Bangalore District Court
Smt.Sunitha vs The Regional Manager on 30 October, 2017
BEFORE MOTOR VEHICLES ACCIDENT CLAIMS
TRIBUNAL, BENGALURU CITY.
SCCH-14
PRESENT: Sri. S.R.PARADESHI.,
B.Com.,LL.B.,(spl)
Member, MACT,
XVI ADDL. JUDGE,
Court of Small Causes,
BENGALURU.
MVC No.6137/2006
Dated this the 30th DAY OF OCTOBER 2017
Petitioner/s : 1. Smt.Sunitha,
W/o.Late Suresh,
Aged about 24 years.
2. Kum.Chaitra,
D/o.Late Suresh,
Aged about 05 years.
3. Mas.Chandrashekar,
S/o.Late Suresh,
Aged about 03 years.
4. Mr.Ningegowda,
S/o.Late Chikke Gowda,
Aged about 65 years.
5. Smt.Gowramma,
W/o.Ningegowda,
Aged about 58 years.
(Deleted)
SCCH-14 2 MVC No.6137/2006
All the petitioners are
R/at Vittalenahalli,
Channapatna Taluk,
Bengaluru District.
(By Pleader Sri.P.Puttaraju)
V/s
Respondent/s 1. The Regional Manager,
The National Insurance
Company Limited,
Regional Office,
No.144, Shubharam Complex,
M.G.Road,
Bengaluru-560 001.
(Policy
No.150109/46/05/960000979
Valid from 28.01.2006 to
27.01.2007).
(By Pleader Sri.V.Shrihari Naidu)
2. Mr.N.Kuberan,
R/at No.741, 80 feet Main Road,
6th Main, Rajajinagar,
Bengaluru-560 010.
(Since 2nd and 3rd petitioners are
minor got represented by
natural guardian their mother
Smt.Sunitha)
(Exparte)
SCCH-14 3 MVC No.6137/2006
JUDGMENT
The petitioners have filed this petition U/s.166 of Motor Vehicles Act, claiming compensation of Rs.10,00,000/- for the death of Sri.Suresh, S/o.Ningegowda, in a road traffic accident.
2. Brief averments of the petition are as under:
As per the case of the petitioners that on 27.05.2006 at about 11.45 a.m., the deceased was proceeding by walk from Hegganahalli to proceed towards Laggere on Doddanna Industrial Estate Road. It is further submitted that when deceased reached near Chowdeshwari Weigh Bridge, 11th Cross Junction, at that time a heavy crane bearing Regn.No.KA-02-MM-99 driven by its driver from west to east direction, in a high speed, in a rash and negligent manner, without giving any signal dashed to the deceased. Due to the said impact, the deceased fell down and sustained grievous injuries all over the body. Immediately after the accident, the deceased was shifted to M.S.Ramaiah Hospital for treatment, wherein the deceased was treated as an inpatient in the said hospital upto 09.06.2006. It is SCCH-14 4 MVC No.6137/2006 further submitted that on 09.06.2006, the deceased was referred to KIMS Hospital for further treatment, but unfortunately the deceased died in the hospital on 09.06.2006. Thereafter, postmortem was conducted and body was handed over to the petitioners to perform last rites and they have incurred a sum of Rs.50,000/-
towards funeral and obsequies ceremonies and Rs.1,00,000/- towards medical expenses of deceased.
Prior to the accident, deceased was hale and healthy and was working as coolie and earning a sum of Rs.4,000/- per month. Due to this, the petitioners have caused great mental shock and agony and no one is employed and he was maintaining his family by his earnings. It is further submitted that, on the basis of the complaint, the Peenya Traffic police have registered the case against the offending vehicle driver for the offences punishable under Sec.279 & 304-A of IPC. The 1st respondent being insurer and respondent No.2 being the owner are jointly and severally liable to pay compensation to the petitioners. Hence, on other grounds, the prays for to award compensation.
3. After service of notice, respondent No.1 & 2being the insurer and owner of the offending vehicle SCCH-14 5 MVC No.6137/2006 appeared through their counsel and filed their written statement. The respondent No.1 is the insurer of the respondent No.2. The respondent No.1 has got amended his written statement and he has filed amended written statement.
