Bangalore District Court
Smt.Renukamma vs Sri.Ajay Deshpande on 15 April, 2019
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL
COURT OF SMALL CAUSES, AT BENGALURU
DATED THIS THE 15th DAY OF APRIL 2019
(SCCH-25)
Present: Sri.M.C.NANJEGOWDA
B.A.L., LL.M.
XXI A.C.M.M. & XXIII A.S.C.J, Bengaluru.
MVC No.6343/2017
PETITIONER/S: 1. Smt.Renukamma
W/o Late Hanumantharaju,
Aged about 55 years,
2. Sri.Vijay Kumar
W/o Late Hanumantharaju,
Aged about 37 years,
Both are residing at
No.430/A, 13th cross,
Kaveripura,
Bangalore 560 079.
3. Smt.Lalitha
W/o Ramakrishna,
Aged about 37 years,
Residing at
Narasimarajapura village,
Dabasapete village,
Lakshmipura,
Bangalore north taluk,
Bangalore
(By Sri/Smt. Krishnamurthy.S.G.
Sharief, Advocate)
V/S
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RESPONDENT/S 1.Sri.Ajay Deshpande,
S/o. N.R.Deshapande,
No.72, 1st floor, 4th Main,
Yamuna Apartment,
Binny layout,
Chandralayout,
Bangalore-40.
2. The Manager
ICICI Lombard General
Insurance,
Office at 121, 9th floor,
The estate, Dickension road,
F.M.Kariyappa colony,
Bangalore 560 042.
Policy
No.3001/98660968/02/000
Dated: 01.02.2017 to 21.01.2018
(R.1 Ex-parte
R.2 By Sri. D.Manjunath
Advocate/s)
JUDGMENT
This is a Petition filed by the Petitioner under Section 166 of Motor Vehicles Act seeking Compensation of Rs.20,00,000/- for the Death of one Hanumantharaju who died in a road traffic accident dated 25.02.2017.
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2. The case of the Petitioner in nutshell is that, on 25.02.2017 at about 11.50 am Hanumantharaju (the deceased) being a pedestrian was walking on the left side of the road near Mudanapalya Circle, Bangalore. At that time, a Car bearing Reg.KA-02-ME-7022 came from RTO office road with high speed and in a rah and negligent manner, so as to endangering to human life and dashed against the Hanumantharaju, result of which he fell down and sustained grievous injuries. Immediately he was shifted to Revathi Hospital, Ullala main road and provided treatment and thereafter he was shifted to Victoria hospital and provided treatment. But in spite of such treatment, he was not survived and succumbed on 10.03.2017 in the hospital due to the accidental injuries.
3. It is further case of the Petitioner that before accident, the deceased- Hanumantharaju was hale and healthy. He was working as a Watchmen at Private Factory and earning a sum of Rs.12,000/- per month and contributing the entire income for the maintenance of the family. The 4 MVC No.6343/2017 SCCH-25 Petitioners being the wife, son and the daughter of the deceased were entirely depending upon the income of the deceased. The Petitioners have spent a sum of Rs.50,000/- towards food, nourishment charges and other incidental charges. Due to the sudden demise of the deceased, the Petitioners are suffering from mental agony and financial difficulties. Therefore, the Respondents being the RC owner and the insurer of the offending vehicle are jointly and severally liable to pay the compensation. Hence, this petition.
4. In spite of due service of notice issued by this court/tribunal, the Respondent No.1 has not appeared and hence he is placed ex-parte. The Respondent No.2 appeared and filed written statement. The Respondent No.2 in the written statement has admitted the issuance of insurance policy in respect of the offending vehicle. But it has contended specifically that the liability under the policy if any is subject to terms and conditions of the policy, verification of the vehicle documents and driving license of its driver. It has denied that the accident was occurred due to the negligence 5 MVC No.6343/2017 SCCH-25 on the part of driver of offending vehicle. It has specifically contended that there is inordinate delay of 14 days in lodging the complaint to the police and reasons assigned by the first informant is strange and unacceptable. It is a concocted story for which the police and first Respondents are also hand in glove with the Petitioners. The police documents are created by the police to claim the compensation and offending vehicle has been falsely implicated in order to get wrongful gain. The petition is bad for non-compliance of section 158(6) and 134(c) of IMV act. The Respondent No.2 has further denied the entire averments of the petition including the age, income and avocation of the deceased and total claim of the petition and sought for dismissal of the petition.
