Bangalore District Court
Sri.M.Ashok vs Sri.R.Nandeepa on 30 December, 2022
KABC020306562018
IN THE COURT OF III ADDL.JUDGE AND MOTOR
ACCIDENT CLAIMS TRIBUNAL, COURT OF SMALL
CAUSES
BENGALURU (SCCH18)
Dated: This the 30th day of December 2022
Present: V.NAGAMANI
B.A.L., LL.B., LL.M.,
III ADDL. JUDGE &
MEMBER, MACT
COURT OF SMALL CAUSES,
BENGALURU.
M.V.C.No.7279/2018
Petitioner 1. Sri.M.Ashok,
S/o Munirajappa,
Aged about 34 years,
R/o Dyapasandra Village,
Malur Taluk,
Kolar District.
Since dead by LRs'
1(a). Smt.R.Suvarna,
W/o Late. M.Ashoka,
Aged about 32 years,
1(b). Master A. Chiru,
S/o Late M.Ashoka,
Aged about 13 years,
1(c). Master
2 SCCH-18 MVC 7279/2018
D.A.Shashikumar,
S/o Late M.Ashoka,
Aged about 11 years,
Petitioners No.1(b) & 1(c) are
minors, represented by their
mother / Natural guardian.
1(d). Smt.Govindamma
W/o Late Munirajappa,
Aged about 50 years,
All are residing at
Dyapasandra Village,
Kasaba Hobli,
Malur Taluk,
Kolar District.
(By Pleader Sri. T.V.Ramesh)
V/s
Respondents 1. Sri.R.Nandeepa,
S/o Ramanna,
Major,
R/o Dyapasandra Village,
Malur Taluk,
Kolar District.
(By Pleader Sri.B.M.Ramesh)
2. The New India Assurance
Company Limited,
Motor TP HUB,
Mahalakshmi Chambers,
No.9, 2nd Floor, M.G.Road,
Bengaluru 560001.
(By Pleader Smt.T.N.Malathi)
3 SCCH-18 MVC 7279/2018
*J U D G M E N T*
This judgment is emerged consequent upon the
petition filed by the petitioner M.Ashok U/S 166 of
M.V. Act, claiming compensation of Rs.40,00,000/
on account of injuries sustained by him, in a road
traffic accident. Subsequently, due to the death of
the petitioner, during the pendency of the
proceedings, his legal heirs were brought on record,
for final determination of the case.
*FACTS OF THE CASE IN NUTSHELL*
2. It is forthcoming in the petition averments
that, on 23.2.2018, at about 4.00 p.m. the petitioner
M.Ashok was proceeding in a motor cycle bearing
registration No.KA08W5783, as a pillion rider.
The said motor cycle was riding by one Nandakumar
near Hari bricks factory, Dyapasadra Village, Malur
Taluk, Kolar District. At that time, the rider of the
motor cycle was riding the same, in a rash and
negligent manner and dashed against the sheep,
4 SCCH-18 MVC 7279/2018
which was crossing the road abruptly. Consequently,
the petitioner had thrown out from the seat, in to a
ditch and sustained spinal cord injuries.
3. It is further stated that, immediately the
petitioner was shifted to the Government Hospital,
Malur. Thereafter, he was shifted to SNR hospital,
Kolar. Then, he was referred to Hosmat Hospital,
Bengaluru, wherein, he was admitted as an inpatient.
It is stated that, the petitioner had incurred huge
amount towards hospitalization, conveyance, medical
treatment and other incidental charges etc. It is also
stated in the petition that, prior to the accident, the
deceased petitioner was hale and healthy, aged about
34 years, painter, and was getting a salary of
Rs.20,000/ per month. Due to the accidental
injuries, he could not work as he was earlier.
4. It is alleged in the petition that, the accident
was occurred due to the rash and negligent act of the
rider of the motor cycle bearing registration No.KA
5 SCCH-18 MVC 7279/2018
08W5783. In this regard, case was registered
against the driver by the jurisdictional Malur Traffic
police as per Crime No.148/2018. As such, the
respondent No.1 being the owner and the respondent
No.2 being the insurer of the motor cycle bearing
registration No.KA08W5783 are jointly and
severally liable to pay compensation to the petitioner.
5. After registration of the case, as usual
notices were issued to the respondents. In response to
the notices, the respondents were appeared through
their respective counsel. The respondent No.1 was not
filed his written statement, in answer to the case of
the petitioner. On the other hand, the respondent
No.2 has filed its written statement, in answer to the
case of the petitioner.
6. In the written statement of the respondent
No.2, had contended that, the petition is not
maintainable either in law or on facts. And seriously
disputed about the involvement of the offending
vehicle in the accident. Further contended that, the
6 SCCH-18 MVC 7279/2018
accident was occurred on 23.2.2018. In this regard,
the complaint was filed on 21.3.2018. On the basis
of the said complaint, FIR was executed almost one
month after the accident. Further, contended that,
the rider of the offending vehicle had no valid and
effective driving license to drive the said vehicle. The
owner of the vehicle, knowingly and willfully
entrusted his vehicle to a person, who had no valid
and effective driving license to ride the said vehicle.
Further denied the age, occupation and income of the
petitioner. It is also contended that, neither the
owner of the vehicle nor the jurisdictional police have
complied the mandatory provisions of section 134(c)
and section 158(6) of the M.V. Act in furnishing the
better particulars. And stated that, the compensation
claimed by the petitioner is excessive, exorbitant and
unreasonable. With all these grounds, prayed to
dismiss the petition against their company.
7. It is relevant to note that, during the
proceedings of the case, the petitioner reported to be
7 SCCH-18 MVC 7279/2018
dead. Thereafter, through necessary application, his
legal heirs were brought on record, by making
necessary amendment, through due process of law.
And amended petition also been filed. Subsequently,
the respondent No.2, has filed the additional written
statement, stating that, there is one month delay in
filing the complaint, only to create documents. As per
pre hospital care record, summary regarding history
of accident as "C/o Fall victim", victim fall from
height before half an hour. This clearly establishes
that, the motor cycle was not at all involved in the
accident. The petitionerdeceased M.Ashok reported
dead on 1.11.2019 at about 5.00 p.m. in his house.
The death has been reported to the police only on
2.11.2019 at 12.00 p.m. The police have registered
an unnatural death report vide No.41/2019 and sent
the dead body for post mortem. And also contended
that, the P.M. report indicates severe burnt injuries.
In the restatement before the police, the wife of the
deceased has deposed that, her husband had set fire
8 SCCH-18 MVC 7279/2018
to the bed and bed sheet on which, he was sleeping
and that he sustained burnt injuries. Further, the
charge sheet filed by the police also, reveals the
incident of setting fire to the bed and the bed sheet.
Further contended that, the petitioner had fallen
from height initially, later he set fire to the bed and
bed sheet, while he was sleeping. As such, there is
no involvement of the offending vehicle in the
accident, as well as no nexus between the alleged
accident, and the death of the deceased. With all
these main grounds, prayed to dismiss the petition.
8. On the basis of the rival pleadings of both the
parties, for final determination of this case, earlier
following issues were framed;
*.ISSUES*
1. Whether the petitioner proves that
he had sustained grievous injuries in
an accident that was occurred due to
rash and negligent driving of the
rider of the Motorcycle bearing
registration No.KA08W5783 on
9 SCCH-18 MVC 7279/2018
23.02.2018 at about 04.00 P.M. near
Hari Bricks Dyapasandra Village,
Mallur Taluk, Kolar District ?
2. Whether the petitioner is entitled
for compensation as prayed for? If
so, at what rate? From whom?
3. What order or award?
* ADDITIONAL ISSUES*
1. Whether the respondent No.2
prove that, non involvement of the
insured vehicle in the accident and
petitioner was not sustained injuries
due to Road traffic accident ?
2. Whether the LRs of the deceased
petitioner prove that, there is a
direct nexus between the accidental
injuries and death of the petitioner
Shri M.Ashok?
9. In order to substantiate the case of the
petitioner Ashok during his lifetime relied on his
affidavit evidence on 29.7.2019, who examined as
PW1 in the case on hand. At the time of his evidence,
15 documents got marked as Ex.P1 to Ex.P15. And in
10 SCCH-18 MVC 7279/2018
support of the injuries sustained by him, placed the
evidence of Dr.Krishan Prasad as per PW2. And at
the time of evidence of PW2, 4 documents got marked
as Ex.P16 to Ex.P19. After the death of the
petitioner, necessary amendment was carried out by
bringing the legal heirs of the deceased on record. The
legal representative, who being the wife of the
deceased Ashok by name R. Suvarna was filed her
affidavit evidence as PW3. At the time of her evidence
8 documents got marked as Ex.P20 to Ex.P27, for
consideration. On completion of the arguments, when
the matter was posted for judgment, petitioner had
relied on the evidence of the owner of the offending
vehicle, by name Nandyappa S/o. Ravanna, who
examined as PW4, by filing necessary applications,
for reopening the stage of evidence, by permitting to
lead further evidence.
