Bangalore District Court
Rajashekar vs The Manager on 4 September, 2015
BEFORE MOTOR VEHICLES ACCIDENT CLAIMS TRIBUNAL,
BANGALORE CITY. SCCH-14
PRESENT: Basavaraj Chengti., B.Com.,LL.B.,(spl)
Member, MACT,
XVI ADDL. JUDGE,
Court of Small Causes,
BANGALORE.
MVC No.6826/2011
Dated this the 4th day of September 2015
Petitioner/s : Rajashekar
S/o Rama Subbu,
Aged about 20 years,
No.13/2,
Kumbara Sanga Building,
Ist floor, A.J.Traders,
Kalasipalyam,
Bangalore-560 002.
V/s (By pleader Sri BKK)
Respondent/s 1. The Manager,
Royal Sundaram Alliance,
Insurance Co.,Ltd.,
No.186/7, Raghavendra Complex,
Wilson Garden, Ist cross,
Hosur Main road,
Bangalore-560 027.
2. Mr.Ariyanayagam Ramasubbu
S/o Ariyanayagam,
No.265, Ground Floor,
Rajarajeshwari Layout,
5th and 6th cross, 2nd main,
Vijinapura,
Bangalore-560 016.
(R1-By pleader Sri BNS)
(R2-Exparte)
SCCH-14 2 MVC No.6826/2011
JUDGMENT
This petition is filed by the petitioner U/s 166 of Motor Vehicles Act claiming compensation of Rs.10,00,000/- for the injuries sustained by him in a road traffic accident.
2. Brief averments of the petition are as under:
On 11.09.2011 at about 02.00 P.M., the petitioner was traveling in Endeavour car bearing No.KA-53-N-4928 on Sangam- Kanakapura road. The driver by name Karthik Raj was driving the said car at a very high speed, in rash and negligent manner, so as to endangering to human life. Inspite of repeated request made by the petitioner to go slow, he did not listen to him. When they reached near Marale Bekuppe, due to over speed, the driver lost control and the car capsized on the left side of the road. As a result, the car was badly damaged and the petitioner trapped under the said car and dragged few feet away. Due to impact, the petitioner sustained open lacerated wound over right elbow with vascular injury and other injuries all over the body. Immediately, the petitioner was taken to Kanakapura Govt., Hospital, wherein first aid treatment was given and then, he was shifted to Hosmat Hospital, Bangalore wherein he was admitted as an inpatient for 10 days. He underwent surgery and wound exploration done, also wound debridement, K-wire of right thumb and multiple muscle flap-SSG. The petitioner was discharged with an advice to take follow up treatment and bed rest. He spent huge amount for his treatment, conveyance and nourishment etc., Prior to the accident, the petitioner very hale and healthy, was studying Ist year B.Com SCCH-14 3 MVC No.6826/2011 at C.M.R College. He was very active, brilliant student and scoring good marks in all previous examinations. Due to the accidental injuries, he could not attend his classes so far and he became permanently disabled. He could not participate in games and cultural activities. His family members are put to great hardship and mental agony. He had bright future, good ambitious and achievements have become destroyed and his life put in dark and miserable. The vehicle was belongs to his father. Due to inconvenience to go and lodge a complaint before jurisdictional police station, the complaint was lodged little bit late. Sathanur Police have registered Cr.No.182/2011 against the driver of Endeavour Car bearing No.KA-53-N-4928 for the offences punishable U/s 279, 337 of IPC. The police have investigated the matter and filed chargesheet against the driver of said Endeavour Car. The respondents are the insurer and owner of the said vehicle and are jointly and severally liable to pay compensation to the petitioner. Therefore, the petitioner has filed this petition for a compensation of Rs.10,00,000/- with cost and interest.
3. In pursuance of the notice, the respondent no.1 has appeared before the Court through his counsel and filed written statement. The notice was not served upon the respondent no.2 in the ordinary course. Hence, notice was issued to him by RPAD. Inspite of delivery of intimation of notice, the respondent no.2 has not received the notice. He remained absent and hence, he is placed exparte. The respondent no.1 has admitted the issuance of the policy in favour of the respondent No.2 in respect of the Endeavour Car bearing No.KA-53-N-4928, but he has denied the SCCH-14 4 MVC No.6826/2011 other averments of the petition as false and contended that the insured vehicle was not involved in the accident, that the driver of the said car was not holding a valid and effective driving licence as on the date of accident, that the compensation claimed by the petitioner is highly excessive, astronomical and imaginary, that there is a delay of 22 days in lodging complaint, that the accused has occurred due to sole rash and negligent manner to Endeavour car by its driver. He has further contended that the accident has not occurred in the manner as stated by the petitioner. Hence, he has sought for dismissal of the petition as against him.
