Bangalore District Court
Shri Mahesh S.P vs The Oriental Insurance Co.Ltd on 21 May, 2016
BEFORE THE COURT OF SMALL CAUSES AND MOTOR
ACCIDENT CLAIMS TRIBUNAL, AT BANGALORE (SCCH-16)
PRESENT: SRI. SATISH J.BALI,
B.Com., LL.M.,
X Addl.Judge, Court of Small Causes
(SCCH-16) Bangalore.
DATED THIS THE 21st DAY OF MAY 2016.
MVC.No.5255/2013
****
PETITIONER: Shri Mahesh S.P.,
Son of Puttashamaiah,
Aged about 36 years,
Residing at No.410,
Shivakrupa Nilaya,
Sondekoppa Village,
Dasanapura Hobli,
Bengaluru-560 130.
(By Pleader. N.R.Muralidhar &
Shashidhar S.)
Vs.
RESPONDENTS: 1. The Oriental Insurance Co.Ltd.,
VP-IV, 1st A Cross,
Police Station Road,
1st Stage, Peenya Industrial Estate,
Bengaluru-560 058.
Rep. by its Manager,
(Policy No.423301/31/2013/13893
Valid from 8.12.2012 to 7.12.2013)
(By Pleader. B.Anjaneyalu)
2. Shri Lakshmipathy R.,
Son of Ramaiah,
Major,
Residing at Rangaswamy Building,
2 MVC No.5255/2013
SCH-16
2nd Main, 10th Cross,
Vigneshwaranagara,
Bengaluru-560 091.
(Owner of the motor cycle bearing
registration No.KA-02-HK-7352)
(Exparte)
JUDGMENT
This claim petition is filed by the petitioner under Section 166 of Motor Vehicles Act, 1989, claiming compensation of Rs.10,00,000/-for the injuries sustained by him in a road traffic accident, which happened on 30.6.2013.
2. The case of the petitioner, as set-out in the petition is as follows:
On 30.6.2013 at about 2.00 p.m., the petitioner was proceeding on a motor cycle bearing registration No.KA-02- HK-7352 along with his friend, when they reached near Pepsi Company, NH-4, Tumkur-Benglauru road, the rider of the said motor cycle has rode the same in a rash and negligent manner with high speed endangering to human life and dashed to the stone, which was on the left side of the road. Due to the impact, the petitioner as well as rider of the motor cycle fell down and the petitioner has sustained grievous injuries to the head and left thigh and other injuries all over 3 MVC No.5255/2013 SCH-16 the body and immediately he was shifted to Government Hospital, Nelamangala and thereafter he was shifted to Sapthagiri Hospital Hesaraghatta Road, Bengaluru for further treatment, wherein, he was admitted as an inpatient from 30.6.2013 to 10.8.2013, still the petitioner is under treatment and has spent more than Rs.1,50,000/- towards his treatment.
3. Prior to the date of accident, the petitioner was aged about 36 years and he was an advocate by profession. Due to the impact of the said accident, the petitioner is not able to continue his profession and he was earning Rs.20,000/- per month from the said profession. It is further stated that, the petitioner due to the accidental injuries he is unable to sit, squat, climb stairs and advised bed rest for three weeks. The petitioner has developed partial permanent disability in his body and suffering from intolerable pain.
4. It is stated that, the accident in question was taken place due to the rash and negligent riding of the rider of the motor cycle bearing registration No.KA-02-HK-7352 against whom the Nelamangala Rural Police have registered a case against the rider in Cr.No.302/2013 for the offences 4 MVC No.5255/2013 SCH-16 punishable under Sec., 279 and 337 of IPC. The first respondent being the insurer and the second respondent being the owner of the offending vehicle are jointly and severally liable to pay the compensation. On all these grounds, the petitioner prayed for awarding the compensation of Rs10,00,000/- to him.
5. In response to the notice, the respondent No.1- insurance company put in its appearance before this Tribunal through his counsel, whereas the respondent No.2 did not appear before this Tribunal and hence he remained exparte.