10. On the other hand, the respondent No.2
has examined Office Assistant GVK Ambulance
11 SCCH-18 MVC 7279/2018
Service, Bengaluru by name Hemanth Kumar as
RW1. At the time of his evidence, 2 documents got
marked as Ex.R1 & Ex.R2. This witness, except the
examination in chief evidence, not made an effort to
face cross examination. In addition to his evidence
Kapil Kumar V. Assistant Manager, GVK
Ambulance Service was examined as RW2. At the
time of his evidence, one document got marked as
Ex.R3. Further Dr.Syeda Shagufta Basu was
examined as RW3. At the time of her evidence,
document got marked as Ex.R3 (a) & Ex.R4. Apart
from their evidence, P.I of Masthi Police station by
name Vasanth was examined as RW4. At the time of
his evidence, document got marked as Ex.R5 to
Ex.R12. The respondent No.2 also examined P.I.,
Karnataka Lokayuktha, Koalr by name Anjinappa
K.S as RW5. At the time of his evidence, documents
got marked the documents as Ex.R13 to Ex.R20. In
support of the defenses of the respondent No.2, its
12 SCCH-18 MVC 7279/2018
Company Manager by name Radhika N. has been
examined as RW6. At the time of her evidence,
document got marked as Ex.R21 to Ex.R24.
Thereafter matter was set down for arguments.
11. The counsel for the petitioner and the
respondent No.2 had filed written arguments. At the
time of argument, and further arguments learned
counsel for the petitioners and the respondent No.2
have placed some authorities for consideration. With
due respect, I have gone through the propositions laid
down in the said authorities.
12. Consequently, on appreciation of the
evidence available on record, my findings to the
aforesaid issues are as follows:
Issue No.1: In the Negative.
Additional Issue No.1: In the Affirmative.
Additional Issue No.2: In the Negative
Issue No.2: In the Negative
Issue No.3: As per final order
for the following:
13 SCCH-18 MVC 7279/2018
R E A S O N S
ISSUE NO.1 & ADDITIONAL ISSUE NO. 1 AND 2:
13. These Three issues are interconnected with
each other. Hence, taken together for common
discussion, in order to avoid the repetition. Onus
probandi is on the petitioners, who are the legal heirs
of the deceased petitioner to prove the issue No.1 and
additional Issue No.2. On the other hand, onus shifts
on the responded No.2 to prove the additional issue
No.1.
14. Onus probandi is on the heirs of the
original petitioner by name Shri M.Ashok, have to
place, cogent and convincing evidence on the touch
stone of preponderance of probabilities, to the effect
that, during the lifetime of the deceased M.Ashok had
sustained grievous injuries in an accident which was
occurred due to rash and negligent riding of the rider
of the motor cycle bearing registration No.KA08
W5783. And due to the accidental injuries, the said
14 SCCH-18 MVC 7279/2018
Ashok had died during the proceedings of the case.
To discharge the burden lies on the petitioners, relied
on the evidence of PW1 to PW4, along with the
documentary evidence, marked at the time of their
evidence.
15. On the other hand, the respondent No.1
being the owner of the offending vehicle remained as
silent spectator without challenging the case of the
deceased petitioner. Subsequently, he was examined
by the petitioners as PW4. And the evidence given by
him, reflects that, he deposed, in support of the case
of the petitioners, and he is sailing on the same boat.
The respondent No.2 being the insurance company of
the offending vehicle, in support of the defenses
forthcoming in the written statement, relied on the
evidence of the RW1 to RW6 and relied on the
documentary evidence, as narrated above. And
strongly, disputed about the involvement of the
offending vehicle in the accident, and contended that,
there is no direct nexus between the accidental
15 SCCH-18 MVC 7279/2018
injuries of the petitioner and his subsequent death,
during the proceedings of the case. And also,
highlighted that, there is an inordinate delay in giving
first information about the accident.
16. Before discussion of the evidence given by
both the parties to the lis, it is necessary to reproduce
herein, what are all the material points highlighted
by both the learned counsel for the petitioners and
the respondent company, during the course of
arguments and also through their respective written
arguments. At the time of arguments the learned
counsel for the petitioner, canvassed the point that,
due to the accident in question, the petitioner had
sustained grievous injuries. Subsequently, he was
dead. As such, there is a nexus between the
accidental injuries and his death. In connection with
the injuries, the petitioners being the legal heirs of the
deceased petitioner had placed satisfactory materials
through medical documents and through the evidence
of the doctor. And highlighted the point that, while
16 SCCH-18 MVC 7279/2018
considering the claim petition, court has to see the
positive evidence available on record pertaining to the
accident and also involvement of the vehicle to cause
the said accident. And also by considering the nature
of the injuries and gravity of the injuries just
compensation has to be given to the claimants who
suffered consequent upon the death of the original
petitioner due to the injuries in the accident.
17. In support of the arguments canvassed by
the learned counsel for the petitioner relied on the
Authority reported in 1980 ACJ 435 between NKV
Brothers Private Limited Vs. K.Ammal. In this
case, it was observed that, "the Tribunal must take special
care to see that, innocent victim do not suffer and drivers and
owners do not escape from liability, merely because some doubt
or some obscurity their save in a plane cases. Culpability must be
inferred from the circumstance where it is fairly reasonable. The
court should not be succumbed to niceties, technicalities and
mystics may be. In 2009 SCJ 1725 (SC) between
Vimala Devi Vs. Himachal Road Transport
17 SCCH-18 MVC 7279/2018
Corporation. In the said case, it was held that, "it is
necessary to borne in mind that strict proof of accident caused by
the particular bus in particular manner may not be possible to be
done by the claimants. The claimants, were merely to establish
their case on the touch stone of preponderance of probabilities.
The standard of proof beyond reasonable doubt could not have
been applied." In another authority reported in ACJ
1995 =ACJ 1980 Gowhati in para No.6 it was held
that, 'the evidence should not be scrutinised in a manner as it is
done in a civil suit or a criminal case. In a civil case, the rule is
preponderance of probabilities and in a criminal case rule is
beyond reasonable doubt. It is not necessary to consider these
niceties in a matter of accident claim case in as much as it is
summary enquiry. If there is some evidence to arrive at finding
that itself sufficient. And doubt or suspicion should weigh with
the Claims Tribunal in deciding a motor accident claims case."
18. Further, argued that, entire case of the
respondent No.2 is around ambulance and author of
the said document has not been examined. The
evidence of investigation officer clearly goes to show
that, involvement of the offending vehicle in the
18 SCCH-18 MVC 7279/2018
accident. And by relying on the authority reported in
2022 ACJ 170 it was argued that, "in Indian condition it
is not expected that, a person would rush to the police station
after the accident as the treatment of the victim is given priority
over lodging FIR. Same has been highlighted in Ravi Vs.
Badrinarayana case reported in 2011 ACJ 911
(SC).
19. In further written argument submitted by
the learned counsel for the petitioners stated that,
during the lifetime of the deceased M. Ashok being the
victim of the accident clearly narrated that, due to the
negligence on the part of the Shri Nanda Kumar
accident had taken place and the said accident was
witnessed by his brother by name Suresh. Evidence
of the PW1 during his lifetime, is material evidence on
the point of negligence and involvement of the vehicle
as well as the rider of the vehicle. the PW3 who is the
wife of the deceased is not an eye witness to the
accident at the time of her evidence by oversight she
has stated that, complaint was given against one
19 SCCH-18 MVC 7279/2018
Suresh and in her subsequent evidence in para No.5
she stated that, she gave complaint against one
Nanda Kumar, who was the rider of the offending
vehicle. Another point highlighted that, the RW2
being the Assistant Manager of GVK Ambulance
Services spoken only about the procedural aspects of
Ambulance services while shifting the injured. The
said witness was not in the vehicle at the time of
preparing prehospital care card. And the medical
technician Pushpa was not examined for
consideration. And also argued that, the weightage of
evidence before MACT is different from criminal
offences as it is beneficiary legislation and strict proof
of evidence is not required only preponderance of
probabilities is just and enough to claim
compensation.