5. On the above rival contentions of the parties, this court has framed the following issues:
1. Whether the Petitioners prove that, they are the legal heirs of the deceased Hanumantharaju?6 MVC No.6343/2017
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2. Whether the Petitioners prove that, Hanumantharaju was died on account of RTA took place at Mudanapalya circle, Bangalore, due to rash and negligent driving of the driver of the Car bearing Reg.No.KA-02-ME-7022 dated 25.02.2017 at about 11.50 a.m. ?
3. Whether the Petitioners are entitled for compensation? If so, how much and from whom payable
4. What Order or Award?
6. The Petitioners in order to prove their case, they have examined Smt.Renukamma (Wife of the deceased) as PW.1 and got marked 12 documents as per Exs.P.1 to P.12. They have also examined one Mr.Jaganath - CMO - Revathi Hospital as PW.2 and produced 1 document as per Ex.P.13. On the other hand the Respondent No.2 examined Mr.Ajay Deshpandey (Respondent No.1) as RW.1 and Smt.Prathima Deshpandey as RW.2 and they did not produced any documents on their behalf.
7. Heard both Counsels.
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8. My finding to the above issues are as follows:-
Issue No.1 : In the affirmative
Issue No.2 : In the Negative
Issue No.3 : In the Negative
Issue No.4 : As per final order for the
Following:
REASONS
9. Issue No.1:
It is the case of the Petitioner that, the Petitioners are the wife, son and daughter of the deceased - Hanumantharaju. To prove this relationship, they have examined the Petitioner No.1 Renukamma - wife of the deceased as PW.1. PW.1 has specifically spoken about this relationship in her chief- examination. Apart from that, the Petitioners have also produced Adhar Cards of the Petitioners and the deceased as per Exs.P.8 to P.11. In Ex.P.8 - Adhar Card of the Petitioner No.1 - Renukamma, her husband name is mentioned as Hanumantharaju. In Ex.P.9 - Adhar Card of the Petitioner No.2 - Vijay Kumar H, his father name is mentioned as Hanumantharaju who is the deceased. In the same manner 8 MVC No.6343/2017 SCCH-25 the Adar cards of the Petitioner No. 3 and deceased, clearly disclose their identities as they are on Lalith and Hanumantharaju. These documents are public documents which have got initial presumptive value under law and they have not been seriously disputed by the Respondent. The Respondents have not produced any contrary documents on record. As such, there are no reasons to discard these documents produced by the Petitioners. Under such circumstances, relying upon the evidence of PW.1 and documents produced as per Exs.P.8 to P.11, this court is of the opinion that the Petitioners are the wife, son and daughter of the deceased Hanumantharaju. Accordingly, Issue No.1 is held in the affirmative.
10. Issue No.2:
The Petitioners in order to prove that the accident was occurred due the actionable negligence on part of the driver of the offending Car bearing Reg.No.KA-02-ME-7022 has examined the Petitioner No.1 as PW.1 and produced 7 documents as per Exs.P.1 to P.3, P.5 and P.12. PW.1 has 9 MVC No.6343/2017 SCCH-25 specifically spoken in her evidence that the driver of the offending Car has driven the same in high speed and a rash and negligent manner and dashed against the deceased Hanumantharaju while he was walking on the left side of the road and caused accident. On the other hand, the Respondent No.2 being the only contesting party denied that the accident was occurred due to the negligence of the driver of offending vehicle. The Respondent No.2 specifically contended that the offending vehicle is not involved in the accident. But it has been falsely implicated in the accident by the Petitioners by hand in glove with the owner and jurisdictional police in order get the wrongful gain/compensation by giving a false complaint after 14 days. In this regard, the Respondent No.2 examined the Respondent No.1, the owner of the offending vehicle as RW.1 and his wife Smt.Prathima Deshpandey, who is said to be the accused in concerned criminal case as RW.2. RWs.1 and 2 have categorically stated in their evidence in chief that on 25.07.2015, they were going to drop their children to the school and when they reached near Muddayyanapallya, Circle, they found a person aged about 70 10 MVC No.6343/2017 SCCH-25 years fallen on the ground due to giddiness. When they gone near him, it appeared to them that he was suffering from paralysis. Therefore, they shifted him to nearby Revathi Hospital by their car. They have further stated that the duty doctor in the said hospital informed them that the patient appear to be suffering from Perkins-sense and hence he cannot give any treatment. Therefore, they took the patient to Victoria Hospital and admitted him therein. But after 14 days, they came to know that their vehicle has been falsely implicated and RW.2 has been shown as accused-driver.