6. The respondent No.1 in its objections denied the age, income and occupation of the petitioner and also denied the place, date and time of the alleged accident. The respondent No.1 further denied the injuries suffered by the petitioner and also treatment taken by him. The respondent No.1 admitted that, for having issued the policy and ownership in respect of the motor cycle bearing registration No.KA-02-HK-7352 and its validity is from 8.12.2012 to 7.12.2013. It is further contended that, their liability is subject to terms and conditions of the insurance policy such as validity of RC, FC and permit and also holding effective 5 MVC No.5255/2013 SCH-16 driving license at the time of accident. The respondent further contended that, there is delay of six days in lodging the complaint and denied the very involvement of the above said motor cycle in the accident. The respondent further denied that, the petitioner was an advocate and earning Rs.20,000/- per month from the said profession. The respondent contended that, the compensation claimed by the petitioner is exhorbitant. Further it is contended that, after the accident the owner of the vehicle has not informed about the accident and the jurisdictional police have not supplied the necessary documents. Therefore, there is violation of S. 134© and S. 158(6) of the M.V. Act.
7. The respondent No.1 has taken specific contention that, the rider of the motor cycle had no valid and effective driving license at the time of accident and there is breach of terms and conditions of the policy. Hence, on all these grounds, respondent No.1 prayed for dismissal of the petition with costs.
8. On the basis of the above pleadings, my predecessor in office has framed the following: 6 MVC No.5255/2013
SCH-16 ISSUES
1. Whether the petitioner proves that he met with an RTA that occurred on 3.6.2013 at about 2.00 p.m., Opp. to Pepsi Company, Bengaluru-Tumkur Road, NH-4 and the petitioner sustained injuries due to rash and negligent driving of motor cycle bearing No.KA-
02-HK-7352 ?
2. Whether the petitioner is entitled to compensation? If so, how much and from whom?
3. What order?
9. In order to prove his case, the petitioner examined himself as P.W.1 and got marked Ex.P.1 to P27. The Doctor was examined as PW-2 and got marked documents at Ex.P.28 and P.29 documents. The brother of the petitioner was examined as PW3. The rider of the offending vehicle was examined as PW4. On behalf of the respondents Legal Assistant of the respondent No1. was examined as RW1 and got marked the documents as Ex.R1 to Ex.R5. The Doctor of the Nelamangala Government Hospital was examined as RW2.
10. I have heard the arguments and perused materials on record. The learned counsel for the petitioner in support of his arguments has relied upon the rulings as stated below; 7 MVC No.5255/2013
SCH-16
1. AIR 2011 SUPREME COURT 1226 (Ravi Vs. Badrinarayan and Others)
2. MFA No.5476/2007 (Bajaj Allianz General Insurance Co.Ltd., Vs. Rachappa and another)
3. AIR 2009 SC 2819 (Bimla Devi and Others Vs. Himachal Road Transport Corporation and Others)
4. 2004 AIR Kant. H.C.R. 142 (Sulochana and others Vs. Karnataka State Road Transport Corporation)
5. 2004 AIR Kant. H.C.R. 149 (Sanjeeva Naika and another Vs. Shankara Narayana Naika (since deceased by his L.Rs. and others)
6. 2007 (2) AKAR (NOC) 213 (P & H) =2007 AIHC 553 (Bara Singh and others Vs. State of Punjab and Others)
7. 2004(2) T.A.C. 742 (P & H) (Bansi Yadav and Another Vs. Krishna Kumar and Another)
8. 2004 (@) T.A.C. 255 (Del) (Saroj Bala Vs. First Secretary, USSR, Embassy and Others) The learned counsel for the respondents has relied upon the rulings reported in ILR 2009 KAR 2921 (Bajaj Allianz General Insurance Company Limited Vs. B.C.Kumar and Another) 8 MVC No.5255/2013 SCH-16
11. Both the counsel filed written arguments.
12. By considering the evidence on record and because of my below discussed reasons, I answer the above issues in the followings:
Issue No.1: In the Negative Issue No.2: Does not survive for consideration Issue No.3: AS PER FINAL ORDER.