20. Per contra, in the written argument of the
respondent No.2, strongly contended about the delay,
and the history of accident. And also about the nexus
between the injures and death of the Ashok. And
20 SCCH-18 MVC 7279/2018
stated that, the evidence of RW1 & RW2, and pre
hospital care record submitted as per Ex.R2, indicates
that, the deceased was conscious at the time of
shifting and he was accompanied by one Suresh who
is none other than his brother, who gave the first
information about the mishap of fall from height, the
same has been recorded in the report. These
documents and evidence gives correct picture that,
offending vehicle was implicated along with the rider
which are after thought to claim compensation and
the offending vehicle was fixed for unlawful gains. In
support of Ex.R2 when the RW2 was examined, his
evidence clearly speaks about fall from height and the
same has been confirmed by RW3. As such Ex.R3
dated 12.3.2018 is a created document indicating
history of accident as RTA with a question mark.
And also highlighted the point that either in the Malur
Government hospital or in the SNR hospital, MLC
pertaining to the accident in question was not
21 SCCH-18 MVC 7279/2018
executed, even the wound certificate was not issued
from these two hospitals.
21. Further, it is forthcoming in the written
argument that, in the evidence of the investigation
officer by name Vasanth who filed charge sheet,
deposed that, he had filed charge sheet based on the
statement of eye witnesses by name Shri Suresh and
one Narayanappa and also on the ground that, the
accused pleaded guilty before the criminal court. The
Suresh is the person who gave information about the
accident to 108 ambulance as the patient fall from
height. If at all, he was an eye witness to the
accident, he could have filed complaint well in time,
about the accident, this suspicious circumstance
clearly throw doubt in connection with the
involvement of the offending vehicle. And another
material point highlighted that, the respondent No.1,
rider of the offending vehicle, by name Nandakumar,
eye witnesses Suresh and Narayanappa are related to
each other to the deceased M.Ashok, the said point
22 SCCH-18 MVC 7279/2018
elicited at the time of crossexamination of PW1
during his lifetime. Added to this, it is also highlighted
that, mere conviction of the driver of the vehicle by
pleading guilty is not sufficient to assess the whole
situation in claim cases. After the death of the
petitioner Ashok, materials collected by the
investigation officer reveals that, due to severe burnt
injuries, he was dead and the P.M report also, reveals
the same. As such, there is no nexus between
involvement of the offending vehicle and injuries
sustained by the petitioner and also there is no nexus
between the accidental injuries and the death of the
deceased.
22. In support of the contentions of the
respondent No.2, relied on the circular of Government
of Karnataka Police Department dated 21.2.2013 with
respect to the exception from inclusion of names of
the paramedicals (emergency medical technician) and
the drivers (pilots) on duty as witness in FIR. And
also relied on the following authorities. 1. 2000 ACJ 1032
23 SCCH-18 MVC 7279/2018
in between United India Insurance Co. Ltd., Vs. Rajendra Sigh &
Others 2. MFA No.201689 /2016 (MV) in between Mahadevi and
Others Vs. Shivaputra & Another 3. ILR 2009 KAR 2921 in
between Bajaj Allianz General Insurance Company Limited Vs.
B.C.Kumar & Another 4. MFA No.31714/2009 C/W
31535/2009,MFA 30405/2010 & 30637/2010 (MV) in between
United India Insurance Co. Limited Vs. Sri Ninganna @ Ningappa
& Another 5. 2009 ACJ 293 in between Gurappa Vs.
Goudappagouda & Another
23. Through the aforesaid citations, highlighted
the point that, fraud and justice never dwell together and it
was observed that, the standard of proof in connection with the
claim petition is one of preponderance of probabilities. Mere
charge sheet is not substantive proof to come to the conclusion
and not sufficient to tip the balance only on the premise that,
insurance company has not dipped into its pocket to challenge
the charge sheet, what with the toxic nexus between the black
sheep among the police, medical professional and touts of every
kind masquerading the field which has become a notorious fact
of life and also observed that, the Tribunal should not place
implicit reliance only on the circumstance of the driver having
pleaded guilty before the criminal court and such an approach by
the tribunal will be not only an one sided approach but at the
24 SCCH-18 MVC 7279/2018
same time there is every likelihood of the pleading of guilty by a
driver before the criminal court having been obtained by
adopting various methods so as to ensure that, the claimant
succeeds before the MACT in getting compensation. MACT are
not only constituted to allow claim petitions which are genuine
in nature, but also at the same time the tribunal will have to
keep in view that, compensation should not be awarded
mechanically in every cases and to accept the case of the
claimant, as if all that, the claimant says about the accident and
the injuries is a truthful one. And also on the point of delay in
giving first information is concerned, if the information was not
given at the earliest point of time, that cannot be accepted.
24. Apart from this, the learned counsel for the
respondent No.2 relied on authority reported in, MFA
No.32579/2013 dated 22.9.2022 between
Vishwanath Vs Lal Ahmad and Others, In the said
case, the Honourable High Court of Karnataka came
to the conclusion, to dismiss the appeal on the
ground that, claimant has not adduced sufficient evidence to
prove that, he had sustained injuries in the road traffic accident.
And also relied on, MFA No.101318/2015 dated
25 SCCH-18 MVC 7279/2018
20.9.2022 between Neelavva Vs Yalagouda Rudra
gowda Melad led by Lrs., & another. In the aforesaid
case, the Honourable High Court of Karnataka had
observed that, fraud and justice should not dwell together
in claim petition. In another authority reported in ILR
2009 KAR 3562 between Veerappa & Another Vs.
Siddap & Another also it was observed that, fraud and
justice never dwell together. And direction was given to the
owner of the offending vehicle to pay compensation by
dismissing the case against the insurance company.
25. At the same time, learned counsel for the
petitioners at the time of further argument, relied on
the authorities reported in MFA No.9535/2011
between Smt. Nasim B and Others Vs Sri.N.Babu
and Others. It was observed that, mere relying upon
the entries made in the medical records is not proper.
26. In the light all these detailed arguments,
canvass by both the learned counsel along with the
propositions laid down in the authorities relied on by
26 SCCH-18 MVC 7279/2018
them, now it is incumbent upon the court, to assess
the evidence available on record carefully in order to
come to the proper conclusion with respect to the
above issues. The deceased petitioner M.Ashok
during his life time, in support of the case instituted
by him, and to prove all the assertions forthcoming in
the main petition averments relied on his affidavit
evidence, who examined as PW1 in the case on hand.
In his affidavit evidence, reiterated all the averments
made in the main petition. On the other hand, the
respondent No.1 being the owner of the offending
vehicle though appeared before the court at the
earliest point of time after receipt of notice, not made
an effort to adduce his evidence or to file written
statement in answer to all the allegations made by the
respondent No.2 company, in connection with the
involvement of the offending vehicle and about the
history of accident as well as death of the petitioner
but gave evidence as PW4 in support of the case of
the petitioners. The respondent No.2, as already
27 SCCH-18 MVC 7279/2018
discussed in detail above, relied on the evidence of
RW1 to RW6, along with the documentary evidence.
It is settled point that the trial is voyage of
discovery wherein the truth is the quest. In the
case on hand also, detailed discussions are required,
in order to come to the proper conclusion, in
connection with the above issues.
27. Firstly, it is to be discussed that, this case
was registered on the basis of claim petition filed by
the deceased petitioner during his life time, stating
that, on 23.2.2018 he sustained grievous injuries
while he was proceeding in a motor cycle bearing
registration No.KA08W5783 which was riding by
his relative by name Nandakumar and due to his
actionable negligence, on that fateful day he dashed
against a sheep and caused accident. Same thing is
narrated in the affidavit evidence of PW1. Along with
the evidence of the PW1, on perusal of the police
papers submitted by him, as per Ex.P.1 to Ex.P.8,
reflect that, alleged accident had taken place on
28 SCCH-18 MVC 7279/2018
23.2.2018. But first information in this regard was
given on 21.3.2018. In connection with this
inordinate delay in giving first information, reasons
set out in the Ex.P.3 column No.3 (c) as follows:
"ಫರರರದದರರರರ ತನನ ಗಗಡ ಅಶಶಶಶಕರವರಗಶ ಚಕತಶತ ಕಶಶಡಸರತತದರದ, ತಮಗಶ ತಳದವರರ ರರರರ
ಇಲಲದ ಕರರಣ ದಶರರ ನಶಡಲರ ವಳಗಬವರಗರರತಶತ".
