Karnataka High Court
Maruti S/O Bharma Savagaonkar vs Shri Subhash G Bellikatti on 10 December, 2012
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
Dated this the 10th day of December 2012
Before
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
Miscellaneous First Appeal No.5957/2008 (MV)
Between:
Maruti,
S/o Bharma Savagaonkar,
Aged about 44 years,
Occ: Carpenter, R/o Sulage (Hindalga),
Tq & Dist: Belgaum. ...Appellant
(By Sri. Sanjay.S.Katageri, Advocate)
And:
1. Shri. Subhash.G.Bellikatti,
Aged about 45 years,
Occ: Business,
R/o 912, Fort Road,
Belgaum-590002.
2. The New India Assurance Co. Ltd.,
Sub-Divisional Manager, No.1663,
Shri. Bhavani Chambers,
IInd Floor, Ramling Khind Galli,
Belgaum-590002. ...Respondents
(By Sri. Vijay Kumar, Adv., for Shri. Ravi.G.Sabhahit,
for R2)
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This appeal is filed under Section 173(1) of the
Motor Vehicles Act praying that judgment and award
dated 22.01.2008 in M.V.C. No.1376/2005 passed by
the Presiding Officer, Fast Track Court-III and
Additional MACT Belgaum, be kindly set aside by
allowing this appeal and award compensation as prayed
in the claim petition.
This appeal coming on for admission this day, the
Court delivered the following:
JUDGMENT
This is a claimant's appeal questioning the correctness and legality of the judgment and award passed by FTC-III & Addl. MACT, Belguam, dated 22.01.2008 in M.V.C. No.1376/2005 whereunder claim petition filed for grant of compensation has been dismissed on the ground that claimant has not been able to prove that cause of death was on account of injuries sustained in the road traffic accident that occurred on 23.12.2000.
2. Heard Shri.Sanjay.S.Katageri, learned advocate appearing for appellant and Shri. Vijay Kumar, learned :3: advocate appearing on behalf of Shri. Ravi.G.Sabhahit. Perused the judgment and award passed by Tribunal as also the records secured from Tribunal.
3. Facts, in brief, leading to filing of this appeal are as under:
(a) One Shri. Maruthi Bharma Savgaonkar filed a claim petition under Section 166 of the Motor Vehicles Act claiming compensation of Rs.3,50,000/- on account of death of Smt. Yellubai, who is stated to be the mother of claimant, inter alia contending that on 23.12.2000 at about 5.30 p.m. deceased was returning home by walk after finishing her agricultural work and when she came near Sulaga village, a car dashed against which caused injuries to her vital parts of the body and she was shifted to District Hospital, Belgaum, for treatment and while under treatment, she died on 30.12.2000. On these grounds, claimant sought for payment of compensation.:4:
(b) Owner of the car though served with the notice did not appear and contest the matter. Respondent No.2-insurance company filed its written objections denying all the averments made in petition. It was specifically contended that there was no road accident that occurred on 23.12.2000, no medico-legal case was registered at the District Hospital, Belgaum, on the date of accident and there is no nexus to the death caused to be on account of the injuries sustained in the road traffic accident. All other averments made in claim petition came to be denied except admitting the insurance policy having been issued to offending vehicle.
(c) On the basis of the pleadings of the parties, Tribunal framed following issues for its consideration.
"1) Whether the petitioner proves that deceased died due to the injuries in RTA occurred on 23-12-2000 at about 5.30 p.m. near Sulaga, belgaum on account of actionable negligence on the part of :5: driver of the TATA Sierra bearing No.KA-
22/M-2755?
2) Whether the petitioner is entitled for compensation? If so, what is the quantum and from whom?
3) What order or award?"
