Bangalore District Court
) T.D. Lalithambike vs ) Hdfc Ergo General Insurance on 28 October, 2015
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL
COURT OF SMALL CAUSES AT BENGALURU
(SCCH:15)
DATED: THIS THE 28th DAY OF SEPTEMBER, 2015
PRESENT : Smt.K.Katyayini, B.Com., LL.B.,
XIII Addl.Small Cause Judge
& Member, MACT, Bengaluru.
MVC No.3548/2014
Petitioner/s 1) T.D. Lalithambike,
W/o Late Vasudevashetty,
D/o Late Doddappa,
Aged about 45 years,
No.482/7, R/at Tempo
Rajanna Building,
Near Shani Mahathma Temple,
Chikkabederekallu,
Nagasandra Post,
Tumkur Road,
Bengaluru.
2) Gopal T.D.,
S/o Doddappa,
Aged about 50 years,
R/o No.133, Andanini Nilaya,
1st Cross, Vidyanagar,
Shimoga-577 203.
3) Smt. Shivagangamma,
W/o Channaveerappa,
Aged about 55 years,
Ghosabhavi Street, Rayadurga Post,
Ananthapura District,
Andrapradesh.
(SCCH-15) 2 MVC.3548/2014
4) Lr. of Late Krishna Kumar, T.D.,
Smt. Lakshmidevi,
W/o Late Krishna Kumar,
Aged about 48 years,
a) Vilas Kumar S/o Late Krishna
Kukmar, Aged About 22 yars,
b) Vikas S/o Late Krishna Kumar,
Aged about 20 years,
All are residing at Suresh House,
6th Cross, 1st Main,
Majunatha Nagar, Nagasandra Post,
Bengaluru - 560 073.
5) Ranganatha, T.D.,
Aged about 48 years,
# 188, Yashaswini Nilaya,
Channanayakanapalya,
Nagasandra Post,
Bengaluru - 560 073,
(By Pleader - Sri.Shekarappa H.C.)
V/s
Respondent/s 1) HDFC ERGO General Insurance
Co. Ltd.,
No.25/1, 2nd Floor,
Shankarnarayana Building,
Building No.2, M.G. Road,
Bengaluru-560 001.
(By Pleader - Sri.K.Prakash.)
2) Harish Kumar,
S/o Hanumanthaiah,
No.290-1, Manjunatha Nagar,
1st Main, 3rd Cross,
Nagasandra Post,
Bengaluru North-560 073.
(SCCH-15) 3 MVC.3548/2014
(Owner of the tractor water
Tanker No.KA-56-7594)
(Policy No.2316200284562101000
Valid from 21.06.2013 to
20.06.2014)
(By Pleader - Exparte.)
JUDGMENT
Petitioners have filed the present petition under Section 166 of MV Act seeking compensation on account of death of Sri.Doddappa, their father in the road traffic accident.
2. The brief case of petitioners is that on14.09.2013 at about 8:30 p.m., the deceased was proceeding on his bicycle as the rider on the left side of the service road of NH-4. At that time the Tractor (water tanker) bearing registration No.KA- 52/7594 came form the back side with high speed in a rash and negligent manner and dashed against the bicycle of the deceased. Because of which deceased fell down and suffered severe injuries all over the body.
b) Immediately, the deceased was taken to Sapthagiri Hospital and after first aid, he was shifted to Premier Sanjeevini Hospital, T. Dasarahalli. He was in ICU till 15.09.2013 and thereafter he was shifted to Victoria Hospital (SCCH-15) 4 MVC.3548/2014 and was there as an inpatient from 17.09.2013 to 31.10.2013. After the discharge, he was taken to home wherein he was succumbed to the accidental injuries on 13.11.2013.
c) Accident took place solely due to the rash and negligent driving of the water tanker tractor driver. Therefore, 2nd respondent being the RC owner and the 1st respondent being the insurer of the water tanker tractor are jointly and severally liable to pay the compensation. Hence, prayed to allow the petition as sought for.
