Judgment:
(This Appeal is filed U/s. 173(1) of MV Act 1988 against the Judgment and Award dated 20.07.2007 passed in MVC No.520/2006 on the file of the member, Addl. Mact and presiding Officer, fast track court-II, Koppal, awarding compensation of Rs.23,000/- along with interest of at the rate of 6% P.A., from the date of petition till its deposit.)
The present appeals reveal the careless and negligent manner of functioning of the appellant M/s. Oriental Insurance Company Limited, Bellary Branch, who has preferred these appeals questioning the legality of the order and award passed by the Member, Addl. M.A.C.T. and P.O, Fast track Court-II, Koppal in M.V.C. No.520/2006 and M.V.C. No.521/2006 dated 20.07.2007 awarding a compensation in a sum of Rs.23,000/- and Rs.20,000/- respectively in favour of first respondent in both the appeals, contending that the Insurance Company even when had no liability to pay any amount, particularly as the first respondent in M.F.A.No.13506/2007 was an unauthorized passenger in a goods vehicle, the Insurance Company though has covered the risk of the owner of the goods vehicle the terms of the policy does not cover such risk nor the statutory provisions create a liability on the insurance company and therefore the award be set aside.
2. The main ground of attack on the award of the Tribunal, proceed on the premise that the claimant when is an unauthorized passenger, traveling in the goods vehicle causing the accident, the Tribunal by overlooking and in contravention of the legal position, could not have passed any award in favour of such an unauthorized passenger, that the Insurance Company had no liability to cover the risk of a owner in respect of such an unauthorized passenger and therefore the award is to be set aside.
3. These appeals are listed today before the Court for orders due to the reason of the appellant Insurance Company not having taken necessary steps to ensure that the second respondent-owner in both the appeals was served with the notice of the present appeals.
4. These two appeals though had not been admitted, notice had been directed to be issued to the respondents. While the owner is either not served or the insurance company has not made sufficient efforts to ensure that the owner is served, who is no other than the customer of the appellant-insurance company. Respective claimant is the first respondent in both the appeals and is represented by Sri Chandrashekar P. Patil.
5. As the appellant is not very serious in effecting service of Court notice on the second respondent the owner of the vehicle, I have heard Sri Shashank Hegde, learned counsel for appellant Insurance Company and Sri Chandrashekar P. Patil, learned counsel for the respective first respondent in both the appeals, with the second respondent in both the appeals being not present before the Court.
6. Sri Shashank Hegde, learned counsel for appellant has made submissions on the very lines of the legal ground urged as in the memorandum of appeal and has also submitted that the insurance company had sought the permission of the Tribunal to defend the claims, as the owner had not filed any statement; that statements had been filed on behalf of the insurance company and it had been contended that in respect of unauthorized passengers the Insurance company has no liability; that, all the claimants are unauthorized passengers and therefore they are not entitled for any compensation from the insurance company.
7. In this regard Mr. Hegde has drawn my attention to the statement of objections that had been filed by the Insurance Company before the Tribunal and also to Ex.P.1-F.I.R. about the incident taking place and as from the reading of the F.I.R. lodged by one Kariveerappa son of Mariveerappa Talwar, who claims to have witnessed the incident being caused due to the rash and negligent driving on the part of the driver of the goods vehicle bearing reg. No. KA-37/3685 and because of that vehicle ploughing into a procession which was at the stage of disbursal after observance on the occasion of Moharram being observed at Kudremothi. The observations are normally with a large participation of devotees and as a result, many were injured including some of whom were inside the goods vehicle. Specific attention is drawn to the name figuring at S1. No.14 of the list of persons injured, which contains the name of Kenchamma, first respondent in M.F.A. No.13506/2007 as a passenger in the goods vehicle and therefore the award in favour of Kenchamma is concerned, is liable to be set aside.
8. Sri Shashank Hegde, has very vehemently contended that though the amount is not a very huge or substantial amount but not a meager amount in a sum of Rs.23,000/-, Insurance Company is nevertheless perusing the matter, as the question of liability is involved; that in so far as the insurance company is concerned, when there is absolutely no liability, whether contractual or statutory, the tribunal could not have passed the award against the insurance Company also and even assuming that owner of the vehicle was liable to make good the award, the insurance company can not be made jointly liable to pay the compensation amount quantified by the Tribunal.
9. On the other hand, Sri Chandrashekhar P Patil, learned counsel for first respondent in both the appeals points out that the very defence taken in the written statement is a general, omnibus nature of defence and not with reference to the facts of the particular case. A common statement of objections had been filed in respect of eight claims filed by persons who had claimed that they got injured in the very accident and irrespective of the nature of the claim put forth by the claimants, the Insurance company having filed a stereotypedobjections and making that to be the common defence which insurance company has taken in all eight claims, a defence not based on the facts or the merits of the particular case, but as a casual general defence and with the plea being vague and unspecific, cannot be accepted as a proper plea for the defence pleaded with reference to each claim case.
10. Sri Chandrashekar P Patil has also pointed out that the F.I.R at the instance of some other person who had perhaps witnessed the accident, is not by the claimants but the claimants’ names are mentioned in the F.I.R. and the fact that the third party road side bystander or anyone else has lodged a complaint, while in fact confirms the factum of accident and many persons having been injured due to the rash and negligent driving, cannot be taken to be a material worthy of acceptance for the purpose of characterizing or even recording a finding as to who amongst the claimants, were on the roadside and who were inside the goods vehicle.