Claimant got himself examined as P.W.1 and also examined one Chandrakant Annu Chougule as P.W.2, who is stated to be an eye-witness to the accident. In all, claimant produced nine documents and got them marked as Exs.P1 to P19. Respondent did not lead any oral evidence but got marked the insurance policy issued to offending vehicle as Ex.R1. On the basis of the pleadings of the parties and on appreciation of the evidence both oral and documentary tendered claim petition came to be dismissed. It has been held by the Tribunal that on the date of alleged accident that occurred on 23.12.2000, no complaint was lodged, no medico-legal case was registered and P.W.1 is not an eye-witness and after four years from the date of :6: accident, a private complaint was filed before the Magistrate and on the directions issued by the Magistrate to investigate a FIR came to be registered and charge-sheet has been submitted, which would not be a ground to hold that accident in question had occurred. Tribunal also held nothing prevented the family members to lodge a police complaint immediately after the accident. Tribunal also found that Ex.P.5, another wound certificate, which would indicate that deceased was admitted to Dr. Rayanagoudar, Hospital on 25.12.2000 and was discharged on 27.12.2000 and as such she could not have succumbed to the injuries sustained in the accident that occurred on 23.12.2000 and as such on these grounds, as discussed in detail at paragraphs 11 to 15, Tribunal rejected the contention of claimant that Smt.Yellubai had expired on account of the injuries sustained in the road traffic accident that occurred on 23.12.2000.:7:
4. It is the contention of Shri. Sanjay.S.Katageri, learned counsel appearing for the claimant that Tribunal erroneously dismissed the claim petition on the ground that no post-mortem was conducted and, undisputedly, as per Ex.P.9-wound certificate issued by District Hospital, Belgaum, deceased was admitted on 23.12.2000 at 6.10 p.m. on account of a road traffic accident as reflected therein and on being discharged against the medical advice she had got admitted to City Orthopedic Centre on 25.12.2000 as evidenced by Ex.P.5 and non-consideration of this material evidence has resulted in dismissing the claim petition. He also contends that even the witness who was examined on behalf of prosecution in criminal case as C.W.8 (P.W.6) viz., Dr. Mallikarjun M.Rayangoudar, who had issued the discharge summary as per Ex.P.5, had found that injuries sustained by deceased Smt. Yellubai were grievous in nature and the death occurred within 48 hours of the accident and, as such, Tribunal was not :8: justified in dismissing the claim petition. On these grounds he seeks for allowing appeal by setting aside the judgment and award passed by Tribunal.
5. Per contra, learned advocate appearing for respondent-insurance company would support the judgment and award passed by the Tribunal and contends that unexplained delay of four years is fatal for lodging claim petition under Section 166 of the Motor Vehicles Act and, in the absence, of post-mortem report produced the nexus viz., the cause of death being on account of injuries sustained cannot be established and in the instant case, it was not established. He would submit that mere production of the wound certificate or discharge summary without examining the doctors who treated the deceased would not prove the contents of the document and, as such, he submits that finding recorded by the Tribunal is just and proper and it does not suffer from any material irregularity and said :9: finding is based on sound appreciation of material evidence and hence he seeks for dismissal of the appeal.
6. Having heard learned advocates appearing for parties and on perusal of the judgment and award passed by the Tribunal, I am of the considered view that following points would arise for my consideration:
1) Whether Tribunal erred in dismissing the claim petition on the ground that there was no nexus to the cause of death relatable to injuries sustained by claimant in the road traffic accident that occurred on 23.12.2000?
2) What order?
7. As noticed hereinabove, a claim petition was filed by the son of the deceased viz., Shri. Maruti Bharma Savagaonkar, who claimed to be a carpenter by profession as stated in the claim petition. The said claim petition was filed on 08.06.2005 inter alia : 10 : contending that his mother Smt.Yallubai was returning home after completing her agricultural work in the fields and when she came near Sulaga (H) village a Tata Sierra car bearing No.KA-22/M-2755 driven by its driver in a rash and negligent manner came and dashed against the deceased on account of which she sustained grievous injuries to her vital parts of the body and for treatment she was shifted to District Hospital, Belgaum where she was treated as inpatient. To establish that she was treated as an inpatient and it was treated as a medico-legal case by the District Hospital no material whatsoever was produced before the Tribunal by the claimant. On the other hand, learned advocate Shri. Sanjay.S.Katageri would rely heavily on Ex.P.9-wound certificate produced before Tribunal. A perusal of the said wound certificate would disclose that one Smt.Yallubai accompanied by the claimant was examined at District Hospital, Belgaum, on 23.12.2000 at about 6.10 p.m. : 11 : and was examined by the Senior Specialist. It is specifically mentioned as under:
"X-ray was not taken as patient went against medical advice.