REASONS ISSUE NO.1:
13. The petitioner has come up with the specific case that, on 30.6.2013 at about 2.00 p.m. when he was proceeding along with his friend PW4 on a motor cycle bearing registration No.KA-02-HK-7352 from Dabaspet to Tumkur-Bengaluru NH-4 road, near Pepsi factory at about 2.00 p.m. PW4 has rode the motor cycle in a rash and negligent manner dashed towards stone on the left side of the road, because of which, the petitioner has sustained injuries.
14. The respondent No.1 is contesting the claim has taken up the specific contention that, the said vehicle was not involved in the accident, it might have been caused by some other vehicle. The respondent has denied the involvement of 9 MVC No.5255/2013 SCH-16 the above said vehicle in the accident. Such being the case, it is incumbent upon the petitioner to prove that because of rash and negligent riding of the rider of the motor cycle bearing registration No.KA-02-HK-7352 has sustained injuries.
15. The petitioner was examined as PW1 and he has deposed regarding the manner of accident, injuries sustained by him, treatment taken by him and the expenses incurred for his treatment. He has further stated that because of accidental injuries he was bed ridden and cannot walk, sit, squat or carry any weight and lost his professional income of Rs.20,000/- as an advocate. He has stated that regarding the registration of crime case by Nelamangala Rural Police Station against the rider of the motor cycle bearing registration No.KA-02-HK-7352 in their Cr.No.302/2013 for the offences punishable u/s 279 and 337 of IPC.
16. Apart from his oral evidence, PW-1 has produced the copy of FIR at Ex.P.1, complaint at Ex.P.2, charge sheet at Ex.P.3, copy of mahazar at Ex.P.4, sketch at Ex.P.5, statement of petitioner at Ex.P.6, IMV report at Ex.P.7, wound certificate at Ex.P.8, discharge summary at Ex.P.9, 126 10 MVC No.5255/2013 SCH-16 medical bills at Ex.P10, 52 prescriptions at Ex.P11, notarised copy of the I.D. card at Ex.P12, X-ray at Ex.P.13, notarized copy of the R.C. book at Ex.P16, notarized copy of Bar Counsel ID card at Ex.P17, notarized copy of pan card at Ex.P18, notarized copy of IT returns at Ex.P19, certified copy of the order sheet in CC 1770/2013 at Ex.P20, notarized copy of the bank account ID card at Ex.P22. He has further produced copy of the DL extract at Ex.P23, notarized copy of the D.L. at Ex.P24, B register extract at Ex.P25, certified copy of the vakalath form at Ex.P26 and notarized copy of the Adhar card at Ex.P27.
17. Per contra, the official of the respondent No.1 company was examined as RW1 and got marked the copy of policy at Ex.R1, endorsement issued by RTO at Ex.R2, MLC register extract at Ex.R3, unserved copy of the notice issued to the owner of the vehicle at Ex.R4 and copy of the wound certificate at Ex.R5.
18. The petitioner has also examined the complainant, who is his brother as PW3 and the rider of the alleged motor cycle bearing registration No.KA-02-HK-7352 as PW4. PW1 was cross-examined by the learned counsel for the 11 MVC No.5255/2013 SCH-16 respondent, in his cross-examination PW1 has stated that motor cycle which met with an accident belongs to one Lakshmipathi and PW4 was with him at the time of accident. He has stated that, immediately after the accident he was taken to Nelamangala Government Hospital for first aid treatment and thereafter, he was shifted to Sapthagiri Hospital. He has stated that, it was possible for him to lodge the complaint by informing him to the Nelamganala Hospital. He has specifically admitted that, beside the Nelamangala Government Hospital, there is a police station. He has stated that, he regained his conscious at Sapthagiri hospital and he has stated that he has given the history of Road Traffic Accident in the Spathagiri Hospital and police have taken his statement, when the PW1 specifically cross-examined about Ex.P8, he admitted that in Ex.P8 which is wound certificate, it was mentioned that, "patient is hit by unknown vehicle". PW1 has stated that he can produce the MLC extract of Nelamangala hospital, but the same has not been produced by the PW1. On perusal of the above said cross-examination, it is quite clear that, immediately after the accident the petitioner was taken to Nelamganala Government Hospital for 12 MVC No.5255/2013 SCH-16 first aid treatment and thereafter, he was shifted to Sapthagiri Hospital. PW1 has further stated that, since he was grievously injured, he could not give the statement to the police in the Sapthagiri Hospital, the rider of the motor cycle i.e., PW4 has fled away from the place of accident after the accident. He has stated that after the accident he did not meet PW4 and PW3 lodged complaint. It was suggested to the PW1 that at the time of accident the petitioner was the rider of the motor cycle and it was denied.
