Bangalore District Court
In Smt. Manjula H.P vs In 1. Shriram General Ins. Co. Ltd on 20 August, 2015
Before the Motor Accident Claims Tribunal at Bangalore
(SCCH-8)
Present: Shri P.J. Somashekar B.A., LL.B.,
XII Additional Small Causes Judge
and Member, M.A.C.T., Bangalore.
Dated this the 20th day of August 2015
M.V.C. Nos.7393/2012 & 7394/2012
Petitioner in Smt. Manjula H.P.,
MVC 7393/2012 W/o Jayaprakash B.V.,
Age 45 years,
R/at No.46/8, SLLR Mansion,
12th Main, 1st Cross,
Rajajinagar,
Bangalore - 10
Previous Address R/at No.15,
12th 'A' Cross, Vyalikaval,
Bangalore.
(Smt. Indumathi S.R., Advocate)
Petitioner in Sri Jayaprakash B.V.,
MVC 7394/2012 S/o Venkatachalaiah,
Age 45 years,
R/at No.73, 18th Cross,
19th Main, 1st Block,
Rajajinagar,
Bangalore - 10
Previous Address R/at No.15,
12th 'A' Cross, Vyalikaval,
Bangalore.
(Smt. Indumathi S.R., Advocate)
2 SCCH-8 MVC 7393/2012 & 7394/2012
V/s.
Respondents in 1. Shriram General Ins. Co. Ltd.,
both the cases No.9/1, Ulsoor Road,
Bangalore - 560 042.
Policy issued by its office at
10003-E-8, Riico Industrial Area
Sita APura - Jaipur,
Rajasthan - 302022.
In policy
No.10003/31/12/169613.
Date of Validity from 2-7-2011
to 01-07-2012.
(Sri Manoj Kumar M.R., Adv.)
2. Sri Ananda Naik,
S/o Buddha Naik,
R/at No.404, Unit-52, 1st Floor,
Poddar Waghwadi Kalbadrie
Princess Street, Ramwadi S.O.
Mumbai, Maharastra - 400 002.
(Exparte)
COMMON JUDGMENT
These claim petitions filed by the petitioners against
the respondents for seeking compensation of
Rs.15,00,000/- and Rs.1,50,000/- respectively for the
injuries sustained by them in a road traffic accident.
2. The brief facts of the claim petitions are as
under:
3 SCCH-8 MVC 7393/2012 & 7394/2012
The petitioner in MVC 7393/2012 and the
petitioner in MVC 7394/2012 being the wife and
husband, in their claim petitions were alleged that on
13-06-2012 at about 5.30 p.m., they were proceeding in
a car bearing No.KA-02-MG-4397 as a inmate of the car
and driver of the car, slowly and cautiously by observing
all traffic rules and regulations, when they were reached
on Shiradigatta, Nh-48, Sakaleshpur, the driver of the
lorry bearing No.KA-25-B-3525 was came from
Mangalore side with high speed in a rash and negligent
manner, without observing the traffic rules and
regulations dashed against the car, as a result they were
sustained grievous injuries. So, immediately they were
shifted to Government Hospital, Sakaleshpura, wherein
they took the first aid treatment, later on they were
shifted to Vagus Hospital, wherein they took the
treatment as an inpatient by spending huge amount.
3. Prior to the accident the petitioner in MVC
7393/2012 was hale and healthy working as a Blood
4 SCCH-8 MVC 7393/2012 & 7394/2012
Bank Proprietor at Akshaya Voluntary Blood Bank,
Bangalore by getting monthly income of Rs.80,000/-,
due to the accidental injuries, she could not do the work
as before.
4. Prior to the accident the petitioner in MVC
7394/2012 was hale and healthy working as a Real
Estate Agent by getting monthly income of Rs.10,000/-,
due to the accidental injuries, he could not do the work
as before. The accident in question was taken place on
the rash and negligent driving of the lorry driver.
Thereby, Sakaleshpura Rural Police have registered the
case in their police station crime No.107/2012 for the
offences punishable u/s 279, 337 and 304(a) of IPC. The
respondent No.1 being the insurer and the respondent
No.2 being the owner of the lorry bearing No.KA-25-B-
3525 are jointly and severally liable to pay the
compensation and prays for allow the claim petitions.
