Bangalore District Court
Sri. Muniyappa vs Sri Anil Kuamr.B.T on 8 January, 2020
SCCH-11 1 MVC 3540/2016
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL, BANGALORE.
(SCCH11)
DATED THIS 8th DAY OF JANUARY, 2020
PRESENT: SMT.B.S.RAYANNAWAR, B.A, L.L.B.
I ADDL.SMALL CAUSES JUDGE & MACT
M.V.C No.3540/2016
PETITIONER: Sri. Muniyappa,
S/o. Sri. Dandappa,
Since deceased by his Lrs.
1. Sri. Narayana Swamy,
S/o. Late Muniyappa,
Aged about 49 years,
Occ.Coolie.
2. Smt. Remakka,
W/o. Late Muniyappa.
Aged about 68 years,
Occ.NIL,
Both are residents of
Mallapura Post,
Reddy Halli,
Devanahalli Taluk,
Bangalore Rural District.
(By Sri.S.M.L........... Advocate)
V/S
RESPONDENTS: 1. Sri Anil Kuamr.B.T,
S/o. Thippanna,
No.155, Bidalapura,
Devanahalli Taluk,
Bengaluru Rural District.
SCCH-11 2 MVC 3540/2016
(By Sri.K.S.S........... Advocate)
2. The Manager,
ICICI Lombard General Insurance Co., Ltd.,
No.89, 2nd Hosur Main Road,
S.V.R. Complex, Madivala,
Koramangala,
Bengaluru - 68.
(By Sri.S.N.R........ Advocate)
JUDGMENT
The petitioner has filed this petition under Section 166 of Motor Vehicle Act praying for compensation of Rs.10,00,000/ from the respondents for the injuries sustained by him in road traffic accident.
2. The case of the petitioner in brief is as hereunder:
It is averred that on 02.07.2014 at about 4.00 pm., Petitioner was standing on the foot path near Nellappanahalli on Balepura - Channarayapatana Road. At that time motor cycle bearing reg.No.KA03EF0966 came with high speed in rash and negligent manner and dashed against him. Due to which he sustained grievous injuries. Immediately after the accident he was taken to Government Hospital, Devanahalli, later for further treatment he SCCH-11 3 MVC 3540/2016 was shifted to Bowring Hospital, Bengaluru wherein he was still under treatment. So far he has spent about Rs.40,000/ towards his medical and conveyance expenses. Looking to the nature of injuries he apprehend that he will get the permanent disability and he will be disabled to do his occupation and earn his lively hood. Apart from loss of earnings, he will have to suffer from constant pain and discomforts throughout his life. Hence, his life has become miserable and dark due to this accident. Accident occurred due to the rash and negligent driving of the motor vehicle involved in the accident. The respondents being the owner and insurer of the vehicle are jointly and severally liable to pay the compensation to the petitioner. On these grounds petitioner has filed above petition for the relief's stated supra.
3. Respondent No.1 and 2 have appeared through their advocate and contested the case by filing objection statement wherein, it has denied the allegations made in the petitions as false and frivolous. It has further disputed the manner of the accident, age of the injured and quantum of the compensation claimed under different heads. It is further contention of second respondent that, there is sole negligence on the part the petitioner in occurrence of SCCH-11 4 MVC 3540/2016 the alleged accident, it is a case of contributory negligence. Death is not due to the alleged injuries suffered in the alleged accident. Hence, it prayed for dismissal of the petition.
4. From the above facts, the following issues have been framed:
ISSUES
1) Whether Petitioner proves that, he sustained grievous injuries in the accident that occurred on 02.07.2014 at about 4.00 pm., near Nellappanahalli, Balepura -
Channarayapatna road, while he was standing on footpath near Nellappanahalli, due to the rash and negligent riding of the motor cycle bearing reg.No.KA03EF0996 by its rider?
2) Whether petitioner is entitled for the compensation as prayed in the claim petition? If so, what is the quantum of compensation ?
3) What order or Award?
5. In order to substantiate his case petitioner has got examined himself as PW.1 and has produced 10 documents marked as Ex.P.1 to 16. Son of injured/deceased has examined as PW.2 and got marked Ex.P.17 to 20. Medical Records Technician at Bowring and Lady Curzon Hospital, Bangalore has examined as PW.3 and got marked Ex.P.21 to 24. One eye witness has examined as PW.4 and closed their side evidence. Concerned Officer in 2 nd respondent has SCCH-11 5 MVC 3540/2016 examined as RW.1 and closed his side.
