Bangalore District Court
Smt. Chikkanarasamma vs Sri Kalaiah on 30 May, 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 30th DAY OF MAY 2016.
MVC.No.398/2013
****
PETITIONER: Smt. Chikkanarasamma,
W/o Chikkathimaiah,
Aged 48 years,
Residing at No.80,
Pipeline road,
Vinayaka School,
Sunkadakatte,
Bangalore - 560 091.
And also
Rajapura Village,
Tumkur Taluk and District.
(By pleader Sri B.H. Chikkanna)
Vs.
RESPONDENTS: 1. Sri Kalaiah,
S/o Kalaiah,
Major in age,
Resident at Kamakshi Temple Road,
Hebbur, Tumkur Taluk and District.
(RC owner of Hero Honda Motor cycle
bearing Reg. No.KA-06-S-9506)
(By pleader Sri Krishne Gowda G.N.)
2 MVC.398/13
SCH-16
2. The Regional Manager,
The Oriental Insurance Co. Ltd.,
No.44/46, Leo Shopping Complex,
Residency road cross,
Bangalore - 560 025.
(Insurer of Hero Honda Motor cycle
bearing Reg. No.KA-06-S-9506 vide
I/P No.423201/31/2013/7924 valid
from 19-10-2012 to 18-10-2013)
(By Pleader Sri D.M. Joshi)
JUDGMENT
This claim petition is filed by the petitioner under Section 166 of Motor Vehicles Act, 1989, claiming compensation of Rs.15,00,000/-for the injuries sustained in a road traffic accident happened on 04-11-2012.
2. The case of the petitioners, as set-out in the petition is as follows:
On 04-11-2012 at about 6.30 p.m., the petitioner was standing at Hebbur auto stand waiting the bus in front of Annapurneshwari Hotel. At that time the rider of the Hero Honda bearing registration No.KA-06-S-9506 came in a high speed rash and negligent manner endangering human life, without observing traffic rules and regulations and dashed against the petitioner. Due to impact of the said accident, the 3 MVC.398/13 SCH-16 petitioner fell down and immediately she was shifted to Government Hospital, Tumkur for first aid and thereafter to Victoria Hospital, Bangalore for further treatment, wherein the petitioner was admitted as an inpatient and it was confirmed she has sustained fracture of left femur. It is stated that, the petitioner has undergone surgery by closed reduction and internal fixation with interlocking nail on her left leg. The petitioner was advised to take nourishing food and medicines. It is further case of the petitioner that, she has spent huge amount towards her medicines and hospitalization and further she has to incur expenses for future treatment.
3. It is submitted that, prior to the date of accident, the petitioner was hale and healthy and doing sericulture and earning Rs.15,000/- per month. Due to the impact of the said accident, the petitioner permanently became disabled and lost her income.
4. It is submitted that, due to accidental injuries, the petitioner is put to untold hardship, discomfort and mental agony. She cannot sit properly, squat and climb stairs. She 4 MVC.398/13 SCH-16 had appointed an attendant during her hospitalization and spent considerable amount.
5. It is stated that, the Hebbur Police have registered a case against the rider of the motor cycle bearing No.KA-06-S- 9506 in their Crime No.231/2012 for the offences punishable under Section 279 and 337 of IPC. The first respondent is owner of above said motor cycle, whereas the second respondent is the insurer. Therefore, both respondents are jointly and severally liable to pay compensation and prayed to allow the petition.
6. In response to the notice, both respondents appeared and filed their objections as under.
7. The first respondent contended that, the accident took place only due to the negligence of the petitioner and not due to the negligence of the rider of the offending motor cycle. The first respondent denied that, the petitioner has sustained injuries in the accident and took treatment by spending huge amount. The first respondent further denied that, the petitioner was doing sericulture and earning Rs.15,000/- per month. It is submitted that, the accident was caused by Hero Honda motor cycle bearing No.KA-06-S-9506 and it was 5 MVC.398/13 SCH-16 insured with the respondent No.2. Hence, it is respondent No.2 who is liable to pay compensation and prayed to dismiss the petition.