3. In response to due service of notices, 2nd respondent remained exparte. However, 1st respondent put its appearance through its counsel and filed its statement of objections to the main petition denying the petition averments. It has specifically contended that as an after thought, by twisting the facts and colluding with the concerned persons in order to get compensation petitioners came with the present false petition.
b) It has also contended that the deceased died natural because of his old age and there is no nexus between the alleged accidental injuries and the death of the deceased. It (SCCH-15) 5 MVC.3548/2014 has also took up the contention that petitioners were never depended on the income of the deceased as alleged.
c) It has also contended that without prejudice to its earlier contention, the petitioners are required to prove that there is no contributory negligence on the part of the deceased in occurrence of the accident and the fault is only on the part of water tanker tractor driver in occurrence of the accident.
d) However, it has admitted the policy and its force on the date of accident, but has contended that its liability if any is subject to the terms and conditions of the policy such as driving licence and vehicular documents. Accordingly, it is not liable to pay the compensation. Hence, prayed to dismiss the petition against it with costs.
4. On the above said pleadings of the parties, this Tribunal has framed the following issues.
1. Whether the petitioners prove that they are the LRs of the deceased?
2. Whether the petitioners prove that the deceased Sri.Doddappa was died in RTA arising out of accident alleged to have been taken place on 14.09.2013 at about 8:30 p.m., at Manjunath Nagara Cross, Service Road, National Highway - 4, (SCCH-15) 6 MVC.3548/2014 Bengaluru due to the rash and negligent driving of the driver of Tractor water tanker bearing No.KA-52/7594?
3. Whether the petitioners are entitled for compensation? If so, what amount & from whom?
4. What order or award?
5. To prove the above said issues and to substantiate their respective contentions, 1st petitioner herself has entered into witness box as PW-1. Got exhibited 14 documents and closed their side. Per contra, 1st respondent got examined the Office Superintendent, RTO Office, Nelamangala as RW-1 to cause production of driving licence extract and its Legal Officer as RW-2. Totally got exhibited 7 documents and closed its side.
b) Heard both the sides on merits of the case. In addition, counsel for 1st respondent has also filed his written arguments along with the xerox copies of decisions reported in;
1) 2014 AIR SCW 5065,
2) 2009 ACJ 1411 (SC),
3) 2008 AIR SCW 4048,
4) 2009 AIR SCW 2865,
5) 2008 ACJ 1307,
6) AIR 2006 SC 2138,
7) AIR(37) 1950 SC 265(FB), (SCCH-15) 7 MVC.3548/2014
8) 2006 AIR SCW 5312,
9) SC 2007 1376 and
10) ILR 2002 KAR 1864 and also unreported judgments passed in;
1) MFA.30903/2009 Dated 02.08.2014,
2) MFA.7949/2011Dated 02.06.2015,
3) MFA.21079/2009 Dated 08.11.2013 and
4) S.B. CIVIL MISC.APPEAL.842/2009(RAJASTAN), as well as the judgment passed by the Hon'ble Apex Court reported in;
1) MANU/KA/0718/2009,
2) MANU/MH/0571/2007, This Tribunal has carefully gone through the said written arguments and also the above observed reported decisions and unreported judgments as well as perused the record.
6. Now the findings of this Tribunal on the above said issues are answered in the;
1. Issue No.1 : Affirmative.
2. Issue No.2 : Negative.
3. Issue No.3 : Does not survive for consideration.
4. Issue No.4 : As per final order for the following reasons.
(SCCH-15) 8 MVC.3548/2014REASONS
7. ISSUE No.1:- It is the case of petitioners that they are the children of the deceased. To establish that apart from the oral evidence of 1st petitioner they have also placed their reliance on the police papers. Ex.P-1 is the true copy of FIR with complaint which reveals that the complaint is lodged by 1st petitioner herself wherein it is stated that the deceased is her father. Except that they have not produced any other documents.
8. However, other side has not disputed the relationship of the petitioners with the deceased. On the other hand, it is elicited in the cross-examination of 1st petitioner that the educational qualification of her father was diploma and they are five children and all are married.