5. In response of the notice, the respondent No.2
did not appear nor file his written statement, as he was
5 SCCH-8 MVC 7393/2012 & 7394/2012
placed exparte. The respondent No.1 being the insurer
has appeared through its counsel and filed the written
statement in which has alleged that the claim petitions
filed by the petitioners are not maintainable either in law
or on facts and he has denied the averments made in
column No.3 to 6, 11, 12, 14, 14A, 21 and 22 of the
claim petition and he has also denied that the petitioners
were proceeding in a car as a inmate and driver of the
car slowly and cautiously by observing all traffic rules
and regulations, the driver of the lorry has drove the
same with high speed in a rash and negligent manner,
without observing the traffic rules and regulations
dashed against the car, as a result they were sustained
grievous injuries and took the treatment by spending
huge amount, but he has admitted about the issuance of
the policy in respect of the lorry bearing No.KA-25-B-
3525 and the policy was valid from 02-07-2011 to 01-07-
2012 and its liability subject to terms and conditions of
the policy and he has alleged that the accident was
6 SCCH-8 MVC 7393/2012 & 7394/2012
occurred on account of actionable negligence of two
drivers namely, the petitioner being the driver of the car
bearing No.KA-04-MG-4397 in which the petitioners were
proceeding and the driver of the lorry bearing No.KA-25-
B-3525 which were plying on the same road. The
accident was occurred on account of use of two vehicles,
as such both the vehicles involved in the accident must
be held to be guilty of composite negligence and he has
denied the age, avocation and income of the petitioner
and he has alleged that the driver of the goods vehicle
lorry bearing No.KA-25-B-3525 was being driven slowly,
carefully and cautiously on the correct side of the road
by observing traffic rules and regulations and sounding
horn, unfortunately the accident was occurred only on
account of the carelessness on the part of the driver of
the car in which the petitioners were proceeding as a
inmate and driver of the car. As the driver of the car was
driving had made a daring attempt in a zig zag manner
by violating the traffic rules and regulations as well as
7 SCCH-8 MVC 7393/2012 & 7394/2012
almost in the middle of the road trying to overtake the
vehicle ahead of the car in which the petitioners were
proceeding were unable to overtake the vehicle in the
process dashed against the goods vehicle lorry bearing
No.KA-25-B-3525. Thereby, the accident was occurred,
so the negligence on the part of the driver of the car for
the cause of accident, as the car driver was hurry to
reach his destination, tried to overtake the vehicle
proceeding ahead of the car and in the process being
dashed against the goods vehicle and either the owner of
the vehicle nor the jurisdictional police have not
complied the mandatory provisions under Section 134(C)
and 158(6) of MV Act in furnishing better particulars and
prays for reject the claim petitions.
6. On the basis of the pleadings of the parties, my
predecessor has framed the following issues in both claim
petitions:
MVC No. 7393/2012
1. Whether the petitioner proves that she
has sustained grievous injuries as
8 SCCH-8 MVC 7393/2012 & 7394/2012
mentioned in column No.11, in a road
traffic accident, on 13-06-2012 at about
5.30 p.m. on Shiradi Gatta, NH-48,
Sakleshpur Taluk, Hassan, due to the rash
and negligent driving of the driver of the
lorry bearing registration No.KA-25-B-
3525?
2.Whether the petitioner is entitled for any
compensation? If so to what extent and
from whom?
3. What Order or Award?
MVC No. 7394/2012
1. Whether the petitioner proves that he
has sustained grievous injuries as
mentioned in column No.11, in a road
traffic accident, on 13-06-2012 at about
5.30 p.m. on Shiradi Gatta, NH-48,
Sakleshpur Taluk, Hassan, due to the rash
and negligent driving of the driver of the
lorry bearing registration No.KA-25-B-
3525?
2. Whether the petitioner is entitled for any
compensation? If so, to what extent and
from whom?
9 SCCH-8 MVC 7393/2012 & 7394/2012
3. What Order or Award?
7. The learned counsel for the petitioners has filed
the memo dated 01-04-2015 and prays for clubbing the
MVC 7394/2012 with MVC 7393/2012 for recording of
common evidence and for disposal. Accordingly the said
memo was came to be accepted and MVC 7394/2012
was clubbed with MVC 7393/2012 for the purpose of
recording of common evidence and for disposal of the
cases as these claim petitions are arising out of the same
accident.