6. Heard the arguments by respondent and perused written argument filed by the Petitioner.
Learned Counsel for Petitioner has relied upon the citation reported in:
MFA No.2084/2005 (MV) 1982 ACJ (Supp.) 548 (Gujarat) 2003 ACJ 1353 (Gujarat) 2005 ACJ 433 (Calcutta) 2006 ACJ 551 (Calcutta) Learned Counsel for second respondent has relied upon the citation reported in:
ILR 1990 KAR 4300 (FB) ILR 2002 KAR 1684 (FB) MFA 359/2013 (MV) MFA 22156/2011 (MV) MFA 6149/2012 (MV) MFA 23198/2013 (MV)
7. Findings of this Court on the above issues are as under: Issue No.1 : In the Affirmative Issue No.2 : Partly In the Affirmative SCCH-11 6 MVC 3540/2016 Issue No.3 : As per final order for the following: :REASONS:
8. ISSUE NO.1: It is the case of the petitioner that, on 02.07.2014 at about 4.00 pm., father of petitioner was standing on the foot path near Nellappanahalli on Balepura - Channarayapatana Road. At that time motor cycle bearing reg.No.KA03EF0966 came with high speed in rash and negligent manner and dashed against him. Due to which he sustained grievous injuries and later on died due to the said injuries.
9. Prior to his death injured got examined as PW.1 and filed his affidavit in lieu of his examination in chief and produced FIR, complaint, charge sheet, panchanama, seizer panchanama, IMV report and Wound certificate at Ex.P.1 to 3, 6 to 8 and 11. Ex.P.2 Complaint lodged by son of Petitioner's brother, on the basis of which the Chennarayapatna Police have lodge FIR as per Ex.P.1 against the rider of motor cycle, police have conducted panchanama at Ex.P.6 and seizer panchanama at Ex.P.7 and after investigation police have filed charge sheet at Ex.P.3 against the rider of motor cycle. Petitioner produced Ex.P.11 wound certificate which shows that, he sustained injuries in SCCH-11 7 MVC 3540/2016 the above said accident.
10. During cross examination PW.1 deposed that, while he crossing the road the motor cycle came and dashed against him. It is denied suggestion that accident occurred due to his negligence hence there is two days delay in lodging the complaint. It is denied suggestion that he was having eye sight and hearing problem, hence without observing the moving vehicles on the road he tried to cross the road and hence accident occurred due to his negligence. Further it is denied suggestion that he took free treatment at Government Hospital. Second respondent not denied the accident but denied rash and negligent riding by rider of motor cycle. During cross examination nothing is elicited to disbelieve the case of Petitioner and moreover after investigation police filed charge sheet against the rider of the motor cycle. Hence, by perusal of evidence shows that accident caused by rider of motor cycle hence, in view of above discussion Issue No.1 is answered in the Affirmative.
11. ISSUE NO.2: In the present case injured petitioner died during the pendency of the case, hence it is the contention of Lrs of deceased Sri. Muniyappa that, Sri.Muniyappa died due to accidental injury. Hence the LRs of deceased filed necessary application to bring SCCH-11 8 MVC 3540/2016 them on record which is allowed by this court and LRs of deceased brought on road. The burden is on Petitioners No.1(a) and (b) to prove that he injured Sri. Muniyappa died because of accidental injury. In the present case accident occurred on 02.07.2014 and injured died on 16.07.2017. It is the contention of Petitioner No.1(a) that, in the accident his father sustained grievous injury and took treatment at Government Hospital, Devanahalli and at Bowring and Lady Curzon Hospital at Bangalore, they spent Rs.2,500/ per trip for travelling expenses and Rs.50,000/ towards medical expenses. Petitioner produced Ex.P.11 Wound certificate, Ex.P.12 discharge card, Ex.P.13 out patient card, Ex.P.15 - 10 medical bills and Ex.P.16 - 19 medical prescriptions. By perusal of Ex.P.11 wound certificate shows that, deceased Sri.Muniyappa sustained grievous injury. PW.1 deposed that, he sustained left side waist injury, type I fracture of hip (left) and other grievous injuries all over the body. As per Ex.P.12 Discharge card reveals that deceased took treatment from 02.07.2014 to 26.07.2014 for 25 days as inpatient. Petitioner produced Ex.P.15 - 10 medical bills for Rs.17,280/.