9. At this stage she voluntarily deposed that her elder brother is predeceased her father and her other brother i.e. the 2nd petitioner is working as lecturer in a private college at Shivamogga. It is also in her cross-examination that their father died in the house after around 10 days of discharge from the hospital.
(SCCH-15) 9 MVC.3548/2014
10. Moreover, in the course of cross-examination, it is referred and suggested to her that the deceased is her father. There is no dispute between the petitioners interse about their relationship with the deceased. Therefore, there is nothing on record to disbelieve the case of petitioners that they are the children and petitioners Nos.4, 4(a) and (b) are the Lrs of the predeceased son of the deceased. Accordingly, issue No.1 is answered in affirmative.
11. ISSUE No.2:- 2nd respondent remained exparte. However, 1st respondent has took up the specific contention that since there is delay of 18 days in lodging the complaint, the water tanker tractor is falsely implicated which is not at all involved in the accident. So, 1st respondent has disputed the very involvement of the vehicle in the accident and thereby the rash and negligent act on the part of its driver if any in occurrence of the accident.
12. To establish their case as observed above, 1st petitioner herself has entered into witness box as PW-1. She has filed her affidavit evidence wherein she has reiterated the above observed petition averments. But it is important to note that (SCCH-15) 10 MVC.3548/2014 she is not at all an eye-witness to the accident. As per the complaint averments itself she came to know about the accident from the public.
13. It is also in her cross-examination that she came to know about the accident on the very day at 9:00 p.m.; they lodged the complaint after around 10 to 15 days; they did not get the body of her father subjected to PM report. At this stage she voluntarily deposed that it was already in the decomposed state. But she has also deposed that there is no certificate issued by the doctor in that regard; her father died in the house after around 10 days from the date of discharge from the hospital and they did not inform the police about the death of their father.
14. In her cross-examination it is suggested that the accident never took place as narrated in the petition and in her affidavit evidence and her father never admitted as inpatient either in Premier Sanjeevini Hospital and Victoria Hospital and they have got created and produced the false documents and given false evidence. Those suggestions are denied by 1st petitioner.
(SCCH-15) 11 MVC.3548/2014
15. Of course, to establish its above defence, 1st respondent got examined its legal officer as RW-2 who has filed his affidavit evidence wherein he has stated that there is 18 days of delay in lodging the complaint and there is no proper explanation offered for inordinate delay in lodging the complaint. Therefore, the very involvement of the water tanker tractor in the accident is denied.
16. But, it is also an admitted that RW-2 is also not at all an eye-witness and whatever he has deposed are based on records. So, the oral evidence let in by both the parties on record with regard to the present issue particularly the involvement of the water tanker tractor and thereby the negligent act on the part of its driver in occurrence of the tractor are nothing but a hearsay evidence.
17. If the documents on record are taken note off, as observed above, Ex.P-1 is the FIR with complaint. The complaint averments reveal that the complainant i.e. 1st petitioner came to know that her father was proceeding on the bicycle; at that time, the water tanker tractor bearing registration No.KA-52/-7594 came with high speed in a rash (SCCH-15) 12 MVC.3548/2014 and negligent manner and dashed against the bicycle of her father; because of which he fell down and suffered severe injuries to the waist and the water tanker tractor left the tractor in the spot itself and ran away.
18. It is also there in the complaint that at that time who was in the spot i.e. public and the owner took her father to Sapthagiri Hospital and since there were no expert doctors, on the reference of the doctors therein, her father was shifted to Premier Sanjeevini Hospital and was admitted as an inpatient and intimated her about the accident.
19. There is no specific mention with regard to the owner i.e. who is referred as the owner i.e. whether it is the water tanker tractor owner or some other owner. 1st petitioner in her evidence has not at all given any explanation in that regard.
20. Admittedly, the compliant is filed on 02.10.2013 and the alleged accident took place on 14.09.2013. So, there is admitted delay of 18 days in lodging the complaint and it is the explanation in the complaint about the delay that since they were none to take care of their father, the complaint is lodged belatedly.