28. On going through the aforesaid reason,
reveals that, no doubt the petitioner as per the
assertion forthcoming in the main petition sustained
grievous injuries, in such a situation one cannot
expect immediate complaint from the wife of the
deceased petitioner, well in time without providing
treatment to her husband. At the same time, one
more question would arises herein that, as per the
evidence of PW1, and PW3, the owner of the
offending vehicle, and its rider, as well as Suresh,
who accompanied the petitioner, and the eye
witnesses of the accident, as per the charge sheet, are
all the relatives of the petitioners, that too, the
witness Suresha is none other than the brother of
29 SCCH-18 MVC 7279/2018
the deceased Ashok, and as per the medical records
one Nagesh was accompanied the petitioner. Then,
what prevented to all these persons, to give first
information about the accident in question between
one or two days of the accident, if at all they were in
also busy in providing treatment to the petitioner. In
such a situation, the reasons set out in the Ex.P.1,
about 28 days delay in giving first information, will
not create confidence to accept the reasons set out in
the Ex.P.1. Another point to be discussed herein
that, if at all the family members of the deceased
petitioner were not given complaint then, why the
concerned police officials after getting the information
about the MLC, were not made an effort to approach
the hospital, wherein the petitioner was taking
treatment, to record his statement, in the form of
information, for getting the acutal reason for the
injuries sustained by him, and to set the criminal law
in motion, against the person who was responsible for
the accident, if really he sustained injuries in the
30 SCCH-18 MVC 7279/2018
alleged accident. All these doubtful circumstances
will not create confidence to say that, delay of 28 days
in giving first information is not fatal. As such, the
point of delay is to be considered along with other
facts and circumstances of the case in detail.
29. Another point to be discussed that, the
material document Ex.P.3, discloses that, after receipt
of the first information from the wife of the deceased
petitioner, criminal law set in motion against the
driver of the offending vehicle by name Nandakumar,
alleging that, he had committed the offences
punishable under Sec. 279 and 338 of IPC. In the
column No.10 of the Ex.P.3, name of the owner of the
vehicle has been mentioned as Nandakumar and the
rider's name also been noted as Nandakumar. Ex.P.1
and Ex.P.2 certified copy of the Order sheet
C.C.No.601/2018 and accusation framed by the said
court goes to show that, on 14.6.2018 the accused
Nandakumar/rider of the offending vehicle pleaded
31 SCCH-18 MVC 7279/2018
guilty before the criminal court and paid fine amount
as per the order of the Court. The evidence of PW3
and the pleading guilty of the rider of the offending
vehicle clearly evident that, they admitted the
accident and injuries sustained by the petitioner.
And they are the relatives of the deceased petitioner
as per the evidence of PW1 and PW3. As such,
genuineness of the case of the petitioner is to be
investigated in the case on hand by appreciating other
documentary evidence along with the evidence of
other witnesses, in order come to the fair conclusion.
Since, only on the point that, the accused pleaded
guilty, one cannot come to the conclusion with
respect to the claim petition, as the said documents
are not substantive piece of evidence.
30. As per the police papers, case was
registered on 21.3.2018 and the statement of the
injured - Ashok was recorded on 9.4.2018. In
connection with the delay of recording his statement
also, no supportive explanation is available in the
32 SCCH-18 MVC 7279/2018
prosecution papers. Ex.P.5 is the spot mahazar said
to have executed by the investigation officer on
21.3.208 in the presence of Suresh, Ramesh and
Muniraju, reflect that, after 28 days of the accident,
the investigation officer visited the spot and drawn
mahazar as per the information given by the
witnesses whose names are fully mentioned in the
spot mahazar. Added to this, the offending vehicle
was produced before the investigation officer by
bringing the same from the brick factory, which was
situated near to the accident spot and the said vehicle
was produced by the brother of the deceased
petitioner by name Suresh. This document goes to
show that, from the date of the accident, till it was
producing before the investigation officer, the said
vehicle was in the brick factory. Question would
arises herein, why the owner of the said vehicle was
not taken any steps to take the said vehicle from the
said brick factory to his custody, and why he has not
intimated same to the concerned police station and to
33 SCCH-18 MVC 7279/2018
the concerned insurance company about the accident.
This conduct of the RC owner of the offending vehicle
and silence on the part of the Suresh in giving first
information about the accident well in time, also
creates suspicious circumstances in the absence
convincing reasons.
31. Another document, Ex.P.6 report of the
Motor Vehicle Inspector speaks that, at the time of his
examination, found that, breaking system of the
vehicle were in order, and accident was not due to
any mechanical defect of the vehicle. The said
vehicle, said to have involved in the accident, also not
inspected well in time immediately after the accident.
As per the said document, after one month of the
occurrence of the accident vehicle was inspected.
This aspect also will not create confidence in
connection with the case of the petitioners, and about
the damages of the vehicle in question. Another point
to be noted herein that, from the date of the accident,
till the seizure of the offending vehicle, why the owner
34 SCCH-18 MVC 7279/2018
of the said vehicle was kept quiet without taking any
action for repairing the said vehicle. And why he was
not made an effort to give information about the
accident.
32. Another material document wound
certificate marked at Ex.P.7 issued from Hosmat
hospital goes to show that, on the history of RTA
Ashhok sustained injuries of traumatic paraplegia. As
per the record, on 24.2.2018, the petitioner had
approached the said hospital. And alleged accident
had taken place on 23.2.2018. It is material to note
that, if at all on 24.2.2018, the petitioner had
approached the said hospital, why intimation was not
sent to the concerned police station about the RTA
and why the statement of the injured or his relatives
who accompanied the petitioner were not taken well
in time, to set the criminal law in motion against the
person who committed the alleged accident which
said to have caused serious injuries to the petitioner.
As per the Ex.P.7, one Munirajappa was accompanied
35 SCCH-18 MVC 7279/2018
the petitioner. The said Munirajappa has been shown
as witness No.5 in the charge sheet. Why the said
Munirajappa was not made an effort give first
information about the accident, even after 24.2.2018
and the Ex.P.7 was issue on 26.4.2018 and the
same was received by the Investigation officer on
5.6.2018. And in some of the medical documents, it
was noted that, Suresh and Nagesh were
accompanied the injured.
33. Ultimately, on going through another
material document Ex.P.8charge sheet submitted by
the Investigation officer against Nandakumar @
Nandakumar S/o Donneppa reveals that, the
investigation officer after due investigation process
filed final report filed against him, alleging that, he
has committed the offences punishable under
Sec.279 and 338 of IPC. In the column No.17 of the
charge sheet it is noted that, accident had taken place
near the brick factory of one Rajendra. In order to
find out the truth about the accident, the
36 SCCH-18 MVC 7279/2018
investigation officer has not made an effort to examine
the said Rajendra in whose factory, offending vehicle
was kept till it was handing over to the investigation
officer at the time of mahazar process. Apart from
this, at the time of cross examination, stated that, the
said brick factory was belonged to Suresh.
34. Along with the police papers, on going
through the Ex.P.9, certificate of the Medical officer of
Kolar to the Medical officer of General Hospital of
Malur, reveals that history of accident had mentioned
as, "fall from the bike, by putting question mark".
In the discharge summary Ex.P.10 pertaining to the
Hosmat hospital reveals that, he took treatment as an
inpatient on 25.2.2018 to 7.4.2018. Though, in the
column of history, it was mentioned as RTA, on going
through the Ex.R.3 MLC extract pertaining to the
SNR hospital, Kolar speaks that, on the history of
RTA, the petitioner had sustained injuries. But in the
General hospital, Malur, history of injuries sustained
by the deceased petitioner was mentioned as self fall.
37 SCCH-18 MVC 7279/2018
And in the Ex.R.4 marked through RW3, also speaks
the recitals of Ex.R.3. But, the petitioners herein,
have not made an effort to place the wound certificate
issued by the earlier two hospitals, wherein he took
treatment before approaching the Hosmat hospital.
At least, the petitioners could have made an effort to
produce the medical documents pertaining to the
earlier two hospitals, to substantiate the genuineness
of the reasons for injuries sustained by the petitioner.