12. Injured Sri.Muniyappa died during the pendency of the case on 16.07.2017. PW.2 son of deceased deposed that his father SCCH-11 9 MVC 3540/2016 died due to accidental injuries, they have spent a sum of Rs.1,50,000/ towards treatment of his father, transportation and funeral expenses. At the time of accident his father was aged about 72 years and he was hale and healthy and he was earning Rs.8,000/ per month by working as a Shepherd. He was contributing all his earnings for the maintenance of our family. Due to the sudden and unnatural death of his father, they have lost their future dependency, love, affection, company of the deceased and livelihood. Now they are facing sever financial problems. Hence, their lives have become dark and miserable. But Petitioner not produced any document in support of avocation and income of his deceased father.
13. Petitioner examined another witness as PW.3 who deposed about the accident. Petitioner deposed that due to death of their father they lost their future dependency, love, affection, company of the deceased and livelihood. Now they are facing severe financial problems. It is the contention of Lrs of petitioner that, injured petitioner died due to accident al injuries.
14. But second respondent insurance company disputed the cause of death of deceased. Admittedly Petitioners not produced post SCCH-11 10 MVC 3540/2016 mortem report, and after death of injured they have not intimated to the police about the death of injured. Charge sheet produced by petitioner filed only under Section 279, 337 and 338 of IPC. Second respondent submits there is no nexus between the alleged accident and the alleged death of deceased.
15. PW.3 - Medical Record Technician at Bowring and Lady Curzon Hospital, Bangalore during his cross examination admitted that Sri.Muniyappa took treatment in their Hospital from 02.07.2014 to 26.07.2014 and there is no document to show that after discharge said Muniyappa took treatment in their Hospital. Accident took place on 02.07.2014 Sri. Muniyappa died on 16.07.2017 almost after three years. Petitioner not examined the doctor to prove that the father of first Petitioner died due to accidental injury. As per Wound certificate father of Petitioner sustained left side waist injury, type I fracture of hip (left) and other grievous injuries all over the body, there is no document produced by Lrs of Petitioners about the continuity of treatment, after filing Petitioner the said Muniyappa given his evidence as PW.1 and tender for cross examination shows that after the accident his condition was improved, there is no document produced by Petitioner to show that deceased was in continuity of treatment doctor SCCH-11 11 MVC 3540/2016 has to depose reason for death but Petitioner not examined the doctor, there is no document produced by Petitioner to show that, injured died due to accidental injury. Hence, when Petitioners failed to prove there is nexus between injury and death hence Petitioners not entitled for compensation other than head under medical expenses. Petitioner produced 10 medical bills at Ex.P.15 to a tune of Rs.17,280/. Hence, petitioners are entitled for compensation of Rs.17,280/.
16. Hence first respondent No.1 being owner and second respondent being the insurer are jointly and severally liable to pay the compensation of Rs.17,280/ to the petitioner with an interest at the rate of 9% per annum from the date of petition till realization of entire compensation. Hence, I have answered issue No.2 in partly Affirmative.
17. ISSUE No.3: In view of the findings given on the above said points and reasons thereon, I proceed to pass the following:
ORDER Petition filed by the petitioner u/s 166 of Motor Vehicles Act is SCCH-11 12 MVC 3540/2016 hereby partly allowed with costs.
Accordingly, a sum of Rs.17,280/ is awarded to the petitioner as compensation with interest at the rate of 9% p.a from the date of petition till the date of realization.
Respondent No.1 and 2 jointly and severally liable to pay the compensation to the petitioner.
The Respondent No.2 shall deposit the compensation amount within 30 days from the date of this order.
In case of deposit of the awarded compensation by the respondent No.2, entire amount shall be released equally to the petitioners through e payment on proper identification and verification.
Advocate fee is fixed at Rs.1000/.
Draw award accordingly.