19. PW3, who is the complainant in this case, has stated that, he came to know about the accident through his relative and immediately after the accident he rushed to the spot and got admitted the petitioner. He further stated that as there were nobody to lookafter the petitioner, he personally taken care of the petitioner as he was engaged in adjusting the amount for surgery of the petitioner. So, immediately he could not lodge the complaint, the complaint was lodged on 5.7.2013. PW3 in his cross-examination has stated that he is the teacher in the school by name Sri Mata International Public School and the petitioner was earlier working in the Police Department for a period of five years. He has stated 13 MVC No.5255/2013 SCH-16 that the petitioner was got married even prior to the accident and his parents are still alive. PW3 has stated that, he came to know about the accident soon after half an hour, when he was at home as it was on Sunday and he cannot tell whether PW4 had informed to him about the accident and stated that he has no personal knowledge of PW4. He has specifically admitted that after five days of accident the complaint was lodged. He has stated that after receiving information of accident he visited Nelamangala Government Hospital, where the petitioner was accompanied by one person. He has specifically admitted that just by the side of the Nelamangala Government Hospital, there is a police station and immediately after the accident information about the accident should be intimated to the police and he was busy in attending the petitioner for medical treatment, he could not lodge the complaint immediately after the accident. He has also stated that as his right hand was painful, he did not write the complaint. He admitted that in Ex.R3, there is no reference of his name and suggested that it was case of the hit and run, therefore complaint was not lodged immediately after the accident. The said suggestion was denied by PW3. 14 MVC No.5255/2013
SCH-16
20. PW4, who was the rider of the motor cycle bearing registration No.KA-02-HK-7352 has stated that, on 30.6.2013 he was proceeding with the petitioner on the above said motor cycle and returning from Dabaspet, when they reached near Pepsi Factory at about 2.00 p.m. he rode the same in a rash and negligent manner and dashed against the stone, which was on the left side of the road, because of which, the petitioner sustained grievous injuries and immediately after the accident public tried to assault him and he fled away from the place of accident. Further he has stated that, he has pleaded guilty for the above said accident before the jurisdictional Magistrate Court and had license to drive the said motor cycle at the time of accident. PW4 in his cross- examination has stated that Mr. Lakshmipathi was the owner of the above said vehicle and he has not taken any treatment for the injuries sustained by him in the accident. He has admitted that, he cannot say on what parts of his body there was abrasions. Further he has stated that he has knowledge that immediately after the accident intimation about the accident is to be given to the police and after one week of accident on the request of the police he went to the police 15 MVC No.5255/2013 SCH-16 station. He further stated that he had not seen the petitioner as he was taking rest at home. He has stated that he had injuries to his nose and taking rest for a week, at that time his statement was recorded by the police. He further stated that he did not remember after how many days of accident he pleaded guilty. The suggestion was put to PW4 that the petitioner himself has paid the fine amount and there was difference of opinion between him and the petitioner as to implication as accused, the said suggestion was denied by the PW4. He has further stated that he has not noticed the damages caused to the motor cycle.
