IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1ST DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR. JUSTICE BELLUNKE A.S.
MISCELLANEOUS FIRST APPEAL NO.3264 OF 2012 (MV) BETWEEN:
THE BRANCH MANAGER M/S. ICICI LOMBARD GENERAL INSURANCE COMPANY LTD., 1ST FLOOR, NO.62/1, PRESTIGE CORNICHE, RICHMOND ROAD, BANGALORE – 560 025, REPRESENTED BY ITS MANAGER, M/S. ICICI LOMBARD GENERAL INSURANCE COMPANY LTD., REGIONAL OFFICE, NO.89, SVR COMPELX, 2ND FLOOR, MADIVALA, HOSUR MAIN ROAD, BANGALORE – 68, REPRESENTED BY ITS MANAGER.
... APPELLANT (BY SRI H.N. KESHAVA PRASHANTH, ADVOCATE) AND:
1. SMT. JAYAMMA W/O. LATE LAKSHMAIAH @ LAKSHMANAPPA, AGED ABOUT 55 YEARS, C/O. KANTHARAJ, NO.1709, 5TH CROSS, 5TH STAGE, 1ST PHASE, BEML LAYOUT, R.R. NAGAR, BANGALORE – 560 098.
2. MR. MANOHAR S.
PROP. M/S. SANDHYA TOURS AND TRAVELS, NO.9, NEAR PETROL BUNK, CHANDAPURA ROAD, ANEKAL, BANGALORE – 562 106.
... RESPONDENTS (BY SRI T.N. VISWANATHA, ADVOCATE, FOR R-1;
R-2: NOTICE IS DEEMED TO BE COMPLETE VIDE COURT ORDER DATED 31-8-2017) * * * THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED 15-10-2011 PASSED IN M.V.C. NO.9163 OF 2009 ON THE FILE OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, COURT OF SMALL CAUSES, BENGALURU, AWARDING A COMPENSATION OF RS.85,000/- WITH INTEREST @ 6% PER ANNUM FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.
THIS MISCELLANEOUS FIRST APPEAL IS COMING ON FOR FINAL HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
J U D G M E N T This appeal is filed by the appellant-insurance company against the judgment and award dated 15-10-2011 passed in M.V.C. No.9163 of 2009 by the Motor Accident Claims Tribunal, Court of Small Causes, Bengaluru (hereinafter referred to as ‘Tribunal’, for the sake of convenience).
2. The brief facts of the case are that, respondent No.1-claimant filed a claim petition before the Tribunal claiming compensation for the injuries sustained by her in a road traffic accident that occurred on 16-5-2009 at about 3:30 p.m. It is alleged that on the date of the accident, she was traveling as a passenger in a private bus bearing Registration No.KA-51/3372 at Koratagere main road towards Bengaluru, and when the said bus reached near Shettarapalya Bridge, Undigeri Hobli, Tumakuru, the driver of the bus driven the same in a rash and negligent manner and on account of over speed, the driver of the bus lost the control over the vehicle and the bus turned turtle. Due to the impact, herself and other in-mates of the bus sustained injuries. The petitioner took treatment at Tumakuru Hospital and later at E.S.I. Hospital, Bengaluru. She has spent sufficient money for treatment. She has suffered disability and discomforts, etc. Therefore, she filed the claim petition claiming compensation on various heads.
3. In pursuance of the notice issued by the Tribunal, respondent No.2-owner of the offending vehicle remained ex-parte and respondent No.1-insurance company appeared through its counsel and filed written statement and denied the averments made in the petition. It is contended that driver of the bus did not possess a valid and effective driving license at the time of the accident. However, admitted the issuance of the insurance policy in respect of the offending vehicle and its validity as on the date of the accident. Further, contended that liability, if any, is subject to the terms and conditions of the insurance policy. In the chief- examination, the Legal Manager of the insurance company was examined as R.W.1 and he has contended that the petitioner has to prove that she was traveling in the bus bearing Registration No.KA-51/3772 on the date of the accident. She was not at all traveling in the said bus and her name does not reflect either in the F.I.R. or in the list of witnesses mentioned in the charge-sheet filed against the driver of the bus. The age and income of the petitioner has been denied. Alternatively, he contended that the petitioner is not entitled for any compensation. Liability on the insurance company has to be exonerated. The provisions of the Motor Vehicles Act have not been complied. Hence, prayed to dismiss the claim petition.
4. Based on the rival pleadings, the Tribunal framed the following issues for its consideration:
i. Whether the petitioner proves that she met with an RTA that occurred on 16-5-2009 at about 3.30 p.m. near Shettarapalya bridge, Undigere hobli, Dabaspet Koratagere main road, Tumkur and sustained injuries due to rash or negligent driving of bus bearing No.KA-51-3772?
ii. Whether the petitioner is entitled for compensation? If so, at what amount and from whom?
iii. What order?
5. After holding the trial, the Tribunal answered issue No.1 in the affirmative and granted a compensation of Rs.85,000/- with interest at the rate of 6% per annum to the petitioner.
