IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT M.F.A.No.8737/2013 [MV] BETWEEN:
SMT. GOVINDAMMA AGED ABOUT 44 YEARS W/O CHINNARAJU NO.289, CHEEMASANDRA BANGALORE EAST TALUK BANGALORE 560036.
...APPELLANT (BY SRI. SHIVANANDA REDDY R V, ADV.) AND:
1. THE MANAGER BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LTD., NO.31, GROUND FLOOR TBR TOWER, NEW MISSION ROAD ADJACENT JAIN COLLEGE BANGALORE- 560025.
2. SHANKAR SINGH S/O PUTTASINGH NO.321, 6TH "A" CROSS 7TH MAIN ROAD RPC LAYOUT VIJAYANAGAR, 2ND STAGE BANGALORE -560040.
3. HANUMACHAND BOTHRA NO. 17/3, 1ST FLOOR CAMBRIDGE ROAD HALASOOR BANGALORE-560 008.
4. S. SARATHI S/O SUBRAMANI NO.31, 3RD "D" CROSS MANJUNATHANAGAR BANGALORE- 560 010.
(BY SRI. O MAHESH, ADV. FOR R1 R2- SERVICE H/S V/O DT:12.10.2017 …RESPONDENTS R3 & R4- NOTICE D/W V/O DT:14.09.2015) THIS M.F.A. FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 19.12.2012 PASSED IN MVC NO.7477/2009 ON THE FILE OF THE I ADDITIONAL SMALL CAUSE JUDGE & XXVII ACMM, MACT, DISMISSING THE CLAIM PETITION FOR COMPENSATION.
THIS M.F.A. COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The claimant is in appeal, being aggrieved by dismissal of the claim petition under the judgment and award dated 19.12.2012 passed in MVC No.7477/2009 on the file of the Motor Accident Claims Tribunal, Bangalore (hereinafter referred to as 'the Tribunal' for short).
2. The claim petition was filed under Section 166 of the Motor Vehicles Act, claiming compensation for the accidental injuries suffered in a road traffic accident. It is stated that on 10.06.2008, when the claimant was crossing the road on Bangalore-Kolar road, an auto rickshaw bearing registration No.KA-02/C-1924 came in a rash and negligent manner and dashed to the claimant causing the accident. In which, the claimant sustained multiple fractured injuries.
3. On service of notice, respondents 1 and 2 appeared before the Tribunal and respondents 3 and 4 remained absent. Respondent No.1/insurer filed statement denying all the allegations and claim petition averments. It is also stated that no accident was caused to the claimant with the offending auto rickshaw, but, colluding with the owner of the auto rickshaw the claimant has managed to file a false case against the second respondent/driver. The second respondent filed his statement denying the allegations and the claim made by the claimant. The second respondent also contended that the auto rickshaw of respondent No.2 is not involved in the alleged accident.
4. Based on the pleadings of the parties, the Tribunal framed the following issues:
(i) Whether the petitioner proves that on 10.06.2008 at about 8.15 p.m., near Plastic Factory, Bangalore-Kolar NH-4 Road, Hoskote Police Jurisdiction, petitioner had met with an accident due to rash or negligent driving of the vehicle bearing Regn. No.KA-02/C-1924 by its driver and sustained injuries as averred?
(ii) Whether the petitioner is entitled for compensation? If so what amount and from whom?
(iii) What order?
5. The claimant examined herself as P.W.1 and also examined the Medical Officer as P.W.2, apart from marking the documents as Ex.P1 to Ex.P16. On behalf of the respondents, R.W.1 and R.W.2 were examined, but no documents were marked.
6. The Tribunal based on the material available on record, answered issue No.1 in the negative and dismissed the claim petition. Aggrieved by the said judgment, the claimant is before this Court in this appeal.
7. Heard the learned counsel for the appellant and learned counsel for the respondent/insurer. Perused the Lower Court Records.
8. Learned counsel for the appellant would submit that the Tribunal committed an error in dismissing the claim petition on the ground that there is delay in lodging the complaint as also on the ground that the auto rickshaw in question is not involved in the accident. He submits that the Tribunal failed to appreciate the material on record, both oral and documentary. He submits that P.W.1 has clearly stated that, when she was crossing N.H.4 road, the auto rickshaw bearing registration No.KA-02/C-1924 came and dashed to her. Further, she relies upon medical records and Ex.P6-complaint filed by one Mahesh stating that while the claimant was crossing the road, the auto rickshaw bearing registration No.KA-02/C- 1924 came in a rash and negligent manner and dashed her. Learned counsel submits that the complainant had explained the delay for lodging the complaint stating that he was along with the claimant in the hospital and he could not immediately lodge the complaint. Learned counsel for the appellant also refers to Ex.P16-Case sheets of Hosmat Hospital wherein it is recorded that the claimant went to the hospital with the history of road traffic accident by three wheeler. It is his submission that the Tribunal without considering those documents, only based on the evidence of R.W.1/driver of the auto rickshaw dismissed the claim petition, which is wholly perverse and erroneous. Thus, prays for allowing the appeal.
