Bangalore District Court
Punith Kumar vs Santhosh Ram M on 24 January, 2015
IN THE COURT OF MOTOR ACCIDENT CLAIMS TRIBUNAL,
XX ADDL.SMALL CAUSES JUDGE, BANGALORE, (SCCH22)
Dated this the 24th day of January 2015.
Present: Sri.N.Subramanya, M.Com., LLB.,
Member, MACT & XX ASCJ, Bangalore.
M.V.C. No.2234/2013
Petitioner : Punith Kumar,
S/o Lakkanna,
Aged about 22 years,
Residing at No.11,
14th Main road,
Indira Colony,
Near Chandra Layout,
Bangalore - 560 040.
(By Sri. Jaishankar, Adv.)
-Versus-
Respondents: 1. Santhosh Ram M.
No.49/12, 3rd Main,
Brundavan Nagar,
Chikkadugodi,
Thavarekere,
Bangalore - 560 029.
(RC Owner of Motor Cycle bearing
Reg. No.KA-01-EQ-8484)
(By Sri. K.H.Dinesh Reddy, Adv.)
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2. United India Ins. Co. Ltd.,
No.24, Sai Ram Towers,
K.Puttanna Chetty Road,
5th Main road,
Chamarajpet,
Bangalore - 560 018.
(Policy No.071800/31/11/01/00004095
Valid from 14.02.2012 to 13.02.2013)
(By Sri. R.S. Srikanta Reddy, Adv.)
JUDGMENT
The petitioner has filed this claim petition under Section 166 of the Motor Vehicles Act, 1989, seeking compensation of Rs.12,00,000/- from the Respondents for the injuries sustained by him in Motor Vehicle's Accident.
2. The brief facts of the case are that:
On 29.07.2012 at about 3.00 p.m. when the petitioner was sitting on the extreme left side and snapping the sceneries in a camera on Nice road near Sompura Bridge, Kengeri Hobli, Bangalore South Taluk, at that time suddenly a Motor cycle bearing reg. No.KA-01-EQ-8484 3 MVC.No.2234/2013 SCCH-22 came from Nayandahalli towards Anepalya in a rash and negligent manner and dashed against the petitioner. Due to the impact, he fell down and sustained grievous injuries.
Immediately he was shifted to nearby hospital for first aid and later was referred to Abhaya Hospital wherein he was treated as an inpatient and after discharging him again took treatment at Suguna Hospital and Appollo BGS Hospital, Mysore as inpatient. He has contended that he has spent a sum of Rs.4,00,000/- towards medical, conveyance, nourishment and other incidental charges.
Prior to the accident, he was hale and healthy and was working in Ideal Studious Pvt. Ltd, and earning a sum of Rs.6,000/- p.m. and also working in Social Concepts as Freelance Photographer (Part time) earning a salary of Rs.10,000/-. Due to accidental injuries he is not able to attend his work and resulted in loss of earnings and put to great financial hardship.
3. Petitioner has contended that the accident in question was caused solely due to the rash and negligent 4 MVC.No.2234/2013 SCCH-22 riding of the Motor cycle bearing reg. No.KA-01-EQ-8484 by its rider. Hence, petitioner has prayed for award of compensation of Rs.12,00,000/- with interest from the date of petition till realisation and such other reliefs as this tribunal deems fit to grant under the circumstances of the case.
4. In pursuance of service of the notice, Respondents No.1 and 2 appeared through their respective counsels and 2nd Respondent has filed written statement. In spite of the opportunity granted, 1st Respondent has not filed his written statement. Hence, objection statement of 1st Respondent taken as not filed.
