Bangalore District Court
S/O Nanjappa Shetty vs Icici Lombord Gen. Ins. Co on 4 July, 2016
BEFORE THE COURT OF SMALL CAUSES AND MOTOR
ACCIDENT CLAIMS TRIBUNAL, AT BANGALORE (SCCH-16)
PRESENT: SRI. SATISH J.BALI,
B.Com., LL.M.,
X Addl.Judge, Court of Small Causes
(SCCH-16) Bangalore.
DATED THIS THE 04th DAY OF JULY 2016.
MVC.No.48/2014
Sri Ramesh Rama,
PETITIONER: S/o Nanjappa Shetty,
Aged about 40 years,
No.3, 2nd Cross,
Singayyanapalya,
Bangalore - 560 048.
(Sri B.K. Vasudevamurthy,
Advocate)
Vs.
RESPONDENTS: 1. ICICI Lombord Gen. Ins. Co.
Ltd.,
No.69, 1st Floor,
SVR Complex,
Hosur main road,
Madivala, Bangalore.
(Sri B. Pradeep, Advocate)
2. Sri Vijaya Chaithanya,
S/o Uma Maheswara Rao,
Room No.328,
PG Medical Boys Hostel,
MCC Block,
Davanagere.
(Policy
No.3001/65859065/01/000)
(Exparte)
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JUDGMENT
This claim petition is filed by the petitioner under Section 166 of Motor Vehicles Act, 1989, claiming compensation of Rs.10,00,000/-for the injuries sustained in a road traffic accident happened on 12-01-2013.
2. The brief facts of the claim petition are as under:
On 12-01-2013 at about 6.00 p.m., the petitioner was proceeding on his motor cycle bearing No.KA-40-H-3399 on Mahadevapura ring road, near MTB Kalyanamantapa, cautiously by observing all traffic rules and regulations, at that time, the driver of one car bearing No.KA-17-M-7084 came in a rash and negligent manner, with high speed and dashed to the motor cycle of the petitioner from back side, because of which, the petitioner fell down and sustained fracture of second metacarpal left hand, fracture of right greater tubercity and abrasion all over the body. The petitioner was shifted to nearby Sriram Hospital, wherein he took first aid treatment and later on shifted to Hosmat Hospital, wherein he was an inpatient for a period of 5 days. In the said hospital, the petitioner underwent K-wire fixation 3 MVC.48/14 SCH-16 and has spent more than Rs.1,50,000/- towards medical and other allowances.
3. It is submitted that, prior to the date of accident, the petitioner was hale and healthy and was a Supervisor in Shahi Garments and earning Rs.12,000/- per month. Because of the above said accidental injuries, the petitioner became permanently disabled. The accident was due to rash and negligent driving of the driver of the above said car against whom the jurisdictional police have registered a case in their Crime No.18/2013 for the offences punishable under Section 279 and 338 of IPC. The respondent No.1 being the insurer and respondent No.2 being the owner of the above said car are jointly and severally liable to pay compensation and prayed to allow the petition.
4. In response to the notice, the respondent No.1 appeared, whereas respondent No.2 placed expired, as he failed to appear before the court.
5. The first respondent contended that, immediately after the accident, the respondent No.2 has not intimated about the accident and jurisdictional police have not supplied necessary documents. Thereby, there is a violation of Section 4 MVC.48/14 SCH-16 134(C) and 158(6) of M.V. Act. It is also the objections of the respondent No.1 that, the above said car was not at all involved in the accident and the driver of the car did not possessed valid and effective driving licence as on the date of accident. The respondent No.2 has handed over his vehicle to the person who did not possessed valid and effective driving licence as on the date of accident. The respondent No.1 contended that, there is a delay of 14 days in lodging the complaint and the above said car was falsely implicated by the petitioner colluding with the respondent No.2 and police. The respondent No.1 denied the age, income and avocation of the petitioner and also the manner of accident. The respondent No.1 has also denied the expenses incurred by the petitioner towards treatment. Hence, on all these grounds, the respondent No.1 prayed to dismiss the petition with costs.
6. On the basis of the above said pleadings and propositions of law, following issues have been framed:
1. Whether the petitioner bodily wounded in a Road Traffic Accident that occurred on 12-
01-2013, at about 6.00 p.m., on
Mahadevapura ring road, near MTB
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Kalyanamantapa, due to rash and
negligent driving of the driver of the car bearing No.KA-17-M-7084?