4. On the basis above pleadings, the following issues were framed by my predecessor-in-office:
ISSUES
1. Whether the petitioner proves that the injuries caused in the accident arising out of the use of the vehicle driver of the Endeavour Car bearing No.KA-53-N-4928 occurred on 11.09.2011 at about 02.00 P.M.,?
2. Whether the petitioner is entitled to compensation? If so, how much and from whom?
3. What Order?
After the arguments, it is found that issue no.1 needs to be recast. Accordingly, issue no.1 is recast as under:
Whether the petitioner proves that he sustained grievous injuries in the nature of permanent disablement on 11.09.2011 at about 02.00 P.M., on Sangam-Kanakapura road, near Marale Bekuppe, Kanakapura due to rash and negligent driving of the driver of Endeavour Car bearing No.KA-53-N-4928?SCCH-14 5 MVC No.6826/2011
5. During the evidence, the petitioner has examined himself as PW.1 and examined three witnesses as PW.2 to 4. He has got marked documents as Ex.P1 to P21. The respondent no.1 has examined two witnesses as RW.1 and RW.2, but he did not produce any document on his behalf. After recasting of issue No.1, the parties have been given an opportunity to adduce further evidence, but they did not choose to adduce any evidence.
6. Heard the arguments. The counsel for the respondent no.1 has relied upon following rulings:
1.C.M.A No.3194/2005 :(The New India Assurance Co.Ltd., Udumalpet Town Vs. K.Rameshkumar & Ors.,)
2. Civil Appeal No.3171/2009: (North West Karnataka Rd.Transport Corp., Vs. Gourabal & Ors.,)
3. MFA No.10923/12: (Mr.Vija V. Shetty Vs. Mr.V.Sharada & Ors.,)
4. ILR 2009 Kar 3562: (Verrappa & Anr., Vs. Siddappa & Anr.,)
5. ILR 2009 Kar 2921: ( Bajaj Allianz General Ins.,Co.Ltd., Vs. B.C Kumar & Anr.,) I have gone through said rulings and perused the records.
7. My findings on the above issues are as under:-
Issue No.1: In Negative Issue No.2 : In Negative Issue No.3 : As per final order :
for the following:
REASONS
8. ISSUE NO.1: The admitted facts of the case are that the respondent no.1 is the insurer and the respondent no.2 is the SCCH-14 6 MVC No.6826/2011 owner of Car bearing no.KA-53-N-4928, that the petitioner is the son of the respondent no.2, that the policy of insurance of said car was in force on 11-9-2011, that Satnur police have registered Cr.No.182/2011 on 3-10-2011 against one Karthik Raj for the offences punishable U/s 279 and 337 of IPC on the basis of information given by the respondent no.2, that the police have investigated the matter by detaining the vehicle, subjecting it to inspection, by recording the statement of witnesses, that after completing investigation, the police have filed charge sheet against the said Karthik Raj for the offences punishable U/s 279 and 338 of IPC, that the Court taking cognizance of the offences, registered C.C.No.1160/ 2011, issued process against Karthik Raj and he appeared before the Court, admitted the guilt and paid fine of Rs.2,000/-.
9. Undisputed facts of the case are that the petitioner took first aid treatment in Govt. Hospital, Kanakapura on 11-9-2011 at about 3.50 p.m., that he was taken to Hosmat Hospital, Bangalore on the same day at about 5.55 p.m., and was an inpatient there till 20-9-2011, that Hosmat Hospital bill was borne by ICICI Lombard General Insurance company to the extent of Rs.3,40,000/- which was reimbursed to the respondent no.2 vide cheque bearing no.653582 dt. 8-3-2012, that the respondent no.1 has admitted the claim of the respondent no.2 in respect of damage to car bearing no.KA-53-N-4928 and settled the claim by paying Rs.3,16,228/- with deduction of Rs.1,526/- towards TDS out of total repair bill of Rs.4,57,411/-.
SCCH-14 7 MVC No.6826/201110. The petitioner has pleaded that he sustained grievous injuries on 11-9-2011 at about 2.00 p.m., when his car bearing no. KA-53-N-4928 driven by Karthik Raj fell in a ditch near Marale Bekuppe on Sangam-Kanakapura road, that the accident was due to rash and negligent driving of the car by Karthik Raj. In order to prove the said facts, the petitioner has examined himself as PW-1, examined Dr.Krishan Prasad as PW-2, Dr. Shylendra Kumar as PW-3 and Neptune as PW-4. In support of oral evidence of PW-1 to 4, the petitioner has got marked copies of FIR, statement, panchanama, IMV report, charge sheet and police intimation as Ex.P-1 to 6, has got marked copy of wound certificate, discharge summary of MN Orthopedic hospital, OP and IP records, x-ray, MLC register extract of Govt. hospital, Kanakapura and Fine receipt as Ex.P-7, 8, 15 to 18 and 21. He has got marked car repair documents namely receipt of Metroford, commitment letter of Metroford, repair invoice, copy of letters written by the respondent no.2 to the respondent no.1, work order file and liability computation report as Ex.P-9 to 11, 13, 19 and 20. He has produced copies of correspondence with ICICI Lombard General Insurance company with photo and CD. Same are marked as Ex.P-12 and 14.