5. 2nd Respondent, in its written statement, denied all the averments made by the petitioner in his petition and admits issuance of policy to Motor cycle bearing reg. No.KA- 01-EQ-8484 and the liability if any is subject to the terms and conditions mentioned in the policy. The 2nd Respondent has denied that the rider of the Motor cycle bearing reg. No.KA-01-EQ-8484 was holding valid and 5 MVC.No.2234/2013 SCCH-22 effective driving licence at the time of accident and contends that the compensation claimed by the petitioner is highly excessive and exorbitant. He further contends that from the police documents there was an abnormal delay after lapse of 119 days in lodging the complaint before the Thalaghattapura Police and the petitioner has not approached this Hon'ble Court with clean hands and the intention of the petitioner to gain unlawfully. On all these grounds, 2nd respondent prays to dismiss the claim petition of the petitioner.
6. On the basis of the above pleadings, following Issues have been framed:
1. Does the petitioner proves that he sustained grievous injuries arising out of rash or negligent riding of the rider of the Motor cycle bearing reg.
No.KA-01-EQ-8484, on 29.07.2012 at about 3.00 p.m. as alleged?
2. Whether the petitioner is entitled for compensation?
If so, how much and from whom?
3. What Order or Award?
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7. Petitioner to prove the above said issues, has got examined himself as PW1 and examined two more witnesses as P.W.2 & P.W.3 and got marked Exs.P.1 to P.17 and closed his side. 2nd Respondent has got examined its official L. Ram Prasad as RW-1 and Dr. Chandrashekar, Health Insurance Consultant as RW-2 and got marked Exs.R.1 and R.2 and side closed.
8. Heard the arguments.
9. My answer to the above Issues is as under:
Issue No.1 : In the Negative
Issue No.2 : Does not survive.
Issue No.3 : As per final order for the following
REASONS
10. Issue No.1:
Petitioner (Injured) got examined himself as PW1 and has filed his affidavit, narrating the accident as mentioned in the above pleadings. Petitioner to substantiate the said facts, has produced True copies of Order sheet in CC No.2874/2013, FIR, Complaint, Charge sheet, Spot 7 MVC.No.2234/2013 SCCH-22 Mahazar, Seizer mahazar, Wound Certificate and Police notice pertaining to Crime No.738/2012 of Thalaghattapura Police Station, marked as Exs.P.1 to P8 respectively. On going through the above documents and the Charge sheet-Ex.P.4, it reveals the police on the complaint of the petitioner, after investigation, have placed charge sheet against the rider of the Motor cycle bearing reg. No.KA-01-EQ-8484.
11. Counsel for 2nd respondent in the oral and written arguments has stated that there is no nexus between the insured vehicle and the accident and injuries sustained by petitioner. The petitioner has filed complaint after lapse of 199 days colluding with the concerned authorities which is after thought, false, concocted. Petitioner has not produced IMV report and MLC extract and police intimation and not examined Doctors from the NIMHANS and other hospitals where he was admitted. He has not placed any evidence to prove the rash and negligent driving of the driver of insured vehicle, the police also in the 8 MVC.No.2234/2013 SCCH-22 charge sheet not invoked section 134 (a) and (b) of MV act. He has relied upon various decisions and other defects and demerits in the petitioner's case and prays to dismiss the petition.
12. In the light of the above contention by the 2nd respondent and also regarding inordinate delay of 199 days, on careful perusal of entire materials on record and appreciation of evidence, it can be clearly come to the conclusion that petitioner has totally failed to prove his case on various grounds.