21. RW1 has stated about the delay of six days in lodging the complaint and as per the wound certificate and MLC register, it is the case of hitting by unknown vehicle. At the time of accident the rider of the motor cycle had no valid and effective driving license and produced the copy of the policy at Ex.R1, endorsement issued by RTO at Ex.R2, MLC extract at Ex.R3 and unserved copy of the notice issued to the owner at Ex.R4 and wound certificate at Ex.R5. RW1 in his cross-examination has stated that they have conducted the investigation and he can produce the said investigation 16 MVC No.5255/2013 SCH-16 report. He has stated that charge sheet was not challenged and he does not know, who has given the statement in MLC report. It is suggested to RW1 that the petitioner has not given statement in the MLC statement as the investigation reveals that PW4 caused the accident, the said report has not produced and the said suggestion has denied by RW1. RW1 has stated that he did not know that immediately after the accident the petitioner was unconscious and has not given details as per MLC register.
22. RW2 being the doctor at Nelamangala Government Hospital, wherein the petitioner has took the first aid treatment has deposed that on 30.6.2013 he was on duty in the emergency ward, on the said date he treated the petitioner and Ex.R3 was issued by their hospital. He has stated that the petitioner has stated the history of Road Traffic Accident in Ex.R3 and wound certificate at Ex.R5 was issued by him. In his cross-examination RW2 has stated that after ½ hour of accident the petitioner came to their hospital. He has stated that signature of the petitioner will be taken in MLC extract and signature of the petitioner was not taken in MLC extract. It was suggested to RW2 that the petitioner ha snot given 17 MVC No.5255/2013 SCH-16 history of accident as stated in Ex.R3 and Ex.R5. It is also suggested that hemoglobin level of the petitioner was less and was unconscious when he was brought to the hospital. The said suggestion was denied by RW2. He has stated that he has forgotten to take the signature of the petitioner in MLC extract and he used to take the signature of patient in other cases. He has stated that on 6.9.2013 wound certificate was prepared and he denied the suggestion that wound certificate was created.
23. Let me appreciate both oral as well as documentary evidence. As per Ex.P2 complaint was lodged on 5.7.2013 and the accident took place on 30.6.2013. There is a delay of six days in lodging the complaint. When the complaint was carefully perused, PW3 has lodged the complaint and stated that on 30.6.2013 the petitioner along with his friend were proceeding from Dabaspet on a motor cycle bearing registration No.KA-02-W-7352 , when they reached Pepsi Factory on NH-4 road, at that time the rider of the said motor cycle has rode the same in a rash and negligent manner and dashed against the stone, which was 18 MVC No.5255/2013 SCH-16 situated on the left side of the road, because of which, the accident was taken place.
24. On perusal of Ex.P2, it is quite clear that, the name of the person who was riding the motor cycle at the time of accident has not been stated. Though the police on the basis of the complaint register the FIR at Ex.P1, spot panchanama at Ex.P4, sketch at Ex.P5, IMV report at Ex.P7 and filed the charge sheet at Ex.P3. But it is to be noted that mere filing of the charge sheet and pleading the guilty by the rider of the offending vehicle is not conclusive proof of involvement of the vehicle, so, also, rash and negligent riding. In this regard, it is useful to refer the decision reported in ILR 2009 KAR 2921 in between Bajaj Allianz General Insurance Company Limited Vs. B.C.Kumar and another.
25. In the said judgement, our Hon'ble High Court held that the Tribunal has to assess the evidence before it independently and merely because the driver of the vehicle convicted on his pleading guilty, the Tribunal should not go on pleads guilty factor alone, but it is required to assess the evidence before it in every angle. Keeping the view on the above said principles, even though police records shows that 19 MVC No.5255/2013 SCH-16 the charge sheet was filed against the rider of the motor cycle bearing registration No.KA-02-HK-7352, but the Tribunal has to appreciate the evidence independently without there being influenced by mere plead guilty by PW4.
