Bangalore District Court
A C Sanjay vs N Hanumantha Kumar on 2 March, 2024
KABC020118632016
BEFORE MOTOR VEHICLES ACCIDENT CLAIMS
TRIBUNAL, BANGALORE CITY.
SCCH14
Dated : This the 2nd day of March 2024
Present : SRI. YATHISHA.R.
B.A.L.,L.L.B.,
MEMBER, MACT,
XVI ADDL. JUDGE,
COURT OF SMALL CAUSES,
BENGALURU.
MVC No.6701/2016 & MVC No.6702/2016
Petitioner Master A.C.Sanjay,
In MVC No.6701/2016 S/o. Chandra Shekar,
Aged about 16 years,
Minor, represented by his
Mother/natural guardian,
Smt.A.Asha,
W/o. Chandra Shekar,
Aged about 35 years,
R/o. Kolamasanapalli Village &
Post, Palamaner Mandal,
Chittoor District,
SCCH-14 2 MVC.Nos.6701/2016 & 6702/2016
Andhra Pradesh.
(By pleader Sri.T.V.Ramesh)
Petitioner Kumari. A.Meena,
In MVC No.6702/2016 D/o. A.Dhamodhar,
Aged about 23 years,
R/o. Kolamasanapalli Village &
Post, Palamaner Mandal,
Chittoor District,
Andhra Pradesh.
(By pleader Sri.T.V.Ramesh)
V/S
Respondents 1. Sri.N.Hanumantha Kumar,
In both the cases S/o H.Narayanashetty,
Major, R/at No.128,
1st Main Road, AgaraSarjapur
Main road, near Lakshmi
Venkateshwara Temple,
Bengaluru - 102.
(By pleader Sri.B.M.Ramesh)
2. The Bajaj Allianz General
Insurance Company Ltd.,
Golden heights, 4th Floor,
59th C Cross, 4th M Block,
Rajajinagar,
Bengaluru 10.
(By pleader Sri.V.Shrihari
Naidu)
SCCH-14 3 MVC.Nos.6701/2016 & 6702/2016
JUDGMENT
The petitioner in MVC No.6701/2016 preferred the petition U/Sec.166 of the Motor Vehicles Act claiming compensation of Rs.30,00,000/ in respect of the injuries sustained by him as a result of road traffic accident occurred on 13.12.2015.
The petitioner in MVC No.6702/2016 preferred the petition U/Sec.166 of the Motor Vehicles Act claiming compensation of Rs.30,00,000/ in respect of the injuries sustained by her as a result of road traffic accident occurred on 13.12.2015.
2. As both the petitions were inter linked and the accident is of same cause of action, they were clubbed and tried together for common disposal.
3. My Learned Predecessor in office of this Court was pleased to pronounce judgment in these petitions vide SCCH-14 4 MVC.Nos.6701/2016 & 6702/2016 judgment dated 16.10.2018. The petitioners have preferred MFA.4477/2019 and MFA.4479/2019 challenging the said judgment. The Hon'ble High Court of Karnataka on 15.12.2023 vide its order of disposal of the above mentioned MFAs pleased to remand the matter to this Tribunal for reappreciation of evidence and for its fresh disposal. As such, the petitions got restored to its original file.
4. After receipt of the directions from the Hon'ble High Court of Karnataka, opportunities were provided to the parties herein to place additional evidence on their behalf if any. The parties having made appearance through their respective learned advocates have submitted that they have no additional or further evidence. Hence, the matter was heard on merits.
5. The averments of the petitions are as under: SCCH-14 5 MVC.Nos.6701/2016 & 6702/2016
The petitioners in both the petitions have asserted that they were travelling as a copassengers in a maruthi omni car bearing registration No.KA01ML4873 on 13.12.2015. According to them, the said vehicle was driven by one Mr.Chandra Shekar. The said vehicle belongs to the respondent No.1. They have further asserted that the above said driver had driven the vehicle at high speed in a rash and negligent manner at about 11.30 p.m. in front of bricks factory near SDC College, NH75 road of Kolar taluk and district and dashed against one unknown lorry which was proceeding in front of their vehicle and thereby caused the accident.
6. According to the petitioners as a result of the said accident, the petitioner in MVC.6701/2016 sustained following injuries.
1. Blunt abdominal trauma.
2.Haemoperitoneum secondary to mesenteric tear associated with ischaemia of small bowel.
SCCH-14 6 MVC.Nos.6701/2016 & 6702/2016
3. Fracture pelvis.
7. The petitioner in MVC.6702/2016 sustained following injuries:
1.Blunt abdominal trauma.
