Bangalore District Court
Sri.Surendra Kumar vs The Managing Director on 24 February, 2015
BEFORE THE MOTOR VEHICLES ACCIDENT CLAIMS
TRIBUNAL, BENGALURU.
(SCCH.13)
DATED THIS THE 24th DAY OF FEBRUARY 2015.
PRESENT :
SMT.B.PUSHPANJALI, B.A., LL.M.
II Addl. Small Causes Judge &
XXVIII ACMM, Bengaluru.
M.V.C.No.2038 of 2013.
PETITIONERS: Sri.Surendra Kumar, 37 years,
S/o Mayanna Gowda,
R/o Sobaganahalli Village,
Kothagere Post, Kunigal Taluk,
Tumakur District.
Vs.
RESPONDENTS: The Managing Director,
KSRTC., Saarige Bhavana,
Double Road, Shanthinagara,
Bengaluru-560 027.
-o0o-
JUDGMENT
The petitioner has filed this petition under Section 163-A of Motor Vehicles Act 1989 seeking compensation of Rs.10,00,000/- for the injuries sustained in a road traffic accident.
SCCH.13 2 MVC.2038/2013
2. The brief facts of the petitioner's case is that, on 27.2.2013 at about 8.30 p.m., the petitioner was proceeding on his motor cycle bearing No.KA 06 U 8850 on NH.48- Bengaluru-Mangaluru Road, near Bidanagere, Kunigal Taluk, at that time the driver of the KSRTC bus bearing No.KA 13 F 1816 driven the same at high speed and in a rash & negligent manner, dashed against the motor cycle due to which he had sustained grievous injuries. Immediately he was shifted to Govt.hospital, Kunigal where he took treatment and spent considerable amount. It is contended that the petitioner has suffered pain and suffering, loss of earnings and loss of amenities. Hence the instant petition.
3. In response to the notices, the respondent placed its appearance through counsel and filed the written statement with the following contentions:-
Respondent has filed written statement admitting that the bus in question belongs to its corporation. It has disputed that the accident occurred due to rash & negligent driving of the bus but contended that the accident was due to rash & negligent riding of the motor SCCH.13 3 MVC.2038/2013 cycle by the petitioner. The claimant is put to strict proof of his age, income and occupation. The petitioner has claimed compensation which is excessive and exaggerated. Wherefore it is prayed to dismiss the petition.
4. Basing on the above pleadings the following issues have been framed:-
1. Whether the petitioner proves that on 27.2.2013 at about 8.30 p.m., when he was proceeding on motor cycle bearing No.KA 06 U 8850 near Bidanagere, Kunigal Taluk, NH.48- Bengaluru-Mangaluru Road, at that time the driver of the KSRTC bus bearing No.KA 13 F 1816 driven the same at high speed and in a rash & negligent manner, so as to endanger human life and dashed against the petitioner due to which he fell down and sustained grievous injuries ?
2. Whether the petitioner is entitled for compensation and If so, to what extent and from whom?
3. What Order ?
5. In order to prove the claim for compensation petitioner and the doctor were examined as P.W.1 & 2 and got marked documents at Exs.P.1 to P.12. Respondent has examined its Driver as RW.1.
6. Heard the arguments.
7. My answers to the above issues are as under:- SCCH.13 4 MVC.2038/2013
Issue No.1 : In the negative.
Issue No.2 : In the negative .
Issue No.3: As per the final order for the following.
REASONS
8. Issue No.1: It is the case of the petitioner that he had sustained grievous injuries in the road traffic accident that occurred on 27.2.2013 at about 8.30 p.m., when he was proceeding on his motor cycle bearing No.KA 06 U 8850 on NH.48- Bengaluru-Mangaluru Road, near Bidanagere, Kunigal Taluk, due to rash & negligent driving by the driver of the KSRTC bus bearing No.KA 13 F 1816. Here in the instant case, the petitioner was examined as PW.1, who filed affidavit, which is nothing but replica of petition averments. He has also produced Ex.P.1 to P.5. The respondent has disputed its liability on the ground that the driver of the bus was not negligent in causing the Columbia Asia Hospital but petitioner himself was negligent in causing the accident. Therefore, the petition filed under Sec.163-A is not maintainable. Besides, it has also disputed that the income of the SCCH.13 5 MVC.2038/2013 petitioner exceeds Rs.40,000/- p.a. and therefore, on this ground also, the petition filed under Sec.163-A is not maintainable. Since the respondent has taken up a specific stand about maintainability of the petition, before ascertaining the quantum of compensation on account of injuries as a result of accident, let us ascertain whether the petition is maintainable? The respondent had taken up a specific contention that the income of the petitioner exceeds Rs.40,000/- p.m. In order to appreciate the rival contention between parties let us have glance with regard to Sec.163-A M.V Act. This section of Act was inserted with effect from 14.11.1994 by way of an amendment, by adding the same under chapter 10 of the Act. The heading of 163-A also reads specially mentioned in it which reads "Special provisions as payment of compensation on structured formula basis". A bare reading of this section, it is made clear that, normally the persons, whose income was Rs.40,000/- p.a. or less, is covered under this act to all sections of society. Those whose income is Rs.40,000/- p.a. or less are entitled to make an application under this section for compensation. Sec.163-A, being a social SCCH.13 6 MVC.2038/2013 security provisions, providing for a distinct scheme, only those whose annual income is up to Rs.40,000/- can take the benefits thereof.