11. The respondent no.2 remained exparte and the respondent no.1 has contested the claim of the petitioner. The respondent no.1 has pleaded that the claim of the petitioner is false, that the accident has not occurred as pleaded by the petitioner, that there is a delay of 22 days in lodging complaint which is highly suspicious. The respondent no.1 has examined the SCCH-14 8 MVC No.6826/2011 police officer who investigated Cr.No.182/ 2011 and filed charge sheet as RW-1 and officer of company as RW-2 to prove his defence. He has also relied upon the evidence adduced by the petitioner himself to disprove his case. His counsel drawn my attention to the admissions of PW-1 to 3, to the contents of wound certificate, of OP record, of MLC register extract and argued that the petitioner sustained injuries due to self fall as he himself was driving the car, that Karthik Raj was not driving the car and he was not even present in the car, that medical records prevail over the police records and in this case, the medical records confirm that the petitioner suffered self injuries, that in order to make claim against the respondent no.1, facts have been twisted and FIR was lodged after lapse of 22 days which is clearly after thought, that OD claim and third party claim are on different footing and settling OD claim is no ground to hold that the respondent no.1 has admitted the manner of accident. Hence, he has sought for dismissal of the claim of the petitioner.
12. On the contrary, the counsel for the petitioner has argued that the respondent no.1 was explained by the respondent no.2 regarding the delay in lodging complaint, that the respondent no.1 after getting the matter investigated, has settled OD claim of the respondent no.2, that the police have investigated the matter and filed charge sheet which reveals that Karthik Raj was driving the car and the accident has occurred due to his negligence, that the said Karthik Raj admitted his guilt before the Court which establishes the negligence of Karthik Raj for the occurrence of the accident, that except bare denials, nothing is elicited from PW-1 SCCH-14 9 MVC No.6826/2011 to 3 and evidence of PW-4 remained unchallenged, that evidence of RW-1 and 2 is not useful to the respondent no.1 to disprove the case of the petitioner. Hence, she has sought for rejection of argument of the counsel for the respondent no.1 and for answering the issue in affirmative.
13. PW-1:Rajashekar has deposed as per the contents of the petition. PW-2: Dr.Krishna Prasad has deposed about the injuries caused to the petitioner and treatment given to him in Hosmat hospital. PW-3:Dr.Shylendra has produced MLC register extract pertaining to the petitioner and deposed in that regard. PW-4: Neptune has deposed about repair of car bearing no. KA-53- N-4928, about settlement of OD claim by the respondent no.1 and payment of Rs.3,08,692/- by him towards car repair bill of Rs.4,57,411/-. He has stated that the remaining amount of Rs.1,48,719/- is paid by the customer. Similarly, RW-1:Naveen has deposed about the investigation done by him in the crime. RW-2: Sandeep has deposed as per the defence of the respondent no.1.
14. Police records at Ex.P-1 to 6 disclose that the respondent no.2 filed complaint regarding the accident after lapse of 22 days, that the police have registered Cr.No.182/ 2011 and taken up investigation, that the IO has recorded the statement of witnesses, found the car bearing no. KA-53-N-4928 in the place of accident, he detained it under panchanama and subjected it to inspection, that the said car was damaged on its front and right side, but its brake system was in order, that after completing investigation, the IO has filed charge sheet against Karthik Raj SCCH-14 10 MVC No.6826/2011 alleging that the accident has occurred due to rash and negligent driving of the car by Karthik Raj. Ex.P-21 reveals that the Karthik Raj appeared before Criminal Court and paid fine of Rs.2,000/- by admitting his guilt. The contents of Ex.P-1 to 6 and 21 corroborate the evidence of PW-1 as to manner of accident and negligence of Karthik Raj for the occurrence of accident. Evidence of RW-1:
Naveen partially corroborates the oral and documentary adduced by the petitioner.
15. Wound certificate, discharge summary, photograph and CD, OP and IP records, x-ray, MLC extract at Ex.P-7, 8, 14 to 18 reveal that the petitioner sustained lacerated wound over right elbow with vascular injury and avulsion injury, open wound over right mandible, that the said injuries were grievous in nature, that the petitioner took first treatment in Govt. hospital, Kanakapura and further treatment at Hosmat hospital, Bangalore and at MN Orthopedic hospital, Bangalore, that he was in the hospital for about 19 days and underwent surgery, wound debridement, etc., The contents of Ex.P-7, 8, 14 to 18 and oral evidence of PW-2 support the version of PW-1 as to nature of injuries caused to him and nature of treatment given to him in various hospitals. Ex.P12 discloses that the hospital bill of the petitioner was paid by ICICI Lombard General Insurance company to the extent of Rs.3,40,000/- under Health care policy. There is nothing on record to disbelieve oral and documentary evidence adduced by the petitioner as to injuries caused to him and treatment given to him.