8. The petitioners in order to prove their claim
petitions, the petitioner in MVC No.7393/2012 has
examined herself as PW1 and got marked the documents
as Ex.P1 to Ex.P11 and Ex.P19 and the petitioner in MVC
7394/2012 has examined himself as PW2 and got
marked the documents as Ex.P12 to Ex.P14 and they
have examined two more witnesses on their behalf as
PW3 and PW4 and got marked the documents as Ex.P15
to Ex.P18. The respondent No.1 being the insurer has
10 SCCH-8 MVC 7393/2012 & 7394/2012
examined its Legal Manager as RW1 and got marked the
document as Ex.R1.
9. Heard arguments on both side.
10. My findings to the above issues are as
under:
Case No. Issue No.1 Issue No.2 Issue No.3
MVC Does not
7393/2012 survive for
MVC court As per the
Negative
7394/2012 consideration final order
REASONS
11. Issue No.1 in both the claim petitions.
The petitioners in MVC 7393/2012 and 7394/2012
being said to be the wife and husband and the injured
were approached the court on the ground that on 13-06-
2012 at about 5.30 p.m., they were proceeding in their
car bearing No.KA-02-MG-4397 slowly and cautiously by
observing all traffic rules and regulations, when they
were reached on Shiradigatta, Nh-48, Sakaleshpur, the
11 SCCH-8 MVC 7393/2012 & 7394/2012
driver of the lorry bearing No.KA-25-B-3525 was came
from Mangalore side with high speed in a rash and
negligent manner, without observing the traffic rules and
regulations dashed against the car, as a result they were
sustained grievous injuries and took the treatment as an
inpatient by spending huge amount. Thereby, they were
filed the instant claim petitions against the respondents.
12. The petitioner in MVC 7393/2012 in order to
prove her case has filed her affidavit as her chief
examination as PW1, in which she has stated that on 13-
06-2012 at about 5.30 p.m., herself and her husband
were proceeding in a car bearing No.KA-02-MG-4397 as
a inmate of the car and driver of the car, slowly and
cautiously by observing all traffic rules and regulations,
when they were reached on Shiradigatta, Nh-48,
Sakaleshpur, the driver of the lorry bearing No.KA-25-B-
3525 was came from Mangalore side with high speed in a
rash and negligent manner, without observing the traffic
rules and regulations dashed against the car, as a result
12 SCCH-8 MVC 7393/2012 & 7394/2012
they were sustained grievous injuries. So, immediately
they were shifted to Government Hospital, Sakaleshpura,
wherein they took the first aid treatment, later on they
were shifted to Vagus Hospital, wherein she took the
treatment as an inpatient by spending huge amount. The
accident in question was taken place on the rash and
negligent driving of the lorry driver. Thereby,
Sakaleshpura Rural Police have registered the case in
their police station crime No.107/2012 for the offences
punishable u/s 279, 337 and 304(a) of IPC. The PW1 in
her cross examination has admitted that after the
accident she was conscious and took the treatment at
Sakaleshpura Government Hospital, later on she was
shifted to Vagus Hospital, Bangalore, in the hospital she
has informed about the injuries sustained by her in a
road traffic accident. On 19-06-2012 she was discharged
from the hospital and the police have conducted the
investigation have charge sheeted against her husband
on the ground that the accident was occurred due to on
13 SCCH-8 MVC 7393/2012 & 7394/2012
his own negligence, but she has further stated that there
was no negligence on the part of her husband.
13. The petitioner in MVC 7394/2012 in order to
prove his case has filed his affidavit as his chief
examination as PW2, in which he has stated that on 13-
06-2012 at about 5.30 p.m., himself and his wife were
proceeding in a car bearing No.KA-02-MG-4397 as a
driver of the car and inmate of the car, slowly and
cautiously by observing all traffic rules and regulations,
when they were reached on Shiradigatta, Nh-48,
Sakaleshpur, the driver of the lorry bearing No.KA-25-B-
3525 was came from Mangalore side with high speed in a
rash and negligent manner, without observing the traffic
rules and regulations dashed against the car, as a result
they were sustained grievous injuries. So, immediately
they were shifted to Government Hospital, Sakaleshpura,
wherein they took the first aid treatment, later on they
were shifted to Vagus Hospital, wherein he took the
treatment as an inpatient by spending huge amount. The
14 SCCH-8 MVC 7393/2012 & 7394/2012
accident in question was taken place on the rash and
negligent driving of the lorry driver. The PW2 in his cross
examination has admitted that on 13-06-2012 himself
and others were proceeding towards Dharmasthala and
the car was standing in the name of his wife and he was
the driver of the said car as on the date of the alleged
accident, at about 12.30 p.m., they left the Bangalore, in
all 5 persons were travelling in the car and he was
holding the driving licence to drive the car and he has
denied that the police after conducting the investigation
have charge sheeted against him on the ground that the
accident in question was taken place on his own
negligence.
