Bangalore District Court
Sri.Nithin Kumar Shetty vs Sri.Rame Gowda on 12 January, 2023
KABC020051712021
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL,
BENGALURU. (SCCH-11)
DATED THIS THE 12th DAY OF JANUARY - 2023
PRESENT: SRI.RAGHAVENDRA.D, B.COM, L.L.B.
I ADDL.SMALL CAUSES JUDGE & MACT
MVC No.916/2021
PETITIONER:
Sri.Nithin Kumar Shetty,
S/o.Jaganath Shetty,
Aged about 33 years,
Residing at:
No.250, Crown Archid,
Keerti Layout, Chandapura,
Anekal, Bengaluru Urban.
Native Place:
No.156 A, Mani Bantwal,
Dakshin Kannada,
Bengaluru.
(By Sri.A.Sreenivasaiah, Adv.)
-Versus-
SCCH-11 2 MVC.No.916/2021
Respondents:
1. Sri.Rame Gowda,
S/o.Bore Gowda,
Near Suryodhaya School,
Thirupalya, Hebbagodi,
Anekal,
Bengaluru-560 099.
2. The Manager,
Go Digit General Ins. Co., Ltd.,
Consulate 1, 2nd Floor,
Richmond Road,
Near Richmond Circle,
Shanthala Nagar, Ashok Nagar,
Bengaluru-560 025.
Policy No:D026470723/29112020
Validity: 30.11.2020 to 29.11.2021.
(Resp. No.1 - Exparte.)
(Resp. No.2 - By Smt.Shwetha.V.Yadappanavar, Adv.)
JUDGMENT
This claim petition is filed by the petitioner claiming compensation of ₹.20,00,000/- with interest from the date of petition till its realization for the injuries sustained by the petitioner.
2. The petition averments in brief is that on SCCH-11 3 MVC.No.916/2021 26.01.2021 at about 2.30 p.m., when petitioner was riding his Motorcycle bearing Regn.No.KA-19-ED-2732, when reached near Narayana Hrudayalaya Hospital, on Hosur-Bengaluru NH- 07 Road, at that time, one Auto bearing Regn.No.KA-05-AE- 3886 driven by its driver in a rash and negligent manner and driver of Auto lost control over his vehicle and dashed his Motorcycle from behind. Due to which, he sustained grievous injuries and thereafter he was shifted to Sparsh Hospital, Bengaluru, wherein he was admitted as an inpatient and has spent more than Rs.3,00,000/- towards treatment and other incidental expenses.
Prior to the accident, he was hale and healthy and was working as a Software Engineer and he was getting salary of Rs.90,000/- per month. Due to the accidental injuries, he has became permanent disablement. The accident occurred only due to rash and negligent driving of auto by its driver. The respondents being the owner and insurer of the offending vehicle are jointly and severally liable to pay compensation to SCCH-11 4 MVC.No.916/2021 the petitioner.
3. In spite of service of notice, the respondent No.1 did not appear before the tribunal, hence he has been placed as ex-parte. The 2nd respondent appeared before the tribunal through his counsel and filed his written statement.
4. In the written statement respondent No.2 has denied the contents of claim petition specifically and categorically. He also denied age, occupation and income of injured. He has also denied the place, time and manner of accident. The petition filed by the petitioner is not maintainable either in law or on facts and same is liable to be dismissed. Further contended that on verification of records, the 1 st respondent has taken a Digit Commercial Vehicle Package Policy to vehicle bearing Regn.No.KA-51-AE-3886 was insured with policy No.D026470723/29112020 had valid from 30.11.2020 to 29.11.2021 and the liability if any is subject to the terms, conditions. Further contended that, the driver of vehicle SCCH-11 5 MVC.No.916/2021 bearing Regn.No.KA-05-AE-3886 was not holding valid and effective driving license, valid fitness certificate to drive the vehicle at the time of alleged accident. Further contended that the vehicle was not involved in alleged accident. Further the rider of two wheeler without holding valid and effective driving license, he himself is responsible for causing alleged accident. The amount claimed by the petitioner is highly exorbitant. Hence, prayed for dismissal of petition.