11. Sri Chandrashekar P Patil would submit that the claimant’s specific case in M.F.A.No.13506/2007 was that she was waiting on road side and the vehicle hit her and therefore the defence is of no consequence at all and when that was the specific case of the claimant and supported by the material on record, the Tribunal proceeding to quantify the damages for the injury suffered by the claimant is a proper and justified course of action and that the contention urged on behalf of the Insurance Company is totally untenable.
12. Mr. Patil submitted that the bogie of no liability in respect of an unauthorized passenger in a goods vehicle is mechanically raised only to deprive the claimant of her just compensation which she is otherwise entitled to in law but the Insurance Company by misleading and misrepresenting before the Court that the claimant was an unauthorized passenger in the goods vehicle and therefore not entitled to any compensation in law whereas in fact the claimant’s case itself was that she was present on the road and therefore the submission is totally irrelevant, misleading and deserves to be rejected.
13. I have bestowed my attention to the submissions made at the bar, perused the pleadings, the defence by the learned counsel for the parties and also looked into the material part of the evidence on which specific reliance is placed by the insurance company.
14. An F.I.R. if at all is an information report by any person before a Police officer in charge of a Police Station to bring to the notice of the Police Officer, an incident which can indicate an offence within the scope of Penal Code and to cause further enquiry and action if so warranted. An F.I.R. is not in the nature of sworn statement by any person leave alone any person directly involved and it can be at the instance of third person also. An F.I.R. enables a Station House Officer or Police Officer to take cognizance on the basis of F.I.R. if it is indicative of cognizable offence. Mere description of a report recorded by the person in charge of the charge of the Police Station is not evidence per say of the incident but may be, has some evidentiary value in the context of the prosecution case, ultimately if it results in filing of a charge sheet before the competent Court. In fact on reading the F.I.R. it is seen that it is not necessarily indicative of being lodged by a person claiming he was travelling inside the goods vehicle nor does it indicate that the claimant Kenchamma was travelling inside the vehicle causing accident but it only shows that she is one amongst the person who were injured.
15. On the other hand, the specific plea of the claimant in M.F.A. No.13506/2007 was that she was a roadside person and just because the insurance company puts up a blanket irrelevant defence such as that the claimants are unauthorized passengers, it does not mean they have made good their case.
16. In fact if the insurance company is putting up such a special defence, the burden was on the insurance company to have proved that the claimant was not a road side person but was an unauthorized passenger traveling in the goods vehicle and therefore she is not entitled for any compensation. The Insurance Company has not made any efforts in this direction but has rested content with the vague general plea, which it has adopted in common in respect of all claimants.
17. On the other hand on perusal of the order and award it is found that the Tribunal has examined each claimant’s case on merits and the very fact that the Tribunal in the case of the claim petition, resulting in an appeal by the very Insurance Company against the award made in favour of another claimant by name Holiyamma in M.V.C.No.521/2006, who had herself stated that she was a passenger, has made a clear distinction while passing the award and while has quantified the compensation which that injured person can claim, has nevertheless directed the Insurance Company only to make payment in the first instance but has reserved liberty to the insurance company to claim reimbursement from the owner and this very clearly points that the Tribunal in fact has made a conscious distinction between those persons who were roadside persons who got injured due to the goods vehicle running into them and persons who themselves have stated that they were traveling inside the vehicle and therefore the liability was not fastened on the Insurance Company in contravention of law as is sought to be made out by the insurance company, but had been examined and answered depending on the merits of each claim.
18. It is the Insurance Company, which on the other hand has without any application of mind, in a casual careless manner that has preferred appeals. In all matters the appellant has submitted that it has no liability and is taking up all sorts of untenable cantankerous grounds in the appeal and it is most unfortunate that the appellant insurance company, a Nationalised Institution, which is meant to protect the interest of the insured and the victims, is by taking up such untenable, frivolous and cantankerous stand, has been virtually depriving the victims of the motor vehicle accident, the meager compensation which the persons are otherwise entitled to, under the Act.
19. On the other hand the Insurance Company on the pretext of no liability has while depositing only 50% of the amount as quantified by the Tribunal, even that amount is not disbursed to the claimant but the amount is left languishing in the Court and is of no benefit to any person, leave alone the injured-claimants and this virtually defeats the legislation for providing speedy remedy to the victims of accidents involving use of motor vehicles on public roads. Such tendency on the part of the insurance company requires to be deprecated in the strongest of words and deserves to be discouraged.
20. In the appeal by the Insurance in the case of Smt. Holiyamma in M.F.A.No.13507/2007, the Tribunal is more than justified in passing the award and directing the Insurance Company to first pay the compensation amount and then seek reimbursement from the owner, later, and there is nothing improper in this course of action, even as is suggested and indicated by the Supreme Court in a good number of decided cases and therefore while there is absolutely no need to interfere in exercise of the appellate jurisdiction by this Court the appeals are to be dismissed with commensurate costs.
21. Insurance Company to make good the amount as awarded by the Tribunal in favour of the claimants at the rate of interest as awarded by the Tribunal from the date of accident till the date of payment. Registry is directed transmit the amount deposited before this Court to the Tribunal forthwith.
22. Appellant-Insurance Company is required to be not only mulcted with compensatory costs but a suitable relief has to be provided to the respondents who have been made to appear before the Court even for getting a meager compensation amounts of Rs.23,000/- and Rs.20,000/- respectively. Therefore the appeals are dismissed with cost of Rs.10,000/- and Rs.5,000/- in M.F.A.No.13506/2007 and M.F.A.No.13507/2007 respectively.
23. Appellant Insurance Company to deposit the balance of the award amount with interest up to the date of deposit, before the Tribunal within four weeks from today without fail. Cost awarded in favour of the claimants to be deposited before this Court within four weeks from today failing, which the amount to be added to the award and can be realized as part of the award.