14. The petitioners in support of their oral evidence
have produced the documents marked as Ex.P1 to
Ex.P18. Ex.P1 is the information filed by one Anand
G.S., who is said to be the driver of the lorry bearing
No.KA-25-B-3525 in which he has stated that the said
lorry belongs to one Prabhakar resident of Mangalore
15 SCCH-8 MVC 7393/2012 & 7394/2012
working as a driver and one Chandra who is the cleaner
of the said lorry. On 13-06-2012 they were proceeding
towards Bangalore from Mangalore by loading the
plywood, at about 5.30 p.m., he was the driver of the said
lorry proceeding on the left side of the road on Shiradi
Gatta, one car was came from Sakaleshpura and car
driver has drove the same with high speed in a rash and
negligent manner dashed against the lorry. So, both
vehicles were damaged and they noticed that the car
driver one Jayaprakash and inmates of the car Manjula,
Subadhramma and Savithramma were sustained the
injuries. So, immediately himself and the cleaner were
took them to Sakaleshpura Government Hospital, but
Savithramma was succumbed due to the accidental
injuries. The accident was occurred on account of rash
and negligent driving of the car driver. So based on the
information Sakaleshpura Rural Police have registered
the case against the car driver in their police station
crime No.107/2012 for the offences punishable u/s 279,
16 SCCH-8 MVC 7393/2012 & 7394/2012
337 and 304(a) of IPC. The learned counsel for the
respondent has cross examined the PW1 who is said to
be the injured and the wife of the PW2 in her evidence
has admitted that the police have conducted the
investigation and charge sheeted against her husband on
the ground that the accident was occurred on his
negligence. Though, she has stated subsequently that the
accident was not occurred on the negligence of her
husband, but Ex.P1 filed by one G.S. Anand clearly
reflects that the lorry was proceeding on the left side of
the road, the driver of the car being the petitioner in MVC
7394/2012 has drove the same in a rash and negligent
manner dashed against the lorry, as a result the accident
was occurred. If at all the accident was not occurred on
account of rash and negligent driving of the car driver
i.e., PW2 nothing is prevented to the petitioners to gave
their statement before the police stating that the accident
was occurred on account of rash and negligent driving of
the lorry driver, if that is so, the matter would have
17 SCCH-8 MVC 7393/2012 & 7394/2012
different. Though, the learned counsel for the petitioners
has filed the instant claim petitions under Section 166 of
M.V. Act, the burden on the petitioners to prove about
the rash and negligent driving of the lorry driver by
placing oral and documentary evidence, but Ex.P1 clearly
reflects that the accident in question was taken place on
account of rash and negligent driving of the car driver.
So, one thing is clear that the petitioner in MVC
7394/2012 has examined as PW2 who is the driver of the
car on his own negligence, the accident was occurred.