2.Haemoperitoneum secondary to mesenteric tear associated with ischaemia of small bowel.
3. Fracture pelvis.
8. They have further stated to have taken respective treatments at R.L.Jalappa hospital and subsequently at Sagar hospital of Bangalore. They asserted to have incurred medical expenses for such treatment.
9. According to them, the accident was a result of negligence on the part of the driver of Omni car. The respondent No.1 being the owner of the said vehicle and the respondent No.2 being the insurer they are jointly and severally liable to compensate the respective petitioners. SCCH-14 7 MVC.Nos.6701/2016 & 6702/2016 Hence, they have prayed to allow the petitions and to grant the compensation as claimed.
10. Notice of the petitions were duly served on the respondents. Inspite of the same, the respondent No.1 remained absent and as such, he has been placed exparte. The respondent No.2 made appearance through its Learned advocate and contested the petitions.
11. In the objections, the respondent No.2 denied the averments made in the petitions. According to it, the petitions in the present form are not maintainable in the eyes of law for the reason that none of the police records disclose the aspect of negligence on the part of driver of Omni car in occurrence of the the accident. It is also contended that the police records clearly disclose that the cause of accident was as a result of rash and negligence of the driver of unknown vehicle. On this ground, it is prayed that the petitions may be dismissed. SCCH-14 8 MVC.Nos.6701/2016 & 6702/2016
12. The respondent No.2 further contends that without adhering to the available remedy under Sections 161 to 163 of MV Act, the petitioners have approached the Tribunal under Section 166 of MV Act and are claiming compensation which do not survive in the eyes of law. It is also contended that the IO after best efforts submitted 'C' final report that the unknown vehicle mentioned could not be traced. All these factors constitute that the petitions are liable to be dismissed.
13. Upon consideration of the rival claims, my Learned Predecessor in office of this Court has framed following issues in the respective petitions.
ISSUES IN MVC No.6701/2016
1) Whether the petitioner proves that, he sustained grievous injuries in the nature of permanent disablement on 01092015 at about 11.30 p.m., near Chinnasandra, on BengaluruKadapa Highway, Chintamani Taluk, Chickbalapura, in an accident arising due to rash and negligent driving of driver of TATA Lorry bearing No.KA44 SCCH-14 9 MVC.Nos.6701/2016 & 6702/2016 5489?
2) Whether the petitioners are entitled for the compensation? if so, how much and from whom?
3) What order or award?
ISSUES IN MVC No.6702/2016
1. Whether the petitioner proves that, he sustained grievous injuries in the nature of permanent disablement on 01092015 at about 11.30 p.m., near Chinnasandra, on BengaluruKadapa Highway, Chintamani Taluk, Chickbalapura, in an accident arising due to rash and negligent driving of driver of TATA Lorry bearing No.KA44 5489?
2. Whether the petitioners are entitled for the compensation? if so, how much and from whom?
3. What order or award?
14. To substantiate their petitions, the mother of petitioner in MVC.6701/2016 deposed as PW.1, the petitioner in MVC.6702/2016 deposed as PW.2 and they got examined one Mr.Vinay Kumar as PW.3 and SCCH-14 10 MVC.Nos.6701/2016 & 6702/2016 Dr.Nagaraj B.N as PW.4. Through the witnesses the documents at Ex.P.1 to P.22 are got marked. All the witnesses are duly cross examined by Learned Advocate for respondent No.2 at length.
15. On the other hand, the respondent No.2 got examined its Assistant Manager Legal as RW.1 and got marked documents at Ex.R.1 to 3. RW.1 tendered for cross examination done at length by the Learned Advocate for the respective petitioners.
16. Heard arguments. Carefully considered the oral as well as documentary evidence placed on hand by the respective parties. In support of his argument, Learned advocate for the petitioners relied upon the decisions reported in :
1) Civil Appeal No.10145/2016 (Nishan Singh & Ors. V/S Oriental Insurance Co. Ltd., & Ors.)
2) MFA No6559/2008(MV)( United India Ins. Co.
Ltd., V/S. 1. Smt. N.Umachandra & Ors.) SCCH-14 11 MVC.Nos.6701/2016 & 6702/2016
3) AIR 2002 SC 2864 (Pramodkumar Rasibhai Jhaveri V/S Karmasey Kunvargi Tak)
4) 2018 ACJ 1437 (Suvarnamma & Anr. V/S United India Ins. Co.Ltd., & Anr.)