(SCCH-15) 13 MVC.3548/2014
21. But admittedly it is in the evidence of 1st petitioner that they are five children. Of course, she has deposed that her elder brother is predeceased to her father. But despite of that there were remaining four children, all are married. So, it appears that there is one or other person to lodge the complaint immediately after the accident.
22. At this stage, it is also important to note that it is the case of petitioners in the complaint averments that, immediately after the accident deceased was taken to Sapthagiri Hospital and thereafter to Premier Sanjeevini Hospital. But the petitioners have not produced any documents pertain to the said hospitals with regard to MLC and no documents of Sapthagiri hospital.
23. At this stage, it is also important to note that as observed above it is in the complaint averments that the water tanker tractor driver left the vehicle at the spot itself and run away, but there is no explanation on record, despite of that why no complaint was lodged immediately even by the public at the spot. So, all the above facts probabalize the defence raised on behalf of 2nd respondent about the no proper (SCCH-15) 14 MVC.3548/2014 explanation about the delay and thereby the false implication of water tanker tractor in the present accident.
24. Ex.P-2 is the spot mahazar dated 09.10.2013. Admittedly the complaint was lodged on 02.10.2013. So, after around 7 days the spot mahazar was conducted. Ex.P-3 is the spot sketch dated 02.10.2013. So, the complaint was lodged on 02.10.2013 and the spot sketch was prepared on the very day but the spot mahazar was conducted after around 7 days in between 3:00 to 4:00 p.m.
25. So, a doubt arises in the mind of prudent man about the genuinely of the spot sketch and spot mahazar. Moreover, if the contents at Ex.P-2 are taken note off, it is there that the eye-witness by name Manjunath i.e. CW-3 shown the accident spot to the Pancha i.e. Rangaswamy CW-4 and the police have conducted mahazar therein.
26. Hence, as per Ex.P-2 the police came to know about the accident spot on the information of CW-3. Therefore, once again a doubt arises in the mind of prudent man in preparing the spot mahazar on 09.10.2013 and around 7 days before the spot sketch at Ex.P-2 on 02.10.2013. To clear the said doubt, (SCCH-15) 15 MVC.3548/2014 petitioners have not chosen examine the author of Ex.P-2 and
3.
27. Ex.P-4 is the MV report and it is dated 05.10.2013, it is there that on the request of PSI, Peenya Traffic Police Station dated 05.10.2013 the MV inspector conducted the MV examination of the water tanker tractor on the very day at 2:30 p.m. in the premises of Peenya Traffic Police Station. It is there in Ex.P-4 that no fresh damage is identified and the mechanic condition of the vehicle was in order.
28. Ex.P-5 is of course, the charge sheet filed by the police against the water tanker tractor driver for the offences punishable under Section 279 and 338 of IPC as well as Section 134(a) and (b) read with Section 187 of MV Act. But in view of the above observations, a doubt arises in the mind of a prudent man about the involvement of the water tanker tractor in the accident.
29. Of course, there is presumption with regard to the police papers that they are prepared by the investigating officers while discharging their official duties in investigation of a crime. But the said presumption is rebuttal one. In view of (SCCH-15) 16 MVC.3548/2014 the above observations, the said presumption cannot be taken into consideration to the case on hand.
30. Moreover, in the medical records i.e. Ex.P-6, the wound certificate and Ex.P-7, the discharge summary issued by the Premier Sanjeevini Hospital, in Ex.P-6, the history of injuries is stated as RTA dated 14.09.2013 at about 8:30 p.m. only. There is no other detail of the RTA noted therein. Ex.P-7 also reveals history of injuries as RTA only and there is also no other detail. Ex.P-8 is the discharge summary of Victoria Hospital which does not reveal any history of injury.
31. Therefore, if the entire evidence on record is taken in a nut shell, the preponderance of probabalities much tilts in favour of the defence of 1st respondent than the case of petitioner about the involvement of the water tanker tractor in the accident and thereby the rash and negligent act of its driver in occurrence of the accident.
32. So far the death of the deceased because of the accidental injuries, as per petition averments the accident took place on 14.09.2013 and the deceased died because of the (SCCH-15) 17 MVC.3548/2014 accidental injuries on 13.11.2013 i.e. after around 2 months from the date of the accident.