26. The learned counsel for the petitioner during the course of his arguments has submitted that the petitioner in the accident has sustained the fracture of shaft femur and was inpatient for 42 days and immediately after the accident the petitioner was unconscious and doctor has not taken signature of the petitioner in MLC extract, the petitioner has not supplied information for MLC extract. Ex.P6 the statement of the petitioner reveals that the accident was due to the rash and negligent riding of the PW4. Hence, he prayed to allow the petition.
27. Per contra, the learned counsel for the respondent contended that as per Ex.R3 and Ex.R5 it was the case of hit and run by unknown vehicle. Ex.P14 reveals that it is the case fell from two wheeler. If at all, accident had happened, PW4 ought to have received the injuries and in this case, the PW4 has not sustained any injuries, which creates doubt. He further argued that even as per the evidence of PW3 the 20 MVC No.5255/2013 SCH-16 complaint was not immediately lodged and fact that after the accident immediately complaint is to be lodged was within the knowledge of PW3. But the complaint was not lodged, which creates a doubt as to the involvement of the above said vehicle.
28. The learned counsel for the petitioner at this juncture has relied the rulings reported in AIR 2011 SC 1226 in between Ravi Vs. Badrinarayan and Others, wherein Hon'ble Apex Court held that delay in lodging the complaint cannot be the sole ground for rejecting the claim petition.
29. I have carefully perused the entire facts of the case. In the said case, the accident took place on 7.10.2001 and FIR was lodged by the father of the injured on 26.1.2002 and as the injured was a child. The preference will be given to his treatment and not to lodge the complaint. But in this case even though PW3 was immediately rushed to the place of accident, but he did not lodge compliant when the police station was just by the side of the Nelamangala Government Hospital. This fact is admitted by the PW3 and PW4 in the cross-examination. The learned counsel for the petitioner has also relied upon the judgement in MFA 5476/2007 in 21 MVC No.5255/2013 SCH-16 between Bajaj Allianz General Insurance Co.Ltd., Vs. Rachappa & Another. I have carefully gone through the said judgement, in the said judgement Hon'ble High Court held that the respondent has not taken specific contention of the denial of the involvement of the vehicle and there is also no averment regarding the vehicle damages. But in this case, the respondent No.1 has specifically taken up the contention that the said vehicle was not involved in the accident. Hence, the said judgement is not applicable to the case on hand.
30. Further the learned counsel for the petitioner has relied upon the ruling reported in AIR 2009 SC 2819 in between Bimla Devi & Others Vs. Himachal road Transport Corporation and Others. Wherein Hon'ble Apex Court held that the claimants have to establish their case merely on the touchstone of preponderance of probability principles beyond reasonable doubt could not be applied.
31. I have carefully perused the entire judgement, the facts and circumstances of the said case are not applicable to the case on hand.
32. Further the learned counsel for the petitioner has also relied upon the ruling reported in 2004 AIR Kant. H.C.R. 22 MVC No.5255/2013 SCH-16 142 in between Sulochana and others Vs. Karnataka State Road Transport Corporation.
33. I have carefully perused the said judgement. The above said judgement was u/s 163(A) of M.C. Act. Hence, the said case was not applicable to the case on hand.
34. The learned counsel for the petitioner has also reported another ruling reported in 2007(2) AKAR (NOC) 213 (P & H) in between Bara Singh and Others Vs. State of Punjab and Others. Wherein Hon'ble High Court held that when FIR and statement are read together there are circumstances of involvement of the bus. Hence, awarded the compensation. But the learned counsel for the petitioner has not supplied full judgement. Hence, no opinion can be expressed on the said judgement.
35. Further the learned counsel for the petitioner has also relied upon the ruling reported in 2004 (2) T.A.C. 742 (P & H) in between Bansi Yadav and Another Vs. Krishan Kumar and Another, wherein Hon'ble High Court held that certified copy of F.I.R. is admissible and the liability in tort is to be fixed on preponderance of probabilities. Hence, allowed the petition.
23 MVC No.5255/2013
SCH-16
36. No doubt, there is no dispute with regard to the said position of law. But in this case, there is no dispute as of lodging of FIR by the jurisdictional police.