9. Here in the instant case according to the petitioner he was working as a mason and getting income of Rs.40,000/- p.m. At this juncture the attention of this Tribunal is drawn towards the cross-examination of PW.2. In the cross-examination he has clearly admitted that he was working with contractor Krishnappa and he was paid Rs.3,600/- p.m. For better appreciation it is worth on the part of this Tribunal to extract the relevant portion of cross-examination of PW.1, it reads thus :
'.... I was working with contractor Krishnappa. I was paid Rs.3,600/- p.m., I can examine my employer. ...' A careful analysis of the same, it is clinchingly evidenced that the petitioner's income before the accident was Rs.3,600/- p.m. or Rs 43,200/- per annum. While discussing above, the Tribunal has referred this provision in length. As stipulated under Sec.163-A of M.V Act already noted above as this section was inserted by the SCCH.13 7 MVC.2038/2013 legislature by way of amendment, to social security to certain clause of people those whose annual income was Rs.40,000/-. Therefore, since the income of the deceased exceeds Rs.40,000/- p.a., the present petition filed under Section 163-A M.V. Act is not maintainable. The main criteria to entertain the petition is that the annual income should be less than or up to Rs.40,000/- p.m. Here in the instant case, the income of the petitioner exceeds Rs.40,000/-. Therefore, the present petition do not fall within the purview of Sec.163-A of MV Act, and therefore, the Tribunal has no jurisdiction to entertain and accordingly, liable for dismissal. Assumed for the sake of arguments, that the petition is maintainable, let us ascertain the cause of the accident.
10. The respondent had also taken up a specific contention that the petitioner himself was negligent in causing the accident. Therefore the petitioner cannot claim the compensation under Section 163-A M.V Act. In support of this argument, the respondent has also relied upon the decisions reported in :
SCCH.13 8 MVC.2038/2013
1) AIR 2004 SC 2107 -Deepal Girish Bai Soni & ors. vs. United India Insurance Co.Ltd.
2) ILR 2007 Kar. 28 -United India Insurance Co.Ltd. * ors. vs. Anitha & ors.
3) 2006 ACJ 1371 -A.Vijaya & ors. vs. Vegurla Rajaiah & ors.
4) MFA No.6621/2008 -BMTC vs. H.N.Govindaraju & ors.
11. On the other hand the petitioner also contended that the petition filed under this section is on no fault liability and therefore the petition is maintainable. In support of this contention, he has relied upon the decisions reported in
1) ILR 2001 Kar.2879 -Guranna Vadi & anr. vs. General Manager, KSRTC.
2) 2006 ACJ 229 -Sharabai & anr. vs. P.Sahebkhan & ors.
3) 2008 ACJ 594- Oriental Ins.Co.Ltd., vs. Saroj & ors.
Before referring to the decisions reported by both the parties, a careful perusal of the police records reveal that petitioner was negligent in causing the accident. It is SCCH.13 9 MVC.2038/2013 evidenced from Ex.P.1 FIR & complaint, Ex.P.3 Mahazar, Ex.P.4 Seizure mahazar, Ex.P.5 IMV Report. A careful analysis and appreciation of the entire medical records, the petitioner was sole negligent in riding the motorcycle. At this juncture the attention of this Tribunal is drawn towards cross-examination of PW.1. He has clearly admitted that the criminal case was filed against him and he has appeared before the criminal court and he has not challenged the final report. For better appreciation, it is worth on the part of this Tribunal to extract the relevant portion of the cross-examination:
'... It is true that criminal case was filed against me. I have not challenged before Hon'ble High Court , but it is contested in Kunigal court. I have been granted bail in criminal court and pending for adjudicaton...'