8. The respondent No.2 denied the alleged accident, involvement of the motor cycle bearing No.KA-05-S-9506. The respondent No.1 further denied the manner of accident, age, income and avocation of the petitioner. The respondent No.2 contended that, at the time of accident, the rider of the offending vehicle did not possessed the valid and effective driving licence and there was no valid FC. Hence, petition is liable to be dismissed. It is contended that, there is a delay of 10 days in lodging the complaint and reasons for delay has not been explained. The respondent contended that, as per the sketch there is no bus stop, if the petitioner is standing on the foot path, the alleged accident could not have occurred. Hence, it is the petitioner who is responsible for the accident. It is contended that, as per the medical records as well as police investigation records, the alleged accident occurred on 2 different vehicles. The vehicles mentioned by 2 authorities are different numbers. Hence, the involvement of the vehicle bearing No.KA-06-S-9506 is doubtful and 6 MVC.398/13 SCH-16 suspicious and it is not involved in the alleged accident. The respondent No.2 contended that, immediately after the accident, the respondent No.1 has not intimated about the accident and jurisdictional police have not supplied necessary documents. Thereby, there is a violation of Section 134(C) and 158(6) of M.V. Act. Hence, on all these grounds the respondent No.2 prayed to dismiss the petition with costs.
9. On the basis of the above pleadings, my predecessor in office has framed the following:
ISSUES
1. Whether the petitioner bodily wounded in a Road Traffic Accident that occurred on 04-11-2012, at about 6.30 p.m., on Tumkur-Kunigal road, Hebbur bus stand, in front of Annapurneshwari Hotel, Hebbur, Tumkur Taluk and District, due to use and negligent act of Hero Honda bearing registration No.KA-06-S-9506 ridden by its rider?
2. Whether the petitioner is entitled for compensation? If so, to what extent and from whom?
3. What order or award?
10. The petitioner was examined as PW1 and got marked documents at Ex.P1 to Ex.P10. The doctor was examined as PW2 through him Ex.P11 to Ex.P13 are marked. 7 MVC.398/13
SCH-16 The eye witness was examined as PW3 and got marked at Ex.P14. The official of the respondent No.2 company examined as RW1 and got marked Ex.R1 to Ex.R5.
11. I have heard the arguments and perused materials on record.
12. 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 Does not survive for consideration.
Issue No.3: As per final order for the following.
REASONS
ISSUE NO.1:
13. In this case, the respondent No.2 has seriously disputed the involvement of motor cycle bearing No.KA-06-S- 9506 in the accident. Hence, it is bounden duty of the petitioner to prove that, she met with the accident by the motor cycle bearing No.KA-06-S-9506 and sustained injuries. The petitioner has reiterated the petition averments in her examination-in-chief. She has deposed regarding the manner of accident, injuries sustained by her, treatment taken by her 8 MVC.398/13 SCH-16 in the hospital and also expenses incurred for her treatment. She has deposed that, against the rider of the respondent No.1, the jurisdictional police have filed criminal case and accident was due to his rash and negligent riding.
14. Apart from the above said oral evidence, the petitioner has got marked documents such as FIR and complaint at Ex.P1, mahazar and sketch at Ex.P2, IMV report at Ex.P3, wound certificate at Ex.P4, discharge summary at Ex.P5, charge sheet at Ex.P6, rent agreement at Ex.P7, 64 medical bills of Rs.46,023/- at Ex.P8, 48 prescriptions at Ex.P9 and election ID card at Ex.P10.
15. Per contra, the respondent's official was examined as RW1 who has stated that, there is a delay of 10 days in lodging the complaint and the alleged vehicle bearing No.KA- 06-S-9506 is not at all involved in the accident. She has produced the authorization letter at Ex.R1, copy of policy at Ex.R2, MLC extract at Ex.R3, wound certificate at Ex.R4 and letter written to the insured at Ex.R5.
16. The complaint and FIR marked at Ex.P1 reveals that one Gangadharaiah, son of Chikkathimmaiah lodged the complaint stating that, on 04-11-2012 the petitioner was 9 MVC.398/13 SCH-16 waiting for the bus at Hebbur auto stand, in front of Annapoorneshwari Hotel, at that time the rider of the motor cycle bearing No.KA-06-S-9506 came in a rash and negligent manner and dashed against the petitioner because of which the petitioner sustained injuries. In the complaint it is stated that, as there were nobody to look after the petitioner. Hence, there is a delay in lodging the complaint. On the basis of this complaint, FIR was came to be lodged by the Hebbur Police against the rider of the motor cycle bearing No.KA-06-S-9506 in their Crime No.231/2012 for the offences punishable under Section 279 and 337 of IPC.