37. Further, the learned counsel for the petitioner has pressed in to the service another ruling reported in 2004(2) T.A.C. 255 (Delhi) in between Saroja Bala Vs. First Secretary USSR Embassy and Others.
38. I have carefully perused the said judgement, wherein the Hon'ble High Court of Delhi held that no witness on behalf of the owner and driver appeared to prove as how accident took place. Hence, came to be conclusion that the accident was due to the rash and negligent driving of the driver of the car. But in this case though the rider of the motor cycle was examined as PW4. But in his cross- examination has specifically stated that he has not taken treatment in the hospital for the injuries sustained by him in the accident. It is not in dispute that as per the complaint and FIR the accident took place on 30.6.2013. it is also not in dispute that the complaint was lodged on 5.7.2013, that is after six days of accident. PW1 has admitted that the police station is by the side of Nelamangala Government Hospital 24 MVC No.5255/2013 SCH-16 and he knows that immediately after the accident intimation of the accident has to be given to the police station. PW3 also stated that immediately after the accident complaint has to be lodged before the jurisdictional police and in this case, though the police station was just by the side of the Nelamagnala Government Hospital, complaint was not lodged immediately.
39. It is to be noted that the petitioner tried to establish that, immediately after the accident he was unconscious. As per the wound certificate which is marked at Ex.P8, it is stated that the petitioner was conscious when he was brought to the Government Hospital, Nelamganala. As per the case sheet of Sapthagiri Hospital reveals that, the petitioner has not sustained injuries on the head. Therefore, it can be safely come to the conclusion that when the petitioner was brought to the Government Hospital, Nelamangala for first aid he was conscious. Though the petitioner tried to establish that in MLC extract his signature was not taken and hence, Ex.R3 cannot be believed. But it is to be noted that, if at all the accident was caused due to the rash and negligent riding of the rider of the motor cycle 25 MVC No.5255/2013 SCH-16 bearing registration No.KA-02-HK-7352, the same should have been reported in MLC extract at Ex.R3. If at all, the petitioner has stated the manner and involvement of the above said motor cycle, the same should have been reflected in the MLC extract i.e., Ex.R3 and Ex.R5. The doctor will enter the particulars in MLC and wound certificate as per the information of patient. As per wound certificate the petitioner was conscious when he was brought to the Government Hospital, Nelamangala. When carefully examined Ex.P8 wound certificate, it has not been stated who accompanied the petitioner when he was brought to the Government Hospital, Nelamangala. So, this creates doubt whether the PW3 has taken the petitioner to the hospital after the accident. It is also to be noted that even as per Ex.P14 which is the case sheet of Sapthagiri Hospital and MLC extract of the same hospital reveals that the petitioner was conscious when he was brought to the said hospital. The said MLC extract reveals that it was the case of fell from two wheeler of pillion rider on 30.6.2013. It is to be noted that even if the case of the petitioner is believed that PW4 was the rider of the motor cycle as on the date of accident, he must have 26 MVC No.5255/2013 SCH-16 sustained injuries in the accident. But PW4 has not produced his wound certificate to show that he has sustained injuries in the accident. Moreover, PW4 has admitted that he know that immediately after the accident intimation of accident is to be given to the jurisdictional police. PW3 and PW4 are educated and it was within their knowledge that immediately after the accident complaint has to be lodged before the jurisdictional police. Though, PW3 has stated that he was engaged in adjusting the amount for surgery of the petitioner, but