5. On the basis of above pleadings of both the parties, this Tribunal has framed the following:
ISSUES
1. Whether petitioner proves that, he sustained grievous injuries in the accident that occurred on 26.01.2021 at about 2.30 p.m, near Narayana Hrudayalaya Hospital, Hosur-
Bengaluru NH-07 Road, Bommasandra, Bengaluru, when he was riding a Motor cycle bearing Registration No.KA-19-ED-2732, due to the rash and negligent driving of Auto bearing Registration No.KA-05-AE-3886 by its driver?
2. Whether the petitioner is entitled for compensation as prayed in the claim petition? If so, what is the quantum of compensation and SCCH-11 6 MVC.No.916/2021 from whom?
3. What order or award?
6. In order to prove case of petitioner, petitioner examined himself as PW.1 and Dr.Nagaraj.B.N examined as PW.2 and got marked documents at Ex.P.1 to Ex.P.18 and closed their side of evidence. On the other hand, the respondent insurance company examined its Legal Manager as RW.1 and got marked document at Ex.R.1 and closed his side of evidence.
7. I have heard the arguments from both sides and perused the material available on record. The learned counsel for respondent No.2 has filed written arguments. I have carefully perused the written arguments filed by respondent No.2. The learned counsel for respondent No.2 relied on citations:
SCCH-11 7 MVC.No.916/2021
(i) MFA.No.201689/2016 in between Mahadevi W/o.Shrishail Kore Vs. Shivaputra S/o.Ramappa.
(ii) 2014(1) TAC 111 (Kant) in between Ravi Vs. Govindappa and Another.
(iii) (2012) 4 SCC 552 in between Surinder Kumar Arora Vs. Manoj Bisla.
(iv) FMAT.2666 of 2007, MANU/WB/0262/2009 in between The New India Assurance Co., Ltd., Vs. Sinjini Gupta and Ors.
(v) First Appeal No.2742 of 2015 in between Bajaj Allianz General Insurance Co., Ltd., Vs. Manisha Kale and others.
(vi) MFA.No.5506 and 5848 of 2005 in between Sri.Subash Vs. The New India Assurance Co., Ltd., and others.
With due respect to the Hon'ble Supreme Court of India and Hon'ble High Court of Karnataka, Calcutta and Bombay, the ratio and the dictum laid down by the Hon'ble Supreme Court of India and Hon'ble High Court of Karnataka, Calcutta SCCH-11 8 MVC.No.916/2021 and Bombay in the above judgments are taken into consideration to decide the above case.
8. Findings of this tribunal on the above issues are as under:-
Issue No.1 : In the Negative;
Issue No.2 : In the Negative;
Issue No.3 : As per final order for the following:-
-:REASONS:-
9. Issue No.1:- The case of petitioner that when he was proceeding on his Motor Cycle bearing Regn.No.KA-19-ED- 2732 near Narayana Hrudayalaya Hospital, Bengaluru, at that time one Auto bearing Regn.No.KA-05-AE-3886 driven by its driver in a rash and negligent manner and dashed to his vehicle and sustained grievous injuries and immediately he was shifted to Sparsh Hospital.
10. In order to prove the case of petitioner, the petitioner himself examined as PW.1. In his chief examination, SCCH-11 9 MVC.No.916/2021 he has deposed that when he reached near Narayana Hrudayalaya on Hosur-Bengaluru NH-7 Road, at that time Auto bearing Regn.No.KA-05-AE-3886 came in a rash and negligent manner at high speed and lost control over his vehicle and dashed to his vehicle. In addition to his oral evidence, he has produced Ex.P.2 first information lodged by himself. In Ex.P.2, he has stated that one Auto bearing Regn.No.KA-05-AE-3886 came his behind and dashed to him. Due to impact himself and his vehicle fell down. Further on perusal of Ex.P.2, the police registered FIR on 30.01.2021 at about 8.00 p.m. As per Ex.P.2, the alleged accident occurred on 26.01.2021 at about 2.30 p.m. The petitioner produced Ex.P.9 - Discharge Summary. As per said document, the petitioner went to hospital with hisotry of RTA. The petitioner also produced Ex.P.15 - Accident Register, wherein also mentioned as RTA. Except word mentioning of RTA in Ex.P.15, the hospital authorities have not written how the accident occurred. The petitioner also produced Ex.P.17 - Case sheet. On perusal of SCCH-11 10 MVC.No.916/2021 case sheet placed by petitioner in UMA History Sheet was prepared on 26.01.2021 at about 03.05 p.m., wherein the history mentioned as alleged history of RTA hit by auto. As per hospital documents produced by petitioner, the petitioner went to hospital immediately after the accident and in the hospital documents mentioned as RTA. So, as per the hospital documents placed by petitioner, the petitioner sustained injuries due to RTA.