The PW1 being the wife of the PW2 in her cross
examination has admitted that the police after
conducting the investigation have charge sheeted against
her husband on the ground that the accident in question
was taken place on the rash and negligent driving of her
husband. If at all the accident was not occurred on
account of rash and negligent driving of the car driver
nothing is prevented to the petitioners to challenge the
complaint nor the final report filed against the car driver
18 SCCH-8 MVC 7393/2012 & 7394/2012
i.e., PW2, but the reasons best known to them have not
challenged the complaint nor the final report filed against
the car driver i.e., PW2. In the absence of the materials
on record, it is clear that the Ex.P1 and Ex.P2 are
remained unchallenged. Ex.P3 is the panchanama and
sketch drawn by the I.O., in which it is clear that as on
the date of the alleged accident, the driver of the lorry
was proceeding on extreme left side of the road, but the
car driver being the petitioner in MVC 7394/2012 has
drove the car in a rash and negligent manner on his own
negligence, the accident was occurred, as the sketch filed
in support of the Ex.P3 reflects though there is a
sufficient space towards southern side, but the car driver
has took the same from southern side to extreme
northern side where the lorry was proceeding extreme left
side of the road and dashed against the lorry that itself
indicates that the accident was occurred on account of
rash and negligent driving of the car driver, as the driver
of the lorry was proceeding in his right path towards
19 SCCH-8 MVC 7393/2012 & 7394/2012
extreme northern side and there was no chance to avoid
the accident, but there is a chance to avoid the accident,
if the car driver taken minimum care. So, the accident
was occurred on account of rash and negligent driving of
the car driver, but the reasons best known to the
petitioners were filed the instant claim petitions claiming
to be the offending vehicle lorry bearing No.KA-25-B-
3525 on the ground that the accident was occurred on
account of rash and negligent driving of the lorry driver,
but the Ex.P1 to Ex.P3 clearly reflects that the accident
was occurred on account of rash and negligent driving of
the car driver. If the petitioners were filed claim petition
under Section 163A of the M.V. Act, the matter would
have different, as they need not plead and to prove about
the rash and negligent driving of the offending vehicle
driver, but the petitioners were filed the instant claim
petitions under Section 166 of M.V. Act. So, the burden
on the claimants to plead and to prove about the rash
and negligent driving of the offending vehicle driver.
20 SCCH-8 MVC 7393/2012 & 7394/2012
Though, the petitioners were shown the offending vehicle
as lorry, but nothing is placed on record to show that the
accident was occurred on account of rash and negligent
driving of the lorry driver. Ex.P4 is the motor vehicles
accident report clearly reflects that the accident was
occurred on account of rash and negligent driving of the
car driver. So, the petitioner in MVC 7394/2012 is the
tortfeasor and he is the cause for accident, on his own
negligence the accident was occurred. Ex.P6 to Ex.P18
are reflects that the petitioners soon after the accident
have took the treatment as an inpatient, but the
petitioners primarily have not established through oral
and documentary evidence that the accident in question
was occurred on account of rash and negligent driving of
the lorry driver. Therefore, this court drawn its attention
on the decision reported in 2007 ACJ 1928 in between
Oriental Insurance Co. Ltd., vs. Premlata Shukla and
others reads like thus;
21 SCCH-8 MVC 7393/2012 & 7394/2012
Motor Vehicles Act, 1988, section 166 -
Claim application - Maintainability of -
Negligence - Proof of rashness and
negligence of driver of offending vehicle is
sine qua non for maintaining claim
application - Collision between a van and
truck and a passenger in van sustained fatal
injuries - Registration number of truck
could not be noted - On the basis of F.I.R.
lodged by a passenger in van, criminal case
against driver of truck was initiated but had
to be closed as the truck and its driver
could not be traced - Claimants filed claim
against driver, owner and insurance
company of van - Tribunal on the basis of
evidence including F.I.R. held that van
driver ws not driving rashly and negligently
and dismissed the claim application - High
Court relied upon the deposition of two
witnesses and observed that as F.I.R. was
not legally proved, driver of van should be
held guilty of rash and negligent driving -
F.I.R. had been relied upon by the parties
on both sides and the claimants had made a
reference to it in their claim application -
F.I.R. was marked as an exhibit as both the
22 SCCH-8 MVC 7393/2012 & 7394/2012
parties intended to rely upon it - Whether
the Tribunal was justified in relying upon
the F.I.R. irrespective of the fact that
contents of the document have been proved
or not - Held: yes; judgment of High Court
set aside and claim application dismissed.
