Bangalore District Court
Embassy Services Pvt. Ltd vs Mrs. Freeda Jasmine @ on 13 April, 2016
IN THE COURT OF THE XXII ADDITIONAL SMALL
CAUSES JUDGE AND XX ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE & M.A.C.T.,
BENGALURU (SCCH-24).
PRESENT: Smt. HIREMATH SHOBHARANI BABAYYA.
B.Com.LL.B.(Spl.)
XXII Additional Small Causes Judge &
XX A.C.M.M.,& Member MACT, Bengaluru.
DATED: This the 13th day of April, 2016.
M.V.C.No.1459/2014
Petitioner Embassy Services Pvt. Ltd.,
Embassy Point, No.150,
Infantry Road,
Bangalore-560 001.
Represented by its Authorized
Signatory & Representative,
Mr. Dharmendra K.
(Rept:By Sri. G.S. Srinivas.
Advocate, Bengaluru).
- Versus -
Respondents 1. Mrs. Freeda Jasmine @
Selvakumari Freeda,
Major,
Husband name not known,
Residing at No.207,
Vineyard Jasmine
Bank Avenue,
Babusapalya,
Bangalore-560 0043.
2 SCCH-24.
M.V.C.1459/2014
2. Insurance:
Royal Sundaram Alliance
Insurance Company Limited,
Sundaram Towers, 46,
Whites Road,
Royapettah,
Chennai-600 014.
(Policy No.MOP1594291).
(Res.1:By Sri. T. Krishna.
Advocate, Bengaluru.
Res.2:By Sri. Ravi S. Samprathi.
Advocate,Bengaluru).
(HIREMATH SHOBHARANI BABAYYA )
XXII A.S.C.J. & XX A.C.M.M.,
& MEMBER, M.A.C.T.,
Bengaluru.
3 SCCH-24.
M.V.C.1459/2014
JUDGEMENT
The petitioner has filed this claim petition under Section 166 of the Motor Vehicles Act claiming the compensation on account of the damages caused to the two boom barriers and a camera namely DFR (Driver Face Reader) in the Motor Vehicles Accident.
2. The brief facts projected by the petitioner is as under:
That, on 26.11.2013 at about 10.58 p.m., the 1st respondent in a rash and negligent manner, to endanger human life came from Manyata Embassy Business Park Main Gate (gate-1) and crashed into two boom barriers inside the Plaza area of Manyatha Tech Park and further damaged a camera namely DFR (Drive Face Reader).
Due to impact, the two boom barriers completely damaged and it require to be rebuilt and also DFR camera also damaged and it cannot be repaired in any manner and hence, it required to replace with new one.
4 SCCH-24.
M.V.C.1459/2014 The total cost for the area and items damaged is works out to Rs.4,00,000/- including the labour charge. Hence, the petitioner incurred a loss of Rs.4,00,000/-.
3. It is stated that, the 1st respondent's vehicle insured with the 2nd respondent. The insurance policy is in force as on the date of accident. Hence, the respondent No.1 and respondent No.2 are jointly and severally liable to pay the damages and the compensation to the petitioner. It is stated that, the accident in question has occurred solely due to the rash and negligent driving of vehicle by the 1st respondent. The Hebbal Traffic police, Bengaluru have registered a case against the 1st respondent. For all these reasons, the petitioner has prayed to award the compensation with interest and costs.
4. In response to the notice, respondent No.1 and 2 have appeared through their counsel before the Tribunal and the respondent No.2 has filed the detailed 5 SCCH-24.
M.V.C.1459/2014 written statement. Respondent No.1 has not chosen to file the written statement.