12. A careful analysis of this portion of cross- examination it is clinchingly evidenced that the petitioner is negligent in riding the motor cycle. If at all he was not negligent, definitely, he could have filed complaint or challenged the final report before the appropriate forum. But he has not done so. Even he has not produced RC SCCH.13 10 MVC.2038/2013 and DL to show that he was the owner-cum-rider of the motor cycle and has possessed DL to ride the vehicle. So, it is evident from Police records that he was negligent in riding the motor cycle. On the other hand, the respondent has examined its driver who filed his affidavit reasserting the cause of the accident. Though he was subjected to lengthy cross-examination, nothing worth was elicited to show that he was negligent in causing the accident. In order to replace the direct evidence of RW.1 with that of Police records, except a denial suggestion, no rebuttal evidence is placed before the court. In the absence of any acceptable evidence, this Tribunal can not disbelieve the Police records and also the admission made by PW.1 in the cross-examination. So, looking at any stretch, this Tribunal is of the opinion that petitioner was negligent in causing the accident but not the driver of respondent. Since the driver of respondent was not negligent in causing the accident, the questing of paying compensation to the petitioner does not arise. Hence, the petition filed by the petitioner is not maintainable and is liable to be dismissed.
SCCH.13 11 MVC.2038/2013
13. Now this court has to ascertain whether the petition filed under Sec.163-A M.V.Act is to be dealt under no fault liability or on fault liability. In this regard this Tribunal would like to refer the decisions of Hon'ble Apex Court dtd.29.10.2013 in Civil Appeal No.9694 of 2013 - United India Insurance Co. Ltd., Vs. Sunil Kumar & anr., their Lordship have not agreed with the opinion in Sinitha's Case reported in (2012) 2 SCC 356 between National Insurance Co.Ltd., Vs. Sinitha and ors. By virtue of recent judgment in United India Insurance Co. Ltd., Vs. Shila Datta and Others (2011) 10 SCC 509, said matter was referred to a larger Bench for correct interpretation of the scope of Sec.163-A of the MV Act as well as the points raised in Shila Datta's case. Therefore the reasonings laid down in Sinitha's Case was not accepted by Apex Court in latest reference order dtd.29.10.2013 in Sunil Kumar's case. On careful perusal of the decisions referred by respondent No.2 reported in 2009 ACJ 2020 between Ningamma and another Vs. United India Insurance Co. Ltd., definitely throw light on this Tribunal to decide the petition effectively. The similar nature of facts as that of SCCH.13 12 MVC.2038/2013 the present petition on hand was dealt by Apex court in the above referred decisions. Ultimately the Apex court had come to the conclusion that the barrower who steps into the shoes of the owner cannot himself recipient of compensation as liability to pay the same is on him. It is worth on the part of the tribunal to extract the relevant para it reads thus:
"Motor Vehicles Act, 1988, Section 163-A - Claim application - maintainability of - Death of borrowed of motor Cycle - Motor cycle dashed against a bullock cart proceeding ahead resulting in death of motor cyclist - Deceased had borrowed the motor cycle from its owner - Legal representatives of the deceased filed claim under Section 163 A - Tribunal allowed compensation against insurance company - High Court held that claim was not maintainable as there was no tortfeasor involved - Whether legal representatives of a person driving a vehicle after borrowing it from the owner meets with accident without involving any other vehicle would be entitled to claim compensation under section 163-A - Held: no; borrowed steps into the shoes of the owner; owner cannot himself be a recipient of compensation as liability to pay the same is on him."SCCH.13 13 MVC.2038/2013
Therefore, this court is of the opinion that petition is not maintainable under Sec.163-A of MV Act, hence, I answer this Issue No.1 in the negative.
14. Issue No.2 :- In view of my discussion in the foregoing paras and since petitioner has failed to prove Issue No.1, this issue does not survive for consideration. Accordingly, I answer Issue no.2 in the negative.
15. Issue No.3:- In view of my findings on issue No.1 & 2, I proceed to pass the following :-
ORDER The petition filed by the petitioners under Sec.163-A of M.V. Act is dismissed.
Draw award accordingly.
(Dictated to the stenographer directly on computer, corrected, signed & pronounced in the open court on 24th day of February 2015.) (B.PUSHPANJALI) II Addl. Small Causes Judge & XXVIII ACMM, Bengaluru.SCCH.13 14 MVC.2038/2013
ANNEXURE List of witnesses examined for petitioners :
PW.1 : Surendra Kumar PW.2 : Dr.B.Vishwanath
List of documents marked for petitioners :
Ex.P.1 : CC of FIR charge sheet Ex.P.2 : Complaint filed by Sudeendrakumar Ex.P.3 : CC of Mahazar Ex.P.4 : Seizure mahazar Ex.P.5 : IMV Report Ex.P.6 : Discharge summary of Victoria Hospital Ex.P.7 : 18 Medical bills for Rs.30,488/- Ex.P.8 : 3 Medical Prescriptions Ex.P.9 : 5 X-rays Ex.P.10 : OPD card Ex.P.11 : Casesheet Ex.P.12 : X-ray
List of witnesses examined for respondents :
RW.1 : A.B.Ramachari
Nil
(B.PUSHPANJALI)
II Addl. Small Causes Judge &
XXVIII ACMM, Bengaluru.