13. First and foremost ground is inordinate delay of 199 days in lodging the complaint. The date of accident is on 29.07.2012. In Ex.P3- - Complaint, the petitioner has stated that he was taking photographs in the nice corridor road by sitting on the road side, at that time the driver of the offending vehicle caused accident. Immediately, he was admitted to NIMHANS, Abhaya hospital and also Suguna hospital, thereafter for higher treatment he got admitted at 9 MVC.No.2234/2013 SCCH-22 Appollo BGS Hospital at Mysore. But, absolutely there is no single reason or ground mentioned in Ex.P.3 - Complaint for the delay in lodging complaint. Even in the chief examination he has not at all stated any reasons for delay in lodging the complaint. Only in the cross examination at page no.8, he has stated that since his family members were engaged in the treatment they have not lodged complaint immediately. Even according to petitioner as per Ex.P.16 - Case sheets from Apollo BGS Hospital, he was discharged on 01.09.2012. But even after discharge from said date he has not lodged complaint for nearly three months. Only on 25.11.2012 he has lodged the complaint. Even in the charge sheet at Ex.P.4, at column 4, reasons for delay, absolutely there is no explanation; by the I.O. The concerned I.O. has blindly filed the charge sheet. It is material to note that petitioner has not at all produced any documents from all the earlier 3-4 hospitals where he has taken treatment before admitting to BGS Apollo Hospital. He has not produced MLC register and 10 MVC.No.2234/2013 SCCH-22 also any documents regarding sending police intimation etc., from the earlier hospital. He has admitted to the BGS Apollo hospital on 24.08.2012 after 25 days of the accident. In the history, from the said hospital at Ex.P.16 - Case sheet is only mentioned as "History of RTA". Except said history, absolutely there is no explanation regarding the place, manner and the vehicle etc. Except the medical records from the BGS Apollo hospital, petitioner has not produced any documents regarding the treatment from all other earlier hospitals. The medical records of all other earlier hospitals are very much important and materials to prove the history of accident. In the absence of any such records and also in view of inordinate delay of 199 days, the case of petitioner is absolutely cannot be believed regarding sustaining injuries in the accident as alleged. He has only produced wound certificate as per Ex.P.7 from the Abhaya hospital and only medical bills in serial no.1 and 2 at Ex.P.13 from Suguna hospital where he was admitted. But he has not produced any other records from the said 11 MVC.No.2234/2013 SCCH-22 hospital, such as case sheet, discharge summery, MLC extract etc.
14. Even the Doctor - PW-2 examined from the BGS Apollo Hospital, who has produced medical records and deposed regarding disability has stated in the cross examination that the petitioner has told MLC was registered. Since, he came to their hospital after 25 days after accident, so they have not registered MLC in their hospital. Hence, absolutely there are no materials on record to show the history of injuries by the accident particularly from the insured vehicle. Non production of initial and material documents from all the above 3-4 major hospitals is fatal to the case of petitioner and adverse inference has to be drawn against the petitioner.
15. 2nd respondent's official has also examined and deposed about their defence and absolutely there is nothing in the cross examination of RW-1 to disprove the contention and defence of 2nd respondent. There is heavy 12 MVC.No.2234/2013 SCCH-22 burden on the part of petitioner to prove the accident as stated in the petition and FIR. But he has totally failed to prove the contents of FIR in the complaint. There is no dispute about the injuries sustained by the petitioner. But absolutely there are no materials to prove that said injuries have been caused in the alleged accident as per Ex.P.4 - Charge sheet. It is a clear case of filing a false complaint followed by false charge sheet and filing a false claim petition against insured vehicle in collusion with the RC owner and all other concerned. Viewed from any angle the case of petitioner is totally false and only for purpose of getting compensation has got filed false charge sheet and filed false petition and same is liable to be dismissed with costs to the 2nd respondent. As per the following decisions relied by the 2nd respondent:-
1. In 1994 ACJ page 1303 between Mataji Bewa and other vs. Hemanta Kumar Jena and another -
"Motor vehicles Act, 1939, section 110-A (section 166 of 1988 Act) - Claim application - Evidence - Appreciation of - Charge sheet in 13 MVC.No.2234/2013 SCCH-22 criminal case showed that deceased was travelling in the truck and sustained fatal injuries when the truck met with accident - Positive evidence of the claimants that the deceased was a pedestrian and the truck knocked him down and this evidence was not impeached in cross-examination - Tribunal relied upon the charge sheet and held that the deceased was travelling in the truck - Whether the Tribunal's finding justified - Held: no; contents of charge sheet cannot be treated as an evidence in a claim proceeding; Tribunal must rely upon the evidence led before it."
