Karnataka High Court
Sri Thimmaiah S vs Sri Ranganathaiah K G on 7 September, 2020
Author: S. Sujatha
Bench: S. Sujatha
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 07TH DAY OF SEPTEMBER, 2020
PRESENT
THE HON'BLE MRS. JUSTICE S. SUJATHA
AND
THE HON'BLE MR. JUSTICE E.S. INDIRESH
MISCELLANEOUS FIRST APPEAL NO.3827 OF 2014 (MVC)
BETWEEN
1. Sri Thimmaiah S
S/o Late Puttanna
aged about 57 years
2. Sri Ranganath P.T
S/o Thimmaiah S
aged about 27 years
3. Sri Madusudan P.T
S/o Thimmaiah S
aged about 25 years,
All are residing at Pitlali Village
Hiriyur Taluk Chitradurga District
Now Also At C/o # 312
2nd Stage Nagarabhavi 1st Block
Sajjepalya,
Bengaluru - 560091.
...Appellants
(By Shri K Lakshmikanth, Advocate)
2
AND
1. Sri Ranganathaiah K G
S/o Govindappa
aged about 45 years
Residing at #312, 2nd Stage
Nagarabhavi 1st Block
Sajjepalya, Bengaluru -560091.
2. The Oriental Insurance Company Ltd.,
represented by the Branch Manager
No.70/5 Suvarna Towers
1st Floor Near Nagarabhavi BDA Complex
Govindarajanagara, Vijayanagar
Bengaluru -560040.
.....Respondents
(by Shri K G Ranganathaiah, R-1- party-in-person;
Shri M.S. Sriram, Advocate for R-2)
This Miscellaneous First Appeal is filed under Section
173(1) of Motor Vehicle Act against the judgment and award
dated 03.04.2014 passed in MVC. No.428 of 2011 on the file of
the VI Additional Judge, Member-MACT, Court of Small Causes,
Bengaluru, dismissing the claim petition for compensation.
This Miscellaneous First appeal coming on for hearing, this
day, INDIRESH J., delivered the following:
JUDGMENT
This appeal is preferred by the claimants-appellants against the judgment and award dated 03rd April, 2014 passed in MVC No.428 of 2011 on the file of the Court of VI Additional 3 Judge and Motor Accident Claims Tribunal, Bengaluru (SCCH-2) (for short, hereinafter referred to as 'Tribunal').
2. Appellants herein are the claimants in MVC No.428 of 2011, which came to be dismissed by the Tribunal by its judgment dated 10th January, 2012 on the ground that the income of the deceased was shown as Rs.12,000/- per month, which comes to Rs.1,44,000/- per annum and as such, the claim petition under Section 163-A of the Motor Vehicles Act, 1989 (for short, hereinafter referred to as 'Act') is not maintainable. Being aggrieved by the dismissal of the claim petition on 10th January, 2012 by the Tribunal, claimants have filed Miscellaneous First Appeal No.2816 of 2012 before this Court, and this Court, by Judgment dated 22nd January, 2014, disposed of the Appeal by setting aside the impugned judgment dated 10th January, 2012 and remitted the matter back to the Tribunal to reconsider the issue as sought for by the claimants for conversion of claim petition filed under Section 163-A into one under Section 166 of the Act and to dispose of the claim petition in accordance with law after affording opportunity of hearing to both the parties. 4 Pursuant to judgment dated 22nd January, 2014 passed by this Court in MFA No.2816 of 2012, the Tribunal has permitted the claimants to urge the averments made in the claim petition under Section 166 of the Act.
3. For the sake of convenience, the parties in this appeal are referred to with their rank before the Tribunal.
4. Brief facts, for the purpose of adjudication of this appeal are that, the claimant No.1 is the husband and claimants No.2 and 3 are the children of the deceased Rajamma @ Rajeshwari. The claimants averred that, on 30th October, 2010 at about 9.00 am, deceased Rajamma @ Rajeshwari was proceeding as a pillion rider on the motorcycle bearing registration No.KA 41-L 9637 belonging to the respondent No.1 herein and when they were moving on the West of Chord Road near Subramanyanagar in front of ISKCON temple, at that time, the driver of the unknown vehicle came from the same direction and took turn towards North in a rash and negligent manner and dashed against the motorcycle in which the respondent No.1 and deceased were traveling and caused accident. Due to the said 5 impact, pillion rider-Rajamma @ Rajeshwari fell down and sustained grievous injuries and immediately, she was shifted to M.S. Ramaiah Hospital and she was treated as an inpatient from 30.10.2010 to 01.11.2010 in Intensive Care Unit and thereafter, she succumbed to the injuries, on 01.11.2010. It is the case of the claimants that the said accident was due to negligence on the part of Respondent No.1 as well as the driver of the unknown vehicle and accordingly, the claimants have filed claim petition in MVC No.428 of 2011 on the file of Tribunal and sought for compensation of Rs.20,00,000/- for the death of Rajamma @ Rajeshwari in the road traffic accident occurred on 30th October, 2010. The claimants further averred that prior to accident, deceased was hale and healthy and was earning Rs.12,000/- per month by milk vending and also by doing tailoring work and due to the untimely death of the deceased, petitioners are put to great financial hardship. The claimants further stated that they have spent Rs.50,000/- towards funeral and obsequies and also Rs.3,00,000/- towards hospitalisation, conveyance and other incidental charges. It is also stated by the claimants that, respondent No.1 also sustained injuries in the said accident and 6 has lodged complaint (Exhibit P2) through M.S. Ramaiah Hospital to the jurisdictional police, which came to be registered as Crime No.167 of 2010 for the offence punishable under Sections 279, 337, 304-A of Indian Penal Code as per Exhibit P1. After registering the complaint, the jurisdictional police conducted investigation and filed final 'C' report before the competent Court as per Exhibit R8 which reached finality, as the claimants have not challenged the 'C' report filed by the police authorities.