5) (2008) 3 SCC 748 (T.O.Anthony V/S Karvarnan & Ors.)
6) (2015) 9 SCC 273 (Khenyei V/S New India Ass. Co. Ltd.,)
7) ACJ 2015 Volume III (Khenyei Vs. New India Assurance Co.Ltd., and others)
8) ILR 2004 KAR 26 (Karnataka State Road Transport Corporation, by its Managing Director Vs. Arun @ Aravind and others)
17. On the other hand, Learned advocate for the respondent No.2 has relied upon the decision reported in 2017 CJ (BOM) 1711 between National Insurance Company Ltd., Vs. Nanda Bai W D/o Prakash alias Pralhad Dhumal and others.
18. I have given careful consideration to the materials available on hand and also carefully considered the decisions referred above.
SCCH-14 12 MVC.Nos.6701/2016 & 6702/2016
19. My findings to the above issues are as under:
Issue No.1 : In the Negative Issue No.2 : In the Negative Issue No.3 : As per final order for the following:
REASONS
20. Issue No.1 in MVC.6701/2016 & MVC.6702/2016: In the above paragraphs the factual matrix of the averments made in the respective petitions by the respective petitioners has been narrated in a nutshell. The contentions raised by the respondent No.2 in the objections is also mentioned in brief. Hence, verbatim repetition of the same appears not necessary. It is pertinent to note the documents relied upon by the respective petitioners. Ex.P.1 is the true copy of FIR. Ex.P.2 is the true copy of Complaint, Ex.P.3 is the true copy of Final report, Ex.P.4 is the true copy of Spot SCCH-14 13 MVC.Nos.6701/2016 & 6702/2016 mahazar, Ex.P.5 is the true copy of IMV report, Ex.P.6 is the true copy of Wound certificate of petitioner in MVC.6701/2016, Ex.P.7 and 8 are the true copy of Discharge summaries of petitioner in MVC.6701/2016, Ex.P.9 is the true copy of Discharge note, Ex.P.10 is the true copy of Medical bills (7 in numbers), Ex.P.11 is the true copy of Wound certificate of petitioner in MVC.6702/2016, Ex.P.12 is the Discharge summary of petitioner in MVC.6702/2016, Ex.P.13 is the Medical bills (31 in numbers), Ex.P.14 is the Authorisation letter, Ex.P.15 is the Inpatient files 2 in numbers, Ex.P.16 is the Xray films (13 in numbers), Ex.P.17 is the CT scans (8 in numbers, Ex.P.18 is the Inpatient files (2 in numbers) Ex.P.19 is the Xray films (2 in numbers), Ex.P.20 is the CT scans (8 in numbers), Ex.P.21 is the Clinical notes and Ex.P.22 is the Xray.
SCCH-14 14 MVC.Nos.6701/2016 & 6702/2016
21. Through RW.1, authorisation letter is marked as Ex.R.1, true copy of insurance policy with terms and conditions is marked as Ex.R.2 and true copy of 'C' Final report is marked as Ex.R.3.
22. Upon consideration of the averments made in the petitions, it appears necessary to refer the provision of law i.e. Section 166 of the MV Act 1988 which reads as under:
Application for compensation(1) An application for compensation arising out of an accident of the nature specified in subsection (1) of section 165 may be made
(a) by the person who has sustained the injury; or
(b) by the owner of the property ; or
(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or
(d) by any agent duly authorized by the person injured or all or any of the legal representatives of the deceased, as the case may be:SCCH-14 15 MVC.Nos.6701/2016 & 6702/2016
provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application:
provided further that where a person accepts compensation under section 164 in accordance with the procedure provided under section 149, his claims petition before the Claims Tribunal shall lapse.
(2) Every application under subsection (1) shall be made at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred or to the Claims Tribunal within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contend such particulars as may be prescribed:SCCH-14 16 MVC.Nos.6701/2016 & 6702/2016
(3) No application for compensation shall be entertained unless it is made within six months of the occurrence of the accident.
(4) The Claims Tribunal shall treat any report of accidents forwarded to it under (section 159) as an application for compensation under this Act.
(5) Notwithstanding anything in this Act or any other law for the time being in force, the right of a person to claim compensation for injury in an accident shall, upon the death of the person injured, survive to his legal representatives, irrespective of whether the cause of death is relatable to or had any nexus with the injury or not.