35. In support of the defence of the respondent
No.2, as already discussed above, placed the evidence
of RW1 and RW2. The RW1, except the part
examinationin chief evidence and production of the
Ex.R1 and Ex.R2, not appeared before the court to
complete the evidence process. Hence, his evidence
has no evidentiary value, as per evidence Act. But
in the evidence of RW2, Manager of GVK Ambulance
Service, in support of Ex.R.1 and Ex.R.2, stated that,
through ambulance service, injured Ashok was
shifted on 23.2.2018 to Malur Government hospital to
38 SCCH-18 MVC 7279/2018
SNR hospital, Kolar and one Nagesh was called the
said ambulance, stating that, one fall victim present
in the place and requested to shift him to the
hospital. Further, he deposed that, as per records of
Medical Technician present in the ambulance, in pre
hospital care record, noted that fall victim from a
height before an half an hour ago and also victim
was conscious and first aid was done by connecting
IVF. And further he deposed that, brother of the
petitioner by name Suresh gave information about the
accident as per Ex.R.2. And denied the suggestion of
other side that the Ex.R.2 is the created document.
Another witness RW3, Dr. Syeda deposed that, on
23.2.2018 at about 7.10p.m., the petitioner had
brought to the hospital from Malur Government
hospital, through ambulance and as per the
information given by one Nagesh, history of the
injuries noted in the Ex.R.2, and she stated that, in
the note of the Malur Government hospital history
mentioned as, self fall. And they gave intimation to
39 SCCH-18 MVC 7279/2018
the police. But no documents in this regard. And she
stated that, the police have not recorded the
statements of their hospital authority. At the time of
her crossexamination she stated that, on the basis of
information furnished by the patient and attendant,
she noted the history of injury of the petitioner.
36. It is material to note that, in connecting
with the history of the injuries sustained by the
petitioner, two sets of evidence forthcoming on record,
as per the evidence of RW2 due to fall from height,
the petitioner had sustained injuries. On the other
hand, as per the evidence of RW3, by getting
information from the petitioner and attendant they
noted the history as RTA and the police intimation
was sent. Herein, material question arises for
consideration that, if at all police intimation sent to
the concerned jurisdictional police station, why the
police authority have not approached the hospital to
record the statement of the injured to set the criminal
40 SCCH-18 MVC 7279/2018
law in motion against the person who committed the
accident, as discussed above.
37. Added to this, on going through the
evidence of PW2, who was examined to prove the
injuries sustained by the petitioner, deposed about
the treatment of the petitioner from 25.2.2018 to
7.4.2018 to the injuries sustained by him. According
to him, the petitioner is having whole body disability
at 83% and opined that, in future he cannot do any
work as he had functional disability at 100%. No
doubt, on going through the evidence given by the
PW2, the petitioner had sustained grievous injuries.
But, to come to the conclusion that, he had sustained
said injuries on the history of RTA, belated complaint
given by the wife of the petitioner and the on
appreciation of the medical documents in toto, will
not given access to come to the conclusion that, the
petitioner and subsequently the legal heirs of the
deceased petitioner had placed convincing evidence to
show about the involvement of the offending vehicle in
41 SCCH-18 MVC 7279/2018
the accident and the injuries sustained by the
deceased petition in the accident.
38. In support of this aspect, let me discuss the
evidence of PW3, being the wife of the deceased, who
gave evidence after the death of her husband stating
that, on the basis of her complaint Malur police have
registered the case against the rider of the motor
cycle, who pleaded guilty before the court and after
the death of her husband due to the accidental
injuries Malur police have registered UDR case
No.41/2019 under Sec. 174 of Cr.P.C. And she
stressed the point that, there was a direct nexus
between the accidental injuries and death of her
husband. In support of her evidence, she had
produced UDR report and her statement along with
PM report for consideration as per Ex.P.20, Ex.P.21
and Ex.P.27 along with this, she has produced
Ex.P.22 to Ex.P.26 respective Aadhaar cards of the
deceased and the petitioners to prove their
relationship with the deceased petitioner. On
42 SCCH-18 MVC 7279/2018
appreciation of the Ex.P.20, and Ex.P.21, contrary
versions could be seen, wherein she noted that, one
Suresh was riding the motor cycle and due to his
negligence, accident in question had taken place.
And she noted in the complaint due to the injuries
sustained by her husband she provided treatment to
him in SNR hospital, Kolar, Hosmat hospital,
Bengalur and St.Mary's hospital of Kolar, but no
fruitful result was found in respect to his treatment.
Subsequently, due to his pain and sufferings she got
admitted her husband in Malur Government hospital
on 30.10.2019, wherein also his treatment process
was not fruitful Thereafter, on 1.11.2019, Ashok
was brought from the hospital to home and due to
severe pain of back side on 23.2.2018 he was dead
in the home. No whisper in the said complaint about
setting fire and death of her husband. The said
complaint was given by her on 2.11.2019. On the
basis of the said complaint UDR case was registered.
43 SCCH-18 MVC 7279/2018
39. Along with the above discussion, on going
through the Ex.R.11 statement of eyewitness by
name Suresh recorded on 21.3.2018, narrated about
the manner of the accident. But, no whisper in his
statement that, why the complaint with respect to the
accident was not given well in time. And the said
statement was recorded at the time of drawing
mahazar process. Ex.R.12 is the statement of another
witness by name Narayanappa, who also gave
statement by following the statement of the Suresh.
According to him Nandakumar also sustained simple
injuries. To substantiate the same, no medical
records are available on record, to show that, due to
the accidental injuries rider of the offending vehicle
Nandakumar had taken treatment. It is one among
the material points to be noted herein that, in the
Ex.R.13, which is the complaint given by wife of the
deceased Ashok to the PSI of Malur police station
reflects that, due to severe back pain consequent
upon the accident, he had died. In the said
44 SCCH-18 MVC 7279/2018
document, she noted with respect to the cause of
death of her husband as follows:
" ತತರರಖಖ 30.10.2019 ರರದಖ ನನನರವವಗಳ ಸತಸಸಯತ ನರಳಖತಸದತದಗ, ನತನಖ ನನನ
ಗರಡನಖ ಮತಲಖರನ ಸರತರರ ಆಸಸತನತತರಗನ ದತಖಲಖ ಮತಢ ಅಲಲಬ ವನವರತಯರಖ
ಚಕತನತ ರನನಟಖಟ, ನನನ ಗರಡ ಚಕತನತಗನ ಸಸರದಸದದನ ತಜತನ ಕಳನದಖರನನರಡಖ ಅರನ ತಜತನ
ಇದದ ರತರಣ ಅಲಲನ ವನವದದರಖ ಚಕತತಯರದ ಯತವವದರ ಪಪಯರಜನ ಇಲಲ. ನರವವ
ನಮಮ ಗರಡನನಖನ ಮನನಗನ ಕರನದಖರನನರಡಖ ಹನನರಗ. ಎರದಖ ಹನರಳದ ಮರರನಗನ ದದ
1.11.2019 ರರದಖ ಮಧತದಹಹ 2.00 ಗರಟನಗನ ಮನನಗನ ತನಗನದಖರನನರಡಖ ಹನನರಗ
ಇಡಲತಗ ಸತಯರರತಲ 5.00 ಗರಟನ ಸಮಯದಲಲ ತತರರಖದ 23.2.2019 ರರದಖ ಆತ
ತರವಪ ಬನನನನ ಗತಯಗಳರದ ಮನನಯಲಲಯ ಮರಣ ಹನನರದರಖತಸರನ. ನನನ ಗರಡನ
ಸತವಗನ ಅಪಫತತದಲಲ ಆದ ಗತಯಗಳರದಲನರ ಸತವವ ಸರಭವಸರಖತಸದನ.
40. And in her further statement on 4.11.2019,
marked at Ex.R.14 discloses that, she gave distinct
version to the recitals of Ex.R.13 by stating as follows:
" ದನತರಕ 27.10.2019 ರರದಖ ರತತಪ 12.00 ಗರಟನಯ ಸಮಯದಲಲ ನನನ ಗರಡ
ಜರವನದಲಲ ಜಗಖಪನತ ಗನನರಡಖ ತನನಮಲಕ ತನನ ಹತಸಗನ ಮತಖಸ ಬನಡತ ಶರಟನಟ ಬನರಕ
ಹಚಚರನನರಡಖ ಆತನಗನ ಎರಡಖ ರತಲಖಗಳಗನ ಸಖಟಟ ಗತಯಗಳತಗದಖದ, ರನನಳನತದಖದ
ವತಸಯತಗದನ ಇದಖದದದರರದಖ, ಮರಲಲರಡ ಗತಯಗಳಖ ನರಜಖ ಉರಟತಗ ನನ ಗರಡ
ದದ 1.10.2019 ರರದಖ ಸರಜನ 5.00 ಗರಟನಯ ಸಮಯದಲಲ ಮಮತಪಟಟರಖತತಸರನ.