15. On careful perusal of the above said decision, in
the said decision the deceased Shivanandan Prasad
Shukla was traveling in a tempo trax for going to
Allahabad from Bhopal. The accident was occurred in
between the tempo trax and truck, but the registration
number of truck could not be noticed and the truck also
could not be traced out. A first information report was
lodged by one of the occupants of tempo trax. The
investigation was conducted based on the information for
the offences punishable under Section 304(A) of the
Indian Penal Code, as the case was registered against the
truck driver, during the investigation the truck could not
be traced out. So, the case was closed. The legal heirs of
Shivanandan were filed the claim petition before the
23 SCCH-8 MVC 7393/2012 & 7394/2012
Motor Accident Claims Tribunal and the same was
dismissed by the Tribunal on the ground the first
information report has been filed against the truck driver
and the case was registered against the driver of the
truck. So, there is no rash and negligent driving on the
part of the tempo trax driver, as the claimants were filed
the claim petition against the driver, owner and insurer
of the tempo trax. So, the claimants were filed the appeal
before the Hon'ble High Court and the Hon'ble High
Court held that there is a rash and negligent driving of
the tempo trax driver. So, the insurance company has
challenged the judgment of the Hon'ble High Court before
the Hon'ble Supreme Court and the Hon'ble Supreme
Court held that the Tribunal on the basis of the evidence
including the F.I.R. held that the tempo trax driver was
not driving rashly and negligently and dismissed the
claim application, but the High Court relied upon the
deposition of two witnesses and observed that as F.I.R.
was not legally proved, driver of the tempo trax should be
24 SCCH-8 MVC 7393/2012 & 7394/2012
held guilty of rash and negligent driving, F.I.R. had been
relied upon by the parties on both sides and the
claimants had made a reference to it in their claim
application, F.I.R. was marked as an exhibit as both the
parties intended to rely upon it. The tribunal was
justified in relying upon the F.I.R. irrespective of the fact
that contents of the document have been proved or not.
The judgment of High Court set aside and claim petition
was dismissed.
16. In the instant case, the petitioners were relied
the police documents marked as Ex.P1 to Ex.P5. Ex.P1 is
the complaint filed agsint the car driver i.e., petitioner in
MVC 7394/2012. Ex.P2 is the FIR lodged against the
petitioner i.e., PW2. Ex.P5 is the charge sheet is also filed
against the car driver i.e., PW2. Though, the petitioners
in their claim petitions were alleged that the accident was
occurred on account of rash and negligent driving of the
lorry driver, but nothing is established through oral and
documentary evidence that the accident was occurred on
25 SCCH-8 MVC 7393/2012 & 7394/2012
account of rash and negligent driving of the lorry driver.
The reasons best known to the respondent No.1 in its
written statement has alleged that there is a composite
negligence, when the petitioners were subsequently
alleged that the accident was occurred on account of
rash and negligent driving of the lorry driver, the burden
on them to prove about the rash and negligent driving of
the lorry driver. Even the police papers and the materials
on record clearly reflects that the lorry driver was
proceeding towards extreme left side of the road i.e.,
northern side, though the car driver was proceeding on
the extreme southern side of the road, he took the car
towards extreme northern side where the lorry was
proceeding and dashed against the lorry and there was
no placed towards northern side to avoid the accident.
So, the accident was occurred on the rash and negligent
driving of the car driver nor the lorry driver. So, question
of composite negligence as alleged in the written
statement does not arise. Inspite of the facts as appeared
26 SCCH-8 MVC 7393/2012 & 7394/2012
in the police papers and the materials on record, the
reasons best known to the respondent has alleged in the
written statement that there is a composite negligence. If
at all any composite negligence, the petitioners would
have examined the I.O., to show that there is a composite
negligence on the part of the driver of the lorry. It is not
the case of the petitioners that both car driver and the
lorry driver were held responsible for the cause of
accident, if that is so, the matter would have different.
Therefore, the decision as stated above is directly
applicable to the case on hand.
17. The learned counsel for the respondent has
rightly submitted that the petitioners were filed the claim
petitions under Section 166 of the M.V. Act. So, the
burden on them to plead and prove about the rash and
negligent driving of the lorry driver, but the materials on
record reflects that the accident was occurred on account
of rash and negligent driving of the car driver and the FIR
was registered against the car driver and the police after
27 SCCH-8 MVC 7393/2012 & 7394/2012
conducting the investigation have charge sheeted against
the car driver and the said counsel has drawn the court
attention on the decision of the 1982 (1) Kar. L.J. 375
in between Jayamma D. and another vs. S.
Govindaswamy and others reads like thus;
If the accident has occurred due to the
rash and negligent driving of the lorry by
the deceased driver himself, his legal
representatives cannot maintain an
application for compensation under S.110A
Motor Vehicles Act.