23. In the light of above quoted provision of law, let us analyse the pleadings and evidence available on record. The averments made in the respective petitions and the affidavits filed by PW.1 and 2 disclose such allegations that the accident in question occurred as a result of negligence on the part of driver of Omni car bearing No.KA01ML4873. However, during their cross SCCH-14 17 MVC.Nos.6701/2016 & 6702/2016 examination PW.1 and 2 have categorically admitted that the police records disclose such allegations that the accident occurred as a result of negligence on the part of driver of unknown vehicle mentioned in the first information report and in the complaint lodged by one Mr.Nagaraj. PW.1 and 2 have also admitted the fact that the present petitions have been preferred after the lapse of 11 months of submission of final 'C' report by the police concerned to the respective court. It is also clearly evident from the records that the police authorities/IO after thorough investigation submitted 'C' Final report to the jurisdictional Court concerned.
24. In the light of observations noted above, if careful consideration is given to the documents Ex.P.1 to 3, it remains undisputed fact that at an undisputed point of time when the first information regarding the occurrence of accident was provided by one Mr.Nagaraj by lodging a SCCH-14 18 MVC.Nos.6701/2016 & 6702/2016 complaint, the first informant has made allegations against the driver of unknown vehicle alleging that due to his rash and negligence, the accident occurred. The documents Ex.P.1 to 3 are evident for themselves that the allegations of rash and negligence are made only against the driver of said unknown vehicle and that no such allegations of rash and negligence have been made against the driver of Omni car by name Mr.Chandra Shekar. It is also admitted fact that the police authorities have submitted 'C' Final report to concerned court. The witnesses PW.1 and 2 have admitted the fact that the owner of Omni vehicle i.e., respondent No.1 is the husband of PW.1 and the elder brother of PW.2. It is also not the case of the petitioners that they have provided any further statements before the IO in respect of the alleged accident.
SCCH-14 19 MVC.Nos.6701/2016 & 6702/2016
25. It is also clear from the records that the submission of 'C' final report has admittedly remained undisputed till date.
26. It is evident from the record that the first information report and other police records do not disclose any negligence on the part of the driver of Omni car by name Mr.Chandrashekar. Such being the case, mere evidence which is deposed by PW.1 and 2 thereby alleging the rashness and negligence of said Chandrashekar in causing accident is not suffice to the petitioners to claim the benefit of section 166 of the Motor Vehicles Act for the reason that the provision of law has made it mandate that the person who seeks compensation u/s 166 of the Act must prove with cogent and convincing evidence the ingredients of the Section 166 of the Act.
27. Having considered the fact that admittedly the petitioners have preferred the petition at a belated stage SCCH-14 20 MVC.Nos.6701/2016 & 6702/2016 i.e., after submission of 'C' Final report by the IO and upon consideration of the relationship of the respondent No.1 with the petitioners herein, it is clear that in order to claim compensation from the respondent No.1, the petitioners have made allegations against the driver of said Omni car. Said aspect do not inspire confidence of this court on the claim made by the petitioners.
28. It is pertinent to mention that the FIR need not be encyclopedic. However, it cannot be lost sight of the fact that the FIR in respect of the accident in question has been registered based on the first information provided to the police authorities concerned by the informant Mr.Nagaraj who is admittedly a relative of the petitioners herein. Upon consideration of the admitted fact that Mr.Nagaraj has lodged a complaint at an undisputed point of time by providing the first information regarding the history of accident, it cannot be easily brushed aside. SCCH-14 21 MVC.Nos.6701/2016 & 6702/2016 Moreover, when the first information do not disclose any such allegations of rashness and negligence against the driver of the Omni car in question in which the petitioners in question were proceeding along with some other inmates, the version of the petitioners placed on record during their evidence before this court that accident occurred due to the negligence of driver of Omni car is not suffice. Law is well settled that in the absence of any material evidence/documentary evidence to prove certain aspects, any amount of oral evidence cannot be easily accepted.
29. In this case, though the petitioners have given oral evidence to support their case to the effect that the accident occurred as a result of rashness and negligence on the part of the driver of Omni car. Admittedly, the police records and other documentary evidence do not corroborate the version of the petitioners. It is also to be SCCH-14 22 MVC.Nos.6701/2016 & 6702/2016 noted that the petitioners inspite of having provided sufficient opportunity, have not taken any pain even to get the first informant examined before this court which is also fatal to the petitioners. Hence, the evidence placed on hand by the petitioners do not fulfill the ingredients as per section 166 of the Motor Vehicles Act and accordingly, this Tribunal is of the view that the petitioners have failed to prove issue No.1 in both the cases. Accordingly, same are answered in the negative.