11. At the out set, before adverting examine the evidence on record, it is pertinent to note that, from the contentions raised by the Respondent No.2 in the written statement and in the evidence of Rw1 and 2, it is very clear that the Respondent No.2 has not only denied the negligence of the driver of the offending vehicle, but it has also denied very accident, involvement of the offending vehicle and death of the Sri.Hanumantharaju on account of injuries sustained in 11 MVC No.6343/2017 SCCH-25 the alleged accident. Therefore, there is heavy burden upon the Petitioners to prove all these ingredients. But, the Petitioners, to prove the accident and involvement of the offending vehicle in the accident, except PW.1, has not examined any eye witness who had seen the accident at the time of its occurrence. PW.1 is not an eye witness who has seen the accident. She has admitted in her cross examination that she has not seen the accident. She has stated in her evidence that the shop keepers near the accident spot have informed her about the involvement of the offending vehicle. As such, PW.1 is only a hearsay witness. But, the Petitioners have not examined the shop keepers who had given the information to PW.1 about the accident. In the absence of evidence of the persons who seen the alleged incident and informed PW.1 about the alleged accident, her evidence is hit by section 60 of Indian evidence. Therefore, her(Pw1) evidence with regard to the accident and involvement of the offending vehicle is inadmissible in the eye of law.
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12. The learned counsel for the Petitioners in the arguments contended that, the police documents produced by the Petitioners as per Exs.P.1 to P.3 and P.12 are public documents. Therefore, this court has to accept these public documents and come to conclusion that the offending vehicle is involved in the accident and on account of such accident, Sri. Hanumantharaju was succumbed to the accident injuries. But this contention of the Petitioners is not acceptable. Because, it is well settled principle of law that police documents are only corroborative piece of evidence. They are not substantiate piece of evidence. The evidence led by the parties before this court is substantive evidence. But, in so far as accident and involvement of offending vehicle is concerned, there is absolutely no substantive evidence lead before this tribunal. Corroborative piece of evidence is only supportive to the substantial evidence. In the absence of substantive evidence, the corroborative piece of evidence does not have any evidential value in the eye of law. Therefore, this tribunal cannot exclusively rely upon the corroborative piece of evidence, i.e., Police documents to come to the conclusion that 13 MVC No.6343/2017 SCCH-25 there was accident and involvement of the offending vehicle. If PW.1 was an eye witness to the accident, her evidence would have become substantive evidence. Then the police documents, i.e., corroborative piece of evidence could have been taken into account this court/tribunal could have relay upon it. Moreover, in this case, very corroborative piece of evidence i.e., police documents are also very much doubtful. The Respondent No.2 in the written statement has clearly and categorically contended that police documents are created by colluding with the jurisdictional police by giving false complaint after 14 days from the date of alleged incident. From the very police documents produced by the Petitioners themselves, it is very clear that the alleged accident is occurred on 25.02.2017 and first information is lodged on 10.03.2017 i.e., after 14 days from the date of alleged accident. There is absolutely no acceptable explanation offered by the Petitioners for delay in lodging the first information and Pw1 has admitted that her daughter and son in law came to hospital on next date and her son was also available when the injured was in the hospital. Such being the case, if Petitioner 14 MVC No.6343/2017 SCCH-25 No.1 was looking after the injured, either son or her daughter or her son in law could have lodged a police complaint. But the Petitioners have not stated why, in spite of it, none of them have filed the first information for more than 14 days. The Petitioners except police documents have not produced any other documents to show that the offending vehicle has been involved in the accident.