11. The respondent insurance company not denied the accident, but the respondent insurance company disputing involvement of offending vehicle in this case. PW.1 in his cross examination, he has deposed that he has lodged complaint with the police after three days of accident. Further in his cross examination, he has deposed as follows: "ಆಟಟಟಟ ನನಗಟ ಅಪಘಘತ ಹಟಟಗಟ ಮಘಡತತ ಎಎದತ ಗಟಟತಘತಯತತ ಎಎದರಟ ಸಘಕಕ ಅಪಘಘತ ಆಟಟಟಟ ಮಘಡರತತತದಟ ನಘನಟಟ ಕಟಳಗಡಟ ಬದತದ ನಟಟಟಡರತತತಟನಟಎದತ ಹಟಟಳರತತಘತರಟ . ಆಟಟಟಟ ನನಗಟ ಅಪಘಘತಪಡಸ ನಲಲಸದಟಟ ಹಟಟರಟತಹಟಟಟಗರತತತದಟ. ಆಟಟಟಟ ತತಎಬಘ ವಟಟಗವಘಗ ಹಟಟರಟತಹಟಟಟಗರತತತದಟ." On perusal of cross examination of PW.1, SCCH-11 11 MVC.No.916/2021 the auto came in high speed and even after dashed to him, it went away in the same speed with out stopping. Further on perusal of cross examination of PW.1, he has deposed that his wife is working in Narayana Hrudalaya Hospital and the said hospital near to the place of accident. Further in his cross examination, he has deposed as follows: " ನನಗಟ ಅಪಘಘತಪಡಸದಎತಹ ವಘಹನದ ಬಗಟಗ ದದಢಪಡಸಕಟಟಳಳಲತ ಸಸಟವ ಫಫಟಟಟಜಜಗಳನತನ ನಟಟಟಡರತತಟಟತಟನಟ . ಆ ಸಸಟವ ಫಫಟಟಟಜಜಗಳನತನ ನಘನಯಘಲಯಕಟಕ ಹಘಜರತಪಡಸಬಹತದತ. ನಘನತ ಹಟಟಳದ ಆಟಟಟಟದಎದ ಅಪಘಘತವಘಗಲಲ ಎಎಬತದತ ದದಢಪಡತತತದಟ ಎಎಬ ಕಘರಣಕಘಕಗ ಸಸಟವ ಫಫಟಟಟಜಜಗಳನತನ ಹಘಜರತಪಡಸಲಲ ಎಎದರಟ ಸರಯಲಲ." Further on perusal of cross examination of PW.1, in order to make confirmation of accident done by offending auto, he has verified the CCTV footages. Further he has deposed that he can produce the CCTV footages before the tribunal.
12. The respondent insurance company filed an application praying to direct the petitioner to produce CCTV Footages. After hearing on both the sides, this tribunal SCCH-11 12 MVC.No.916/2021 directed the petitioner to produce CCTV Footages of Narayana Hrudalaya Hospital as per order dated: 27.09.2022. The learned counsel for petitioner Smt.S.R submitted that the petitioner is not in possession of CCTV footages. Then this tribunal considered that petitioner not complied order of this tribunal.