41. On the other hand, in the Ex.R.15 charge
sheet submitted by the investigation officer in
connection with UDR No.41/2019 noted that, the
death was caused due to the setting of fire and
infection caused to the deceased petitioner, resulted
45 SCCH-18 MVC 7279/2018
his death. And as per the report of the doctor
forthcoming in the PM report, as a result of infected
wound over both buttocks and limb resulted in cardio
respiratory arrest. UDR No.41/2019, inquest mahazar
and the statement of the witnesses, pre case diaries,
outpatient records and PM report marked at Ex.R.16
to Ex.R.20, go to show that, the witnesses who gave
statement at the time of inquest mahazar process are
son and brother of the deceased, who gave statement
in consonance with the statement of Smt. Suvarna
w/o of the deceased petitioner. As per the case diary,
statements of one Ramesh and Keshav also taken at
the time of inquest mahazar. But, their names are
not forthcoming in the charge sheet by showing them
as additional witnesses of the charge sheet.
42. Apart from this, it is also pertinent to note
that, after getting the information of subsequent
death of the deceased petitioner, no further action
was taken through due process of law, to file
additional chargesheet, by inserting offence of 304(A)
46 SCCH-18 MVC 7279/2018
against the rider of the offending vehicle. When really,
the Ashok had died due to the accidental injuries,
why the complainant and other witnesses who gave
statements in this regard, have not made an effort to
take steps against the rider of the offending vehicle,
due to his negligence accident in question had taken
place, which caused ultimate death of Ashok.
43. Along with the above discussion, on going
through the evidence of RW4 by name Vasanth who
filed charge sheet in connecting with this accident,
during the course of his evidence, produced Ex.R.5 to
Ex.R.12 for consideration, which are the replica of the
police documents, submitted by the petitioners. And
another witness Anjinappa K.S, deposed in
connection with registration of UDR No.41/2019and
deposed that, he investigated the matter and final
report as per No.36/2019. And also produced the
documents pertaining to his investigation process.
Another witness, RW6 at the time of her evidence,
gave evidence in connection with the defenses
47 SCCH-18 MVC 7279/2018
forthcoming in the written statement, and produced
the documentary evidence, to show that, in
connection with this case, the company gave notice to
the owner of the vehicle, said to have involved in the
accident, but not reply from the side of the owner.
44. Overall discussion of examination in chief
evidence and the documentary evidence placed by
both the parties to the petition in support of their
rival contentions, it crystal clear that, there is an
inordinate delay in giving first information about the
accident. No satisfactory reasons forthcoming in the
evidence of PW1 and PW3, to come to the conclusion
that, point of delay is not fatal in the case on hand as
already discussed above. The statement of the
witnesses available on record and the evidence given
by the RW4 reveal that, they are all the relatives of
the deceased petitioner and his family. In connection
with the history of injuries sustained by the petition
and the reasons forthcoming in the statements of the
witnesses with regard to the subsequent death of the
48 SCCH-18 MVC 7279/2018
Ashok go to show that, earlier at the time of shifting
the injured to the hospital gave history to the effect
that fall from height. To eradicate this, the petitioners
have not made an effort to place convincing evidence
to show that, due to the injuries sustained in the
accident, the petitioner had sustained injuries though
some of the medical records are available on record
contradictory statements could be seen and as
already discussed above, to show that, there was a
direct nexus between the accidental injuries and the
death of the Ashok, no satisfactory evidence is
available on record. After the death of Ashok, though
the PW2 gave further evidence, his evidence will not
reveal clear picture to come to the conclusion that,
due to the accident, the petitioner had sustained
injuries. And also, no convincing evidence about the
involvement of the offending vehicle, in the accident,
but, gives indication that, there was a collusion
between the petitioners and the owner of the vehicle
in question, in the case on hand. Along with all these
49 SCCH-18 MVC 7279/2018
aspects, let me to discuss the answers given by the
witnesses at the time of their respective cross
examination, in order to come to the proper
conclusion.
45. At the time of crossexamination of PW1
M.Ashok during his life time, admitted that, the
owner and rider of the offending vehicle are belonged
to his village and also admitted that, there is a 28
days delay in giving first information and there is an
admission that, Suresh and Narayanappa are his
relatives, and on the basis of their statements, final
report has been submitted by answering as follows:
"ಸಖರರಶ ಮತಖಸ ನತರಯಣಪಸರವರ ಹನರಳರನ ಆಧತರದ ಮರಲನ ದನನರಷತರನನರಪಣ ಪಟಟಯನಖನ
ಸಲಲಸರಖತತಸರನ ಎರದರನ ಸರ.
46. Further, he admitted that, he was shifted
from Malur Government hospital to SNR hospital and
from SNR hospital to Hosmat hospital, Bengaluru.
And admitted that, owner of the sheep was not gave
any complaint against the rider of the offending
vehicle. And denied the suggestion of the respondent
50 SCCH-18 MVC 7279/2018
No.2 that, Suresh, Narayanappa and the respondent
No.1 in collusion with each other created documents
and filed false case to grab the compensation from the
insurance company. And not denied in para No.6 of
10 line that in the Ex.P.9 there is a question mark
with respect to the history of accident and also about
the offending vehicle and denied the suggestion that,
only to get compensation Ex.P.9 was created. And
also he admitted that, he has not produced document
to show that, he took treatment as an inpatient as
well as outpatient in St. Mary's hospital.
47. At the time of crossexamination of PW2,
Dr. Krishan Prasad, admitted that, after two days of
the accident, he approached their hospital for
treatment and initially he was treated at government
hospital Malur and they have given intimation to
Hosur Police Station, but not furnished MLC extract
and he did not know whether the police have enquired
the petitioner, while he was taking treatment in the
hospital and he stated that, he personally has not
51 SCCH-18 MVC 7279/2018
aware, how the petitioner had sustained injuries. At
the time of his further crossexamination, after the
death of the petitioner, in para No.2 stated that, from
29.7.2019 till the death of the petitioner, was not
approached to him, for treatment and also, it is
elicited from his mouth that, he approached before
the court, to give further statement, on the say of the
counsel for the petitioners. And also stated that, after
29.7.2019, he did not know what the condition of the
deceased petitioner. On appreciation of the answers
given by this witness in toto, will not supports the
stand of the petitioners with respect to their assertion
of direct nexes between the accidental injuries and
the death of the deceased petitioner.
48. Now on going through the cross
examination of PW3 Smt.R.Suvarna W/o. Late
Ashok, admitted about the belated complaint given by
her about the accident and not denied that, one
Suresh was shifted the injured to the hospital
through ambulance. In para No.2, she stated that,
52 SCCH-18 MVC 7279/2018
first aid treatment was taken by her husband in
Malur Government hospital, thereafter, took
treatment in SNR hospital, Kolar, for a period of 2
days. Then, he was shifted to Hosmat hospital,
Bengaluru. Further, she admitted that, she has not
produced MLC register and police intimation of Malur
and Kolar hospital and in both the hospitals wound
certificate of her husband was not given. Ex.P.7 was
given from Hosmat hospital. In para No.3 of her cross
examination, she admitted that, prior to the death of
her husband for having taken treatment for a period
of 3 days, she has not produced any medical
documents. And admitted that, on the next day of the
death of her husband, she gave complaint about his
death. In para No.5, she admitted that, the rider
Nandakumar is the cousin of the deceased petitioner
and denied the suggestion of the other side that, after
one year of the death of her husband, information
was given to the court. And admitted that, LR
application was filed on 9.11.2020. In para No.6, she
53 SCCH-18 MVC 7279/2018
admitted that, she has not produced the documents
pertaining to the registration of the UDR case and
subsequent documents. And denied the recitals of
Ex.P.27, though she stated earlier that, the recitals of
Ex.P.27 are correct. Further, she denied the
suggestion of the learned counsel for the respondent
No.2 that, due to fall from height, her husband
sustained injuries but in collusion with Nandakumar,
Nandeepa and Suresh, false case has been foisted by
planting the offending vehicle in the accident and in
para No.8, she denied the suggestion that, her
husband was dead due to the burning injuries, but
not due to the accidental injuries. And also denied
the suggestion that, to conceal the truth before the
court, she has not produced inquest mahazar, PM
report and final report submitted by the investigation
officer with respect to the UDR case.