The brief facts of the amended written statement of respondent No.1 are as under:-
The respondent No.1 has taken contention that there is no relationship between the petitioner and deceased. He has specifically submitted that as per the FIR, the alleged accident took place on 27.05.2006 and the deceased Suresh died on 09.06.2006, the complaint lodged before the Jurisdictional Police on 10.06.2006, after lapse of 13 days delay as such it is clearly shows that even though the Crane Bearing Regn.No.KA-02-MM- 099 is not at all involved in alleged accident took place on 27.5.2006, the petitioners created new story after death of the deceased lodged false complaint against the above said vehicle for claiming compensation. It is further taken contention that though they have issued a policy of insurance, it is subject to the terms and conditions of the policy. He has also submitted that the driver of the crane vehicle has not produce the driving licence before the jurisdictional police and as such after due investigation, SCCH-14 6 MVC No.6137/2006 the police have filed charge sheet under section 130(1) read with section 177 of the M.V.Act. Hence, it is clearly shows that the 2nd respondent willfully entrusted the vehicle to a person who did not had a valid and effective driving licence to drive the same on the date of accident.
Hence, he is not liable to pay the compensation.
On the other hand, respondent No.2 has filed the objection stating that on the date of alleged accident his vehicle is not at all involved in the accident, because his vehicle was in auto garage due to some repair i.e., from 22.05.2006 to 29.05.2006. It is further submitted that the said heavy crane was driven by its driver from west to east direction in high speed in a rash and negligent manner is not at all possible, because the said heavy crane cannot run more than 10 km. per hour and it does not having spring plates and shock observe and the said crane will be used for industrial purpose but not for transport and the police have falsely charge sheeted against the driver for negligent act. Hence, he prayed to dismiss the petition.
4. On the basis of above pleadings, the following issues were framed:
SCCH-14 7 MVC No.6137/2006ISSUES
1. Whether the petitioners proves that the death of the deceased was caused in an accident arising out of the use of No.KA-02-MM-99 heavy crane 27.05.2006 at about 11.45 a.m.,?
2.Whether the petitioner is entitled to compensation? If so, how much and from whom?
3.What Order or Award?
RECASTED ISSUE NO.1
2. Whether the petitioners proves that Suresh, S/o.Ningegowda died due to injuries sustained by him in an accident occurred on 27.5.2006 at about 11.45 a.m., infront of Chowdeshwari weigh bridge, 11th Cross junction, Doddanna industrial estate main road, Hegganahalli, Bengaluru, arising due to rash and negligent driving of driver of Heavy Crane bearing Regn.No.KA-02-MM-99?
ADDITIONAL ISSUE
1. Whether the respondent No.1 proves that the said Suresh died in an industrial accident?
SCCH-14 8 MVC No.6137/20065. The petitioner No.1, the wife of the deceased examined herself as PW.1, and got marked 19 documents at Ex.P.1 to Ex.P.19. On the other hand, the 2nd respondent examined himself as RW.1 and got marked documents at Ex.R.1 to Ex.R.4 and Proprietor of Sree.T.T.Srinivasa Auto Garage examined himself as RW.2. The Administrative Officer is examined as RW.3 and got marked documents at Ex.R.5 & 6 and in its support examined RW.4 and got marked documents at Ex.R.7 to Ex.R.9. The Dr.Gopalappa.H.M, RMO of M.S.Ramaiah Hospital examined himself as RW.5 and got marked one document i.e., Ex.R.10. The PSI of Peenya Traffic Police examined himself as RW.6 and Deputy Manager Legal of the 1st respondent company examined as RW.7.
6. Heard the arguments and perused the records.
7. My findings on the above issues, recasted issue and Addl. issue are as under:-
Issues No.1 & 2 : Does not arise for
consideration
Recasted Issue No.1 : In the Negative.
Addl. Issue No.2 : In the affirmative
Issue No.3 : As per final order,
for the following:
SCCH-14 9 MVC No.6137/2006
REASONS
8. Recasted Issue No.1 & Addl. Issue No.1:
Since these issues are inter connected with each other, taken up together for common discussion to avoid repetition. I have already narrated the case of the petitioners.