30. ISSUE No.2 MVC.6701/2016 and MVC.6702/2016: Since the petitioners have failed to prove the issue No.1 as per the observations made while giving findings on the issue No.1, this Tribunal is of the view that this issue needs to be answered in the negative and same is answered in the negative.
31. Now, coming to the decisions referred and relied upon by the petitioners, I have given careful consideration SCCH-14 23 MVC.Nos.6701/2016 & 6702/2016 of the decisions in the light of facts and circumstances of the present petitions on hand. In the petitions on hand, admittedly the IO has submitted 'C' final report against an unknown vehicle. Whereas, in the cases which were before the respective Hon'ble Courts in the decisions referred, the judgments were rendered having considered the composite negligence on the part of two vehicles which were involved in the occurrence of accident. Moreover, in those cases, the vehicles were duly traced and there were allegations against the drivers of the respective vehicles. Same is not the situation in the petitions on hand as admittedly there is no case registered of negligence against the driver of Omni car i.e., Chandrashekar. Such being the case, this Court is of the view that the submission canvassed by the Learned advocate for petitioners that the principle of composite negligence is applicable to the petitions on hand cannot be accepted. Accordingly, with SCCH-14 24 MVC.Nos.6701/2016 & 6702/2016 great respect, this Tribunal is of the view that the decisions referred and relied upon by the petitioners do not come to the aid of the petitioners.
32. I have given careful reading to the decision referred by the respondent No.2. The facts and circumstances of the petitions on hand is similar to that of the facts and circumstances which appeared in that decision before the Hon'ble High Court of Bombay. In the present petitions also the first informant or any of the inmates of the Omni car have not informed to the police authority concerned at an undisputed point of time regarding the allegation of rash and negligence on the part of the Mr.Chandrashekar, the driver of Omni vehicle. It is also pertinent to note that there are no materials available to prove the negligence on the part of driver of Omni car. Hence, the decision referred by the respondent No.2 aptly SCCH-14 25 MVC.Nos.6701/2016 & 6702/2016 applies to the case on hand and will come to the aid of respondent No.2.
I have given
33. ISSUE No.3: In view of above discussion and findings, I proceed to pass the following:
ORDER The petitions filed by the petitioners in MVC.6701/2016 and MVC.6702/2016 U/Sec.166 of Motor Vehicles Act are hereby dismissed.
Draw award accordingly.
(Dictated to the Stenographer transcribed by her and corrected by me and pronounced in the open court, on this the 2nd day of March, 2024) (YATHISHA.R) MEMBER, MACT, XVI ADDL. JUDGE, COURT OF SMALL CAUSES, BENGALURU.
Annexure Witnesses examined on behalf of the Petitioners :
PW.1 : Smt. A.Asha
SCCH-14 26 MVC.Nos.6701/2016 & 6702/2016
PW.2 : Kumari. A. Meena
PW.3 : Sri. Vinaykumar S.
PW.4 : Dr. Nagaraj B.N
Documents marked as Exhibits for the Petitioners :
Ex.P1 True copy of FIR
Ex.P2 True copy of Complaint
Ex.P3 True copy of Charge sheet
Ex.P4 True copy of Panchanama
Ex.P5 True copy of IMV report
Ex.P6 True copy of Wound certificate
Ex.P7 True copy of Discharge summary
Ex.P8 Discharge note
Ex.P9 Medical bills (7 in Nos.)
Ex.P10 True copy of Wound certificate
Ex.P11 Discharge summary
Ex.P12 Medical bills (31 in Nos.)
Ex.P13 Authorization letter
Ex.P14 Inpatient files (2 in Nos.)
Ex.P15 Xray films (13 in Nos.)
Ex.P16 CT scans ( 8 in Nos.)
Ex.P17 Inpatient files (2 in Nos.)
Ex.P18 Xray films (2 in Nos.)
Ex.P19 CT scans (8 in Nos.)
Ex.P20 Clinical notes
Ex.P21 Xray
Ex.P22 True copy of FIR
SCCH-14 27 MVC.Nos.6701/2016 & 6702/2016
Witness examined on behalf of the Respondents :
RW.1 : Bhaskar Documents marked as Exhibits for the Respondents :
Ex.R.1 : Authorisation letter
Ex.R.2 : Copy of insurance policy with terms and
conditions
Ex.R.3 : True copy of 'C' report
(YATHISHA.R)
MEMBER, MACT,
XVI ADDL. JUDGE,
COURT OF SMALL CAUSES,
BENGALURU.
Digitally signed
YATHISHA by YATHISHA R
R Date: 2024.04.01
15:36:20 +0530