49. Added to this, at the time of cross
examination of PW4Nandyappa S/o. Ravanna,
being the respondent No.1 in the case on hand. At
54 SCCH-18 MVC 7279/2018
the time of his crossexamination stated that, after
the accident his vehicle was in the Hari Factory and
the said factory belonged to one Suresh. Further,
admitted that, Narayanappa, Ashok and Suresh are
belonged to his village, After one month of the
accident, his vehicle was seized by the police. And
after one month of the seizure of said vehicle, he had
taken the said vehicle to his interim custody, but not
executed indemnity bond in this regard. In para No.2
of his crossexamination, he stated that, on the same
date of the accident, he got information about this,
from Narayanappa. But he has not made an effort to
lodge complaint in connection with the accident and
with respect to the statement, he stated that once the
police came to his village, and had taken his
signature on the document, but he did not know
about the said document and why his signature was
taken. Further he stated that, with respect to the
accident, he has not given any information to the
insurance company and also not sent reply to the
55 SCCH-18 MVC 7279/2018
notice received from the company. And answer given
by this witness in para No.3 and 4 of his cross
examination, clearly speaks that, he is giving
evidence, in support of the case of the petitioners. As
such, he has not made an effort to contest the matter
after receiving notice and appearance through counsel
before this Court.
50. Over all appreciation of the cross
examination portion of PW1 to PW4, make it clear
that, though the petitioner - Ashok was not sustained
injuries in the accident, the owner, rider, and the
relatives of the deceased petitioner, in collusion with
each other, planted the offending vehicle in order to
substantiate their false assertion that, the deceased
petitioner was sustained injuries in the accident. The
answers given by the witnesses fully discussed above,
creates a lot of doubtful circumstances, which will
not give an access to believe the case of the
petitioners.
56 SCCH-18 MVC 7279/2018
51. On the other hand, as already discussed
above, RW1 was not tendered for crossexamination
in order to test the credibility of is evidence through
the weapon of his crossexamination. RW2Kapil
Kumar, gave clear explanation why the author of
Ex.R.2 not appeared before the court to give evidence
in support of the said document in this regard,
learned counsel for the respondent also placed
circular for consideration. At the same time, to
disprove the recitals of Ex.R.2, no contra materials
from the side of the petitioners. This witness stated
that, Suresh was the attendant of the Ashok and his
signature was taken, when the patient was handed
over to Kolar SNR hospital, and denied the suggestion
that, Ex.R.2 is the created document. At the time of
crossexamination of RW3, she stated that, as per
the referral letter from the Government hospital, it
was noted that, patient type MLC prepared and
patient came with history of head injury and he was
conscious, but disoriented and she noted the history
57 SCCH-18 MVC 7279/2018
of the injuries based on the information given by the
patient and attendant. The answers given by this
witness reveals that, only on the basis of the
information given by the injured and the attendant
she was noted the history of RTA. To clarify the
distinct history forthcoming in the evidence of RW2
and RW3, the petitioners have not made an effort to
place substantive piece of documents about the
history of injuries sustained by the deceased
petitioner.
52. In connection with the investigation process
is concerned, on going through the crossexamination
of RW4 - Vasanth, not denied the point of delay in
giving first information about the accident by the wife
of the deceased petitioner. As per his answer, he has
not given 133 notice to the owner of the offending
vehicle, which is very much required under
investigation process in the accident cases. As per
his answer, on the basis of the statement given by
the eyewitness Suresh and Narayanappa, he has not
58 SCCH-18 MVC 7279/2018
made an effort to give notice and except this, he has
not conducted further investigation and not obtained
any information from Malur Government hospital and
SNR hospital, Kolar and ambulance authority who
shifted the injured to the hospital. And not given
specific answer in connection with the recital of the
Ex.R.2, by simply stating that, since the accused
pleaded guilty before the Court, he has not made
further investigation process. Further, stated that,
he does not know whether the eyewitnesses Suresh
and Narayanappa, Nandeepa and Nandakumar are
relatives or not. And he has not received any
information from the Hosmat hospital, Bengaluru
about the accident. And he has not received the
wound certificate of the injured from the hospital
wherein he was initially taken treatment. And did not
know what are all the circumstances taken place in
connection with the injuries of the petitioner after
filing final report. But, admitted that, if the injured
59 SCCH-18 MVC 7279/2018
was dead, Sec.304A of IPC has to be inserted in the
charge sheet.
53. Another investigation officer RW4
Anjinappa.K.S, in para No.3, page No.2 of his
evidence, answers given by him clearly evident that,
after getting second time complaint from the wife of
the deceased petitioner about the death of her
husband, this investigation officer, has failed to make
deep investigation process in connection with the
actual reason for the death of the deceased petitioner
and some of the answers given by him will not create
confidence to believe the case of the petitioners and
the said answers given by him is necessary to
reproduce herein:
" ಸಖವಣರರವರಖ ದತಖಲನಯ ಪಪರತರ ದದ2.11.2019 ರರದಖ ಫಯರದಖ
ನರಡರಖತತಸರನ. ಸದರ ಫಯರದನಲಲ ತನನ ಗರಡ ಆತಮ ಹತನದ ಮತಡರನನಳಳಲಖ ಪಪಯತನ
ಪಟಪವಟ ತಮಮ ಹತಸಗನ ಮತಖಸ ಬನಡತ ಶರಟ ಬನರಕ ಹಚಚರನನರಡರಖತತಸರನ ಎರದಖ
ಹನರಳರಖವವಲಲ. ಫಯರದದದತರರ ಮರಖ ಹನರಳರನಯನಖನ ಪಡನದಖರನನರಡ ವನರಳನಯಲಲ
ಮಮತ ಆತಮ ಹತನದಗನ ಪಪಯತನ ವಚತರ ಕರಡಖ ಬರದರಖತಸದನ. ಹರದನ ಅರತಮ ಆರಕಕಕ
ವರದಯಲಲ ಆರನನರಪಯ ಹನಸರಖ ನರದಕಖಮತರ ಆಗತಖಸ. ಸಖವಣರರವರ
ಹನರಳರನಯಲಲ ಸಖರನರಶಪವರಖ ಅಪಫತತಪಡಸರಖತತಸರನ ಎರದಖ ನಖಡದರಖತತಸರನ. ನತನಖ
ಹತಜರಖ ಮತಡರಖವ ದತಖಲನಗಲಲ ಸಖರನರಶ ಅಪಫತತ ಮತಡರತಖತತಸರನ ಎರದಖ
60 SCCH-18 MVC 7279/2018
ನಮನದಖ ಆಗದನ. ಒಪಡ ರನರತಡತರ 31.10.2019 ರಲಲ ಆರತ ಟ ಎ ಎರದಖ
ನಮನದಖ ಆಗರಖವವದಲಲ. ಪ ಎರ ವರದಯಲಪ ನರಜತದ ಸಖಟಟ ಗತಯ ಎರದಖ
ನಮನದಖ ಮತಡಲತಗದನ ಹತಗನ ಅದನರ ರತರಣದರದ ಹಮದಯತಫತವತಗ ಮಮತ
ಪಟಟರಖತತಸರನ ಎರದಖ ನಮನದತಗರಖತಸದ.
54. At the time of crossexamination by the
respondent No.2, the answers given by this witness,
clearly speaks that, this witness bang the
investigation officer, with respect to the cause of the
death of the petitioner, not made an effort to do
proper investigation, before filing final report. In
page No.5 of his crossexamination, simply stated
that, since the earlier investigation process was
completed, he has not made an effort to conduct
further investigation on the leave of the Court. At the
time of crossexamination of learned counsel for the
petitioners, this witness admitted that, the PW3,
gave complaint immediately after the death of her
husband and denied the suggestion that, on
4.11.2019, the PW3 has not given any further
statement. And also denied the suggestion that,
inquest mahazar was not conducted after the death of
61 SCCH-18 MVC 7279/2018
the deceased petitioner. And has not denied the
recitals of Ex.R.19. And some of the suggestions put
to this witness by the learned counsel about the
setting fire in night hours, indirectly speaks that, the
petitioner was dead due to the injuries fully
mentioned in the postmortem report not due to the
accidental injuries.
55. At the time of crossexamination of RW6,
Radhika.N, who represented the insurance company
clearly stated that, respondent No.2 is denying the
involvement of the offending vehicle in the accident,
on the basis of ambulance report and denied the
suggestion that, final report has been submitted
against the rider of the offending vehicle, stating that
the said report was false report and also denied the
suggestion that, the accused/rider of the offending
vehicle pleaded guilty before the criminal court stating
that, the rider and the deceased petitioner in
collusion with each other, pleaded guilty before the
court and all the answers given by this witness, goes
62 SCCH-18 MVC 7279/2018
to show that, on the basis of documentary evidence,
she is deposing in consonance with the defenses
forthcoming in the written statement of the
respondent No.2.