It is the case of the petitioners that, on 27.05.2006 at about 11.45 a.m., the deceased was proceeding by walk from Hegganahalli towards Laggere on Doddanna Industrial Estate Road. It is further submitted that when deceased reached near Chowdeshwari Weigh Bridge, 11th Cross Junction, at that time a heavy crane bearing Regn.No.KA-02-MM-99 driven by its driver from west to east direction, in a high speed, in a rash and negligent manner, without giving any signal dashed to the deceased. Due to the said impact, the deceased fell down and sustained grievous injuries all over the body. Immediately after the accident, the deceased was shifted to M.S.Ramaiah Hospital for treatment, wherein the deceased was treated as an inpatient in the said hospital up to 09.06.2006. It is further submitted that on 09.06.2006, the deceased was referred to KIMS Hospital for further treatment, but unfortunately the deceased died in the hospital on 09.06.2006.
SCCH-14 10 MVC No.6137/20069. On other hand, After service of notice, respondent No.1 & 2 being the insurer and owner of the offending vehicle appeared through their counsel and filed their written statement. The respondent No.1 is the insurer of the respondent No.2. The respondent No.1 has got amended his written statement and he has filed amended written statement.
10. The respondent No.1 has taken contention that there is no relationship between the petitioner and deceased. He has specifically submitted that as per the FIR, the alleged accident took place on 27.05.2006 and the deceased Suresh died on 09.06.2006, the complaint lodged before the Jurisdictional Police on 10.06.2006, after lapse of 13 days delay as such it clearly shows that even though the Crane Bearing Regn.No.KA-02-MM-099 is not at all involved in alleged accident took place on 27.5.2006, the petitioners created a new story after death of the deceased lodged false complaint against the above said vehicle for claiming compensation. It is further taken contention that though they have issued a policy of insurance, it is subjected to the terms and conditions of the policy. He has also submitted that the driver of the SCCH-14 11 MVC No.6137/2006 crane vehicle has not produce the driving licence before the jurisdictional police and as such after due investigation, the police have filed charge sheet under section 130(1) read with section 177 of the M.V.Act. Hence, it is clearly shows that the 2nd respondent willfully entrusted the vehicle to a person who did not had a valid and effective driving licence to drive the same on the date of accident. Hence, he is not liable to pay the compensation.
11. On the other hand, respondent No.2 has filed the objection stating that on the date of alleged accident his vehicle is not at all involved in the accident, because his vehicle was in auto garage due to some repair i.e., from 22.05.2006 to 29.05.2006. It is further submitted that the said heavy crane was driven by its driver from west to east direction in high speed in a rash and negligent manner is not at all possible, because the said heavy crane cannot run more than 10 km. per hour and it does not having spring plates and shock observe and the said crane will be used for industrial purpose but not for transport and the police have falsely charge sheeted against the driver for negligent act. Hence, he prayed to dismiss the petition.
SCCH-14 12 MVC No.6137/200612. In this case earlier after hearing, lead the evidence of both parties, the Tribunal has awarded the compensation of Rs.5,40,000/-. After passing the judgment and award, the petitioner and also the insurance company have preferred the MFA.No.5079/2009 by the insurance company and MFA.No.8506/2009 field by the petitioners. Thereafter, the MFA filed by the respondents in MFA.No.5079/2009 was allowed and judgment and award dated 20.01.2009 passed in this case was set aside and matter was remanded to the tribunal for fresh consideration.
13. After the matter was remanded back from the Hon'ble High Court of Karnataka and after securing the presence of both the parties, the opportunity has been given to the petitioners to lead further evidence. In spite of giving sufficient time the petitioners not lead the further evidence on their behalf. On the other hand, respondent No.1 has filed the application under Order 16 Rule 6 of CPC, to produce the documents from M.S.Ramaiah Hospital. Accordingly in response to said summons one witness appeared before the Court at that time as the respondent No.1 was absent and the witness SCCH-14 13 MVC No.6137/2006 is ready to produce the documents pertaining to the deceased Suresh. So, the court has taken the evidence of one Mariyappa, S/o.Late Narayanappa examined as RW.4 and he has produced the hospital records i.e., OP Records and IP Records on M.S.Ramaiah Hospital, which are marked as Ex.P.8 & 9.
14. Further, the respondent No.1 has also examined the Dr.Gopalappa.H.M., S/o.Mariyappa, RMO in M.S.Ramaiah Hospital as RW.5 and this witness appeared before the Court and he has produced the MLC Extract pertaining to the deceased, which is marked as Ex.R.10.