5. In response to the notice issued by the Tribunal, both the respondents have entered appearance and filed detailed written statement. The first respondent has admitted that he was the rider and owner of the motorcycle bearing registration No.KA 41-L 9637 and the vehicle in question is insured with the second respondent herein as on the date of the accident and as such, the second respondent is liable to pay the compensation amount to the claimants. The second respondent has filed detailed statement of objections denying the petition averments, however, admitted issuance of policy in respect of the vehicle in 7 question in favour of the first respondent and further, stated that the liability is subject to the terms and conditions of the Policy. The second respondent has contended that the police authorities, after investigation, have filed final 'C' report (Eshibit R8) before the competent Court stating that the unknown vehicle is not traced, and accordingly, averred that there was no other eye-witnesses to the accident except the complainant- respondent No.1 herein (rider of the motorcycle). It is also the categorical statement of the second respondent that the death of wife of the claimant No.1 was not account of the road traffic accident and accordingly, prayed for dismissal of the claim petition. Based on the pleadings referred to above, the Tribunal formulated the following issues:
1. Whether the petitioners prove that the deceased Smt.Rajamma @ Rajeshwari died due to injuries sustained in a road traffic accident occurred on 30.10.2010 at about 9.00 am. West of Chord Road, in front of the ISKCON temple, Subramanyanagar, when the deceased was traveling as pillion rider on Bajaj 8 Discover Motor Bike bearing Reg. No.KA-41-L-
9637 was hit by unknown vehicle?
2. Whether the petitioners are entitled for compensation as claimed? If so, from whom?
3. What Order or Award?
6. In order to establish their case, claimant No.1 was examined as PW1 and claimants have produced 18 documents as per Exhibits P1 to P18. The respondent No.1 was examined as RW1 and the Officer of the second respondent-Insurance Company was examined as RW2. The respondents have produced nine documents as Exhibits R1 to R9. Tribunal, after considering the material record and the arguments advanced by the learned counsel for the parties, by its judgment and award dated 03rd April, 2014 dismissed the claim petition filed under Section 166 of the Act. Being aggrieved by the dismissal of the claim petition, appellant-claimants have preferred the instant appeal seeking setting aside of the impugned judgment and award.
9
7. We have heard Shri K Lakshmikanth, learned cousnel for the appellants and Shri K K Vasanth, learned counsel for respondent No.2-Insurance Company.
8. Shri K. Lakshmikanth, learned counsel appearing for the appellant-claimants contended that the dismissal of the claim petition by the Tribunal is contrary to the law and facts and Tribunal has not considered the evidence of the parties in the right perspective. He further contended that the Tribunal has dismissed the claim petition on the sole ground that police authorities have filed 'C' report before the jurisdictional court and also there is no eye-witness to the incident. He further contended that Tribunal has dismissed the claim petition on the ground that claimants have not challenged 'C' report before the competent criminal Court despite urging contributory negligence in the complaint Exhibit P2. Learned counsel for the appellant- claimants vehemently argued that Tribunal has not properly appreciated the evidence of PW1 and documents Exhibits P1 to P18. The principal submission of Shri Lakshmikanth, learned counsel for the appellant-claimants is that challenging or 10 otherwise of 'C' report of the police authorities is purely on the criminal side and same cannot be related to the petition filed under Section 166 of the Act, seeking compensation and in that view of the matter, learned Counsel for the appellant-claimants submitted that the impugned judgment and award is liable to be set aside by awarding just and proper compensation.
9. First respondent is served unrepresented.
10. On the other hand, Shri K.K. Vasanth, learned counsel appearing for the second respondent-Insurance Company submitted that the Tribunal had considered the entire documents on record in the right perspective and has dismissed the claim petition on the ground of absence of convincing and satisfactory evidence regarding occurrence of the accident, which is just and proper and does not call for interference by this Court.