SCCH-14 11 MVC No.6826/201116. Records regarding repair of car and settlement of OD claim of respondent no.2 by the respondent no.1 are at Ex.P-9 to 11, 13, 19 and 20 which corroborate the evidence of PW-4 and collectively establish that the total repair charges of the car were Rs.4,57,411/- and out of which the respondent no.2 has paid Rs. 1,48,719/- and remaining amount is borne by the respondent no.1 towards OD claim. Evidence of PW-4 remained unchallenged and there is nothing to reject the same. But, settlement of OD claim by the respondent no.1 is not sufficient to believe that the accident has occurred in the manner as stated by the petitioner. I am of the opinion that OD claim and third party claim stand on different footing. In OD claim, the insurer concentrates on the damages caused to the vehicle insured, but in third party claims, he minutely examines all facts relating to the accident. Hence, argument of the counsel for the petitioner in that regard holds no water.
17. Hon'ble High Court has held in ruling reported in ILR 2009 KAR 2921 as under:
"MOTOR VEHICLES ACT, 1988- Accident Claim-Award-Insurance Company Appeal-Plea of Guilt by the driver-Conviction in the criminal Case-Can the plea of guilt by the Driver become the sole criterion for allowing the claim petition by the M.A.C.T.- A case of Insurance Company disputing the very factum of Accident
- Sustainability of the award passed by the M.A.C.T. - HELD, The M.A.C.T should not and ought not to place sole reliance on the judgment of the Criminal Court while considering the issue of the factum of the SCCH-14 12 MVC No.6826/2011 accident and consequent negligence, as stated in the claim petition filed before the Tribunal. Bus, the Tribunal will have to assess the evidence before it independently of any finding of the Criminal Court on the question of the driver pleading guilty. At the most, the circumstance of the driver pleading guilty may be considered as one of the pieces of evidence to support the case of the claimant. But, the Tribunal should not place implicit reliance only on the circumstance of the driver having pleaded guilty before the Criminal Court and such an approach by the Tribunals will be not only an one side approach but, at the same time, there is every likelihood of the pleading of guilty by a driver before the Criminal Court having been obtained by adopting various methods so as to ensure that the claimant succeeds before the M.A.C.T in getting compensation. FURTHER HELD, There has been spate of cases wherein false claims have been made before the claims Tribunal and false implications are also on the increase. The M.A.C.Ts are constituted not only to allow the claim petitions which are genuine in nature but, at the same time, the Tribunals also will have to keep in view that compensation should not be awarded mechanically in every case and to accepted the case of the claimant as if all that the claimant says about the accident and the injuries in a truthful one. Merely because a claimant in a particular case comes out with the evidence that the driver of the vehicle is convicted on his pleading guilty, the Tribunal should not go by the plead guilty factor alone, but it is required to appreciate the evidence before it from every angle and if there is a good reason to question the very case of the claimant or doubt the very manner of the accident, in such cases, the Tribunal will have to view the factor of pleading guilty along with the entire evidence placed before it and make an assessment of the whole situation.-Award passed by the Tribunal is not justified.".SCCH-14 13 MVC No.6826/2011
The principle laid down above is applicable to the facts of this case. The plea of guilt by Karthik Raj cannot be the sole ground to believe that Karthik Raj was driving the car bearing no. KA-53-N-4928 on 11-9-2011 and the accident has occurred due to his negligence. PW-1: Rajashekar has admitted in cross examination that his father gave Rs.2,000/- to Karthik Raj for payment of fine. The custody of Ex.P-21 confirms the payment of amount by the respondent no.2. The counsel for the petitioner argues that since Karthik Raj was working under him, the respondent no.2 has paid the amount of fine. On the contrary, the counsel for the respondent no.1 has argued that no person will pay the amount to a person who is responsible for causing of injuries to his son and payment of Rs.2,000/- by the respondent no.2 to Kartik Raj indicates the collusion between them. I am of the opinion that there is some force in the argument of the counsel for the respondent no.1.
18. On perusal of entire oral and documentary evidence on record, it becomes clear that on 11-9-2011, the petitioner was traveling in car bearing no. KA-53-N-4928 which met with an accident near Marale Bekuppe, on Sangam-Kanakapura road, that he sustained grievous injuries as stated by PW-2 and underwent treatment as mentioned in the discharge summary, IP and OP records. Photograph reveals the impact of the injury on the petitioner. The delay in lodging complaint is no ground to disbelieve the evidence of PW-1 to 3 and contents of medical records as to injuries caused to the petitioner. Therefore, I am of SCCH-14 14 MVC No.6826/2011 the opinion that the petitioner sustained grievous injuries in the alleged accident.
