Karnataka High Court
Venkataswamy vs The Bharathi Axa Gen Insu Co Ltd., on 3 July, 2017
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JULY 2017
BEFORE
THE HON'BLE MR. JUSTICE N.K. SUDHINDRARAO
M.F.A. NO.392/2014 (MV)
BETWEEN:
Venkataswamy
S/o Chinnappa,
Aged about 57 years,
R/at No.02, Sri.Kodanda,
Rama Nilaya, Ejipura Main Road,
Viveknagar Post,
Bangalore-47.
Permanent Address:
No. 40, Sappadi,
Kamanthotti (P),
Hosur(T), Dharmapuri (D). ... Appellant
(By Sri. Shripad V.Shastri, Advocate)
AND:
1. The Bharathi Axa Gen.
Insu. Co. Ltd., Ground Floor,
No.30, 3rd Floor,
Bellary Road, Hebbal,
Bangalore-560 024.
By its Manager.
2. Mr.Priya M Hukkeri,
No.3, Shripriya, 1st Cross,
2
Widia Layout, Vijayanagar,
Bangalore-560040. ... Respondents
(By Sri. A.N.Krishna Swamy, Advocate for R-1
R-2 Served)
This appeal filed under Section 173(1) of MV Act is
directed against the judgment and award dated
31.10.2013 passed in MVC No.3575/2012 on the file of
the XXI Additional Small Causes Judge, XIX ACMM,
Member, MACT, Court of Small Causes, Bangalore,
dismissing the claim petition for compensation.
This appeal coming on for hearing this day, the
Court delivered the following:
JUDGMENT
This appeal is directed against the judgment and award dated 31.10.2013 passed in MVC No.3575/2012 by the XXI Additional Small Causes Judge & XIX ACMM, Member, MACT, Bengaluru, wherein claim petition of the appellant came to be dismissed.
2. In order to avoid confusion, the parties are hereinafter referred to with reference to their ranks or status as stood before the Tribunal.
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3. The claim petition was filed by the petitioner (appellant herein) before the Tribunal seeking compensation of Rs.10,00,000/- in respect of the accident occurred on 30.3.2012 at about 4.45 p.m. when the petitioner was riding his TVS XL Super bearing registration No.TN-70-C3783 on Hosur to Krishnagiri, NH-7 near Shoolagiri, Gundukuruki Road, Hosur Taluk, Krishnagiri District, at that time, driver of the car bearing registration No.KA-02-MA-8041 drove the said car at high speed, in a rash and negligent manner and dashed against petitioner's TVS XL Super from behind, wherein he claims that he sustained injuries, thereby laboured disability that affected his life and managing affairs as he was earning Rs.10,000/- earlier to the accident.
4. Thus according to him, he was fit and able during the pre accident period, but suffering from poverty in the post accident period.
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5. The Tribunal on the basis of the material propositions asserted by one denied by the other, framed the issues on negligence, accident, injuries and entitlement for compensation. The learned Member comes to the conclusion that the petitioner was not entitled to get compensation and found that the injury, negligence and disability do not syncronise to enable the petitioner to succeed in the claim for compensation.
6. In so far as accident is concerned, learned counsel for the petitioner would submit that the learned Member of the Tribunal ought to have considered the Motor Vehicles Act as social legislation and the impact of the accident on his family. The vehicle on which the petitioner was raiding is TVS XL Super bearing registration No.TN-70-C-3783 and offending vehicle was car bearing No.KA-02-MA-8041. His claim is that the driver of the car dashed against his vehicle. 5
The learned member has observed the following at paragragh nos.8 and 9 of the Judgment:
"8. The petitioner who got examined himself as PW1 by reiterating entire petition averments got marked as many as 7 documents Ex. P1 to P7. Ex. P1 is the FIR registered against driver of car bearing Reg. No.KA-02-MA-8041. Ex. P2 is the wound certificate issued by Hosmat Hospital. Ex. P3 is the inspection report of motor vehicles involved in the accident. Ex.P4 is the discharge summary issued by Hosmat Hospital. Ex.P5 is the medical bills. Ex.P6 is the prescription. Ex.P7 is the RTC extract. In his cross examination by 1st respondent, it is elicited that Petitioner is a native of Tamil Nadu and he is residing at Tamil Nadu itself. It is further elicited that, petitioner is having valid DL to ride 2 wheeler. Further petitioner has not produced his DL nor whispered about the owner or insurer of said TVS XL which he was riding at that time. According to the petitioner, some vehicle came from behind and dashed his TVS XL 6 Super. He has categorically stated in his cross-examination that, he does not know which vehicle dashed against his moped. According to him, he became unconscious immediately after the accident. As I have already stated, 1st respondent being the contesting witness has categorically denied the involvement of 2nd respondent's car in the alleged accident and asserted that, petitioner sustained said injuries due to his own negligence and it is a self accident by claimant himself.