it cannot be come to the conclusion that PW3 was engaged in the treatment of the petitioner for six days, he kept quite without lodging the complaint when the police station was just by the side of the Nelamangala Government Hospital. It is to be noted that as per the evidence of PW3, parents of the petitioner and also wife of the petitioner were alive. Any one of them ought to have lodged complaint. But in this case no such complaint was lodged immediately after the accident. It is also to be noted that though the IMV report was produced at Ex.P7, the said IMV report was conducted on 24.7.2013 i.e., after 24 days from the date of accident. It cannot be ruled that in between the day of accident and 27 MVC No.5255/2013 SCH-16 inspection of motor vehicle, the said vehicle might have met with an accident in some other place. Ex.R3 and Ex.R5 reveals that some unknown vehicle caused the accident. Dr. PW2 has stated that CMO of the hospital has written the history of Road Traffic Accident in the case sheet and he was not present at the time of admission of the petitioner in the hospital. It is to be noted that, as per the wound certificate the petitioner was conscious when he was taken to Nelamangala Government Hospital. The case sheet of Sapthagiri hospital was also reveals that the petitioner was conscious when he was brought to the Sapthagiri hospital. When such being the case there was no impediment for the petitioner to say specifically that he met with an accident when he was proceeding on the motor cycle bearing registration No.KA-02-HK-7352 along with the rider i.e., PW4. Therefore, all these circumstances creates doubt as to the involvement of the above said vehicle in the accident. When the petitioner has not proved his case no much weightage to be given to the evidence of RW1. Therefore, looking from any angle the petitioner has failed to prove that because of rash and negligent riding of the rider of the motor cycle bearing 28 MVC No.5255/2013 SCH-16 registration No.KA-02-HK-7352 has sustained injuries and accordingly, I answer this issue in the negative.
40. ISSUE No.2: In view of answering on issue No.1, this issue does not survive for consideration.
41. ISSUE No.3:-
In view of my above findings, the petition is deserves to be dismissed. Hence, I proceed to pass the following order:
ORDER The petition filed by the petitioner U/s 166 of the M.V. Act is hereby dismissed.
No order as to costs.
(Dictated to the stenographer, transcribed by her, corrected and then pronounced in the open court this the 21st day of May 2016) (SATISH.J.BALI) MEMBER:MACT, BANGALORE.
ANNEXURE Witnesses examined on behalf of petitioners:
PW-1 : Mahesh S.P.
PW-2 : Dr.Girish H
PW3 : Shri Jagadish S.P.
PW4 : A.R.Bhaskar
Documents marked on behalf of petitioners:
29 MVC No.5255/2013
SCH-16
Ex.P.1 : Copy of FIR
Ex.P.2 : Copy of Statement
Ex.P.3 : Copy of charge sheet
Ex.P.4 : Copy of Mahazar
Ex.P.5 : Copy of sketch
Ex.P.6 : Copy of statement
Ex.P.7 : Copy of IMV report
Ex.P.8 : Copy of wound certificate
Ex.P.9 : Discharge summary
Ex.P.10 : 126 Medical bills
Ex.P.11 : 52 prescriptions
Ex.P.12 ; Notarised copy of ID card
Ex.P.13 ; 7 X-rays
Ex.P.14 ; Case sheet
Ex.P.15 : 3 x-rays
Ex.P.16 : Notarised copy of registration
Certificate
Ex.P.17 : Notarised copy of bar counsel ID
Ex.P.18 : Notarised copy of Pan card
Ex.P.19 : Notarised copy of the IT returns
Ex.P.20 : Certified copy of the order sheet
Ex.P.21 : Certified copy of the accusation
Ex.P.22 : Notarised copy of the Bank account ID
Card
Ex.P.23 : Certified copy of D.L. Extract
Ex.P.24 : Notarised copy of D.L.
Ex.P.25 : B Register Extract
Ex.P.26 : Certified copy of vakalath form
Ex.P.27 : Notarised copy of Adhar card
Witnesses examined on behalf of respondents:
RW1 Mahesh S.P.
RW2 Dr.Vinayakumar N.P.
Documents marked on behalf of the respondents:
Ex.R1 : Copy of policy
Ex.R2 : Endorsement issued by RTO
Ex.R3 : MLC extract
30 MVC No.5255/2013
SCH-16
Ex.R4 : RPAD unserved cover
Ex.R5 : Wound certificate Extract
(SATISH.J.BALI)
MEMBER:MACT, BANGALORE.