15. In this one Deputy Manger/legal manger examined as RW.7 he deposed that deceased died not an account of the involvement of the vehicle as contended by the petitioner, but the MLC issued by the Ramaiah Hospital authorities stating that INDUSTRIAL ACCIDENT history of fall of a tool while working place at Rajhajajinagar at about 11-45 a.m. on 27-5- 2006. I have perused the Ex.R10, it is mentioned as, "40 years old man presented with history of fall of some heavy iron object on his neck when he was bending and doing work SCCH-14 14 MVC No.6137/2006 at his working place following which complained of severe pain in his neck and he could not move both the lower limbs at all." It is also mentioned the name of the injured as Suresh. In the cross-examination made by learned advocate for petitioner of RW5, he clearly deposed the injury was caused to the patient due fall of an object in an industruy by Name. Vely & Brothers situated at 6th Block Rajajinagar, Bengaluru. It is suggested that they have made wrong entry for that he denied and volunteers that he has mentioned the facts which were informed to him by the friend of patient by name Pappu. Except this nothing has been elicited from the mouth of this witness to show that he died in the road traffic accident.
16. In this case, the respondent No.1 called the investigation officer i.e., Gurappa Ganiger, S/o.Girimallappa, PSI of Peenya Traffic Police examined as RW.6 and in his examination in chief made by the learned advocate for respondent No.1, he has deposed that after the investigation they have filed charge sheet and there was delay in 14 days in lodging the complaint. He further deposed that he has not obtained MLC Extract from the M.S.Ramaiah Hospital.
SCCH-14 15 MVC No.6137/200617. The learned advocate for respondent No.1 treated this witness as hostile witness and in the cross- examination made by the learned advocate for respondent No.1. He deposed that he has not conducted the investigation in this case and it is suggested that the deceased died due to the incident occurred on fall of tools at his work place, for that he denied. When he deposed that he has not investigation officer, the petitioner himself filed an application to called the witness i.e., investigation officer, his application came to be allowed. But inspite of giving sufficient time, he has not lead his evidence of investigation officer, who has conducted the investigation.
18. It is important to note that while disposing both the MFAs, the Hon'ble High Court of Karnataka in Para No.9 has observed that " It is the fundamental principle of the Evidence Act that the party, who comes to the court for a relief has to prove the same, in claim petitions burden of proving a fact certainly lies on the claimant. In the instant case, the sole witness examined for the deceased is the first appellant, who was not an eye witness to the incident. The claimants have not SCCH-14 16 MVC No.6137/2006 examined the brother of the deceased, who lodged the complaint after a delay of 14 days to establish, the bonafides of lodging the complaint belatedly. The driver of the vehicle, who would have been an eye witness, is not examined. So, the matter was remanded by giving opportunity to the petitioner to lead his further evidence". But, inspite of giving sufficient time, the petitioner has not led his evidence, who has lodged the complaint and no eye witnesses to the said incident examined by the petitioner.
19. Apart from this, it is interesting to note that the complaint came to be lodged by one Shivanna S/o. Lingegowda and the complaint is marked as Ex.P.1 with FIR. What it reveals that on 30-05-2007, he received the information on his mobile from One Kubera stating that his brother by name Suresh met with an accident in road traffic accident and he admitted to the M.S. Ramaiah hospital and requested him to come to the hospital. Accordingly, he went to the hospital and met the informant said Kubera and he said that he would bear all the expenses and requested him not lodged the complaint. This complaint came to be lodged on 09-06- 2006.