2. Whether the petitioner is entitled for compensation? If so, to what extent and from whom?
3. What order or award?
7. The petitioner examined himself as PW1 and got marked documents at Ex.P1 to Ex.P13. The doctor was examined as PW2 through him Ex.P14 and Ex.P15 are marked. The official of the respondent No.1 company examined as RW1 and got marked Ex.R1.
8. The learned counsel for the petitioner has filed his notes of arguments. The learned counsel for the respondent No.1 relied upon the below mentioned rulings in support of its case:
1) Civil Appeal No.3171/2009 between North West Karnataka Road Transport Corporation Vs. Gourabai and others.
2) MFA 794/2009 between M/s. Bajaj Allianz General Insurance Co. Ltd., Vs. Nagamma and others.6 MVC.48/14
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3) MFA 2782/2012 between Sri Ningachar Vs. Sri Mariswamy and another.
4) MFA 4446/2010 between Bajaj Allianz Gen. Ins. Co. Ltd., Vs. harish Kumar and others.
5) MFA 7991/2008 between Babu Vs. The Branch Manager, Bajaj Allianz General Insurance Co. Ltd., and another.
6) MFA 1519/2007 between United India Insurance Co. Ltd., Vs. Jali Siddappa and another.
7) MFA 5325/2011 between Mr. Siddachari Vs. Mr. Umesh N., and another.
8) 2012 Kant M.A.C. 200 (Kant) between ICICI Lombard General Insurance Co. Ltd., Vs. Lakshmamma and another.
9) I have heard the arguments and perused materials on record.
9. Having regard to the position of law laid down in the above said judgments, the petition is taken up for discussion.
10. By considering the evidence on record and because of my below discussed reasons, I answer the above issues in the following:
Issue No.1: In the Negative.
Issue No.2 In the Negative.
Issue No.3: As per final order for the following. 7 MVC.48/14
SCH-16 REASONS ISSUE NO.1:
11. In this case, the respondent No.1 has seriously disputed the involvement of the car bearing No.KA-17-M-7084 in the accident. The another contention of the respondent No.1 is that, the accident took place on 12-01-2013, the complaint was lodged on 26-01-2013, there is a delay of 14 days from the date of accident and no explanation was assigned for the said delay.
12. The petitioner has reiterated the petition averments in his affidavit filed by way of examination-in-chief as PW1. He has deposed regarding the manner of accident, injuries sustained by him, treatment taken by him at Sriram Hospital and Hosmat Hospital, about his avocation and income and loss of income due to accidental injuries.
13. Apart from the above said oral evidence, the petitioner has got marked documents such as FIR at Ex.P1, complaint at Ex.P2, charge sheet at Ex.P3, wound certificate at Ex.P4, spot sketch and panchanama at Ex.P5, IMV report 2 in nos. at Ex.P6 and Ex.P7, discharge summary of Sriram Hospital at Ex.P8, discharge summary of Hosmat Hospital at 8 MVC.48/14 SCH-16 Ex.P9, 27 medical bills amounting to Rs.79,518/- at Ex.P10, 17 prescriptions at Ex.P11, 4 advance paid receipts at Ex.P12 and 5 lab reports at Ex.P13.
14. Per contra, the official of the respondent No.1 company stepped into witness box and stated that, the above said car bearing No.KA-17-M-7084 was not at all involved in the accident and there is a delay of 14 days in lodging the complaint. He further deposed that, the above said car was falsely implicated by the petitioner colluding with the owner and the police and produced the copy of policy at Ex.R1.