5. The respondent No.2 has contended that, the petition is not maintainable either in law or on facts. The 2nd respondent has admitted the issuance of insurance policy in respect of the car bearing Reg.No.KA-04-MH-9074, the liability of this respondent company if any, is limited to the terms and conditions of the policy and subject to valid and effective driving licence of the driver in question. It is contended that, the accident is not in a public place. The petition is filed invoking the provisions of Motor Vehicles Act. As per the provisions of the Motor Vehicles Act, the petitions are maintainable only if, the accident is taken place in a public place. As the accident in question has taken place in a restricted place and not in a public place. The 2nd respondent has denied the entire allegations 6 SCCH-24.
M.V.C.1459/2014 made in the claim petition and put the petitioner to strict proof of the same.
6. The 2nd respondent has contended that, the insurer has not reported the accident nor submitted the required documents and not co-operating with the insurer and violated condition No.1 of the policy, which is condition precedent of liability. It is contended that, the 2nd respondent is not aware of the alleged accident, causing damages to two number of beninca boom, barrier, DFR Camera alleged to have been owned by the petitioner. Hence, this respondent denies the very occurrence of the alleged accident and put the petitioner to strict proof of the same. The 2nd respondent has denied that, the petitioner is the owner of the damaged instruments and spent huge sum towards repairs of the instruments and put the petitioner to strict proof of the same. It is contended that, on the date of accident, the car was being driven in a reasonable speed and careful 7 SCCH-24.
M.V.C.1459/2014 manner and there was no rashness and negligence on the part of the driver of the car. It is contended that, the claim made by the petitioner is highly excessive, exaggerated and arbitrary. For all these reasons, prayed to dismiss the claim petition against the 1st respondent with cost.
7. On the basis of the above pleadings and the rival contentions of both the parties, the following issues are framed:-
ISSUES
1. Whether the petitioner proves that property damages in the road traffic accident that occurred on 26.11.2013 at about 10.58 p.m., inside the Plaza area of Manyatha Tech Park, Bangalore, in the limits of Hebbal Traffic Police, due to the rash and negligent driving of Maruti Swift Car bearing Reg.No.KA-03-MH-9074, by its driver as alleged ?
8 SCCH-24.
M.V.C.1459/2014
2. Whether the petitioner is entitled for the compensation as claimed? If so, to what amount and from whom?
3. What order or Award?
8. In order to substantiate the case made out by the petitioner, the Authorized Signatory and Representative of the petitioner got himself examined as P.W.1 and got marked Ex.P.1 to Ex.P.9. Thereafter, the petitioner closed it's side evidence.
9. In order to rebut the evidence so placed on record by the petitioner, the respondents have not adduced any evidence. Thereafter, the respondents side evidence closed.
10. Heard the arguments. Perused the materials placed on record.
11. My findings on the above issues are as under:
Issue No.1 - In the Affirmative.
Issue No.3 - In the Negative.
9 SCCH-24.
M.V.C.1459/2014
Issue No.3 - As per final order,
for the following :
REASONS
Issue No.1:
12. It is the case of the petitioner that, on 26.11.2013 at about 10.58 p.m., the 1st respondent in a rash and negligent manner, to endanger human life came from Manyata Embassy Business Park Main Gate (gate-1) and crashed into two boom barriers inside the Plaza area of Manyatha Tech Park and further damaged a camera namely DFR (Drive Face Reader). Due to impact, the two boom barriers completely damaged and it require to be rebuilt and also DFR camera also damaged and it cannot be repaired in any manner and hence, it required to replace with new one. The total cost for the area and items damaged is works out to Rs.4,00,000/- including the labour charge. Hence, the petitioner incurred a loss of Rs.4,00,000/-.
10 SCCH-24.
M.V.C.1459/2014
13. In order to prove the actionable negligence, Manager of the petitioner himself entered into the witness box and filed affidavit in lieu of examination-in- chief and got examined as P.W.1. He reiterates the averments and the allegations made in the claim petition. He has deposed that, the accident occurred solely due to rash and negligent driving of the vehicle by the 1st respondent. During the course of cross- examination, nothing worthwhile material has been elicited from the mouth of this witness to discredit his version in examination-in-chief.