17. In the cross examination, PW1 has stated that her children have lodged the complaint before Hebbur Police Station and it was lodged after 8 days. She stated that, as she was in treatment, the complaint was lodged belatedly. She admitted that, she has not explained the delay in lodging the complaint in her petition. She stated that, as on the date of accident, she was moving from Sunkadakatte to Rajapura and waiting for the bus. She stated that, there is no bus stop shed and the mud road is of about 1 feet. The PW1 was suggested that, at the time of accident, she was standing on 10 MVC.398/13 SCH-16 the road and as such the accident took place which is denied. She clearly stated that, she cannot identified the vehicle which struck her and her children informed in Tumkur Hospital about the vehicle particulars. Further, the PW1 has clearly admitted Chikka Gangaiah is her son and he was not with her at the time of accident. She stated that, the driver had admitted her to the hospital. Further, PW1 has stated that, she was standing in the edge of the road. She stated that, said road is double road and she was not crossing the road at the time of accident. She stated that, immediately after the accident, she became unconscious. Therefore, she could not give the vehicle number. She further stated that, she does not know who has given vehicle number to her son. It was suggested to PW1 that, if she was standing on foot path, the accident could have avoided which is denied. It is also suggested that charge sheeted vehicle is not the offending vehicle, but some other vehicle is responsible for the accident, the said suggestion was also denied. It is suggested to PW1 that, the vehicle number mentioned in the wound certificate is the offending vehicle which is denied. She stated that, she was shifted from Tumkur Hospital to Bangalore 11 MVC.398/13 SCH-16 hospital and x-ray was taken at the said hospital. Various suggestions were put to PW1 that, as per Ex.P5 she has not taken treatment and rent agreement is concocted, the said suggestions were denied. The rest of the cross examination is with respect to medical bills and hospitalization expenses and with also in respect of income and avocation.
18. The eye witness by name Chikkagangaiah, son of Chikkathimmaiah was examined on behalf of the petitioner as PW3 who has stated that, at the time of accident, he was standing at Hebbur Auto stand along with petitioner waiting bus in front of Annapoorneshwari Hotel, at that time the rider of the Hero Honda bearing No.KA-06-S-9506 came in a rash and negligent manner and dashed against the petitioner, because of which, the petitioner sustained injuries. He has stated that, against the rider of the said motor cycle, the jurisdictional police have lodged the FIR. He has produced the MLC extract which is marked at Ex.P14 and his signature at Ex.P14(a).
19. In his cross examination PW3 stated that, on the date of accident, he was accompanying the petitioner and other public were also present. He stated that, his brother 12 MVC.398/13 SCH-16 has lodged the compliant after 10 days of accident. He has stated that, he has narrated the accident to the complainant and also the manner, registration number of the vehicle which caused the accident in the hospital and also to the complainant. He stated that, in MLC register he has noted the vehicle which caused the accident and narrated manner of accident and also the vehicle which caused the accident. PW3 has stated that, he has not lodged the complaint against the offending vehicle after the accident and has stated about the registration number of the vehicle to the doctor at the hospital and accordingly they have entered the same in their register. He has stated that, his statement was recorded by the police, but failed to produce the said statement.
20. Let me appreciate both oral as well as documentary evidence on record. As per the complaint, the vehicle which caused the accident it bears registration No.KA-06-S-9506. The learned counsel for the petitioner during the course of his arguments submitted that, in wound certificate Ex.P4, the vehicle number was wrongly mentioned. Except in wound certificate in all records the vehicle number which caused the accident mentioned as bearing No.KA-06-S-9506 and PW3 13 MVC.398/13 SCH-16 has stated that, the same vehicle was involved in the accident. The respondent No.2 has not taken a contention in written statement as to the non involvement of the motor cycle and respondent No.1 at column No.5 of the objections admitted the involvement of the motor cycle in the accident. Per contra, the learned counsel for the respondent No.2 has argued that, there is a delay of 10 days in lodging the complaint and as per MLC register and wound certificate motor cycle bearing No.KA-06-S-6505 was involved in the accident, PW3 eye witness has not stated that, he has wrongly stated the vehicle number at the time of entering into the MLC extract. Hence, he argued that, the above said vehicle is not involved in the accident.