15. On perusal of complaint marked at Ex.P2, it is quite clear that, as per the complaint, the accident took place on 12-01-2013 and complaint was lodged on 26-01-2013 and there is a prima-facie delay of 14 days in lodging the complaint. Further, on perusal of the entire complaint it could be seen that, no reasons for delay in lodging the complaint has been stated in the complaint itself. But, PW1 during the course of his cross examination has stated that, as the respondent No.2 assured to reimburse his medical expenses, there is a delay of 15 days in lodging the complaint. 9 MVC.48/14
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16. The learned counsel for the respondent No.1 company has submitted during the course of arguments that, there is a delay of 14 days in lodging the complaint, the reasons for the delay have not been stated by the complainant. Even after the discharge, the petitioner has not made any efforts to lodge the complaint and as per the IMV report, it is clear that, the above said car was not at all involved in the accident. Per contra, the learned counsel for the petitioner in his written notes of arguments submitted that, all the police records are against the above said car. The petitioner has sustained fractures due to the accident of the above said car and the PW1 during the course of his cross examination has stated the reasons for the delay in lodging the complaint. Hence, merely there is a delay in lodging the complaint, the petition cannot be straightly dismissed. He has relied upon the ruling reported in 2011 ACJ 911 between Ravi Vs. Badrinarayan and others. I have carefully perused the entire facts of the case. In the said case, the owner of the offending truck admitted the accident and father of the petitioner was an eye witness. Hence, the Hon'ble Apex Court held that, even though there is a delay in lodging the 10 MVC.48/14 SCH-16 complaint, as owner has admitted the accident. Hence, the delay in condoled and petition was allowed. But in this case, the respondent No.1 company has seriously disputed the involvement of the above said car in the accident. Such being the case, it is bounden duty of the petitioner to prove that, he has sustained injuries due to the rash and negligent driving of the car bearing No.KA-17-M-7084.
17. I have carefully perused the complaint, the friend of the petitioner by name one Mr. V. Manjunath has lodged the complaint stating that, on 12-01-2013 at about 6.00 p.m., when he was returning after completing the work in the factory in a van. The petitioner was proceeding on his motor bike bearing No.KA-40-H-3399, at that time, one car bearing No.KA-17-M-7084 came in a rash and negligent manner and dashed to the motor cycle of the petitioner from back side. Nowhere in the said complaint he has not stated the reasons for delay in lodging the complaint. Though, PW1 has stated that, as respondent No.2 has assured to reimburse all the medical expenses. Hence, there is a delay in lodging the complaint. But complainant in this case is none other than the friend of the petitioner. Though, the petitioner for waiting 11 MVC.48/14 SCH-16 the reimbursement of the medical expenses, but the complainant being the friend of the petitioner ought to have lodge the complaint immediately after the accident. But in this case, there is a delay of 14 days in lodging the complaint. Even as per the case of the petitioner, immediately after the accident, the petitioner was taken to Sriram Hospital, but he has not produced the MLC extract of the said hospital to show that, he has sustained injuries because of rash and negligent driving of the driver of the above said car.
18. In his cross examination PW1 has stated that, he has narrated the vehicle by which the accident caused in Sriram Hospital and he can produce the MLC extract of said hospital, but petitioner has not produced the said MLC extract of the hospital. However, the PW1 has admitted that, the reasons for the delay in lodging the complaint has not been stated in the complaint. Further, the PW1 stated that, he has not given his statement before the police and police have not come to the hospital. The PW1 failed to state the vehicle number and what was the result of criminal case. 12 MVC.48/14
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19. On the basis of the complaint lodged by the friend of the petitioner, FIR as per Ex.P1 came to be registered by the K.R. Puram Traffic Police in their Crime No.18/2013 against the driver of the above said car for the offences punishable under Section 279 and 337 of IPC and Section 134(A) & (B) read with Section 187 of M.V. Act. The jurisdictional police have drawn spot sketch and panchanama as per Ex.P5, IMV report as per Ex.P6 and Ex.P7 and collected the wound certificate and thereby filed charge sheet as per Ex.P3 against the above said driver of the car. As per the averments of the complaint, the offending car dashed to the motor cycle of the petitioner from back side. The spot panchanama also reveals that, the said car dashed to the motor cycle of the petitioner from back side. But the IMV report of the motor cycle Ex.P6 reveals that, the front head light assemble damaged. Front right side crash guard scratched. However, the Ex.P7 motor vehicles accidents report of the offending car bearing No.KA- 17-M-7084 reveals that, it has sustained the following damages;
1) Rear left quarter panel damaged.
2) Left side both doors scratched and dented. 13 MVC.48/14
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20. If at all, as per the case of the petitioner, the front portion of the offending car dashed to the back portion of the motor cycle there must have been some damages or some scratches in the front portion of the offending car. But as per Ex.P7, the rear left quarter panel and left side both doors scratched and dented. If at all the offending car dashed to the back portion of the motor cycle of the petitioner, there must have been some damages to the front portion of the offending car. But in this case, the back portion and left side both doors were scratched and dented. This creates doubt as to the involvement of the above said car in the accident. Moreover, the petitioner has not produced the MLC extract or police intimation to show that, the above said car bearing No.KA-17- M-7084 caused the accident. The discharge summary merely reveals that, there was accident between car and two wheeler, but this discharge summary does not reveal the number of the car which caused the accident, so also Ex.P8 and Ex.P9 which are discharge summary of Sriram Hospital and Hosmat Hospital.