2. In 2012 AIR SCW Page 2241 between Surinder Kumar Arora and another vs. Dr. Manoj Bisla and others-
"Motor vehicles Act (59 of 1988), Ss. 163-A, 166 - Accident - Claim for compensation - Filed by parents of deceased under S.166 and not under S.163A - Onus to prove act of rash and negligent driving by driver of vehicle was on claimants - Failure to discharge, by adducing cogent evidence - Rejection of claim filed by claimants under S. 166 - Was proper".14 MVC.No.2234/2013
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3. In ILR 2009 Kar page 3562 between Veerappa and another vs. Siddappa and another -
"Motor Vehicles Act, 1988 - Accident - Claim petition - Dismissal of - Fraud played on the Courts by the claimants with the connivance of the 1st respondent - Liability of the Insurance company to pay the compensation if the fraud is proved - HELD, Insurance Company not liable to indemnify the owner of the vehicle who has played fraud and not liable to pay any compensation to the claimants who are also party to the fraud - FURTHER HELD, It is a clear case of fraud played on the Court by the claimants with the connivance of 1st respondent. Once the insured plays fraud admits liability with the sole object of foisting liability on the insurance company, though in fact he knew that it is not true, liability of the insurance company to indemnify such insured ceases."
4. In 2010 (2) TAC Kar page 13 between T.Abdul Azeez vs. P.Ganesan and another:-
15 MVC.No.2234/2013
SCCH-22 "Accident claim - Dismissal - Sustainability of
- Claimant appellant while riding his motorcycle involved in an accident with a mini lorry - finding of Tribunal that claim is not honest, bona fide and justifiable - Challenge against - Appellant admitted fall from his own motor bike into a gutter - Tribunal took note of delay of seven days in lodging the R.I. statement and nature of alleged injuries caused as narrated in wound certificate - Testimony of PW-1 also not accepted - Claim of appellant not proved - Interference with impugned award declined with - Appeal dismissed."
5. In unreported judgment in its MFA No.234/2010 (MV) dated 27.01.2011 between K.Sheshappa Gowda vs. Lathish and another.
As per the principles laid down in the above cases also petitioner totally failed to prove his case and same is liable to be dismissed. Accordingly, I answer this issue in the Negative.
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16. Issue No.2:
In view of my discussions at Issue No.1, this issue does not survive for my consideration.
17. Issue No.3: In view of my finding on Issue Nos. 1 and 2, I proceed to pass the following:
ORDER The claim petition filed by the petitioner under Sec.166 of M.V. Act, is hereby dismissed with cost to the 2nd respondent and also to compensatory costs with Rs.3,000/-.
Draw award accordingly.
(Dictated to the Stenographer through dictation, transcribed thereof is corrected and then pronounced by me in the Open Court on this the 24th day of January 2015).
(N.SUBRAMANYA) Member MACT & XX ASCJ., Bangalore.17 MVC.No.2234/2013
SCCH-22 ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE PETITIONER:
PW1 Punith Kumar PW2 Dr. Narayan Hegde PW3 Dr. Bhupendra Singh
LIST OF DOCUMENTS MARKED ON BEHALF OF THE PETITIONER:
Ex.P1 Copy of Order sheet in CC No.2874/2013 Ex.P2 Copy of FIR Ex.P3 Copy of Complaint Ex.P4 Copy of Charge sheet Ex.P5 Copy of Spot Mahazar Ex.P6 Copy of Seizer Mahazar Ex.P7 Copy of Wound certificate Ex.P8 Copy of Police notice Ex.P9 Offer letter Ex.P10 Discharge summary Ex.P11 Discharge summary Ex.P12 4 Photographs Ex.P12 (a) CD Ex.P13 35 Medical bills Ex.P14 18 Prescriptions Ex.P15 OPD file Ex.P16 Inpatient record Ex.P17 Document for physiotherapy treatment LIST OF WITNESSES EXAMINED ON BEHALF OF RESPONDENTS:
RW1 L. Ram Prasad RW2 Dr. Chandrashekar
LIST OF DOCUMENTS MARKED ON BEHALF OF RESPONDENTS:
Ex.R1 Insurance policy
Ex.R2 Medical bills
Member, MACT & XX ASCJ,
Bangalore.