19. PW-1:Rajashekar has stated that the car was driven by Karthik Raj and accident was due to negligence of said Karthik Raj. In cross examination, he has stated that Karthik Raj did not sustain any injury in the accident and he was taken to hospital by Karthik Raj. He has further stated that his father and Karthik Raj came with him to Hosmat hospital. The evidence of RW-1 and contents of charge sheet support the version of PW-1 as to involvement of Karthik Raj and occurrence of accident due to his negligence, but RW-1 has stated that Karthik Raj was also injured in the accident. This part of evidence of RW-1 remained uncorroborated. There is no evidence to believe that Karthik Raj has sustained injuries on or about 11-9-2011. If he had sustained any injuries in the accident, he would have taken treatment in Govt. hospital, Kanakapura or in Hosmat hospital, Bangalore. But, there is no oral or documentary evidence as to taking of treatment by Karthik Raj on relevant point of time. The panchanama and evidence of RW-1 reveal that it was a ditch of 8-10 feet depth. If a fast moving car goes off the road and fell in such a ditch, then each and every occupant will sustain injuries. It is stated that the petitioner was sitting in rear seat of the car. The person sitting in rear seat sustains such a grievous injuries, it can not be imagined that the person driving the car escapes unhurt. None of medical records reveals that Karthik Raj took the petitioner to hospital. These aspects creates doubt as to presence of Karthik Raj in the car at the time of accident.
SCCH-14 15 MVC No.6826/201120. MLC extract at Ex.P-18 is primary medical record pertaining to the case in which it is mentioned as under:
"Self injury Toppling of Car"
21. PW-3:Dr.Shylendra Kumar has stated in cross examination as under:
"¤¦ 18 gÁd±ÉÃRgÀïUÉ ¸ÀA§A¢ü¹zÀ JPïìmÁæPïÖ £ÀPÀ®Ä JA§ÄzÀÄ ¤d. £ÀªÀÄä JAJ¯ï¹ jf¸ÀÖgï ºÁUÀÆ ¤¦ 18gÀ ¥ÀæPÁgÀ UÁAiÀiÁ¼ÀÄ gÁd±ÉÃRgïUÉ "Self injury"
DVgÀÄvÀÛzÉ JA§ÄzÀÄ ¤d. ¸ÀzÀj ¤¦ 18gÀ ¥ÀæPÁgÀ J®Æè DgïnJ CAvÀ £ÀªÀÄÆ¢¹®è JA§zÀÄ ¤d. DgïnJ ªÀÄÄSÁAvÀgÀ UÁAiÀiÁ¼ÀÄ §gÀ¢gÀĪÀÅzÀjAzÀ ¥ÉÇÃ°Ã¸ï £ÀªÀjUÉ ªÀiÁ»w ¤Ãr®è JA§zÀÄ ¤d. £Á£ÀÄ FUÀ ºÁdgÀĪÀiÁrzÀ ¤.¦ 18gÀ zÁR¯É ¸ÀvÀå EzÉ JA§zÀÄ ¤d".
OP records of Hosmat hospital at Ex.P-15 disclose that one Sandeep accompanied the petitioner to the hospital. The said Sandeep is stated to be the brother of the petitioner who informed the doctors as under:
"H/O RTA near Kanakapura at around 04.00 P.M., when his four wheeler was hit by himself".
22. PW-2:Dr.Krishna Prasad has admitted in cross examination as under:
"£ÀªÀÄä D¸ÀàvÉæ zÁR¯É ¥ÀæPÁgÀ C¥À¥sÁvÀªÀÅ PÀ£ÀP¥ À ÀÅgÀ §½ ¸ÀAeÉ 4.00 UÀAmÉ ¸ÀªÀÄAiÀÄzÀ°è UÁAiÀiÁ¼ÀÄ vÀ£Àß £Á®ÄÌ ZÀPÀæzÀ ªÁºÀ£ÀªÀ£ÀÄß ZÁ®£É ªÀiÁrPÉÆAqÀÄ ºÉÇÃV vÀ£ÀßµÀÖPÉÌ rQÌ ªÀiÁrzÁÝ£É CAvÀ §gÉ¢zÉ JA§ÄzÀÄ ¤d. C¥À¥sÁvÀzÀ ªÉüÉAiÀÄ°è UÁAiÀiÁ¼ÀÄ«UÉ ¥ÀæeÉÕ EvÀÄ.Û UÁAiÀÄÁ¼ÀĪÀ£ÀÄß vÀ£Àß ¸ÀºÉÇÃzÀgÀ ¸ÀA¢Ã¥ï JA§ÄªÀªÀgÀÄ PÀgÉzÀÄPÉÆAqÀÄ §A¢zÀÝgÀÄ".SCCH-14 16 MVC No.6826/2011
23. Complaint regarding the accident was lodged on 3-10-2011 at 2.15 p.m., by the respondent no.2. Ex.P-1 is copy of FIR and complaint, Ex.P-13 are the copies of letters written by the respondent no.2 wherein he has explained the delay in lodging complaint. It is stated that the respondent no.2 was out of station on the date of accident, that he was busy in attending his son after he returned to Bangalore, that after discharge of his son, he was busy in attending his work which he left in the middle due to accident. The evidence of PW-1 and contents of Ex.P-16 falsify the contents of letters at Ex.P-13. PW-1 has stated that his father and Karthik Raj came with him to the Hosmat hospital. The signatures of the respondent no.2 are appearing in several surgery consent letters in Ex.P-16. This indicates that the respondent no.2 was very much available in Bangalore on or about 12-9-2011. OP and IP records make it clear that close relatives of the petitioner namely Sandeep, Sri Rama M and R. Chenna Reddy were present in Hosmat hospital right from his admission. Therefore, explanation of delay in lodging complaint as mentioned in FIR, complaint at Ex.P-1 and in letters at Ex.P-13 is unbelievable. The petitioner, the respondent no.2 and their above named relatives were having sufficient opportunities to lodge complaint regarding accident immediately.