SCCH-14 17 MVC No.6137/200620. It is interesting to note that said Kubera is none else than owner of the crane who is respondent No.2 in this case. How it is possible to believe that the said Kuber has informed this witness about the accident when the accident occurred due to the fault of his driver. No eye witnesses to the alleged incident examined by the petitioner. The P.M. report marked at Ex.P.7, the doctor opined that death was due to respiratory failure as a result of consolidation of lungs consequent upon the injury sustained. Nowhere it is mentioned that the said injuries occurred in road traffic accident. Moreover the petitioner; has not explained why they have lodged the complaint at belated stage. Moreover, the petition does not reveals that after the accident on which part of the body the deceased has sustained the injuries. In this case, the inquest report is marked as Ex.P.6, wherein the petitioner No.1 has given statement before the police that on 27-5-2016 at about 7.30 a.m. her husband was left the house for his work and on the same day at about 9.30 p.m., his brother in law came to her house and informed that her husband was met with an accident and admitted to the M.S. Ramaiah hospoiotal and after hearing the information she went to the hospital and SCCH-14 18 MVC No.6137/2006 found that her husband was not in a position to speak. Further she has stated that on enquiry to her husband he told that one crane dashed to him. She has also mentioned that in the hospital the owner of the crane by name Kuber was also present. So, her evidence is contrary to the complaint i.e. Ex.P.1. Because Ex.P.1 shows that the brother in law of petitioner No.1 came to know about the accident only 9-6-2006 but not earlier. Whereas the statement of the petitioner No.1 before the police shows that the same came to know the about accident 27-5-2006 itself then why she has not lodged the complaint immediately to the concern police. All these circumstances goes to show that in my opinion the petitioners have failed to prove the accident was occurred as they have stated in their petition.
21. The advocate for 1st respondent has relied upon the ruling reported in, 2009 ACJ 293, (Gurappa V/s Gowdappa Gowda & Anr) and also relied upon the judgment passed in MFA 234/2010 dated 27-1-2011 of our own High Court. In view of the said rulings, the petitioner has not explained why the delay was caused in filing of the complaint for more than 13 days. I have already explained about this fact in above paras. As per SCCH-14 19 MVC No.6137/2006 Ex.R8 it is mentioned that alleged history heavy weight fallen over his upper back at around 11.30 a.m. on 27.5.2006, following which he was unable to move his lower limbs and lost of sensation over chest and lower part.
22. In view of above discussion and for the above reasons the petitioners have failed to prove that the accident was occurred due to road traffic accident. Hence, I answer recasted issue No.1 in the negative and additional issue No.1 in the affirmative.
23. ISSUE No.1 & 2: For the above reasons and discussions on recasted issue No.1 and additional issue No.1 considering of these issues does not arise.
24. ISSUE No.3: In view of above discussion and findings, I proceed to pass the following:
ORDER The petition filed by the petitioners under Sec.166 of M.V.Act is hereby dismissed. No order as to cost.SCCH-14 20 MVC No.6137/2006
Draw award accordingly.
(Dictated to the Stenographer, directly on computer and then corrected by me and pronounced in the open court, on this the 30th day of October, 2017.) (S.R.PARADESHI) XVI ADDL.JUDGE Court of Small Causes & MACT., Bengaluru.
ANNEXURE WITNESSES EXAMINED AND DOCUMENTS MARKED FOR PETITIONERS AND RESPONDENTS:
PW.1 Smt.Sunitha RW.1 Sri.Kuberan RW.2 Sri.M.Selvam RW.3 Sri.M.Vijayakumar RW.4 Sri.Mariyappa RW.5 Dr.Gopalappa RW.6 Sri.Gurappa Ganiger RW.7 Sri.Vijay Kumar Ex.P1 Copy of FIR with Statement Ex.P2 Charge sheet Ex.P3 Sketch Ex.P4 Mahazar Ex.P5 IMV Report Ex.P6 Inquest Report Ex.P7 Post mortem Report SCCH-14 21 MVC No.6137/2006 Ex.P8 Death Certificate of the deceased Ex.P9 Death Certificate of petitioner No.5 Ex.P10 Death ceremony card Ex.P11 Marriage invitation card Ex.P12 Certificate issued by government school Ex.P13 Election ID Card of deceased Ex.P14 Election ID Card of petitioner No.5 Ex.P15 Election ID Card of Sunitha Ex.P16 Election ID Card of petitioner Ex.P17 Birth Certificate of petitioner No.2 Ex.P18 Birth Certificate of petitioner No.3 Ex.P19 C.C. in 188/06 Respondent Ex.R.1 Copy of Quotation Ex.R.2 Bill Ex.R.3 Case Summary and discharge summary Ex.R.4 Reply letter notice U/s.133 of MV Act Ex.R.5 Policy Copy Ex.R.6 Charge sheet Ex.R.7 Authorization Letter Ex.R.8 OP Records Ex.R.9 IP Records Ex.R.10 MLC Extract XVI ADDL.JUDGE Court of Small Causes & MACT., Bengaluru.