33. It is in the medical records i.e. wound certificate and discharge summary observed above of Premier Sanjeevini Hospital and Victoria Hospital that the deceased suffered contusion, pelvis fracture, injuries over posterior urethral which are grievous in nature; was an inpatient in Premier Sanjeevini Hospital from 15.09.2013 to 16.09.2013 i.e. for 2 days and in Victoria Hospital from 17.09.2013 to 31.10.2013 i.e. 45 days.
34. Of course, petitioners have not produced the post mortem report and the supportive medical record with regard to the cause of death. Admittedly and is no charge sheeted for the offence punishable under Section 304(A) IPC and petitioner has not produced any corroborative piece of evidence to substantiate her case that the body of her father was at decomposition state and that is why it is not subjected to PM report.
35. But, it is in the evidence of 1st petitioner that her father is retired from the service during 1992 and his age at (SCCH-15) 18 MVC.3548/2014 the time of retirement was 60 years. The date of accident is 14.09.2013. So, as per the evidence of 1st petitioner the deceased was aged about 71 years.
36. So, even there is no supportive medical evidence on record with regard to the cause of death of the deceased, if the age of the deceased and the nature of injuries he has suffered in the alleged accident, the inpatient period are taken note off, the possibility of the death of the deceased because of the accidental injuries cannot be thrown out rightly.
37. However, even it is accepted that the death of the deceased because of the alleged accidental injuries, in view of petitioners failing to establish the involvement of the water tanker tractor in the accident and thereby the rash and negligent act of its driver in occurrence of the present accident, issue No.2 cannot be answered in favour of petitioners. Therefore, it is answered in negative.
38. ISSUE No.3:- In view of answering issue No.2 in negative, this issue does not survive for consideration. Accordingly, this issue is answered.
(SCCH-15) 19 MVC.3548/2014
39. ISSUE No.4:- From the above discussions, this Tribunal proceeds to pass the following order.
ORDER The present petition filed by the petitioners under Section 166 of MV Act is hereby dismissed.
In the circumstances of the case, parties are directed to bear the costs of the petition on their own.
Draw a decree accordingly.
(Dictated to the stenographer, transcribed by her, corrected and then pronounced in the open Court by me on this the 28th day of October, 2015.) (K.KATYAYINI), XIII Addl. Judge & Member MACT Court of Small Causes, Bengaluru.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PETITIONERS:
PW1: T.D. Lalithambike LIST OF WITNESSES EXAMINED ON BEHALF OF RESPONDENT: RW1: Smt. B.S. Kusumavathi RW2: Gururaj T.S. LIST OF DOCUMENTS EXHIBITED ON BEHALF OF PETITIONERS:
Ex.P1 : True copy of FIR with Complaint, Ex.P2 : True copy of spot mahazar, Ex.P3 : True copy of spot sketch, (SCCH-15) 20 MVC.3548/2014 Ex.P4 : True copy of IMV report.
Ex.P5 : True copy of charge sheet,
Ex.P6 : True copy of wound certificate,
Ex.P7 : Referral letter,
Ex.P8 : Discharge summary,
Ex.P9 : OPD book,
Ex.P10 : Hospital and medical bills (64 in nos.) amounting
to Rs.1,05,915/-,
Ex.P11 : Prescriptions (14 in nos.),
Ex.P12 : Electro cardiogram,
Ex.P13 : Certified copy of death certificate,
Ex.P14 : Salary certificate.
LIST OF DOCUMENTS EXHIBITED ON BEHALF OF RESPONDENT:
Ex.R1 : Authorization letter Ex.R2 : Certified copy of driving license extract pertains to Santhosh Kumar M.R. Ex.R3 : Authorization letter Ex.R4 : True copy of policy, Ex.R5 : Office copy of letter dtd.11.08.2015 sent to 2nd respondent the RC owner, Ex.R6 : Postal acknowledgment.
Ex.R7 : Postal acknowledgment
(K.KATYAYINI),
XIII Addl. Judge & Member MACT
Court of Small Causes,
Bengaluru.