1995, PW-3, who was, said to be, an eyewitness traveling by the sametractor-trailor, has specifically deposed that it is not Sri D.Ganapathi, but Sri M. Chilakaiah, who was driving thetractor-trailor vehicle. Therefore, to my mind, theappellant insurance company has failed to discharge theinitial burden lying on it to show that it is Sri D.Ganapathi, who was driving the said tractor-trailor on thefateful day and that the said Ganapathi was not havingvalid driving license to do so.

Since, the Judgment rendered in a related criminalcase is an admissible piece of evidence, I consider itappropriate to allow the miscellaneous petition No.4584of 2006, and mark the three documents, whichaccompanied the said petition, as exhibit evidence onbehalf of he appellant insurance company. They bemarked as Exs.B-1, B-2 and B-3, respectively.

But however, it is a salutary principle of law that theJudgment rendered by a criminal court is not aconclusive proof of its contents. The appellant insurancecompany, therefore, ought to have led evidence andindependent material should have been marshaled todemonstrate that it is Sri D. Ganapathi, who actuallydrove the vehicle in question and caused the accident,but not Chilakaiah. In my opinion it had failed to do so. For its sheer failure to lead evidence on a vital andcrucial issue, which alone helps it to establish thedefense available to it under Section 149 of the Act, itmust be held that the view taken by the Tribunal in the face of the evidence brought before it as a reasonableview. It cannot be characterized as perverse orunsustainable view. Hence, the appeal fails.

The Civil Miscellaneous Appeal is, therefore,dismissed, but however, without costs.

mrk30[th] December 2009

---------------------------------Nooty Ramamohana Rao, J