Patient is discharged against medical advice"
The said wound certificate does not contain the date either on which it was issued or signed. Thus, a suspicion or a doubt arises as to its validity and, in view of the categorical denial by the insurance company about claimant having not sustained any injuries in the accident, it was incumbent upon claimant to prove contents of Ex.P.9, either by summoning the doctor who treated the deceased or any other personnel from the District Hospital, Belgaum; alternatively, he could have also summoned the Medico-legal Case Register which admittedly was not done. Thus, the initial burden cast on the claimant to prove that deceased had sustained injuries and she : 12 : had taken treatment at the District Hospital Belgaum has remained as a plea without proof, particularly, in view of the fact that wound certificate-Ex.P.9 not containing any date of issue or the date on which it was signed by the signatory.
8. It is the case of the claimant that after being discharged from District Hospital, she was taken to City Orthopaedic Centre for being treated by Dr.M.M.Rayanagoudar, who is stated to have issued the certificate-Ex.P.5 dated 05.06.2004. No records from the said Hospital is forthcoming . The doctor who has issued Ex.P.5 was not examined as a witness in the present claim petition in question. On the other hand, he was cited as a witness on behalf of prosecution in the Criminal Case No.323/2005 and it is admitted by him in the cross-examination to the following effect:
" I have not mentioned in my certificate the history of injury, i.e., whether it is RTA : 13 : or assault. It is true that, to know the cause of death of a person one has to go for P.M.E. On the date of discharge of the patient- injuries suffered by the deceased may not cause immediate death-but after lapse of sometime it may take any turn which may be fatal to the life of the patient. But I am not sure because-injured was a age old lady."
The doctor's evidence is ambiguous. Copy of the deposition which came to be marked as Ex.P.7 namely evidence tendered by the doctor before the Magistrate Court is sought to be relied upon by the claimant When the entire claim made in the petition has been denied, it was incumbent upon the claimant to summon the said doctor who admittedly has also issued certificate-Ex.P.5 dated 05.06.2004 referred to supra. In the absence of the said doctor being examined much credence cannot be given to the evidence recorded in the Criminal Case No.323/2005. : 14 :
9. As noticed hereinabove, accident in question is said to have occurred on 23.12.2000. No complaint is lodged immediately thereafter and even after lapse of four years, no reason is forthcoming as to why a private complaint came to be lodged before jurisdictional Magistrate rather than approaching the jurisdictional police. Eye-witness P.W.2 whose evidence is relied upon is to be examined with circumspection inasmuch as he claims to have been present at the time of the accident at the tea canteen of Shri. Yallappa Maruti Kalkambkar and he claims to have witnessed the accident. He states in his evidence that the vehicle in question came from hind side of Yallubai and dashed against her, but the case of the prosecution in C.C. No.323/2005 is that it came from the opposite side. Thus, the material contradiction between the evidence of P.W.2 and prosecution case would indicate that evidence of P.W.2 is not worthy of acceptance at its face value. Admittedly, post-mortem : 15 : was not done and the deceased Yallubai was aged 70 years and, as such, it was required for claimant to establish by unclinching positive evidence that on account of injuries sustained in the road traffic accident that occurred on 23.12.2000 she succumbed to the injuries. The evidence, as discussed hereinabove, is shrouded with mysteries which remain unraveled till date, as such, much credence cannot be lent to the claim of appellant. The plea put forward before the Tribunal has remained as a plea without proof. Thus, Tribunal, taking into consideration the entire material available on record and the evidence of parties, has come to a conclusion that claimant has utterly failed to prove that death of Smt. Yallubai was on account of injuries sustained in the road traffic accident that occurred on 23.12.2000.
10. Hence, for the reasons aforesaid, I am of the considered view that reasoning assigned by the : 16 : Tribunal to dismiss the claim petition neither suffers from any infirmity on facts or on law calling for interference at the hands of this Court. Hence, the following order is passed:
ORDER
(i) Appeal is hereby dismissed.
(ii) Judgment and award dated 22.01.2008 passed in M.V.No.1376/2005 by the FTC-III & Additional MACT, Belgaum, is hereby affirmed.
(iii) No order as to costs.
Sd/-
JUDGE Kms