Without proving actionable negligence
a petition under the Motor Vehicles Act is
not maintainable. A per son cannot claim
advantage of his own wrong.
The application for compensation by
the LRS of the driver should be under the
Workmen's Compensation Act before the
concerned authority, where it is not
necessary to establish actionable
negligence.
If the negligence was in the
maintenance of the lorry by the owner and
28 SCCH-8 MVC 7393/2012 & 7394/2012
not in the driving of the vehicle, an
application can lie under the M.V. Act.
18. On careful perusal of the above said decision, in
the said decision the owner of the vehicle and the insurer
have questioned the award passed by the Tribunal on the
ground one Ramalingam was the driver of the lorry. It
was Leyland Tanker belonging to respondent No.1. He
was driving the lorry on 24-10-1978 on Bangalore -
Mangalore road at about 10.30 p.m., near Alur in Hassan
District, he lost control of the lorry while negotiating a
curve and the lorry fell in a ditch and the driver
sustained fatal injuries and died on the spot. Thereby,
his legal heirs were filed the claim petition and sought for
compensation of Rs.1,50,000/- from the respondent and
the said claim petition was came to be allowed in partly
by awarding compensation of Rs.50,000/- to the
claimants. Aggrieved by the said judgment and award,
the appeal was filed before the Hon'ble High Court and
the Hon'ble High Court held that the petitioner has to
29 SCCH-8 MVC 7393/2012 & 7394/2012
plead and prove that the accident was the result of rash
and negligent driving of the vehicle in question by its
driver resulting in the accident, the claim being for injury
or death of a third party. Without proving such
actionable negligence, compensation under the Motor
Vehicles Act is not maintainable and a person cannot
claim advantage of his own wrong. Thereby, the said
appeal was came to be allowed, the judgment and award
of the Tribunal was came to be set aside and the
claimants are directed, if they are so advised, to institute
an application under the Workmen's Compensation Act.
19. In the instant case, it is the specific case of the
claimants that the lorry driver has drove the same in a
rash and negligent manner, on account of his rash and
negligent driving, the accident was occurred and they
were sustained the injuries, but they did not place any
materials to show that the accident was occurred on
account of rash and negligent driving of the lorry driver,
as the materials on record reflects that the accident was
30 SCCH-8 MVC 7393/2012 & 7394/2012
occurred on account of rash and negligent driving of the
car driver. So, the claimants were not proved through
oral and documentary evidence that the accident was
occurred on account of rash and negligent driving of the
lorry driver. Therefore, the decision relied by the learned
counsel for the respondent is directly applicable to the
case on hand. The learned counsel for the respondent
has drawn the court attention on the decision of the
Hon'ble Chhattisgarh High Court reported in AIR 2007
CHHATTISGARH 79 in between Saheblal Chandra and
another vs. Bhudayal Chandra and another reads like
thus;
Motor Vehicles Act (59 of 1988),
Se.166, 165 - claims for compensation -
Death of driver was negligent act of driver
himself - His LRs. Are not entitled for grant
of compensation through claims Tribunal
established under M.V. Act, 1988 -
Approach to other legal forum, is open -
31 SCCH-8 MVC 7393/2012 & 7394/2012
Person responsible for accident is not
supposed to be person who falls in category
of claimant within scope of S. 165.
20. On careful perusal of the above said decision, in
the said decision the claimants being the legal heirs have
filed the claim petition and sought for compensation on
the ground one Gopal Prasad Chandra was the employee
of first respondent was driving the truck bearing No.MP-
26-E-0042 owned by the first respondent and insured
with the second respondent. On 01-01-1993 on the ill
fated day, the deceased was the driver, when he was
ploughing the wet soil, he was caught up underneath the
tractor and died. So, his parents being the legal
representatives have filed the claim petition under
Section 166 of the M.V. Act. The respondents were
appeared through their respective counsel and taken up
the contention that the claim petition filed by the
claimants is not maintainable and the said claim petition
was came to be dismissed on the ground that the Gopal
32 SCCH-8 MVC 7393/2012 & 7394/2012
Prasad Chandra who is the driver of the vehicle himself
was negligent for the cause of accident. So, the claimants
were filed the appeal before the Hon'ble High Court and
the said appeal was came to be dismissed on the ground
when the claimants were filed the claim petition under
Section 166 of the M.V. Act, it is necessary for the
claimants to establish rash and negligent act of the driver
and when the death of driver was result of the negligent
act of the driver himself, his legal representative are not
entitle for grant of compensation. The person responsible
for the accident is not supposed to be person who falls in
category of claimant within scope of S. 165.