(Dictated to the stenographer over computer, corrected and pronounced by me in open court on this 8th day of January, 2020.) (B.S. RAYANNAWAR) I ADDL.SMALL CAUSES JUDGE & XXVII ACMM SCCH-11 13 MVC 3540/2016 ANNEXURE WITNESSES EXAMINED FOR PETITIONER:
PW.1 Sri. Muniyappa PW.2 Sri. Narayanaswamy PW.3 Sri. Vasanth Kumar DOCUMENTS MARKED FOR PETITIONER: Ex.P1 FIR Ex.P2 Complaint Ex.P3 Charge sheet Ex.P4 Order sheet CC 3983/2014 Ex.P5 Plea of the accused Ex.P6 Panchanama Ex.P7 Seizer panchanama Ex.P8 IMV report Ex.P9 Order sheet Ex.P10 Memo Ex.P11 Wound certificate Ex.P12 Discharge cum ID card Ex.P13 Out patient card Ex.P14 Aadhaar card Ex.P15 10 medical bills Ex.P16 19 medical prescriptions Ex.P17&18 Aadhaar cards Ex.P19 Ration card Ex.P20 Death certificate Ex.P21 Authorisation letter Ex.P22 MLC register extract Ex.P23 Xray report Ex.P24 Case sheet WITNEESSES EXAMINED FOR RESPONDENTS : RW.1 Sri. S.Prithvi Raj SCCH-11 14 MVC 3540/2016 DOCUMENTS MARKED FOR RESPONDENTS : NIL I ADDL.SCJ. & MACT. SCCH-11 15 MVC 3540/2016 (Judgment pronounced in open court.) ORDER
Petition filed by the petitioner u/s 166 of Motor Vehicles Act is hereby partly allowed with costs.
Accordingly, a sum of Rs.17,280/ is awarded to the petitioner as compensation with interest at the rate of 9% p.a from the date of petition till the date of realization.
Respondent No.1 and 2 jointly and severally liable to pay the compensation to the petitioner.
The Respondent No.2 shall deposit the compensation amount within 30 days from the date of this order.
In case of deposit of the awarded compensation by the respondent No.2, entire amount shall be released equally to the petitioners through e payment on proper identification and verification. SCCH-11 16 MVC 3540/2016
Advocate fee is fixed at Rs.1000/.
Draw award accordingly.
I ADDL.S C J & XXVII ACMM SCCH-11 17 MVC 3540/2016 AWARD SCCH NO.11 BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL METROPOLITAN AREA : BANGALORE CITY M.V.C No.3540/2016 PETITIONER: Sri. Muniyappa, S/o. Sri. Dandappa, Since deceased by his Lrs.
1. Sri. Narayana Swamy, S/o. Late Muniyappa, Aged about 49 years, Occ.Coolie.
2. Smt. Remakka, W/o. Late Muniyappa.
Aged about 68 years, Occ.NIL, Both are residents of Mallapura Post, Reddy Halli, Devanahalli Taluk, Bangalore Rural District.
(By Sri.S.M.L........... Advocate) V/S RESPONDENTS: 1. Sri Anil Kuamr.B.T, S/o. Thippanna, No.155, Bidalapura, Devanahalli Taluk, Bengaluru Rural District.
(By Sri.K.S.S........... Advocate) SCCH-11 18 MVC 3540/2016
2. The Manager, ICICI Lombard General Insurance Co., Ltd., No.89, 2nd Hosur Main Road, S.V.R. Complex, Madivala, Koramangala, Bengaluru - 68.
(By Sri.S.N.R........ Advocate)
WHEREAS, this petition filed on by the petitioner/s
above named U/sec.110A/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
Smt.B.S.Rayannawar, I Addl.Judge, Member, Bangalore, in the presence of Sri/Smt. Advocate for petitioner/s and of Sri/Smt. Advocate for respondent.
ORDER Petition filed by the petitioner u/s 166 of Motor Vehicles Act is hereby partly allowed with costs.
Accordingly, a sum of Rs.17,280/ is awarded to the petitioner as compensation with interest at the rate of 9% p.a from the date of petition till the date of realization.
SCCH-11 19 MVC 3540/2016
Respondent No.1 and 2 jointly and severally liable to pay the compensation to the petitioner.
The Respondent No.2 shall deposit the compensation amount within 30 days from the date of this order.