24. Ex.P-16 is copy of police intimation. Another copy of such intimation is in IP records at Ex.P-16 which reveals that intimation regarding admission of the petitioner in hospital with the history of RTA was delivered to Ulsoor traffic police on SCCH-14 17 MVC No.6826/2011 12-9-2011 at 2.35 p.m., There are no reasons to believe that the police inspite of receiving intimation, did not react and did not visit the hospital to record the statement of injured or his attendant. It can be presumed that the police have acted lawfully after receiving intimation, but non filing of complaint regarding the accident made them to become inactive. The petitioner took treatment in Hosmat hospital and was discharged on 20-9-2011. Even after discharge, the petitioner or his relatives finds no time to lodge complaint. After lapse of 22 days, the respondent no.2 went to police station and lodged complaint against Karthik Raj. RW-1 has stated that Karthik Raj was produced before him by the respondent no.2. If Karthik Raj was the driver of car bearing no. KA-53-N-4928 and if the accident has occurred due to rash and negligent driving of the car by said Karthik Raj, then the respondent no.2 would not have kept quite for such a long time without lodging complaint and would not have paid amount to Karthik Raj for payment of fine before the Court.
25. PW-1 has admitted that he was conscious when he was taken to hospital. If he had sustained injuries due to rash and negligent driving of the car by Karthik Raj, he would have definitely informed about the same in both the hospitals and would have definitely lodged complaint before police on or about 12-9-2011 or immediately after his discharge from the hospital. The conduct of the petitioner, the respondent no.2 and their relatives clearly go to show that Karthik Raj was not driving the car on the date of accident. Then, admissions of PW-2 and 3 and contents of Ex.P-15 and 18 make it clear that the petitioner was himself driving the car SCCH-14 18 MVC No.6826/2011 on 11-9-2011 and it was a self accident. He was alone in the car at the time of accident. That is the reason Karthik Raj did not sustain any injury. The explanation given by the respondent no.2 in the complaint and in the letters written to the respondent no.1 is not only improbable, but false and baseless. The counsel for the petitioner tried to explain that if the car driven by the driver falls in a ditch, mentioning in medical records as "self injury" or "4-wheeler hit by himself" is natural and it does not mean that the petitioner was driving the car. The said argument of the counsel may be logically correct, but circumstantial evidence indicates that no one other than the petitioner was present in the car at the time of accident. Admission of PW-2 indicates that such injuries could be caused to the driver if car falls in a ditch. The respondent no.2 leaves his car unattended for 22 days. It was lying in the place of accident. He fails to intimate the police regarding accident even after discharge of the petitioner from the hospital. Above all, he pays Rs.2,000/- to alleged driver towards payment of fine. Therefore, I am of the opinion that the petitioner, the respondent no.2, Karthik Raj and the police colluded together, implicated Karthik Raj as driver of car bearing no. KA-53-N-4928, got filed charge sheet, makes Karthik Raj to admit his guilt before criminal court and to pay fine only with sole intention to have wrongful gain from the respondent no.1.
26. The principles laid down in following rulings are applicable to this case:
SCCH-14 19 MVC No.6826/2011CIVIL APPEAL NO.3171/09 "Motor Vehicles Act, 1988-Secions 166 and 168- compensation for death-Evidence of doctor that deceased suffered head injury due to fall from height of 8 to 10 ft., of his own house-It was brushed aside by M.A.C.T. and High Court erroneously-It established that injuries sustained-Were not on account of any vehicular accident- Award of M.A.C.T. and order of High Court set aside".
MFA NO.10923/2012 "20. Thus, viewed from any angle and after critical and evaluation of the entire material available on file, it proves beyond all reasonable doubt that, the accident has occurred purely on account of the fault and negligence on the part of the claimant appellant and there is no involvement of two vehicles and that the injuries stated to have been sustained by him are not on account of the involvement of two vehicles but on account of skid of his bike and therefore, he being the tort-
feasor, the claim is not maintainable".