9. Per contra, learned counsel for the respondent/insurer submits that the insured had specifically contended in his statement of objections that the auto rickshaw in question is not involved in the accident and the claimant only with an intention to make unlawful gain has filed false complaint and false claim before the Tribunal. He submits that the accident said to have taken place on 10.06.2008 and the complaint was lodged on 15.06.2008 that too by a 3rd person. Neither the claimant nor her husband have lodged the complaint. The reasons assigned by the complainant for delay in lodging the complaint cannot be believed since in Ex.P6-wound certificate, it is noted that the claimant was accompanied by one C.Raju to the Hosmat hospital and not by the complainant- Mahesh. Learned counsel for the insurer refers to cross-examination portion of R.W.1. The complainant who admits that he was not at the spot on the date of mahazar and states that he had signed the mahazar in the Police Station. The facts and circumstances of the case would clearly indicate that the auto rickshaw is not involved in the accident and the complaint is totally false. Thus, he prays for dismissal of the appeal.
10. Having heard the learned counsel for the parties and on perusal of the material on record, the only point which falls for consideration is as to “whether the Tribunal is justified in dismissing the claim petition?”
11. Answer to the above point would be in the affirmative for the following reasons:
The claimant being the wife of Chinnaraju, filed the claim petition alleging that on 10.06.2008, when she was crossing the road on Bangalore-Kolar Road, an auto rickshaw bearing registration No.KA-02/C-1924 came in a high speed and in a rash and negligent manner and dashed to her. Due to which, she sustained multiple fractured injuries. The complaint-Ex.P6 was filed by one Mahesh on 15.06.2008. In the complaint, he states the reason for delay in lodging the complaint was that he was along with the claimant in the hospital. But, the complainant Sri.Mahesh is a 3rd party and he is in no way related or concerned to the claimant. In his evidence, he states that he is a businessman doing water business. In his cross examination, he denied the suggestion that he knows the claimant as well as her husband. Further, in his cross examination he has stated as follows:
“£Á£ÀÄ ¦gÁå¢ PÉÆqÀĪÀ ¸ÀªÀÄAiÀÄzÀ°è £ÁªÉà C¥ÀWÁvÀªÁzÀ ¸ÀܼÀzÀ°è ¸ÀzÀj DmÉÆêÀ£ÀÄß ¤°è¹zÉݪÀÅ JAzÀgÉ ¸ÀjAiÀÄ®è, 5 ¢£ÀzÀµÀÄÖ ¸ÀªÀÄAiÀÄ C¥ÀWÁvÀ ¸ÀܼÀzÀ°è ©qÀĪÀÅ¢®è JAzÀgÉ ¸ÀjAiÀÄ®è, ¸ÀܼÀ ªÀĺÀdgï vÀAiÀiÁj¸ÀĪÀ ¸ÀAzÀ¨sÀðzÀ°è £Á£ÀÄ ºÁdjgÀ°®è, ªÀĺÀdgï ¸ÀªÀÄAiÀÄzÀ°è ¸ÀzÀj DmÉÆêÀ£ÀÄß ¤jÃQë¹zÀgÉÆà E®èªÉÇà UÉÆwÛ®è, ªÀĺÀdgï£ÀÄß J°è vÀAiÀiÁj¹zÀgÀÄ JAzÀÄ UÉÆwÛ®è, ¤¦8 ªÀĺÀdgï£À°ègÀĪÀ ¸À» £À£ÀßzÉà DVgÀÄvÀÛzÉ. ¤¦8 ªÀĺÀdgï£À°è £À£Àß ¸À»AiÀÄ£ÀÄß oÁuÉAiÀÄ°è ¥ÀqÉzÀgÀÄ. F ¸ÀA¥ÀÆtð ¥ÀæPÀgÀtªÀ£ÀÄß £Á£ÀÄ CfðzÁgÀgÀÄ, CfðzÁgÀgÀ UÀAqÀ, DmÉÆÃzÀ ZÁ®PÀ/ªÀiÁ°ÃPÀ ¸ÉÃj ¸ÀļÁîV zÁR°¸À¯ÁVzÉ JAzÀgÉ ¸ÀjAiÀÄ®è, CfðzÁgÀjUÉ DzÀ UÁAiÀÄUÀ½UÀÆ ¸ÀzÀj DmÉÆÃUÀÆ AiÀiÁªÀÅzÉà ¸ÀA§AzsÀ E®è JAzÀgÉ ¸ÀjAiÀÄ®è.”
12. Admittedly, the complainant/Mahesh is a signatory to Ex.P8-Mahazar. In the cross-examination he admits his signature on Ex.P8. But he states that he was not at the spot on the day of mahazar and also he signed the mahazar in the Police Station. Ex.P9 is the wound certificate which indicates that the claimant was accompanied by Chinna Raju, husband of the claimant to Hosmat hospital on 10.06.2008. But, in the complaint-Ex.P6, the complainant states that he had taken the claimant to the hospital and he was getting treatment to the claimant.
13. The accident had taken place on 10.06.2008 and admittedly the complaint was lodged on 15.06.2008. No satisfactory reasons are assigned for the delay of 5 days in filing the complaint by the husband or anybody from claimant’s family. When the insurer as well as respondent No.2/driver of the offending auto rickshaw have taken a specific stand that the auto rickshaw is not involved in the accident, the evidence of R.W.1 and Ex.P8-Mahazar, Ex.P9/wound certificate and Ex.P6- complaint would be relevant. From the circumstances and the evidence of R.W.1, coupled with Ex.P6, P8 and P9, it is crystal clear that the auto rickshaw was not involved in the accident. The Tribunal based on the material on record and 0considering the evidence of R.W.1 has rightly rejected the claim petition. The judgment of the Tribunal is neither perverse nor erroneous so as to warrant interference with the same. Accordingly, the appeal is dismissed.
Sd/-
JUDGE mpk/-* CT:bms