In case of deposit of the awarded compensation by the respondent No.2, entire amount shall be released equally to the petitioners through e payment on proper identification and verification.
Advocate fee is fixed at Rs.1000/.
Given under my hand and seal of the Court this day of 2020.
MEMBER MOTOR ACCIDENT CLAIMS TRIBUNAL, METROPOLITAN AREA: BANGALORE.
SCCH-11 20 MVC 3540/2016
By the ______________________________________________ Petitioner/s Respondent No.1 No.2 ______________________________________________ Court fee paid on petition 1000 Court fee paid on Powers 0100 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-11 21 MVC 3540/2016 SCCH-11 22 MVC 3540/2016 SCCH-11 23 MVC 3540/2016 SCCH-11 24 MVC 3540/2016 SCCH-11 25 MVC 3540/2016 SCCH-11 26 MVC 3540/2016 SCCH-11 27 MVC 3540/2016 SCCH-11 28 MVC 3540/2016 SCCH-11 29 MVC 3540/2016 SCCH-11 30 MVC 3540/2016 SCCH-11 31 MVC 3540/2016 SCCH-11 32 MVC 3540/2016 SCCH-11 33 MVC 3540/2016 SCCH-11 34 MVC 3540/2016 SCCH-11 35 MVC 3540/2016 SCCH-11 36 MVC 3540/2016 SCCH-11 37 MVC 3540/2016 SCCH-11 38 MVC 3540/2016 SCCH-11 39 MVC 3540/2016 Advanced Search Search Tips View Complete document K V Subba Reddy vs N Raghava Reddy on 28 February, 2014 Showing the contexts in which sasseriyil appears in the document Change context size Current
11. Sri S.G.Bhagavan, learned counsel for complainant, relying on judgment of this court, reported in ILR 2006 KAR 4242 (in the case of H.Narasimha Rao Vs. R.Venkataram) would submit that in a proceeding initiated under section 138 of the Act, it is not open to drawer of cheque to contend that cheque was issued to pay time barred debt. There is no bar under law to repay time barred debt.
12. The learned counsel for accused has referred to judgment of Kerala High Court, reported in 2001 Crl.L.J.24 (in the case of Sasseriyil Joseph Vs. Devassia), wherein Kerala High Court has held that section 138 of the Act is attracted only if there is legally recoverable debt and it cannot be said that time barred debt is legally recoverable debt.
13. The learned counsel for accused would further submit that judgment rendered by Kerala High Court in Sasseriyil Joseph's case was challenged before the Supreme Court in Special Leave to Appeal (Crl.) No.1785/2001, wherein the Supreme Court has held:-
"We have heard learned counsel for the petitioner. We have perused the judgment of the High Court of Kerala in Criminal Appeal No.161 of 1994 confirming the judgment/order of acquittal passed by the Addl. Sessions Judge, Thalassery in Criminal Appeal No.212 of 1992 holding inter alia that the cheque in question having been issued by the accused for due which was barred by limitation the penal provision under Section 138 of the Negotiable Instrument Act is not attracted in the case. On the facts of the case as available on the records and the clear and unambiguous provision in the explanation to Section 138 of the Negotiable Instrument Act the judgment of the lower appellate court as confirmed by the High Court is unassailed. Therefore, the special leave petition is dismissed."
14. The learned counsel for accused would submit the view taken by Kerala High Court in Sasseriyil Joseph's case (supra) that under section 138 of the Act a time barred debt cannot be held as legally recoverable debt, has been confirmed by the Supreme Court in Special Leave to Appeal (Crl.) No.1785/2001.
15. On consideration of aforestated judgments, I find that the view taken by Kerala High Court in Sasseriyil Joseph's case (supra), has been confirmed by the Supreme Court in Special Leave to Appeal (Crl.) No.1785/2001. There are no reasons for me to differ from the view taken by the Kerala High Court and confirmed by the Supreme Court in Special Leave to Appeal (Crl.) No.1785/2001.
SCCH-11 40 MVC 3540/2016In the case on hand, even if the averments of complaint and evidence of complainant are accepted at their face value, dishonoured cheque was issued on 30.10.2001 to discharge the debt, which had become due on 20.05.1997. Therefore, I hold dishonoured cheque was issued to discharge time barred debt.