21. I have tested the above said rival contentions urged by both the counsel with materials on record. When written statement of the respondent No.1 is carefully perused, at para No.5 he has stated that, he is the registered owner and as on the date of accident, the motor cycle bearing No.KA-06-S- 9506 was insured with the respondent No.2 and the rider of the said motor cycle was holding valid driving licence at the time of accident. Therefore, the second respondent is liable to 14 MVC.398/13 SCH-16 pay compensation. Therefore, at para No.5, the respondent No.1 has not admitted the involvement of the above said vehicle in the accident. But at para No.1 of his objections, the respondent No.1 stated that, on 04-11-2012 at about 6.30 p.m., when the petitioner was standing at Hebbur auto stand, in front of Annapoorneshwari Hotel, at that time, the rider of the Hero Honda bearing No.KA-06-S-9506 came in a rash and negligent manner and dashed against the petitioner. He further contended that, the accident took place due to negligence of the petitioner. Now, the question before the court is whether in view of said admission of the respondent No.1 about the involvement of the vehicle bearing No.KA-06- S-9506, the said vehicle was involved in the accident?
22. The PW1 in her cross examination clearly admitted that, the PW3 was not with her, when accident took place. PW3 in his cross examination has clearly admitted that, he has narrated the manner and also the number of the vehicle which caused the accident to the hospital authority and also to the complainant. Further, he has clearly admitted that, in MLC register, he has noted the vehicle number which caused the accident and narrated the manner of accident and also 15 MVC.398/13 SCH-16 the vehicle which caused the accident. He further stated that, he has stated the registration number of the vehicle to the doctor at hospital and accordingly they have entered the same in the MLC register. The petitioner has produced wound certificate marked at Ex.P4. In the wound certificate, the history of RTA was stated as RTA on 04-11-2012 at around 7.15 p.m., near Hebbur road while petitioner was walking hit by bike bearing No.KA-06-S-6505. Further, the petitioner has produced Ex.P14 which is MLC extract in which also the motor cycle number was mentioned as bearing No.KA-06-S- 6505. From the above said admission of PW3 and Ex.P14, it is quite clear that, after the accident PW3 has clearly stated the manner of accident as well as vehicle which caused the accident. When, evidence of PW3 is carefully examined nowhere PW3 has stated that, he has wrongly stated about the registration number of the vehicle which caused the accident. Ex.P14 bears signature of the PW3 which is marked at Ex.P14(a). PW3 himself has admitted that, immediately after the accident, he has narrated the manner of accident, also the registration number of the vehicle which caused the accident. If at all the vehicle bearing No.KA-06-S-9506 was 16 MVC.398/13 SCH-16 involved in the accident, the same should have been stated by the PW3 in the wound certificate and at the time of admitting the petitioner in the hospital, but it is to be noted that, as per Ex.P14, Ex.R3 and Ex.R4, the vehicle which caused the accident stated as vehicle bearing No.KA-06-S-6505. Though, the PW3 was examined, but he has clearly admitted that, in the hospital he has stated the vehicle number which caused the accident, so also the manner of accident. Therefore, there was no impediment for PW3 to say at the time of admitting the petitioner in the hospital that, vehicle bearing No.KA-06- S-9506 was involved in the accident. The MLC register and wound certificate are primary documents in which the vehicle number which caused the accident mentioned as bearing No.KA-06-S-6505. No doubt in all the documents the vehicle number which caused the accident shown as No.KA-06-S- 9506, but as per MLC extract and wound certificate, the vehicle which caused the accident is shown as bearing No.KA- 06-S-6505. When primary documents such as MLC extract, wound certificate reveals that the accident was caused by the motor cycle bearing No.KA-06-S-6505, how the police records have registered case against the vehicle bearing No.KA-06-S- 17 MVC.398/13
SCH-16 9506 has not been made clear by the petitioner. The petitioner has not examined the investigation officer to explain how the I.O., has filed charge sheet against the vehicle bearing No.KA-06-S-9506. The PW3 has clearly admitted that, he has narrated the registration number of the vehicle which caused the accident at the hospital authorities and as per his information MLC was registered. But on careful perusal of the MLC extract, it is mentioned that, the vehicle bearing No.KA-06-S-6505 was involved in the accident. Therefore, the MLC extract and wound certificate being the primary documents reveals that, the motor cycle bearing No.KA-06-S-6505 involved in the accident. Though, the PW3 was examined before the court, but in his entire evidence, he has not stated that, by mistake the vehicle number has been wrongly stated by him and same has been entered in the wound certificate as well as in MLC extract. Therefore, all these circumstances creates doubt as to the involvement of the vehicle bearing No.KA-06-S-9506.