56. Over all appreciation of the evidence
placed by the respondent No.2, insurance company
depict that, though the deceased petitioner has not
sustained accidental injuries, the respondent No.1,
and the eyewitnesses whose names are forthcoming in
the charge sheet in collusion with the petitioners
approached before this Court, on the story of
accidental injuries. No doubt, the deceased
petitioner had sustained grievous injuries and in the
pitiable condition he was dead during the proceedings
of the case which is a great loss to his family
members who was the back bone of the family prior to
his death. At the same time after scrutiny of the
evidence, I am of the view that, to prove the above
issue, that due to the actionable negligence on the
part of the rider of the motor cycle bearing
63 SCCH-18 MVC 7279/2018
registration No.KA08W5783 alleged accident had
taken place and due to the accidental injuries the
said petitioner was dead, no satisfactory and
convincing evidence available on record, for
consideration. When the deceased petitioner was not
died due to the accidental injuries, question of
actionable negligence on the part of the rider of the
offending vehicle, does not arise at all. But, herein,
evidence of PW4, in support of the case of the
petitioners and pleading guilty of the rider of the
offending vehicle, and belated complaint, clearly
speak that, story of accident and accidental injuries
are the cooked up story to gain wrongfully.
57. Though the respondent No.1 and the rider of
the offending vehicle generously admitted about the
involvement of the offending vehicle and accident as
well as the injuries of the petitioner, their conduct on
appreciation of the entire facts and circumstances of
the case, and investigation process conducted by the
respective investigation officers, clearly evident that,
64 SCCH-18 MVC 7279/2018
there is collusion between the petitioners and the
respondent No.1 as well as eyewitnesses in the case
on hand. As such, as rightly noted above while
discussing the propositions relied on by the learned
counsel for the respondent that, fraud and justice
never dwell together. It is the duty of the Tribunal to
find out the truth whether there is an actionable
negligence on the part of the rider of the vehicle
involved in the accident, which caused accident and
injuries to the petitioner and about the direct nexus
between the accidental injuries and the death of the
deceased petitioner. In connection with these material
points, positive evidence is not available in the case
on hand.
58. In the light of my detailed discussion held
above, though the petitioners filed this claim petition
under beneficial legislation, they have utterly failed to
prove the issue No.1 & additional issue No.2 on the
touch stone of preponderance of probabilities. On the
other hand, the respondent No.2 has placed
65 SCCH-18 MVC 7279/2018
satisfactory rebuttal evidence, in support of the
defenses forthcoming in the written statement.
Accordingly, I am answering the issue No.1 &
additional issues No.2 are in the Negative. And
additional issue No.1 in the Affirmative.
ISSUE No.2:
59. This issue is with respect to the entitlement
of the reliefs sought for by the petitioner and
subsequently legal heirs of the deceased petitioner
herein. In the light of my detailed discussion on the
above issues, once again to the repetition of costs, it
is relevant to note that, in connection with the
injuries sustained by the petitioner belated complaint
given by the complainant will not create confidence to
believe the assertion of the petitioners that, M. Ashok
was sustained injuries in the accident, and about the
involvement of the offending vehicle in the accident
Though the rider of the offending vehicle pleaded
guilty and the final report submitted by the
66 SCCH-18 MVC 7279/2018
investigation officer remained unquestioned, evidence
given by the PW4, being the owner of the offending
vehicle in support of the case of the petitioners and
lack of due investigation process by the subsequent
investigation officer, about the cause of death and the
contradictory statements of the wife of the deceased
about the accident, along with the contradictory
versions forthcoming in the medical documents about
the history of the injuries sustained by the petitioner,
and the conduct of other eye witnesses and their
silence in giving first information about the accident,
well in time, go to show about the collusion between
the parties.
60. As such I am of the view that, fraud and
justice should not dwell together while coming to the
conclusion in claim petitioner merely on the ground
that, the accused/rider of the offending vehicle
pleaded guiltily before the criminal court. And on
appreciation of evidence of RW4 and RW5, it is crystal
clear that, the respective investigation officer, who
67 SCCH-18 MVC 7279/2018
filed charge sheet firstly on the basis of complaint
given by the wife of the deceased petitioner during his
lifetime and subsequently with respect to the
complaint and further statement given by the wife of
the deceased petitioner, have not done due
investigation process before filing the charge sheet on
the basis of first information report and UDR report.
Accordingly, it is crystal clear that, there is a
collusion between the petitioners and the owner of the
offending vehicle along with brother of the deceased
and eye witnesses as per the charge sheet, filed claim
petition in order to make a wrongful gain.
61. Accordingly, the petitioners herein, are not
entitled to get any of the reliefs sought for in the case
on hand. Consequently, question of considering the
medical expenses documents do not arises at all.
Hence, I have no option except answering the issue
No.2 in the Negative.
68 SCCH-18 MVC 7279/2018
ISSUE NO.3:
62. In view of my due discussions on issue
Nos.1, additional issue No.1 & 2, and issue No.2, I
proceed to pass the following;
O R D E R
The claim petition filed by the petitioners U/S 166 of MV Act is hereby dismissed.
Having regard to the facts and circumstances of the case, no order as to costs.
(**Dictated to the stenographer through on line, corrected by me and then pronounced in open court on this the 30th day of December 2022**).
(V.NAGAMANI) II ADDL.SMALL CAUSES JUDGE & ACMM, BANGALORE.
ANNEXURE List of witnesses examined on petitioner's side:
PW1 Shri.M.Ashok
69 SCCH-18 MVC 7279/2018
PW2 Dr.Krishan Prasad
PW3 Smt.R.Suvarna
PW4 Shri.Nandyappa
List of documents exhibited on petitioner's side:
Ex.P1 Certified copy of Order sheet in CC No.601/2018 Ex.P2 Acquisition in CC No.601/2018 Ex.P3 True copy of FIR with Complaint of Malur P.S. in crime No.138/2018 Ex.P4 Statement of witness Ex.P5 True copy of Spot Mahazar Ex.P6 True copy of IMV report Ex.P7 True copy of wound certificate Ex.P8 True copy of Charge sheet Ex.P9 Certified copy of Medical certificate Ex.P10 Discharge summary Ex.P11 Referral letter Ex.P12 MRI spinning report Ex.P13 188 Medical bills Ex.P14 58 Prescriptions Ex.P15 2 Advance receipts Ex.P16 MRI Scan report Ex.P17 Inpatient case sheet Ex.P18 2 Out patient case sheet Ex.P19 2 Xrays Ex.P20 True copy of UDR report Ex.P21 True copy of Statement of complainant Ex.P22 Notarized copy of Aadhaar card of deceased Ex.P23 Notarized copy of Aadhaar card of petitioner No.1(a) Ex.P24 Notarized copy of Aadhaar card of petitioner No.1(b) Ex.P25 Notarized copy of Aadhaar card of petitioner No.1(c) 70 SCCH-18 MVC 7279/2018 Ex.P26 Notarized copy of Aadhaar card of petitioner No.1(d) Ex.P27 True copy of P.M.report List of witnesses examined on respondents' side:
RW1 Shri Hemanth Kumar RW2 Shri Kapil Kumar RW3 Dr.Sayeda Shagufta Basu RW4 Shri Vasanth RW5 Shri Anjanappa.K.S RW6 Smt. Radhika.N List of documents exhibited on respondents' side:
Ex.R1 Office copy of Letter dated 21.10.2019 Ex.R2 True copy of Prehospital care record Ex.R3 Authorization letter Ex.R3(a) True copy of MLC extract Ex.R4 Out patient record Ex.R5 FIR EX.R6 Complaint Ex.R7 Spot mahazar Ex.R8 IMV report Ex.R9 Wound certificate Ex.R11 Charge sheet Ex.R11 &12 Statement of witnesses Ex.R13 Complaint dated 2.11.2019 by Smt. Suvarna Ex.R14 Restatement of complainant dated 4.11.2019 Ex.R15 Charge sheet Ex.R16 Documents relating to UDR No.41/2019 Ex.R17 Inquest panchanama and statement of witnesses 71 SCCH-18 MVC 7279/2018 Ex.R18 3 Case diary Ex.R19 Outpatient record Ex.R20 P.M report Ex.R21 Authorization Ex.R22 Endorsement in letter dated 15.12.2021 issued to RMO by insurance company Ex.R23 Letter dated 16.1.2019 to respondent No.1 Ex.R24 Insurance policy III ADDL.SMALL CAUSES JUDGE & ACMM, Bengaluru.