ILR 2009 KAR 3562 (A) MOTOR VEHICLES ACT, 1988- Accident claim Dismissal of claim petition-
Appealed against-"FRAUS ET JUS
MUNQUAM COHABITANT''-Fraud and
Justice Never Dwell Together-An attempt on the part of the Ist Respondent/Owner to collude with the claimants with the fond hope of saddling the Insurance Company to pay compensation - 1st Respondent/Owner of the vehicle admitted the accident and had no objection for award of compensation-HELD, Even though the owner of the vehicle in unmistakable SCCH-14 20 MVC No.6826/2011 terms, has admitted the incident, that admission has no value in the eye of law.
He has admitted something about which he has no knowledge and, which he has not seen. It is clear that the said admission is made with the sole object of getting compensation to the claimants as it is the insurance company which will pay, and not the owner. Though admission is the best piece of evidence, it cannot be accepted as gospel truth. The court can insist on proof of facts, if the admission is not satisfactory. In the instant case, since the Court was not satisfied, it wanted the claimants to prove their case independently. The claimants have miserable failed to prove their case.-ON FACTS, HELD, The accident took place on 26.06.2001. The injured died on 28.06.2001. No complainant is lodged by the father of the injured setting out the case now pleaded. According to him he went to lodge a complaint on 28.08.2011.
They refused to receive it. Therefore, he lodged a private complaint before the jurisdictional Magistrate on 31.08.2001. The earlier FIR, chargesheet are all suppressed both by the police and the claimant. The vehicle involved in the accident was never seized by the police.
The truth came out during investigation by the insurer. Under these circumstances, the Tribunal was justified in dismissing the claim petition".
27. Admissions of PW-1 to 3, RW-1 corroborate the evidence of RW-2. The delay in lodging complaint is not properly explained. The explanation given by the respondent no.2 is improbable and false. The conduct of the petitioner, the respondent no.2 and their relatives was suspicious and was not of a prudent man. These aspects conclusively indicate that the SCCH-14 21 MVC No.6826/2011 petitioner was alone in the car bearing no. KA-53-N-4928, that he himself was driving the car, that the accident was due to rash and negligent driving of the car by the petitioner himself. Therefore, I am of the opinion that though the petitioner has succeeded to prove that he sustained grievous injuries in car accident on 11-9-2011 at about 2.00 p.m., near Marale Bekupee, on Sangam- Kanakapura road, he has failed to prove that the accident was due to rash and negligent driving of the driver of said car. The evidence on record clearly establish that the accident was due to negligence of the petitioner who himself was driving the car. Therefore, I answer the issue in negative.
28. ISSUE NO.2: The petitioner has proved that he sustained grievous injuries in the accident. Evidence of PW-1 and 2 and contents of medical records at Ex.P-7, 8, 14 to 18 reveal that the petitioner is suffering from permanent disability due to accidental injuries, but as held above, the evidence on record discloses that the petitioner sustained injuries due to self negligence. He himself was driving the car at the time of accident. The respondent no.2 is the father of the petitioner. They colluded together to have wrongful gain from the respondent no.1. Since, the petitioner himself is the tortfeasor, he is not entitled for any compensation much less the one claimed in the petition. The petitioner and the respondent no.2 have falsely implicated Karthik Raj with the help of concerned as the driver of car bearing no. KA-53-N-4928. They tried to play fraud upon the Court. The respondent no.1 is not liable to indemnify the owner and to pay compensation to the petitioner. The respondent no.1 is dragged SCCH-14 22 MVC No.6826/2011 unnecessarily to the Court and he is entitled for cost and exemplary cost from the petitioner. Hence, I answer the issue as above.
29. ISSUE NO.3: In view of above discussion and findings, I proceed to pass following:
ORDER The claim petition filed by the petitioner U/s 166 of the Motor Vehicles Act is dismissed with cost.
The petitioner is liable to pay exemplary cost of Rs.3,000/- to the respondent no.1 apart from regular cost.