13. On perusal of cross examination of PW.1, the auto after dashing to him went away in high speed and in order to confirmation of auto number, he has verified the CCTV footages. The petitioner lodged first information with the police on 30.01.2021, the accident occurred on 26.01.2021. The hospital authorities have sent intimation to concerned police on 26.01.2021 as per Ex.P.14. But the police have not registered the case on the basis of police intimation sent by Sparsh Hospital. The police after receiving first information from the petitioner as per Ex.P.2, they have registered the case as per Ex.P.1 and then they went near the place of accident and drew up spot mahazar as per Ex.P.3. In Ex.P.3, SCCH-11 13 MVC.No.916/2021 the police narrated the place of accident and also in the same documents, they have mentioned that they have inspected the two wheeler belongs to petitioner and offending Auto bearing Regn.No.KA-05-AE-3886. Further in the said document mentioned that on the left side of auto, there was dent. Further on perusal of Ex.P.3, the police have seized the auto on 31.01.2021 as per Ex.P.3 for the purpose of IMV Inspection. Pw1 deposed in his cross examination that, after the accident the auto went away from that place, then how the auto was present on 31.01.2021 at the place of accident. The petitioner has not given any explanation how the auto was present on 31.01.2021 at the place of accident.
14. The respondent insurance company examined Legal Manager as RW.1. In his chief examination, he also deposed that the petitioner has not produced CCTV footages and the said vehicle was falsely implicated in this case. No doubt, this tribunal directed the petitioner to produce CCTV footages before the tribunal, but the petitioner has not produced the SCCH-11 14 MVC.No.916/2021 CCTV footages before the tribunal. On perusal of record, the accident occurred near Narayana Hrudalaya Hospital and according to PW.1, he has seen CCTV footages and he admitted in his cross examination that he can produce the CCTV footages, but he has not produced the same before the tribunal. When respondent insurance company disputed the involvement of vehicle and also there is a delay in lodging first information with the police then what prevented the petitioner to produce CCTV footages before the tribunal to confirm the alleged auto caused the accident. The evidence of PW.1 is not corroborated with Ex.P.3 spot mahazar. The police after investigation, they have filed charge sheet against the driver of Auto bearing Regn.No.KA-05-AE-3886 by alleging that the said vehicle committed the accident. On meticulous perusal of oral evidence of petitioner, it creates doubt regarding involvement of auto in this case. The petitioner has not produced any materials before the tribunal to show that the Auto bearing Regn.No.KA-05-AE-3886 involved in the SCCH-11 15 MVC.No.916/2021 accident and said accident caused to him. Only on the basis of mentioning of auto & RTA in the hospital documents, this tribunal cannot presume that the alleged auto involved in the accident in the absence of proper evidence. So, the petitioner failed to prove the accident occurred due to rash and negligent driving of driver of offending auto. Hence, Issue No.1 answered in the Negative.
15. Issue No.2: In view of held issue No.1 in the negative, the petitioner is not entitled for compensation. Hence, Issue No.2 answered in the Negative.
16. Issue No.3: In view of the findings given on the above said issues, I proceed to pass the following:
ORDER The claim petition filed by the petitioner Under Section 166 of Motor Vehicles Act is hereby dismissed.
No order on cost.SCCH-11 16 MVC.No.916/2021
Draw up award accordingly.
(Dictated to the stenographer over computer, corrected and pronounced by me in open court on this 12th day of January, 2023.) (D.RAGHAVENDRA) I ADDL.SMALL CAUSES JUDGE & ACMM ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE PETITIONERS:
PW.1 Sri.Nithin Kumar Shetty
PW.2 Dr.Nagaraj.B.N.
DOCUMENTS MARKED FOR PETITIONERS:
Ex.P1 FIR
Ex.P2 Complaint
Ex.P3 Mahazar
Ex.P4 Wound Certificate
Ex.P5 Charge Sheet
Ex.P6 Notarized copy of Aadhaar Card
Ex.P7 Notarized copy of Driving License
Ex.P8 & 9 2 - Discharge Summaries
Ex.P10 Document of Physiotherapy
Ex.P11 11 Medical Bills
SCCH-11 17 MVC.No.916/2021
Ex.P12 3 Medical Prescriptions
Ex.P13 2 X-ray Films
Ex.P14 Police Intimation
Ex.P15 MLC Extract
Ex.P16 Clinical Notes
Ex.P17 Case Sheet
Ex.P18 X-ray Film
LIST OF WITNESSES ON BEHALF OF RESPONDENTS :
RW.1 Sri.Sachin Honnannavar LIST OF DOCUMENTS ON BEHALF OF RESPONDENTS :
Ex.R.1 Copy of Insurance Policy
(D.RAGHAVENDRA)
I ADDL.SMALL CAUSES JUDGE & ACMM
BENGALURU