It is the case of petitioner that, immediately after the accident he has shifted to Hosur Government Hospital. However, petitioner not at all produced wound certificate or MLC extract from said hospital. Ex. P1 came to be registered against driver of car bearing Reg. No.KA-02-MA-8041 based on the complaint lodged by petitioner himself on 31.03.2012 at about 12.00 midnight. His statement was recorded in the Government Hospital. In this statement there is a reference about car number as KA-02-MA-8041. Petitioner categorically admitted in his cross-7
examination that, he does not know which vehicle dashed against his moped from behind and immediately after the accident he fell unconscious. When such being the case, the question of petitioner giving information not only with regard to nature of vehicle but also its registration number appears doubtful. Admittedly, petitioner not produced MLC extract from concerned Government Hospital wherein police recorded his statement. As per discharge summary issued by Hosmat Hospital, the history of occurrence is shown as 'alleged history of RTA - while riding 2 wheeler and he has hit by car at around 4.30 on 30.03.2012 at Shoolagiri, Krishnagiri district'. Hence, no where in Hosmat Hospital record, there is reference about said car number.
With this in background, now let me scan through the address of 2nd respondent herein, 2nd respondent is shown as resident of Vijayanagar, Bengaluru, whereas accused driver is shown as resident of Vellore as per Ex. P3. Hence, there is no nexus between 2nd 8 respondent's residence and his alleged driver. Admittedly, 2nd respondent who filed written statement as categorically denied the involvement of his car. Further, as per Ex. P3 said car sustained severe damages about 10 damages has been noticed in this document. If driver of car dashes his vehicle against TVS XL moped, probably so much damages will not be caused to car, if at all any damages has to be caused it will be for the RTC XL which is very light vehicle. These damages referred in Ex. P3 also appears vague and baseless. Above all, petitioner not at all produced final charge sheet. Considering these aspects, this Court opines that, involvement of 2nd respondent's car in the alleged accident is not established by the petitioner. There is no nexus between alleged accused driver and the 2nd respondent herein. Both are residents of 2 different states, that apart no where in the medical records said car number is forth coming. Under such circumstances, the claim petition filed by petitioner against respondents appears doubtful so also 9 involvement of the alleged car. The oral testimony of PW1 recorded on oath is contrary to his statement before concerned police. All these circumstances clearly established that 2nd respondent's car has been fixed just to enable the petitioner to claim petition. Accordingly, I answered issue No. 1 in the negative.
9. Since the petitioner failed to establish involvement of car bearing Reg. No.KA-02- MA-8041 and negligence on the part of accused driver of the car bearing Reg. No. KA-02-MA-8041, question of granted any compensation to the petitioner does not arise. Accordingly, I answered issue No. 2 in the negative."
7. In connection to the opinion on filing of the document, the learned Member has held that lapse on the part of the petitioner results in denial of compensation.
8. In the above facts and circumstances of the matter, the document now furnished along with 10 application under Order 41 Rule 27 of CPC which is allowed under separate order, the petitioner relies on it which is a certified copy issued by the Medical Officer of the Government Hospital, at Hosur.
9. When an injured appears before the Medical Officer for treatment, history of the hurt is asked and noticed in the Medico Legal Register and it is the first document wherein cause of injury is mentioned as per the version of the injured.
10. Thus the only document which is maintained by the competent authority is the Medico Legal Register and a certified copy is issued on application since it is a public document. However said document may be refused till the completion of investigation of a crime, in case the injury/wound sustained as a result of commission of a criminal Act pending investigation it will be regarded confidential. When an injured is required to establish that he has mentioned that the 11 injuries sustained as a result of an accident, the extract of the Medico Legal Register is a prime document.
11. In the circumstances, the appeal deserves to be allowed and the impugned Judgment and award is set aside and matter is remanded to the MACT for fresh adjudication with a direction to the Tribunal to consider the observations made in the appeal and the document filed under I.A.1/15 under Order 41 Rule 27 r/w 151 of CPC.
12. Thus the document filed by the appellant during this appeal shall have to be sent to Tribunal for consideration.
Registry to keep one set of Xerox copies of I.A.1/15 and originals should be sent to the Tribunal.
Sd/-
JUDGE RS/*