6. Learned counsel for the appellant-insurance company submitted that the petitioner had filed the claim petition to make a wrongful gain. That the petitioner was not at all traveling in the bus, therefore, it is a false statement. He relied on the fact that the name of the petitioner was not mentioned either in the F.I.R. or in the list of witnesses mentioned in the charge-sheet that was filed against the driver of the bus. Therefore, he prayed to allow the appeal.
7. Learned counsel for respondent No.1-claimant submitted that there were number of passengers traveling in the bus. Many matters have been settled by the insurance company and compensation have been paid to them. The claimant has examined the conductor of the bus, who has deposed that the claimant and other passengers were traveling in the bus on the date of the accident. Further, the driver of the bus has not been examined. In view of the settlement of claim of other injured passengers of the bus, learned counsel has contended that the appellant cannot challenge the judgment and award passed by the Tribunal. Hence, prayed for dismissal of the appeal.
8. Having heard the learned counsel for the respective parties at length, the following point would arise for consideration:
i. Whether the petitioner was traveling in the bus bearing No.KA-51-3772 as on the date of the accident dated 16/05/2009, happened at Shettarapalya Bridge, Undigeri Hobli, Dabaspet, Koratagere main road, Tumkur and thereby had sustained injuries?
9. It is important to note that immediately after the accident, the petitioner had taken treatment in the District Hospital at Tumakuru and thereafter, she was shifted to E.S.I Hospital, Bengaluru, and took treatment as an in-patient from 17-5-2009 to 11-6-2009. In support of her contention, she has produced Discharge summary-Ex.P.6 and Wound Certificate-Ex.P.7. The injuries mentioned in Ex.P.7 are tenderness present over chest, tenderness present over right foot and fracture tibia right.
10. Learned counsel for the appellant submitted that there is overwriting in Ex.P.7 as ‘road traffic’ accident. This fact has to be clarified by the Doctor, who has issued a Wound Certificate. It cannot be said that on the same date and time, the petitioner sustained injuries in some other manner and used that incident to claim compensation. Having regard to the fact that the petitioner is illiterate lady that cannot be expected.
11. P.W.2, who has been examined by the petitioner, was the conductor of the bus, which met with an accident. Since he was also injured in the same accident, he filed claim petition and his case was settled before the Lok-Adalat. He has categorically stated that the petitioner, Pallavi, Siddagangamma and other passengers were traveling in the bus on the date of the accident. Merely because the petitioner’s name was not reflected in the F.I.R. or in the list of witnesses mentioned in the charge-sheet filed against the driver of the bus, it cannot be a ground to discard the evidence of the petitioner. Even P.W.3-Dr. Balaji P., who treated the petitioner, has stated that he examined the petitioner on 17-5-2009, who came with the history of road traffic accident on 16-5-2009 and the petitioner had sustained injury to right leg and on examination radiograph records fracture right tibia and she was previously treated at Tumakuru General Hospital and operated on 1-6-2009 where interlocking intra modularly nailing was done. He has further stated that petitioner was given antibiotics, analgesics and discharged on 11-6-2009. She was attending E.S.I. Hospital OPD regularly. When a bus carrying number of passengers meets with an accident, then many passengers would be injured and the Investigating Officer has to find out and mention their names as witnesses in the charge- sheet. Seriously injured persons, who are admitted in the Hospital, would be examined.
12. Moreover, on the very same day of the accident, after taking treatment in Tumakuru Hospital, she has come to E.S.I. Hospital, Bengaluru. Therefore, that might be the reason for the Investigating Officer for not recording her statement and not mentioning her name in the list of witnesses in the charge-sheet. There is no provision in the Motor Vehicles Act that the name of the injured must be reflected in the charge-sheet. Any one of the passengers or driver or conductor of the bus can set the law into motion. In fact, it is the duty of the driver to report the accident. In the case on hand, the driver of the said bus ran away from the spot of the accident. Hence, for the aforesaid facts and circumstances of the case and evidence on record, I find that the petitioner cannot be said that she was not traveling in the bus on the date of the accident. On the other hand, evidence on record goes to show that she was one of the passengers traveling in the said bus.
13. Regarding quantum of compensation is concerned, the insurance company has settled similar matter before the Lok-Adalat. Learned counsel submitted that because of non-mentioning the name of the petitioner as one of the witnesses in the charge-sheet, the petitioner alone contested the matter. Taking into consideration the facts and circumstances of the case, the Tribunal has rightly come to the conclusion that the petitioner has suffered injuries in the road traffic accident and has rightly assessed the compensation. Hence, for the aforesaid reasons, point No.1 is answered in the affirmative and the appeal filed by the appellant-insurance company is dismissed.
14. Amount in deposit, if any, shall be transmitted to the Tribunal, forthwith.
15. Registry is directed to send back the record along with a copy of the judgment to the concerned Tribunal.
No costs.
(Sd/-) JUDGE kvk