13. When the matter was posted for judgment, the Petitioners recalled the case and examined a witness by name Jagannath, the Medical Record Technician as PW.2 and produced Ex.P.13-MLC which is said to be pertaining to the deceased-Hanumantharaju. But, the said document does not disclose that the deceased had admitted to the hospital with the history of road traffic accident. As per admission given by PW.2 in his cross examination, he was not at all aware weather the deceased was admitted to the hospital with history of RTA or not. The Respondent No.2 has specifically denied Ex.P.13 that contending that it is created after posting this case for judgment. In this regard the learned counsel for 15 MVC No.6343/2017 SCCH-25 the Respondent has obtained important admission from the mouth of Pw2. PW.2 has admitted that usually to write information of one patient, they take two pages of the document (MLC book) i.e., on the left and right side pages. He has admitted that information of one Narayana is written in page No. 104 and 105 and in the same manner, information pertaining to patient one Rajendra Prasad is written in pages No.108 and 109. But, it is pertinent to note to write MLC in the instant case, he has taken only one page i.e., in page No.107. He has stated that he has written information of Swetha and Chandrike in page No.106. But he does not say why he has not used the two pages as used for other patients. Page No. 106 come on the left side and page No. 107 comes on the right side. If the same practice was followed, the information pertaining to Sweatha and Chandrika should have been written in page No107. But in page No. 107, the information pertaining to deceased Hanumnatharaju is written. It is very important to note that, MLC will be prepared only if a patient is admitted to the hospital with the history of assault or any accident or unnatural death. But, according to 16 MVC No.6343/2017 SCCH-25 PW.2, he was not at all sure as to whether the patient/Hanumantharaju was admitted to hospital with history of accident or not. It is also not his say at least that Mr.Hanumantharaju was admitted with the history of assault. Such being the case, there was absolutely no requirement for PW.2 to prepare a MLC in this case if Mr.Hanumantharaju was not admitted to the hospital with the history of RTA. He has not stated what made him to prepare MLC in his case, though the patient/Hanumantharaju was not admitted to the hospital in any of those histories. He also has not stated if he has prepared, why he has not sent it to the Jurisdictional police station. This circumstance clearly suggests and proves that as rightly contended by the Respondent No.2, page No. 107 which was left blank was been used for inserting the information relating to the deceased Hanumantharaju after receiving the summons from this court/tribunal. As such, viewed from any angle, to prove the case of the Petitioners that there was accident by the offending vehicle and on account of such accident, Mr.Hanumantharaju was died, there are absolutely no acceptable and believable oral or documentary 17 MVC No.6343/2017 SCCH-25 evidence on record. Therefore, under these circumstances, relying upon the evidence of PW.1 and RWs.1 and 2 and documents produced by them, this court/tribunal has no other option except to come to the conclusion that the Petitioners have failed to prove that there was an accident as alleged by the Petitioners on 25.02.2017 and on account of such accident Mr. Hanumantharaju was succumbed to the injuries. Accordingly, Issue No.2 is held in the negative.
14. Issue No. 3:
While discussing point No.2 this tribunal has come to the conclusion that the Petitioners have failed to prove that there was an accident as alleged by the Petitioners and on account of such accident by the offending vehicle Mr. Hanumantharaju was dead. When the Petitioners have failed prove the nexus between the death of Mr.Hamumanatharju and alleged accident dated 25.02.2017 involving the offending vheicle, the question of holding the Respondents for the death of deceased 18 MVC No.6343/2017 SCCH-25 Mr.Hanumantharaju does not arise at all. Accordingly, Issue No.3 is held in the Negative.
15. Issue No.4:
For the reasons and discussions made above and finding to the above issues this court proceed to pass the following:-
ORDER The Petition filed by the Petitioner under Section 166 of Motor Vehicles Act is hereby dismissed.
No order as to costs.
(Dictated to the stenographer on line, revised, corrected and then pronounced in the open court this the 15th day of April 2019) (M.C.NANJEGOWDA) XXIII Addl. Small Causes Judge, Bangalore.
ANNEXURE List of witnesses examined on behalf of the Petitioner:
P.W.1 Renukamma
P.W.2 Sri.Dr.Jaganth
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List of witnesses examined on behalf of the Respondents:
RW.1 Ajay Deshpande RW.2 Prathima Deshpande
List of documents marked on behalf of the Petitioner:
Ex.P-1 - FIR in Cr.No.103/2017 and Complaint Ex.P-2 - Panchanama Ex.P-3 - Spot sketch Ex.P-4 - Inquest mahazar Ex.P-5 - IMV report Ex.P-6 - PM report Ex.P-7 - Wound certificate Exs.P-8 to P-11 - Notarized copy of Adhar cards (4) Ex.P-12 - Charge sheet Ex.P-13 - MLC
List of documents marked on behalf of the Respondents:
--Nil--
(M.C.NANJEGOWDA) XXIII Addl. Small Causes Judge, Bangalore.