14. The petitioner has relied upon police documents produced at Ex.P.2 and Ex.P.3. Out of which, Ex.P.1, is copy of the Complaint and Ex.P.3 is copy of the First Information Report. Ex.P.3, i.e., the copy of First Information Report, which discloses that the Criminal Case has been registered against the driver of the Swift car bearing Reg.No.KA-03-MH-9074 for the offences 11 SCCH-24.
M.V.C.1459/2014 punishable under Sec.279 and 427 of the Indian Penal Code. Thus, the contents of the police documents prima-facie establishes the rash and negligence on the part of the driver of the Swift car bearing Reg.No. KA-03-MH-9074.
15. The 2nd respondent has taken specific defence that, on the date of accident, the car was being driven in a reasonable speed and careful manner and there was no rashness and negligence on the part of the driver of the car. In order to substantiate the said facts, the 2nd respondent has not placed any material evidence before this Tribunal. The respondent No.2 has not made any attempt to examine the driver of the car bearing Reg.No.KA-04-MH-9074, who is the best witness to say about the negligence. The respondent No.1 being the RC owner of the said car has not come forward to defend the case of the petitioner. Under these circumstances, the evidence of P.W.1, coupled with the contents of the 12 SCCH-24.
M.V.C.1459/2014 police documents establishes that, the accident has caused solely due to the rash and negligent driving of Maruthi Swift car bearing Reg.No.KA-04-MH-9074 by its driver. Ex.P.6 is the Photograph, which discloses that, the damages caused to the two boom barriers and a camera namely DFR (Driver Face Reader) in the said accident. Accordingly, issue No.1 is answered in the Affirmative.
Issue No.2:
16. The petitioner is claiming the compensation on account of the damages caused to the two boom barriers and a camera namely DFR (Driver Face Reader).
In order to prove their contention, the Manager of the petitioner has been examined as P.W.1. P.W.1 in his affidavit evidence has reiterated the contents of the petition. P.W.1 has produced Ex.P.8 i.e., Proforma Invoice issued by Beninca Automations Private Limited. The 2nd respondent has taken specific defence that, the 13 SCCH-24.
M.V.C.1459/2014 petitioner is not the owner of the damaged instruments and spent huge sum towards repairs of the instruments. During the course of cross-examination P.W.1 has deposed that:
"¸ÉæüÖ JQé¥ïªÉÄAmïUÉ NjPïì DmÉÆà E£ï¥sÁæ¸ÀÖPç ÀÑgïì ¸À«ð¸À¸ï °«ÄmÉqï CªÀgÀÄ ªÀiÁ°ÃPÀjgÀÄvÁÛgÉ JAzÀgÉ ¤d. CfðzÁgÀgÀÄ ¸ÀzÀj ¸ÉæüÖ JQé¥ïªÉÄAmï ªÀiÁ°ÃPÀgÀÄ C®è JAzÀgÉ ¤d. £Á£ÀÄ ¸ÀzÀj ¸ÉæüÖ JQé¥ïªÉÄAmïUÀ¼À£ÀÄß NjPïì DmÉÆà E£ï¥sÁæ¸ÀÖPç ÀÑgïì ¸À«ð¸À¸ï °«ÄmÉqï CªÀjAzÀ °Ãeï DzsÁgÀzÀ°è vÉUz É ÀÄPÉÆArzÉÝÃ£É JAzÀgÉ ¤d.
CfðzÁgÀgÀÄ NjPïì DmÉÆà E£ï¥sÁæ¸ÀÖPç ÀÑgïì ¸À«ð¸À¸ï °«ÄmÉqï CªÀgÉÆA¢UÉ °Ãeï CVæªÉÄAmï ªÀiÁrPÉÆArzÁÝgÉ JAzÀgÉ ¤d. ¸ÀzÀj °Ãeï CVæªÉÄAmï ¥ÀæPÁgÀ CfðzÁgÀgÀÄ NjPïì DmÉÆà E£ï¥sÁæ¸ÀÖPç ÀÑgïì ¸À«ð¸À¸ï °«ÄmÉqï CªÀjUÉ ¤AiÀÄ«ÄvÀªÁV ¨ÁrUÉ PÉÆqÀÄwÛzÁÝgÉ JAzÀgÉ ¤d. ---
14 SCCH-24.
M.V.C.1459/2014
--------------JQé¥ïªÉÄAmïUÀ¼ÀÄ dRAUÉÆAqÀ §UÉÎ ¸ÀªÉð ªÀiÁr¹¢ÝÃgÁ JAzÀgÉ E®è".
