IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO. 527 OF 2014 (MV) BETWEEN:
Smt. Bhagyamma W/o Thimmanna U.D., Aged about 48 years, No.233, 11th C Road, Kalappa Block, Srinagar, Bengaluru - 560 050 ... Appellant (By Smt. Chinnarivindhya K. Advocate for Sri. Prakash M.H. Advocate) AND:
1. Sri Ashoka K.T S/o Thimmegowda, Aged about 30 years, R/a. Kemmale village, Sathanur Hobli, Kanakapura Taluk, Ramanagara Dist-562 117 2. The Manager, ICICI Lombard General Insurance Company Ltd., Zenith House, Keshava Road, Khade Marg,Mahalakshmi, Mumbai-400 034 ... Respondents (By Sri. L.Raja, Advocate for R1; Sri. B.Pradeep, Advocate for R2) This MFA is filed under Section 173(1) of MV Act against the Judgment and Award dated 19.11.2013 passed in MVC No.4900/2011 on the file of the Judge, Court of Small Causes & XXVI ACMM, MACT, Bengaluru, dismissing the claim petition for compensation.
This MFA coming on for Admission, this day, the court delivered the following:
JUDGMENT The claimant is before this Court in this appeal challenging the judgment and award dated 19.11.2013 in M.V.C.No.4900/2011 on the file of the MACT, Bengaluru (SCCH-09) by which, the claim petition filed under Section 166 of the Motor Vehicles Act, 1988 (‘the Act’ for brevity) is dismissed.
2. The claimant/appellant filed the claim petition under Section 166 of the Act claiming compensation for accidental injuries suffered by her on 08.06.2011, while she was travelling in an auto rickshaw bearing Registration No.KA-42-6200, it is stated that the driver of the auto rickshaw drove in a rash and negligent manner and in order to avoid a police jeep, he dashed the auto rickshaw to a road side tree and in the said accident, the claimant suffered injuries as shown in the wound certificate. After the accident, she was shifted to Government Hospital, Kanakapura for treatment and thereafter, she was shifted to B.G.S Hospital, Bengaluru.
3. Respondent Nos.1 and 2 appeared on service of summons and filed their objections.
4. The respondent No.2-Insurance Company contended that the auto rickshaw was not at all involved in the alleged accident and the claimant has falsely implicated the said vehicle. It is also further contended that as on the date of the accident, the driver of the auto rickshaw was not possessing the valid and effective driving licence.
5. Based on the pleadings, the Tribunal framed an issue as to whether the petitioner proves that as on 08.06.2011 at about 8.00 p.m., the claimant sustained injuries due to the actionable negligent act on the part of the driver of the auto rickshaw bearing Registration No.KA-42-6200. The Tribunal answered the said issue in the negative and dismissed the claim petition. Hence, the claimant is before this Court in this appeal.
6. Heard the learned counsel for the appellant and the learned counsel for respondent No.2- Insurance Company. Perused the records.
7. The learned counsel for the appellant would submit that the Tribunal committed an error in rejecting the claim petition. It is the contention of the learned counsel that five days delay in filing the complaint cannot be considered as fatal to the case of the appellant. The claimant proved the accident and the accidental injuries by producing Exs.P1 to P4 and the finding of the Tribunal is erroneous. It is stated that the Ex.P.4 -IMV report shows that the auto rickshaw was involved in the accident. Hence, he prayed for allowing the claim petition.
8. Learned counsel for respondent No.2- Insurance Company would submit that the accident had taken place between the auto rickshaw and police jeep. The husband of the claimant was Police Constable, as such, the claimant stated that the auto rickshaw dashed against the road side tree while avoiding police jeep but, in fact police jeep had dashed the auto rickshaw. He further submitted that in the cross-examination, the claimant has admitted that the police jeep dashed the auto rickshaw. Thus, he prayed for dismissal of the appeal.
9. Having heard learned counsel for both the parties and on perusal of the judgment and award including the lower court records, I am of the view that the Tribunal is justified in dismissing the claim petition for the following reasons:-
The claimant approached the Tribunal with a specific case that on 08.06.2011, when she was travelling with her husband in an auto rickshaw bearing Registration No.KA-42-6200 from Sathnur to Honiganahalli, the driver of the auto rickshaw drove in a rash and negligent manner and while avoiding police jeep, he dashed the auto rickshaw to a road side tree in which, the claimant suffered injuries. The accident had taken place according to the claimant on 08.06.2011. The police complaint was lodged on 13.06.2011. There is five clear days delay in lodging the FIR. The complaint was lodged by the husband of the claimant-Thimmanna, who was working as Head Constable, Rajarajeshwarinagar Police Station, Bengaluru. As per the complaint, while he was travelling with the claimant, she sustained injuries. Ex.P3-Panchanama is drawn on 14.06.2011. The IMV report as per Ex.P.4 notes the damage caused to the auto rickshaw. Charge sheet was filed against the driver of the auto rickshaw.
It is interesting to note the evidence of the claimant/appellant, who has deposed in her cross-examination as follows:-
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10. The above evidence of the claimant would make it clear that the police jeep came from the opposite side and dashed against the auto rickshaw and in the said accident, the claimant suffered injuries. The explanation for delay in lodging the complaint is that after discharge of the claimant, the claimant’s husband lodged a complaint to the police. The appellant has not proved that the accident occurred due to the sole negligence of the driver of the auto rickshaw. The claimant has not made impleaded the driver of the jeep, said to have been dashed against the auto rickshaw. The case in the claim petition is totally different from what she deposed before the Tribunal. The Tribunal, by its detailed discussion on issue No.1, has rightly answered the same in negative.
11. For the reasons stated above and on going through the entire records, I am of the view that the claimant has not made out any grounds to interfere with the judgment passed by the Tribunal.
Accordingly, the appeal is dismissed.
Sd/- JUDGE SJK