21. In the instant case, the claimants being said to
be wife and husband were proceeding in a car towards
Dharmasthala, the accident was occurred on account of
rash and negligent driving of the car driver. Though, the
claimants were taken up the contention in their claim
petitions that the accident was occurred on account of
rash and negligent driving of the lorry driver, but they did
33 SCCH-8 MVC 7393/2012 & 7394/2012
not place any materials on record to establish the rash
and negligent driving of the lorry driver. Therefore, the
decision relied by the learned counsel for the respondent
is directly applicable to the case on hand.
22. It is an settled principle of law that the Tribunal
has to decide independently based on the materials
placed before the Tribunal. In the instant case, though
the claimants were alleged in their claim petitions that
the accident was occurred on the rash and negligent
driving of the lorry driver, but on record nothing is placed
to show that the accident was occurred on the rash and
negligent driving of the lorry driver, but the materials on
record reflects that the accident was occurred on account
of rash and negligent driving of the car driver who is the
petitioner in MVC 7394/2012. It is an admitted fact, the
petitioner have filed the instant claim petition against the
owner and insurer of the lorry which was not caused the
accident, but the petitioner in MVC 7394/2012 who is
said to be the husband of the PW1 has caused the
34 SCCH-8 MVC 7393/2012 & 7394/2012
accident who is the tortfeasor and the petitioner in MVC
7393/2012 is the owner of the car. Therefore, looking
from many angle, the petitioners have not proved the
rash and negligent driving of the lorry driver. Therefore,
question of finding on the other issues does not arise.
Hence, I am of the opinion that the issue No.1 in both the
claim petitions is answered as negative.
23. Issue Nos.2 & 3 in both the claim petitions:
When the issue No.1 is answered as negative, then the
question of awarding the compensation nor finding on
issue No.2 does not arise. Hence, the issue No.2 in both
the claim petitions does not survive for Court
consideration. In view of the discussion as stated above,
I proceed to pass the following:
ORDER
The claim petitions filed by the petitioners under section 166 of M.V. Act, are hereby dismissed. No order as to costs.
35 SCCH-8 MVC 7393/2012 & 7394/2012 The original judgment shall be kept in MVC Nos.7393/2012 and copy of the same shall be kept in MVC 7394/2012.
Dictated to the Stenographer, transcript by him, corrected by me and then pronounced in the open court this the 20th day of August 2015.
(P.J. Somashekar) XII Addl. Small Causes Judge, Member-M.A.C.T., Bangalore.
ANNEXURE List of the witnesses examined on behalf of petitioner:
PW1 Smt. Manjula H.P. PW2 Sri B.V. Hayaprakash PW3 Dr. S. Ramachandra PW4 Sri P. Santhan
List of the documents exhibited on behalf of petitioner:
Ex.P1 True copy of Complaint Ex.P2 True copy of FIR Ex.P3 True copy of Panchanama and sketch Ex.P4 True copy of IMV report
36 SCCH-8 MVC 7393/2012 & 7394/2012 Ex.P5 True copy of Charge sheet Ex.P6 Discharge summary Ex.P7 CT Scan report Ex.P8 10 Medical bills amounting to Rs.1,12,913.76 Paisa Ex.P9 X-ray report Ex.P10 Outpatient bill Ex.P11 True copy of Wound certificate Ex.P12 True copy of Wound certificate Ex.P13 Discharge summary Ex.P14 One medical bills of Rs.8,244.15 Paisa Ex.P15 OPD Card Ex.P16 One X-ray film Ex.P17 Inpatient record Ex.P18 4 X-ray films and 5 MRI Scan films Ex.P19 Income tax returns for the year 2012-13 List of the witnesses examined on behalf of respondents:
RW1 Sri Yellappa B.C. List of the documents marked on behalf of respondents:
Ex.R1 True copy of Policy (P.J. Somashekar), XII Addl. Judge-Member, MACT, Bangalore.