(Dictated to the Stenographer, directly on computer and then corrected by me and pronounced in the open court, on this the 4th day of September 2015.) (Basavaraj Chengti) XVI ADDL.JUDGE, Court of Small Causes & MACT, Bangalore.SCCH-14 23 MVC No.6826/2011
ANNEXURE WITNESSES EXAMINED AND DOCUMENTS MARKED FOR PETITIONERS AND RESPONDENTS:
PW.1 Rajashekar
PW.2 Dr.Krishna Prasad
PW.3 Dr.Shylendra Kumar B.N
PW.4 Neptune
Respondent' s
RW.1 Naveen
RW.2 Sandeep S.K
Ex.P1 - Copy of FIR with complaint
E.xP2 - Copy of complainant statement
Ex.P3 - Copy of Panchanama
Ex.P4 - Copy of IMV report
Ex.P5 - Copy of Charge Sheet
Ex.P6 - Copy of MLC notice
Ex.P7 - Copy of wound certificate
Ex.P8 - Inpatient discharge summary
Ex.P9 - Metro Ford receipt
Ex.P10 - Commitment letter
Ex.P11 - Metro Ford Invoice
Ex.P12 - Additional Information request Form
Ex.P13 - Letter issued A.J ROADLINES
E.xP14 - Photo with CD
Ex.P15 - Outpatient record
Ex.P16 - Inpatient record
Ex.P17 -2 X-ray films with report
Ex.P18 -Notarized copy of MLC
Ex.P19 -Repair file
Ex.P20 -Liability computation report
Ex.P21 -Fine receipt
Respondent's Nil
XVI ADDL.JUDGE,
Court of Small Causes & MACT,
Bangalore.
SCCH-14 24 MVC No.6826/2011
Dt.4.09.2015
P-BKK
R1-BNS
R2-Exparte
For Judgment
Order pronounced in open court
vide separate judgment.
ORDER
The claim petition filed by the petitioner U/s 166 of the Motor Vehicles Act is dismissed with cost.
The petitioner is liable to pay exemplary cost of Rs.3,000/- to the respondent no.1 apart from regular cost.
XVI ADDL.JUDGE, Court of Small Causes & MACT., Bangalore.SCCH-14 25 MVC No.6826/2011
AWARD SCCH NO.14 BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL METROPOLITAN AREA : BANGALORE CITY MVC No.6826/2011 Petitioner/s : Rajashekar S/o Rama Subbu, Aged about 20 years, No.13/2, Kumbara Sanga Building, Ist floor, A.J.Traders, Kalasipalyam, Bangalore-560 002.
(By pleader Sri BKK) V/s Respondent/s 1. The Manager, Royal Sundaram Alliance, Insurance Co.,Ltd., No.186/7, Raghavendra Complex, Wilson Garden, Ist cross, Hosur Main road, Bangalore-560 027.
(Insurer of Endeavour Car) ( By pleader Sri BNS)
2. Mr.Ariyanayagam Ramasubbu S/o Ariyanayagam, No.265, Ground Floor, Rajarajeshwari Layout, 5th and 6th cross, 2nd main, Vijinapura, Bangalore-560 016.
(Owner of the Endeavour Car) (Exparte) SCCH-14 26 MVC No.6826/2011 WHEREAS, this petition filed on by the petitioner/s above named U/Sec.166 of the M.V.C. Act, praying for the compensation of Rs.
(Rupees ) for
the injuries sustained by the petitioner/Death of in a
motor Accident by vehicle No.
WHEREAS, this claim petition coming up before
Sri/Smt.Basavaraj Chengti, XVI Addl.Judge, Court of Small Causes, Bangalore, in the presence of Sri/Smt. Advocate for petitioner/s and of Sri/Smt. Advocate for respondent.
ORDER The claim petition filed by the petitioner U/s 166 of the Motor Vehicles Act is dismissed with cost.
The petitioner is liable to pay exemplary cost of Rs.3,000/- to the respondent no.1 apart from regular cost.
Given under my hand and seal of the Court this day of 2015.
MEMBER MOTOR ACCIDENT CLAIMS TRIBUNAL, METROPOLITAN AREA: Bangalore.
SCCH-14 27 MVC No.6826/2011By the __________________________________ Petitioner/s Respondent No.1 No.2 __________________________________ Court fee paid on petition 10-00 Court fee paid on Powers 01-00 Court fee paid on I.A. Process Pleaders Fee _____________________________ Total Rs. -----------------------------------
Decree Drafted Scrutinised by
MEMBER, M.A.C.T.
METROPOLITAN: BANGALORE
Decree Clerk SHERISTEDAR
SCCH-14 28 MVC No.6826/2011
Dt.27.08.2015
P-BKK
R1-BNS
R2-Exparte
For
Perused records,
It is noticed that MLC extract and fine
paid receipt are marked as Ex.P18 due to oversight. It is necessary to change the number of fine paid receipt. Similarly, issue no.1 is not properly framed and it requires to be recast. Hence, I pass following:
ORDER Issue no.1 is recast as under:
Whether the petitioner proves that he sustained grievous injuries in the nature of permanent disablement on 11.09.2011 at about 02.00 P.M., on Sangam-Kanakapura road, near Marale Bekuppe, Kanakapura due to rash and negligent driving of the driver of Endeavour Car bearing No.KA-53-N-4928?
Fine paid receipt is renumbered as Ex.P21.
For further evidence of petitioner and respondent no.1 if any by 3.00 P.M., XVI ADDL.JUDGE, Court of Small Causes & MACT., Bangalore.
SCCH-14 29 MVC No.6826/2011