The evidence of P.W.1 discloses that, the petitioner is not the owner of the damaged safety equipments. It is clear that, the petitioner has taken the said equipments on lease basis from the owner i.e., ORIX Auto Infrastructure Services Limited. The petitioner has not produced any documents to show that, the owner of the said safety equipments has not claimed damages from the insurance company.
17. The petitioner has filed this petition under Section 166 of the Motor Vehicles Act. Under Section 166 of the Motor Vehicles Act, an application for compensation arising out of an accident may be made by a person who has sustained the injury, or by the owner of the property, or where death has resulted from the accident, by all or any of the legal representatives of 15 SCCH-24.
M.V.C.1459/2014 the deceased or by any agent duly authorized by the person injured or all or any of the legal representatives of the deceased, as the case may be. In the present case, admittedly the petitioner is not the owner of the damaged safety equipments. The petitioner has produced Ex.P.9 with copy of the Master Lease Agreement. In Ex.P.9 at para 6 it reads as under:
6.1 Save as otherwise provided in this Agreement, no right, ownership, title or interest in the Equipment shall pass to the Lessee by virtue of these presents.
The Lessee shall at no time contest or challenge the Lessor's sole and exclusive ownership right, title and interest in the Equipment.
6.2 The Lessor and the Lessee hereby confirm that their intent is that the Equipment shall at all times remain the property of the Lessor.
Thus, as per the Master Lease Agreement, the ORIX Auto Infrastructure Services Ltd. is the owner of the said equipment. Hence, in the considered view of this 16 SCCH-24.
M.V.C.1459/2014 Tribunal, the petitioner is not the owner of the said safety equipments. Therefore, petitioner is not entitled for the relief as claimed in the petition. Accordingly issue No.2 is answered in the Negative. Issue No.3:
18. For the foregoing reasons and the discussions as stated above, the petition filed by the petitioner is liable to be dismissed.
In result, I proceed to pass the following :
ORDER The Claim Petition filed by the petitioner under Section 166 of the Motor Vehicles Act is hereby dismissed.
Under the circumstances of the case, no order as to cost.
(Dictated to the stenographer on Computer, typed by her, corrected by me and then pronounced in the open court on this the 13th day of April, 2016).
(HIREMATH SHOBHARANI BABAYYA ) XXII A.S.C.J. & XX A.C.M.M., & MEMBER, M.A.C.T., Bengaluru.
17 SCCH-24.
M.V.C.1459/2014 ANNEXURE Witnesses examined on behalf of the Petitioner :
P.W.1 - Dharmender K. Witnesses examined on behalf of the Respondents:
- Nil -
Documents marked on behalf of the Petitioner:
Ex.P.1 - Copy of Board Resolution.
Ex.P.2 - Copy of the Complaint. Ex.P.3 - Copy of the First Information Report. Ex.P.4 - Copy of the Insurance Policy. Ex.P.5 - Copy of the Incident Report. Ex.P.6 - Photograph Ex.P.7 - C.D. Ex.P.8 Proforma Invoice. Ex.P.9 - Letter issued by the ORIX Auto
Infrastructure Services Limited to the petitioner.
Documents marked on behalf of the Respondents:
-NIL-
(HIREMATH SHOBHARANI BABAYYA ) XXII A.S.C.J. & XX A.C.M.M., & MEMBER, M.A.C.T., Bengaluru.