23. The learned counsel for the petitioner has pressed into service rulings reported in 2011 ACJ 911 between Ravi vs. Badrinarayan and others, 2011 ACJ 2350 between 18 MVC.398/13 SCH-16 Bangalore Metropolitan Transport Corporation vs. Pullaiah, wherein the Hon'ble Apex Court held that, the delay in lodging the complaint is not fatal to the case of the petitioner. I have carefully perused the facts of the above said 2 cases. In the above said first ruling, the minor was involved in the accident and it was held that, the petitioner being the father will give preference to the treatment of the petitioner rather than lodging the complaint immediately. But in this case, even though there is a delay of 10 days in lodging the complaint, but as per MLC extract and wound certificate the vehicle bearing No.KA-06-S-6505 was involved in the accident. Therefore, the said ruling cannot made applicable to the case on hand. Further, the another ruling relied upon by the learned counsel for the petitioner reported in AIR 2011 SC 671 between Saroj and others v. Het Lal and others. The Hon'ble Apex Court held that, the owner of the vehicle when admitted in his written statement about the involvement of the vehicle and the said admission is sufficient to hold that, the accident occurred by the involvement of the said vehicle and the admission was never traversed by the owner. Therefore, the matter was remitted back to the Tribunal. But 19 MVC.398/13 SCH-16 in this case, the respondent No.2 has seriously disputed the involvement of the vehicle. As per Ex.P4 and Ex.P14, the motor cycle bearing No.KA-06-S-6505 was involved in the accident. Even though in this case respondent No.1 has admitted the involvement of the vehicle bearing No.KA-06-S- 9506, but respondent No.1 has not contested the matter and respondent No.2 has filed application under Section 170 of M.V. Act which came to be allowed and respondent No.2 was allowed to take all defences whatever available to the owner of the vehicle. Though, PW3 was examined, but his evidence has not inspired the confidence of the court that, the vehicle bearing No.KA-06-S-9506 was involved in the accident. Therefore, the said ruling is also does not comes to the aid of the petitioner. The learned counsel for the petitioner had also pressed in to service ruling reported in ILR 1996 KAR 161 between Meenakshamma vs. Hanumanthappa, wherein at para No.6 of the said judgment Hon'ble High Court held that, failure on the part of the medical officer to exercise primary duty to report the lego-medical case to the police is also no circumstances to deny the claim of the claimant if the evidence on record establishes the claim on acceptable 20 MVC.398/13 SCH-16 evidence. I have carefully perused the entire fact of the case, but in the present case on hand the duty doctor has given intimation about the accident and MLC as per Ex.P14 came to be lodged by the duty doctor. Hence, the said ruling cannot made applicable to the case on hand. Therefore, the above said discussions makes it very clear and creates doubt as to the involvement of the motor cycle bearing No.KA-06-S-9506 in the accident. Viewed from any angle the case of the petitioner cannot be believed as stated in the petition. Hence, I answer Issue No.1 in the Negative.
24. ISSUE NO.2:
In view of my finding on issue No.1, question of discussing Issue No.2 will not arise and accordingly I answer this issue as does not survive for consideration.
25. ISSUE NO.3:
In view of my above findings, I proceed to pass the following order:
ORDER The petition filed by the petitioner is hereby dismissed.21 MVC.398/13
SCH-16 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 30th day of May 2016) (SATISH.J.BALI) MEMBER:MACT, BANGALORE.
ANNEXURE List of the witnesses examined on behalf of Petitioner:
PW1 Smt. Chikkanarasamma PW2 Dr. B. Ramesh PW3 Sri Chikkagangaiah
List of the documents exhibited on behalf of Petitioner:
Ex.P1 True copy of FIR with complaint
Ex.P2 True copy of Mahazar with sketch
Ex.P3 True copy of IMV Report
Ex.P4 True copy of Wound Certificate
Ex.P5 Discharge summary
Ex.P6 True copy of Charge Sheet
Ex.P7 Original rent agreement for 11 months
Ex.P8 Total 64 medical bills of Rs.46,023/-
Ex.P9 Total 48 prescriptions
Ex.P10 Notarized copy of Election ID Card
Ex.P11 Entire case record
22 MVC.398/13
SCH-16
Ex.P12 Recent OPD
Ex.P13 Recent X-ray
Ex.P14 MLC extract
Ex.P14(a) Signature
List of the witnesses examined on behalf of Respondents:
RW1 Smt. Parimala List of the documents marked on behalf of Respondents:
Ex.R1 Authorization letter
Ex.R2 Policy copy
Ex.R3 MLC extract
Ex.R4 Wound certificate
Ex.R5 Letter written to the insured with
acknowledgment
(SATISH.J.BALI)
MEMBER:MACT, BENGALURU .