14 MVC.48/14
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21. It is to be noted that, as per the averments of the complaint, the complainant is eye witness to the accident. If he had really witnessed the accident, the petitioner ought to have examined the complainant in this case especially when there is a delay of 14 days in lodging the complaint. Further, the discharge summary Ex.P8 and Ex.P9 of Sriram Hospital and Hosmat Hospital reveals that, the petitioner was discharged on 13-01-2013 from Sriram Hospital and on 16- 01-2013 from Hosmat Hospital. The complaint was lodged on 26-01-2013 which does not disclose the reasons for the delay in lodging the complaint. The wound certificate marked at Ex.P4 simply reveals that, it is a case of road traffic accident on 12-01-2013 at 6.00 p.m. The vehicles involved in the accident have not been revealed in the wound certificate. As I have already discussed, the petitioner has not produced the MLC extract or police intimation which disclose that, immediately after the accident, the intimation of accident was given to the jurisdictional police. It is also to be noted that, the PW1 has admitted that, in Sriram Hospital, he has narrated the vehicle by which the accident was caused. If at all such being the case in the wound certificate or discharge 15 MVC.48/14 SCH-16 summary, the information of the vehicle which caused the accident should have been stated, but no such recitals are found in discharge summary of Sriram Hospital which could be seen in Ex.P8. Hence, even though the I.O, has filed charge sheet against the driver of the above said car bearing No.KA- 17-M-7084. But, mere filing of the charge sheet is not conclusive proof to come to the conclusion that, the above said vehicle was involved in the accident.
22. One more circumstances which creates doubt as to the case of the petitioner is as per Ex.P6 and Ex.P7 motor vehicles accident report reveals that, the motor cycle of the petitioner was inspected on 28-01-2013, whereas the offending car was inspected on 30-11-2013. There is a delay of more than 10 months in conducting the motor vehicle inspection in respect of the offending car. This aspect also creates the doubt of the case of the petitioner. Hence, viewed from any angle, the petitioner has failed to prove the involvement of the above said car in the accident and also he has failed to prove that, he has sustained injuries due to the rash and negligent driving of the driver of the car bearing 16 MVC.48/14 SCH-16 No.KA-17-M-7084 and accordingly I answer this issue in the Negative.
23. ISSUE NO.2:
When the petitioner has failed to prove the issue No.1, question of awarding any compensation to the petitioner will not arise for consideration. Hence, this issue is also answered in the Negative.
24. ISSUE NO.3:
In view of my above findings, I proceed to pass the following order:
ORDER The petition filed by the petitioner under Section 166 of M.V. Act is hereby dismissed.
No order as to cost.
Draw award accordingly.
(Dictated to the stenographer, transcribed by him, corrected and then pronounced in the open court this the 04th day of July 2016) (SATISH.J.BALI) MEMBER:MACT, BANGALORE.17 MVC.48/14
SCH-16 ANNEXURE List of the witnesses examined on behalf of Petitioner:
PW1 Sri Ramesh Rama PW2 Dr. S.A. Somashekar
List of the documents exhibited on behalf of Petitioner:
Ex.P1 True copy of FIR Ex.P2 True copy of Complaint Ex.P3 True copy of Charge Sheet Ex.P4 True copy of Spot sketch and panchanama Ex.P5 True copy of Wound Certificate Ex.P6 & True copy of IMV Report Ex.P7 Ex.P8 Discharge summary of Sriram Hospital Ex.P9 Discharge summary of Hosmat Hospital Ex.P10 27 Medical bills amounting to Rs.79,158/- Ex.P11 17 Prescriptions chits Ex.P12 4 Advance paid receipts Ex.P13 5 Lab reports Ex.P14 OPD card Ex.P15 9 X-rays
List of the witnesses examined on behalf of Respondents:
RW1 Sri Jithin Kumar K.G.
18 MVC.48/14
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List of the documents marked on behalf of Respondents:
Ex.R1 True copy of Policy
(SATISH.J.BALI)
MEMBER:MACT, BENGALURU .