11. Having heard the learned counsel for the parties, points that arise for consideration in this appeal are:
(i) Whether the Tribunal is justified in dismissing the claim petition?11
(ii) Whether the judgment and award passed by the Tribunal would call for our interference, and if yes, whether the appellant-claimants are entitled for compensation?
12. We have perused the impugned judgment and award. We have also carefully gone through the original records. It is alleged in the claim petition that death of Rajamma @ Rajeshwari is on account of road traffic accident that occurred on 30th October, 2010 when she was proceeding as a pillion rider on motorcycle bearing registration No.KA 41-L 9637 which was being driven by respondent No.1 herein. In support of the occurrence of the accident, the claimants have produced First Information Report, Complaint, Post-mortem report, Police intimation, IMV report, spot sketch mahazar, inquest mahazar and death summary which are marked as Exhibits P1 to P3, Exhibits P5 to P8 and Exhibits P11 and P13 respectively. Admittedly, PW1 is not an eye-witness to the incident and he does not know how the accident had occurred. On the other hand, the rider of the motorcycle (Respondent No.1 herein) in which the deceased was traveling as a pillion rider, has got 12 examined as RW1 and perusal of his evidence would not disclose details of driver of the unknown vehicle as alleged in the complaint, nor has provided the registration number of the said unknown vehicle. It is the specific case of respondent No.1 that there is no eye-witness to the incident. However, during the course of cross-examination, RW1 (respondent No1. herein) has admitted that police have filed final 'C' report and the same was not challenged by the aggrieved parties before the competent criminal Court and the same has reached finality. In order to justify the contention of the statement of objections filed by it, respondent No.2-Insurance Company has adduced evidence of one Samuel Jnana Prakash as RW2.
13. We have perused the entire evidence of RW1 and RW2 in detail and made close examination of the documents. Perusal of the same would indicate that if there were contributory negligence, as averred by the claimants herein supported by the evidence of Respondent No.1, the police authorities would have filed charge sheet against Respondent No.1 also. Perusal of final 'C' report (Exhibit R8) would indicate that there is no eye- 13 witness to the alleged accident, inter alia, there is no probability of tracing the unknown vehicle in the facts and circumstances of the case and in that view of the matter, the jurisdictional Criminal Court has accepted the final 'C' report filed by the police authorities and closed the criminal case. Perusal of the records would not indicate about the efforts made by the claimants or by respondent No.1 with regard to filing of protest petition before the criminal court challenging the 'C' report, pursuant to the complaint filed; and in that view of the matter, the contentions raised by learned counsel appearing for the appellant-claimants cannot be accepted.
14. Yet another ground for dismissal of the appeal is that the initial burden is on the part of the claimants to prove the alleged accident that occurred on 30th October, 2010 at about 9.00 am. Perusal of the entire evidence either of PW1 or of RW1 would fortify the fact that the fall of the pillion rider was neither on account of the rash and negligent driving of the vehicle by the driver of the unknown vehicle nor by the rider of the motor vehicle involved in the accident in question and in that view of 14 the matter, the claimants have failed to prove that deceased Rajamma @ Rajeshwari died due to the injuries sustained in the road traffic accident occurred on 30th October, 2010 at about 9.00 am; and therefore, the finding recorded by the Tribunal to issue No.1 is just and proper and does not call for interference by this Court.
15. We have also carefully examined the reasons assigned by Tribunal while dismissing the claim petition on the ground of not challenging the final 'C' report filed before the competent criminal Court. During the course of arguments also, the learned counsel for the appellant-claimants has not given satisfactory and cogent reason for not challenging the final 'C' report before the criminal Court to fasten the liability on respondent No.1 and 2 and in that view of the matter, considering the case of appellant-claimants for contributory negligence by respondent No.1 does not arise. In the light of the discussion made above, the points that arose for consideration in this appeal are liable to be answered in favour of the respondents and are answered accordingly. Dismissal of this appeal does not disentitle the 15 appellant-claimants to make appropriate application to the competent authority under Section 161 of the Act seeking compensation under hit and run case and if the claimants make any such application henceforth, the competent authority shall consider the same and pass appropriate orders, at the earliest and in accordance with law. In the result, we pass the following:
ORDER
(i) Appeal is dismissed;
(ii) Judgment and award dated 03rd April 2014 passed in MVC No.428 of 2011 by the Court of VI Additional Judge and Motor Accident Claims Tribunal (SCCH-2), Bengaluru is confirmed;
(iii) Liberty is reserved to the claimants to seek appropriate remedy under Section 161 of the Act in accordance with law, if they are advised to do so.
Sd/-
JUDGE Sd/-
JUDGE lnn